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University of Wisconsin Law School Forum

ARGOYLVolume XVII Number 4. Spring 1987

War Story: The Voice of Leonard F. Schmitt 2Dean Cliff F Thompson

Lawyer Legislators, Part II 4Tomislav Kuzmanovic

Opening Convocation Address 10Justice Shirley Abrahamson

Twenty Years of Consumer Protection 13Professor William Whitford

Visiting Professor: Alan Weisbard 16William G. Moore

Alumni Notes 17Additional Alumni Assist the Law School 17Faculty Notes 18Editor's Note 19Mystery Picture 19Spring Announcement 20

Bulletin of the University of WisconsinLaw School, published quarterly.

Edward J. Reisner, EditorEarl J. Madden, DesignKevin H. Grohskopf, Layout

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

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

Cover:Spring on the State Street Mall

Publication office, Law School,University of Wisconsin, Madison, WI. ISSN 0148-9623 USPS 768-300

2

ar Story:The Voice of Leonard F. SchmittDean Cliff F Thompson

While visiting with our graduates in Wisconsin and aroundthe country, I've heard some great war stories. A favorite isthe following one by Len Schmitt, '29. I heard it three yearsago when we chatted for a couple of hours in his hometownof Merrill, Wisconsin. The pleasant echo of the story in mymemory convinced me that it should be shared. One problemis that war stories are properly part of the law's oral traditionand never seem quite the same when written. To preserve atleast some of the tale's conversational quality, I asked LitishiaMartin, a law student, to telephone Len and persuade himto tell her the story with a tape recorder running. She suc-ceeded: Len warmed up and told her the story, which istranscribed below.

As district attorney I was prosecuting a man by the nameof Emil Gutsdorf for illegal possession of beaver hides.The wardens' testimony was, and they established thatthey knew, that he was at a beaver pond down at a deadend road up in the northern part of Lincoln County. Theyparked their car where the dead end road joined the mainhighway and waited for him to come out. Finally, prettymuch after dark around 9 or 100' clock at night, Emilcame out with his old Ford, and he had a man sitting onthe front seat with him. As he pulled on to the main high-way and turned toward Tomahawk, the wardens pulledup behind him and followed him. It was raining veryheavily, and as they pulled along side of him and flashedtheir light in his face, he kept speeding up and speedingup, and they kept telling him to stop, but he just keptgoing and the man in the front seat turned down the win-dow and threw a bundle out of the window. The wardenyelled, "Let's go back and get the package-we know thatit's Emil Gutsdorf and we'll get him later." So they wentback and they picked up the package in the ditch, and,sure enough, it contained three illegal beaver hides.

Sonow we had the trial. Emil had had twelve pre-vious convictions for game law violations so he did nottake the witness stand in his own behalf. He put up aweak alibi. We were able to break down completely sothat it appeared that the jury would only be out a fewminutes. They went out at 2:00, and everybody expectedthem to be right back. But they didn't come back, andthey didn't come back. The eminent Judge Reid had animportant speech at Wausau that night before a Presbyte-rian Church group and was confronted with the choice of

declaring a mistrial or missing his appointment. But hewas so sure that Emil was guilty, he didn't want to let thecase go, so he cancelled his speech and stayed there.

Finally, at about midnight, the jury dragged in andfound Emil guilty.As I was walking home, I got about ablock from the courthouse and the jury foreman caughtup to me. He was a little laundry man in Merrill, and hesaid, "Len, I bet you wonder what happened to us andwhat took us so long." And I said "Yes I did." And he says"Well, we were 11to 1 for conviction right off the bat,and we didn't even sit down at the table, but there wasone juror who said he was a neighbor of this defendantand he wouldn't vote guilty and he kept holding out andhe says my neighbor wouldn't do anything like that, andhe held out and held out. It got to be past 11:00at nightand a couple of these big Dutch farmers from the town ofCorning grabbed him, and one got a hold of one shoulderand one the other and they rattled his head up against thestone wall of the jury room a couple of times and they

3

Len Schmitt with John and Jackie Kennedy, 1960.

said 'Look, neighbor or no neighbor, this man is guiltyand we're going out of here now with a unanimous ver-dict of guilty and you're going with us' and the fellafinally saw the light and went along, and the juryreturned the verdict." And then he says, "1don't know if1should tell you all this." 1said "Well forget about it Bill."So anyway Emil was sentenced to one year in prison thenbecause of his previous convictions.

About two years later, 1was up in Tomahawk at noonand went into a tavern where they serve sandwiches,walked up to the bar and ordered a sandwich. Emil

jumped up from a card table and came up to me, andsaid "I bet you don't know who I am" and I says "Oh yesI do-you're Emil Gutsdorf." He says "That's right," andhe kind of smiled and he says "You know you gave me arap once but I forgot about that. To show you I'm a goodfellow let me buy you a beer." 1says "Well, alright, Emil,I don't mind if I do have a beer with you." I added "Bythe way, Emil, that neighbor of yours almost saved youthat time. He held out 'til the very end." And he says,"Neighbor, hell; Len, that's the man who threw the fursout of the car window."

4

Lawyer Legislators, Part IIThmislav Kuzmanovic

In the Vol. 17, No.3, we presented the firstin a three part series of articles on UW LawSchool alumni serving in the Wisconsin leg-islature. While the interviews were done lastsummer, we deliberately timed this presenta-tion to appear after the November generalelections.

Before turning to four new lawyer-legislators, here is an update on those fivefeatured last time: Robert Kastenmeierwas re-elected for a 15th term in the USCongress; Tommy Thompson was electedGovernor of Wisconsin; Donald Hanawaywas elected Attorney General of Wisconsin;David Prosser was re-elec ted to a fifth termin the Wisconsin Assembly; and State Repre-

sentative Tom Crawford, as mentioned inthe story, chose not to run for another term.

All four of the Wisconsin legislatorsfeatured in this issue continue to serve thestate: State Sen. Charles Chvala is in themiddle of his term, and all three of the StateRepresentatives were re-elected.

In the final article, we will includeCongressman F.James Sensenbrenner, Jr.,State Senator Susan Engeleiter, State Rep-resentative Joseph Wimmer, and formerRepresentative Steve Brist. Mr. Brist didnot run for re-election, Sen. Engeleiter isin mid-term, Sensenbrenner and Wimmerwere re-elected.

Representative louise M. Tesmer ('67)19th Assembly District, Milwaukee, Wisconsin

Admitting that it doesn't hurt to have alaw degree, forty-four year old Demo-cratic Representative Louise M. Tesmersays her legal education was aimed at alegal career.

"In law school, you learn the analyti-cal tools that help you understand theprocess. This helps a lot in the legisla-ture, or any other policy making bodyfor that matter."

She remembers law school in a differ-ent light than a female graduate of thelast ten years or so would.

"1remember it as a boys club of sorts.Law students were a homogenous group.At that time once you got into the realworld upon graduation you realized howdