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University

of Wisconsin

Law School Forum

L Number 1.

Volume XVII

Adventures of a Green Dean in Green Pastures

Summer 1986

Dean Cliff R Thompson

Nathan P. Ieinsinger and the Origins of Alternate Dispute Resolution 3 William G. Moore

Judicial Activismin India

Chief justice P.N. Bhagwati

The Evolution of Skills Training

Stuart G. Gullickson

A Visit with the Doyles

Paul Reidinger

Notes on Alums

Faculty Briefs

Editor's Note

Cover: Statue of Lincoln at Bascom Hall.

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

USPS 768-300

Adventures of a Green Dean in Green Pastures

Dean Cliff F. Thompson nthe photo are Sara and Mark Weier, who share chores in running the Weier-Nook Farm near Dodgeville. They were among the hundreds of Wisconsin citizens who helped educate UW-Madison faculty this past summer. I was among the lucky learners. A busload of us rolled around the state for five days, visiting people in their farms and factories, and listening to their experiences and dreams. We were on the "Wisconsin Idea Seminar," made possible by a grant from the Evjue Foundation. New faculty from many departments, and a couple of only slightly used faculty like myself, had the opportunity to see first-hand how the walls of the University are as great as the state itself. Many universities with an international reputation have few ties with their local communities. Some, like the University of Wisconsin-Madison, are renowned both at home and abroad. But I know of no university with a history and commitment to equal this University's special dedication to serve the community which supports it. One of our teachers was the venerable John Patrick Hunter of the Capital Times, who apologized to me one morning for referring to me as the "new dean" in his first press report on our progress, whereas he now realized I was completing my third year. I assured him that my colleagues and law alums regarded me as new, that Agriculture Dean Walsh had told me that I should expect to be introduced as a new dean for at least four years, and that, anyway, if he thought I was new, that was proof enough. It is true that I had already traveled to many of the areas on our tour, and had begun to get a good sense of

law practice around the state. But I had only a remote understanding of the past fortunes and current lives of the people served by Wisconsin's legal profession. This seminar was intense, complete with assigned readings, and lectures at meals and on the bus to prepare us for our stops. We were on duty at least 12 hours a day. If that sounds onerous, I should add that we also managed to add a few hours every day for spirited relaxation, easy enough in the company of bright and engaging companions. Although we didn't believe the dark hints that there would be a final exam, I dutifully took notes, and I have enjoyed the freshness of the memories stirred by reading them. I suppose everyone on the tour has favorite recollections. Mine, in addition to the Weier's dairy farm, include: high tech at Silicon Sensors; Truman Lowe of the Winnebago describing the nuances of green in the emerging summer foliage; the combination of old fashioned service and modern science at the Marshfield Clinic; the complicated integration of product use at Green Bay Packaging Co.; and the keenness of students at Milwaukee Trade and Technical High School, where theory and hands-on experience combine. My own enthusiasm for the seminar certainly arises because we were given vivid experiences in subjects about which we had read. None of us thought we had become instantly wise in the ways of Wisconsin. But we emerged a little less green, and considerably more appreciative of the bonds between our University and the State.

Nathan P. Feinsinger and the rigins of Alternate Dispute Resolution William G. Moore With litigation costs skyrocketing, and the courts increasingly overburdened, a search has begun for practical alternatives to standard dispute resolution. Mediation and arbitration, methods in the past confined to the handling of disputes between labor and management, are now being recognized as potential vehicles to the resolution of conflicts outside of the labor sphere. Loosely grouped under the title A.D.R.Alternate Dispute Resolution-these options may offer swifter and more private settlement of conflicts between parties. More and more, law schools are beginning to offer classes in A.D.R. Harvard, for example, recently offered an optional seminar in negotiation. And Hofstra Law School now claims that it did "much of the pioneering work in the field." But at the University of Wisconsin Law School, Professor Nathan P Feinsinger had expressed ideas about A.D.R. as early as 1960.

And in 1966, the Law School curriculum boasted a course called "Methods of Disputes Settlement," instructed by Feinsinger: With colleague Eleanore Roe, Feinsinger also established in 1967 the Dispute Resolution Center at the Law School. There, "techniques were studied for application to all kinds of disputes." The Center's key concept was that "lessons learned in the specific area of labor relations should be capable of some transference to other problem fields." Feinsinger died in 1983, but not before his effort to "re-examine the techniques of arbitration and mediation in light of future and present-day needs" brought him broad acclaim. At the Law School the efforts begun by him have continued and have been expanded. And, more broadly, his notion

that arbitration and mediation might be applied to non-labor areas of law is now beginning to be recognized as an idea whose time has come. The article below traces Feinsinger's career and the history of his ideas on A.D.R. For the UW Law School, the 1920's and 1930's were important years during which a course and a vision for the future of law and legal education were forged. Promoted was a brand of legal education designed to reach out to help society-the concepts of "law in action" and the Wisconsin Idea. Under the auspices of Dean Harry Richards, and through close contact with Professors John Commons, Selig Perlman and Edwin Witte of the economics department, work in this direction began in 1924with a seminar in collective bargaining, taught by Law Professor William Rice. It was "one of the first such courses in the nation."

Other law faculty members with different interests and specialties pursued similar tacks in linking law to broad societal concerns. Nathan P. Feinsinger was among these. He joined the Law School faculty in 1929, after a year as Visiting Professor of Socio-Legal Research at Columbia University. His work had already begun to take a functional approach to law: he characterized his year at Columbia as research on "how a law that has passed by the legislature and been tested in the courts actually works out in practice." Feinsinger came to UW Law school with initial specialties in family law, domestic law and bills and notes. He began as an instructor of domestic relations and insurance law, and also taught a course for the business school. He was, however, shortly to switch fields and emerge as a leading labor lawyer. When Bill Rice was called to Geneva for a meeting of the Internatiolnal Labor

4 Organization in 1935, Dean Lloyd Garrison called on Feinsinger to substitute. It was Feinsinger 's teaching of Rice's course that got him into labor law. Feinsinger had had little experience in labor law. "I hadn't even had the course, much less taught it," he said in a interview in the late '70's. "All I learned about labor law at Law School I learned in a course on equity!' He learned as he taught. And substituting for Rice put him in the position of adviser whether he liked it or not. When Gov. Philip La Follette sought mediators under the state's "little Wagner" act to settle the burgeoning number of labor disputes, he turned to Feinsinger, whose "outstanding legal abilities" more than made up for his lack of labor experience. And from 1937-39 Feinsinger served as general counsel to the State Labor Board and special assistant to the State Attorney General. His first case came in 1941in Minneapolis at the Honeywell Corporation. u.w. Economics Professor Edward Witte was called up to mediate, but was unable to do so because of a prior commitment. Feinsinger took on the case and handled it successfully. From there he won wide renown as a skillful mediator. During the war years he served on the National Defense Mediation Board; from 1951through 1953 he

Eleanor Roe, Robben Fleming and Nathan Feinsinger

was chairman of the National Wage Stabilization Board. Feinsinger, then, had quickly established himself as "one of the superstars of the mediation and arbitration field." He later became permanent arbitrator in labor disputes between General Motors and the United Auto Workers (1954-68). and helped to engineer scores of successful settlements including the New York City Transit Strike of 1966, and the Detroit Newspaper strike of 1967-68.

The Human Factor U.W.Law Professor Arlen Christenson, who specializes in arbitration, remembers having Feinsinger as a professor in 1958 and 1959.

Feinsinger was an early believer that mediation and arbitration techniques need not be confined to use in labor disputes.

"As long as I can remember:' Christenson said, "Feinsinger had been asking himself and his students whether mediation and arbitration techniques were transferable:' that is, applicable to other areas of law. Feinsinger was an early believer that mediation and arbitration techniques need not be confined to use in labor disputes. Perhaps it was his recognition of the human factor in labor and mangement disputes that convinced him of this. "The only way to settle labor-management problems is to treat them as human problems," he said. "Eventually each of the parties will discover that the other fellow doesn't have horns." Feinsinger shortly had an opportunity to exercise his mediation skills in a nonlabor dispute. In 1966, he "calmed hot tempers in the racial struggle between the whitesonly Eagles Club and the Milwaukee Youth Council of the NAACP,spearheaded by Father James Groppi," Later, Feinsinger noted that "there is hardly a controversy mentionableincluding the one in Vietnam-that cannot be mediated." This conviction-that the "techniques used to settle labor disputes could be applied to virtually any type of social problem"-led him and a colleague, Professor Eleanore Roe, to form the Law School's Center for Teaching and Research in Disputes Settlement in 1967.

"[Tjhere is hardly a controversy mentionable-including the one in Vietnam-that cannot be mediated:' The Center was established at UW with the financial support of labor and industry and the" cooperation of other universities and colleges." Through seminars and research, it sought to "discern ways to better mediate in various areas of human relations." Though the concept was new, "Feinsinger's extensive experience as arbitrator, fact finder and mediator provided ample subject matter for the seminar." The first seminar, in fact, was offered before the Center was fully functioning, in the fall of 1966: Methods of Disputes Settlement: This seminar consists of a study of "voluntary" methods of disputes settlement including mediation as contrasted with settlement imposed by military force, economic force, compulsory arbitration and the like. Students undertake a research project which attempts (a) to define the techniques of mediation and the attributes of a good mediator, (b) to determine whether those techniques and attributes can be taught, and [c] to determine whether mediation proved to be successful in one area of conflict such as labor-management disputes, can be transferred to other areas such as civil rights, international disputes, etc.

Seminal Role Recognized In October of 1969, the Center sponsored a Conference on Studies in Disputes Settlement. The conference sought to explore "what other organizations and institutions-public or private, academic or otherwise-have and active interest in disputes settlement, and to exchange helpful and relevant information among those interested." Transferability of mediation techniques emerged as a key theme of the conference.

And Feinsinger's "great contribution to the development of mediation, arbitration and conciliation techniques in the settlement of labor management controversies" met with great praise. So did his effort to "re-examine these techniques in light of present-day needs in this and all areas of conflict." Feinsinger retired in 1973 after 43 years of teaching. Until 1977, however, he continued to direct the Center for Teaching and Research in Disputes Settlement with Eleanore Roe. He died in 1983 at the age of 81. For a brief time after Feinsinger's death, the center was run by Emeritus Professor Abner Brodie. Brodie had joined the faculty in 1950, and had worked with Feinsinger as an associate General Motors-United Auto Workers umpire. Brodie later succeeded him as umpire. He took on emeritus status in 1976. Since 1977, disputes settlement research and teaching has flourished at the Law School. Through the work of the Disputes Processing Research Program, part of the Law School's Institute for Legal Studies, "empirically-grounded theory about conflict resolution is developed through research and intellectual exchange." The DPRP emerged from the "tradition of interdisciplinary research on disputing" of which Feinsinger's pioneering work was also a part.

Ground Breaker When Nathan Feinsinger recognized the potential for expansion of mediation and arbitration uses, the idea was a novel one. And his "Methods of Disputes" Seminar, and the Center for Teaching and Research in Disputes Settlement were important beginnings to the emerging options to slow, costly, and sometimes excrutiating litigation. A.D.R. today, still in its infant stages, has a promising future. And a substantial beginning to that future was made by Feinsinger's ground-breaking work.

Prof. Marc Galanter

Judicial Activism in India Chief Justice P.N. Bhagwati Last fall the Law School was honored by a visit (rom Indian Chiefjustice Praiullachand Natwarlal Bhagwati. Justice Bhagwati came as the guest of Prof Marc Galanter, himself an expert on Indian law and a consultant to the Indian government in the Bhopal disaster. Bhagwati is the 17th chief justice of the Indian Supreme court, and follows his father as a justice of that court. India Today called Bhagwati, '~conscious disciple of Felix Frankfurter, Learned Hand and the whole galaxy of activist judges who helped fight color bar and segregation laws in the US. during the 30's." In this article, adapted (rom a speech he gave while here, Justice Bhagwati discusses his concept of judicial activism, with its implications for this country as well as India.

I have the privilege to speak to you on the subject of judicial activism in India. This subject is very fascinating and its dimensions are so large that it is not possible to cover them within the short time that is available to me. But I shall try to place a few aspects of it before you to demonstrate how through activism we in India have developed our human rights jurisprudence and brought help and succor to the masses of people in the country. Let me first of all make clear what I mean by judicial activism and why judicial activism is necessary in a country like India. One basic and fundamental question that confronts every democracy, run by a rule of law is, what is the role or function of a judge. Is it the function of a judge merely to declare law as it exists-or to make law? And this question is very important, for on it depends the scope of judicial activism. The anglo-saxon tradition persists in the assertion that a judge does not make law; he merely interprets. Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the photographic theory of the judicial function. It

has long held the field in England and its most vigorous exposition is to be found in a speech made by Lord Chancellor Jowett at the Australian Law Convention where he said, "The function of a judge is merely to find the law as it is. The lawmaking function does not belong to him, it belongs to the legislature." This judicial view, I'm afraid, hides the truth of the judicial process. This theory has been evolved in order to insulate judges against vulnerability to public criticism and to preserve their image of neutrality, which is regarded as necessary for enhancing their credibility. It also helps judges to escape accountability for what they decide. They can plead helplessness by saying that it is a law made by the legislature and they have no choice but to give effect to it. The tradition of the law and the craft of jurisprudence offers such judges plenty of dignified exits from the agony of self-conscious wielding of power. And hence the incredibly persistent attempt on the part of lawyers and judges to convince the people about the truth of the lie that judges do not make law. There can be no doubt that judges do take part in the law making process,

And even some judges have now openly avowed their creative role. Lord Reid, a great English judge said, "There was a time when it was thought almost indecent to suggest that judges make law; they only declare it. Those with a taste for fairy tales seem to think that in some Aladdin's cave there is hidden a common law in all its splendor and that on a judge's appointment there descends on him knowledge of the magic words,

It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. 'Open Sesame'. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales anymore." Lord Reid considered that in a democratic society the legitimacy of judicial lawmaking had to be faced. He did not

7 agree with Lord Radcliff's solution of publicly denying one's creativity while privately exercising it-what he called the facade approach. He asserted in a famous address, "We must accept the fact that for better or worse judges do make law and tackle the question how do they approach the task and how should they approach it." Lord Denning also remonstrated that judges cannot afford to be timorous souls. They cannot remain impotent, incapable and sterile in the face of injustice. The same view, I believe has prevailed in your country where a frank and ruthless analysis of the judicial function and its lawmaking potential have been acknowledged and recognized. It is no doubt true that a judge has to interpret the law according to the words used by the legislature. But as pointed out by Justice Holmes, a word is not a

The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society. crystal, transparent and unchanged. It is a skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. Plato posed the problem 2,000 years ago: Is it more advantageous to be subject to the best men or the best laws? He answers by saying that laws are by definition general rules and generality falters before complexities of life. Laws' generality and rigidity are at best a makeshift, far inferior to the discretion of the philosopher king whose pure wisdom will render real justice by giving each man his due. Aristotle was, however, in favor of the rule of the law. He said, "He who bids the law's rule bids God and reason rule, but he who bids man's rule adds the element of the beast, for desire is a wild beast and passion perverts the minds of rulers even though they be the best of men." Yet Aristotle and Plato knew that law cannot anticipate the endless permutations of circumstance and situation. There is bound to be a gap between the generalities of law and the specifics of life. This gap in our system of administration of justice is filled by the judge. In entrusting this task to the judge we have synthesized the wisdom of Plato and Aristotle. It is here that the judge takes

part in the process of lawmaking. Lawmaking is an inherent and inevitable part of the judicial process. The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society. By thus making and molding the law he takes part in the work of creation. The judge is not a mimic. Greatness of the bench lies in creativity. It is for this reason that when a law comes before a judge he has to invest it with meaning and content. There are cases where a decision one way or the other will count for the future, will advance or retard sometimes much, sometimes little, the development of the law in a proper direction. It is in these types of cases where the judge is to leap into the heart of legal darkness, where the lamps of precedent and common law principles flicker and fade, that the judge gets an opportunity to mold the law and to give it its shape and direction. This is what we have been trying to do in India. Once it is recognized that the judges do make law, though not in the same manner as the legislature, it will immediately become apparent why judges can and should adopt an activist approach. There is no need for judges to feel shy or apologetic about the law creating roles. The Supreme Court of India has been performing this role in the last 7 or 8 years by wielding judicial power in a manner unprecedented in its history of over 30 years.

There is no need for judges to feel shy or apologetic about the law creating roles. The courts in India have been active in other ways as well. We also started the legal aid movement. We said that this program by itself would not be enough to assist our people, so we developed certain strategies: the first was encouraged legal awareness. Then we organized legal aid camps. We would take lawyers to the rural areas, invite the people to come with their problems, and the lawyers would advise them, try to solve their difficulties. We would also take the government officials with us because some problems related to administration. We added to that another dimension, what we have been calling Lok Adalat, which are voluntary mediation agencies. These lawyers, retired judges, and social activists would take cases pending in the lowest courts and attempt to secure a settlement. Even those cases which have not come to court also would be mediated. In

The Supreme Court has developed a new normative regime of rights and insisted that a state cannot act arbitrarily but must act reasonably and in public interest on pain of its action being invalidated by judicial intervention. the last two years we have settled more than 10,000 cases and this movement is growing fast. Practically every fortnight a team goes to a place where a lowest court is situated, to bring about settlement of disputes. We have also fostered the development of social-action groups. We started organizing them, providing them assistance in the shape of funds, the shape of lawyers and under the auspices of my committee they started holding campus for training social activists as paralegals so that they may provide first-aid in law in the rural areas. Lastly we developed the strategy of public interest litigation. This litigation is of a slightly different character than yours and that is why some jurists in India prefer to call it social action litigation. We felt that even if we had all these legal aid offices it would not be possible for the poor people to afford the courts for justice. Therefore we sought the ways and means by which we can provide access to justice to the poor and underprivileged segment of society. One major impediment in the way of access to justice for the poor was the doctrine of standing. It requires that only a person to whom a legal wrong is done can seek judicial redress. So in one seminal decision we took the view that where a legal wrong is done to a person or class of persons who, by reason of poverty, disability, socially or economically disadvantaged position, cannot approach a court of law for justice, any member of the public or any social action group can initiate an action in the high court or the supreme court for vindicating the rights of the underprivileged. That is how we broadened access to justice. The result was a large number of cases coming to the court. We also said in appropriate cases they can move the court by just addressing a letter to the court. Thus developed what was now come to be known as epistolary jurisdiction, jurisdiction which is invoked by writing epistles to a court. Of course the parameters of this jurisdiction have been laid down: it can be only on behalf of a person in custody or on behalf of a class of persons who cannot approach the court on the

In the last few years the Supreme Court has, through intense judicial activism, become a symbol of hope for the people of India. account of their poverty or underprivileged position. Once the portals of the court were thrown open to the poor and underprivileged, large numbers of cases started coming. Social action groups, professors of law, journalists, social scientists, all started moving the court and investigative journalism played a very vital role. Investigative journalism now exposes what I call governmental repression, administrative deviance and exploitation by vested interests. So on the basis of reports of investigative journalism people started approaching the courts and we started entertaining letters and petitions for redressing the wrongs that had been done to the underprivileged segments of society. We had cases relating to bonded laborers, landless peasants fighting for minimum wages, women in distress, juveniles in jails, and a host of other disadvantaged people. These are class problems-the problem of poor are basically different from the problems that so far have been resolved by the courts. They are qualitatively different and the lawyering skills required was also of a different kind. Another difficulty was how to produce evidence for these persons. Under the adversary system of justice both sides

produce their evidence and the judge sits like an umpire and decides. Under our anglo-saxon system, he does not take part in the process of data and fact collection, but doing so just would not work. So we made a departure from the adversary system and we have started appointing commissioners for the purpose of investigating and making reports to the court. Copies of their reports are given to both sides and they are asked to make their submissions, file their affadavits and the court will decide. Next we faced the problem of what remedies to be given. The ordinary remedy of Writs of Certiorari and Prohibition would not help. So we developed a wide ranging repertoire of remedies which would help to solve the problems of these people. Finally, we needed to develop monitoring mechanisms for the purpose of seeing that our orders are implemented. Very often a social action group which has initiated an action will try to see that orders are implemented. Sometimes they set up monitoring mechanisms. Sometimes we instruct an officer of the government to go and find out what had happened and report to the court. If the orders are not carried out the court will take contempt proceedings. This is how, gradually, we have been trying to develop social action litigation in India, and large numbers of people are getting the benefit. Sometimes one action may result in granting of benefits to a thousand people, sometimes fifteen hundred and so on. Youthus see that the Supreme Court of India has expanded the frontiers of fundamental rights and of natural justice. In the process it has rewritten some parts

of the constitution. The right to life and personal liberty and the procedure established by law has been converted de facto and de jure into a procedural due process clause contrary to the intent of the makers of the constitution. This expanding right has encompassed, within itself, the right to bail, the right to a speedy trial, immunity against cruel and unusual punishment, the right to dignified treatment in custodial institutions, the right to legal aid in criminal proceedings and above all the right to live with basic human dignity. The Supreme Court has developed a new normative regime of rights and insisted that a state cannot act arbitrarily but must act reasonably and in public interest on pain of its action being invalidated by judicial intervention. The Supreme Court has developed the doctrine of promissory estoppel, departing from any English and American decisions. We have held that it can be the basis of a cause of action and it can be used against the government and its instrumentalities as much as against a private individual. The Supreme Court has evolved a strategy of public interest litigation and made it possible for the problems of the disadvantaged to be brought before the courts. A host of other principles of constitutional and public law have been developed and many more are in the process of formulation and development. In the law few years the Supreme Court has, through intense judicial activism, become a symbol of hope for the people of India. It has augmented its moral authority and acquired a new credibility with the people through judicial activism and judicial creativity.

Evolution of Skills Training Stuart G. Gullickson In Volume XIV; No.4, of The Gargoyle Professor Stuart Gullickson wrote about his experiences with the simulation method of teaching, specifically relating to our General Practice Course. He discussed the theory of such courses, their advantages and disadvantages, and concluded that the "simulation technique can be useful not only as an exclusive method of instruction, but also as a component in clinical programs, and as a supplement to traditional methods in larger classes. In this piece, Prof. Gullickson shifts to the larger scene: the worldwide spread of simulation for skills training, in law schools and as post-graduate courses. The article is adapted from a speech to the joint meeting of ACLEA and the International Bar Association in Washington, D.C., on July 3, 1985. This is a special occasion when educators involved in our field convene for an international conference. The first such conference that I am aware of met in 1976 in Sydney at the College of Law in St. Leonards. Delegates from nine countries joined the Australians. By that time, I had spent seven years learning to teach skills through trial and error, but I'd had only one opportunity to exchange experiences with a fellow instructor. In 1975 Rosemary Balmford, Director of Melbourne's Leo Cussen Institute made a visit to Madison. We talked shop for a couple of days and among the things I learned from her was that skills training would be part of the agenda at the Sydney conference. That event proved to be most stimulating. Participants heard thoughtful affirmations of the importance of skills teaching, and I was reassured to find that problems I had been unable to solve were confounding others, too. International sessions on skills instruction can be particularly fruitful because the subject knows no national boundaries. Techniques, such as negotiations, seem to be much the same the world over. Skills are nonjurisdictional, I've chosen to view the evolution in this field from two perspectives: one is

the chronological emergence of new practical training courses; the other is the incremental change in the substance of them. I will develop both themes simultaneously. In 1957 at Osgoode Hall in Toronto, the Law Society of Upper Canada adopted a new requirement for admission to practice in Ontario. It added a sixmonth training course onto its usual prerequisite of a twelve-month clerkship. The course proved to be the seminal program of the practical training movement. It influenced the worldwide development of similar programs. At the time Ontario's course began, legal educators in the United States sought ways to bridge-the-gap between our law schools and law offices. TWo national conferences, Arden House I in

1958 and II in 1963, sponsored by the Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association (ALIABA), advocated that applicants for admission to practice in this country be required to take "a comprehensive course in practical skills." That view was advisory only because the supreme courts of our states determine the criteria for admission to practice in their respective jurisdictions. With the impetus from Arden House II, ALI-ABA:sJoint Committee undertook a three-year study of alternatives for learning practice methods and, in its 1967 report, concluded that training courses were likely to be better vehicles than apprenticeships. The report recommended a model for such courses. At that time, the New Jersey Institute for CLE was presenting a five-week bar admission course and the University of Wisconsin was offering a ten-week one. I left private practice in 1967 to convert the Wisconsin course to the ALI-ABA model. ACLEA, at this organization's annual meeting in 1968, adopted a resolution endorsing "a comprehensive skills training course as a condition for admission to the bar." Up to this point, in the late 1960's, the courses at Osgoode Hall, New Jersey, and Wisconsin were teaching about tasks not skills. They focused upon the information necessary for processing matters, such as probating estates, organizing corporations, and handling divorces, not upon skills like interviewing, writing, and negotiating. They operated in large class formats and used lectures and Danels as teaching methods. Then in the late 1960's and the early 1970's, major changes in course content and teaching methods occurred at Wisconsin, and in the Australian courses. All added skills instruction to their curricula, switched to a small class format, and utilized different teaching methods. Courses which had considerable chunks of substantive law in them continued to teach L

International sessions on skills instruction can be particularly fruitful because the subject knows no national boundaries.

10 those segments to large classes through lectures and panels and broke into small groups for skills instruction. Others which presented very little substantive law moved almost exclusively into a small class mode. For example, at the Wisconsin Law School, we retained only six hours of lecture-method out of 250 hours of instruction. We began to teach skills pervasively along with our instruction in tasks and used a single cycle of teaching methods for both: discussion, demonstrations by teaching teams, performances by students, and critique. I learned when I visited with the Australians at the Sydney Conference, that all of us had made our modifications more or less simultaneously even though we had not been in contact with one another. The good news is that overseas those small group teaching methods proved over time to substantially enhance the quality of skills instruction. The bad news is that in the United States their comparatively high cost turned out, in my opinion, to be a major deterrent to our adoption of six-month training courses. In 1974, the Law Society of New South Wales made the next advancement. It showed how the physical setting for small group instruction could be improved. It constructed the first building designed for a curriculum which emphasized skills instruction. It's new College of Law had 58 law office rooms and 7 courtrooms, and its program used all of them for one class of up to 300 students. The two Irish courses came upon the scene in the middle 1970's. First, was the one at Belfast. However, we are indebted to Dublin's program for the next innova-

tion. In 1977, the Irish introduced the sandwich mode of instruction in the first Dublin model. They blended the classroom with the law office by alternating students between the two in a series of sessions. Their course has special significance to us in the United States for another reason: It is funded exclusively from tuition and law society dues. I will return to that point in a moment. Consistent with the edict of the 1972 Ormrod Report, England and Wales started separate courses for barristers and solicitors in 1979. Scotland presented its first in 1980 and chose to start with the sandwich mode. In South Africa, the comprehensive Sampson Report in 1977 recommended revisions in the entire scheme of that country's legal education and, in part, urged that the system of articles be phased out and replaced by practical training schools. In 1981,four such schools opened at Johannesburg, Bloemfontein, Cape Town, and Durban. Over this entire period, from the sixties into the early eighties, the number of Canadian courses expanded to nine with the advent of ones in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Quebec, and Saskatchewan. The Far East instituted courses in Hong Kong and Singapore. In the United States, we took a different path. The format of a six-month, 900hour, in-depth course has never taken hold here, though the ALI-ABACommittee on Professional Education has done an admirable job of keeping the need before us. In 1981,under the leadership of this meeting's keynote speaker, Dean Mike Kelly, it presented the Houston Conference on Enhancing the Competency of Lawyers and devoted half of that

Their course has special significance to us in the United States for another reason: It is funded exclusively from tuition and law society dues. meeting's agenda, and a number of background papers, to extensive transition courses. Then in 1983-84, it surveyed the status of bridge-the-gap training in this country. It learned that the average length of 31 programs was three days; the longest one ran only the equivalent of one week; 90% of the instruction was by lectures and panels; and none of the courses taught skills. For CLE audiences, in contrast to law student ones, the forerunner in skills instruction in our country was the National Institute for Trial Advocacy (NITA). In 1969 it began presenting 150hour trial skills courses featuring low teacher-student ratios and using role playing as the principal teaching method. NITA's work led to similar offerings by the Court Practise Institute, American Trial Lawyers Association, and the Practising Law Institute. Then NITA and the ABA formed a consortium to make the NITA model available to lawyers through the state CLE organizations. In the late 1970's, the ABAalso developed a series of small group offerings in negotiations. Essentially, it seems to me, CLE in this country packages task and skills offerings separately, in relatively brief courses,

11 and organizes them by subject matter designed to serve discreet segments of the CLE market. I believe the reason we follow a different route from our colleagues in other countries is primarily, if not exclusively, financial. Here, like in Ireland, we have no government funding for post-university legal education. Full scale practical training courses would have to be self-supporting-meaning funded almost entirely through tuition and bar association dues. Students would have to pay tuition, furnish their living expenses, and forego six months of earnings to take the courses. The tuition would be substantial because of the relatively high cost of small group teaching methods. Also, legal education here already takes seven years, and I think we are reluctant to add any program which would lengthen it. Finally, we would have to train over 30,000 new lawyers every year. The cost of space to educate that many is a significant deterrent when one remembers that Sydney uses a five story building, which occupies a city block, for only 1% of that number. In the United States, we are struggling with the proposition of using interest from lawyers trust accounts (IOLTA)as a funding vehicle. The fertile minds of Ontario's lawyers first conceived the idea that these funds might serve practical training. They prevailed upon their parliament to legislate that about one-third of trust account interest income should support their bar admission course. Now,

most of the practical training courses around the world are funded, in part, in that fashion. In this country, we have encountered thoughtful opposition to doing anything with interest on trust accounts other than paying it to clients. Only a few states have allocated such interest to public purposes. I believe that none of those set aside any for skills instruction or for practical training programs.

Even though the United States has not chosen to present skill courses of the same kind as those in other countries, we have made several contributions to the skills training movement. Even though the United States has not chosen to present skill courses of the same kind as those in other countries, we have made several contributions to the skills training movement. First, in 1976, ALI-ABApublished a book on the Wisconsin course which helped some countries plan their models. Second, in the 1980's, Joel Henning in the United States, and Paul Cooper and Christopher Roper in Australia, designed in-house courses for large law firms in which the members of a firm teach practical training to one

another. Many of us applaud their work not only because of its educational value but also because it dramatically dispels the notion that only solo practitioners need practical training instruction. Third, California added a skills component to its bar examination on an experimental basis. Fourth, some law schools offer an educational program that combines a classroom course teaching skills through simulation with a clinical experience applying them in the courts in real cases; the same instructors teach both segments. You will recognize that approach as being somewhat akin to the sandwich mode. The most recent international development may, in time, prove to be one of the most important contributions of all. In 1983, the College of Law at Sydney began publishing a journal for readers involved in continuing education and practical legal training. That journal gives an international profession an inexpensive way to learn of new developments. I trust, however, it will not become such an effective communication vehicle that it replaces these conferences. That brings us up to date, at least from my perception of the elephant. But looking back, I doubt the members of the Law Society of Upper Canada ever imagined in 1957 that their decision to inaugurate an in-depth training course would spawn 27 more of them throughout the world.

A Visit with the Doyies Paul Reidinger, /85 In 1985 the Law School received a generous gift: an endowed Professorship, anonymously funded, but named in honor of Ruth and james Doyle of Madison. Ruth Doyle is a former state Assemblywoman and Dane County Supervisor; she also worked in the Law School for ten years from 1969 to 1979, as Assistant to the Dean and Financial Aids Officer. james Doyle is Senior District judge for the US District Court for the Western District of Wisconsin. Both are natives of Wisconsin and graduates of the University of Wisconsin-Madison. The Professorship that bears their name was recently awarded by Chancellor Irving Shain to Neil K. Komesar, a member of the U W Law School faculty since 1971. In addition to the prestige of having a Professorship in the name of the Doyles, the recipient will receive yearly a designated amount of the income from the $125, 000 gift to use on scholarly and teaching projects.

I visited the Doyles on a bleak, unseasonably cold winter day. Their home is modest and unassuming, filled not with expensive technology and imported furniture but with books and pictures-artifacts of a long and interesting life spent together. The Doyles met as undergraduates in Madison in the mid-1930's. After they graduated-both took degrees in history-they went off to Columbia University in New York City, where he attended law school and she earned a master's degree in history and education. They were married in 1940. Mrs. Doyle is a petite woman with reddish-blonde hair. She looks little different from the way she did in newspaper photographs of her taken 35 years ago, when she represented Madison in the Assembly, or thirty years ago, when she was a member of the Dane County Board of Supervisors. One difference I notice between the person and the pictures of her (I have been glancing through the clippings) is in her eyes: Mrs.

Doyle's, face to face, are bright, alert, inquisitive. She is curious about what goes on around her; the eyes announce that right away. The judge is recovering from surgery on his mouth and speaks slowly and carefully so that I can understand him. If there is a problem, Mrs. Doyle sets me straight. I am curious why in 1947they returned to live in Wisconsin having spent almost ten successful years in the East. After leaving Columbia and New York, the Doyles moved to Washington, D.C. in 1940, where he worked in the Department of Justice and clerked for Justice Byrnes of the U.S. Supreme Court. During the war, Mrs. Doyle worked in a battery factory while the judge served in the Naval Reserve. When the war ended, they spent one more year in Washington-the judge worked as Assistant to the Counselor in the State Department-before coming home. What drew them? "We like it here:' says the judge with a small smile. "We missed pine trees and lakes:' she adds.

Whatever brought them back, there is no question that their return to Wisconsin has been a great benefit to the state. Their careers here have largely been public ones, and they have made a point, it seems, of giving themselves to public service. "I'rn a politician:' says Mrs. Doyle simply, and the list of her activities over the past forty years bears her out. Apart from two brief stints teaching high school-in Lake Mills, 1939-40, and in Oregon, 1957-59-she has served in the Assembly, on the Dane County Board of Supervisors, and on the Madison Board of Education. Although a few of her campaigns have been unsuccessful, Mrs. Doyle's political career is evidence not only of her skill and appeal as a candidate for public office, but also of her determination to prove the point that women are equal. The judge's career seems, on paper at least, more serene. He too, however, has been politically active. Along with Gaylord Nelson, John Reynolds and a few others, the judge is credited with building the modern Democratic Party in Wis-

13 consin. After seventeen years of private practice in Madison-during which he also taught classes at the Law School in contracts, conflicts, property and domestic relations-Doyle was appointed to the federal bench in 1965 by President Lyndon Johnson. There he has been ever since: as District Judge, as Chief Judge from 1978 to 1980, and as Senior District Judge since 1980. But, in fact, things haven't been all that quiet in Judge Doyle's court. In the late 1960's and early 1970's particularly, a time of considerable unrest around the country and in Madison, brought some momentous (and therefore difficult) cases before Judge Doyle. In Soglin v. Kauffman, a case that arose out of student pro-

test over Dow Chemical's interviewing students on the UW campus, the judge held that the University's rules for disciplining students were unconstitutionally broad and vague. In Groppi v. Lesley, he granted habeas corpus to Father James Groppi, who, after leading a protest in the State Legislature, was cited for contempt and summarily imprisoned. The Supreme Court of Wisconsin had voted unanimously to keep Groppi in jail. Judge Doyle ordered him released. His decision was reversed by the Court of Appeals for the Seventh Circuit but reinstated by the U.S. Supreme Court, Chief Justice Burger writing a unanimous opinion. These decisions, and many others, split an uncertain community, but the

uproar did not prevent Judge Doyle from deciding subsequent hard cases as he thought they ought to be decided, nor upset the equanimous tone of his opinions. I wonder aloud what the Doyles think of Madison, of the University, after all these years. There is no hesitation as they both tell me how much they love the School, the City, how much it has meant to them to be here. No further elaboration seems necessary. The Judge must be off to court; he finds me my coat and tells me to feel free to call if I want to talk some more. I thank Mrs. Doyle and she tells me the same thing. As I walk out the front door I see the Judge driving off in his Escort.

The Greater La Crosse Area Chamber of Commerce presented Terry Gillette ('64) with their 1986 President's Award. Terry is credited with taking the La Crosse Garment Manufacturing Co. out of bankruptcy proceedings and turning it into The Country Store, a successful mail order marketer.

He is survived by two children, Patrick F. and Patricia Ann Wickhem, and three grandchildren.

otes on Alums Newell Lamb ('351has retired from the Newton, Ill., County Circuit Court after 42 years of continuous service. Newell decided to step down from his judgeship and not file for the Republican primary for the first time since 1944. Gaylord Nelson ('421.governor of Wisconsin and U.S. Senator for 18 years, received an Honorary Doctor of Law in May. Nelson is currently counselor of the Wilderness Society. William F. Dolson ('56) has been named Associate Dean at the University of Louisville School of Law. Robert L. Habush ('61)has been elected president of the Association of Trial Lawyers of America.

Obituaries Frank Wickhem ('27). retired California Superior Court Judge, died May 21. He was 85. Frank was appointed to the Superior Court by Gov. Edmund G. "Pat" Brown in 1964. He served in the Pasadena branch of the court until retirement in 1976.

Ted Harris ('56) died March 28 at his home in Caledonia, Wis. He was 60. Ted received the Caretta S. King award for his services in civil rights. He was a Golden Heritage member of the National Association for the Advancement of Colored People, and a member of the Wisconsin State Bar Association. Ted is survived by his wife Nancy; a son, Brian; and his mother, Erma.

Faculty Briefs Professor Ken Davis was selected by the third year class as the Faculty Speaker for the Student Bar Reception on May 16th. The Reception is part of the Law School's graduation weekend. Prof. Davis is also taking part in the State Bar of Wisconsin's study and rewriting of the statutes on corporations. Professor Martha Fineman will chair the Institute for Legal Studies Conference on Feminism and Legal Theory scheduled for July 14-19 at the UW Law School. Vicki Schultz has accepted an offer to join the faculty beginning in July. Ms. Schultz is a graduate of the University of Texas (BA, 1977) and Harvard Law School (JD, cum laude, 1981).For the past three years she has been a trial attorney for the US Department of Justice, Civil Rights Division. After graduation from law school, Ms. Schultz clerked for two federal District Court judges in Boston. Professor Charles Irish has received the first annual WLAA Teacher of the Year Award from the Wisconsin Law Alumni Association. The award was instituted to recognize excellence in classroom teaching. Professor Irish teaches in the taxation area.

Seven New Endowed Chairs The Regents of the University of Wisconsin appointed seven members of the Law Faculty to honorary chairs at their April 1986 meeting. Apart from singling out these individuals for their distinguished academic achievements, the appointments provide, for a period of five years, annual auxiliary funding which may be used for scholarly activities. The recipients and appointments each received are: W. Lawrence Church and Charles R. Irish, Sherwood R. Volkman-Bascom Distinguished Teaching Professor in Law. William H. Clune, William VossBascom Professor in Law. Stuart G. Gullickson, Robert L. Habush-Bascom Professor in Law. Neil K. Komesar, James E. and Ruth B. Doyle-Bascom Professor in Law. William C. Whitford, George H. Young-Bascom Professor in Law. Zigurds L. Zile, Foley and LardnerBascom Professor in Law.

Editor's Note Recently the Class of 1986 walked across the stage in the Field House, shook hands with the Dean and the Chancellor and began their legal careers. There were certainly many stories of sacrifice, hard work and ultimate triumph, but few will approach that of Patrick Kwanashie. Patrick, you see, walked across the stage with the help of his faithful guide dog. He is not our first blind graduate. In fact, Patrick shared an office in the Law School with two other blind students (and another guide dog), both of whom graduated ahead of Patrick. Shortly after arriving here to study law, a coup toppled the govenment in his home country, Nigeria. The new government placed tight controls on travel and the transfer of funds out of the country. Patrick now faced the additional disability of having no money and, because he was not a citizen, not being eligilble for any normal loan money. One thing Patrick did have were friends. Quietly they began to help him in his quest for a law degree. One special friend was Dan Peterson, one of our part-time law students. Patrick became another part-time occupation of Dan's, in addition to a full time job on campus. Dan and many other students conducted fund raisers, arranged for volunters to read casebooks, found housing for Patrick and his dog, and helped in many other less obvious ways. Dan met with the Alumni Association Board of Directors at most of their meetings for two years, keeping them aware of Patrick and preparing for the day when studentraised funds would run out. Finally, WLAA stepped in with funds from an account earmarked for assistance to foreign students. Patrick graduated with the other members of his entering class. To keep up, he attended two summer sessions in addition to six regular semesters. Shortly before graduation, Patrick learned that he had not only been accepted into an LL.M. program at Yale Law School, but had also been awarded a fellowship

which should pay all his expenses there. He will begin studying international law at Yalethis fall. Those of us who knew and worked with Patrick would never expect him to seek publicity for his accomplishments. Nor would his special friends expect public thanks for their efforts. Nevertheless, it was a proud moment for many in the Law School family when Patrick Kwanashie became an alumnus.

•••••• For those of you who follow such things, the Law School Duck once again hatched her brood in our Courtyard. And, once again, yours truly, in my capacity as Building Manager, had the responsibility of gathering up the ducklings, chasing the mother into the air, then reuniting the family outside the courtyard on Bascom Hill. My belief that the same duck returns year after year has been strengthed by the fact that the mother takes the whole operation quite calmly. My own two "ducklings," aged 3 and 5, were interested observers for the first

time. The operation later became a "book" and a "show-and-tell" to Ms. Keith's kindergarten class at Crestwood School.

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Volume 16, number 4, has only recently gone out, but several of our readers have already identified the "mystery picture:' The group included, left to right, Theodore Toebaas ('52), his father Oscar Toebaas ('121, and Dean Oliver Rundell. The person shaking Dean Rundell's hand has been tentatively identified as Sam Morris ('52). The occasion was, as we expected, bar admission. While others are sure to write with their guesses, thanks for assistance in the identification to: Norm Anderson, Thomas Anich, John Best, Phil Habermann, Maurice Pasch and Walter Raushenbush. In this issue, the "mystery" picture dates from about 1970-75, and shows a group of students at the SEA Bookmart. From the sign over the door and the clothing, my guess is that this was during fall registration. Who is shown?

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Mail to: WLAA, clo UW Law School, Madison, WI 53706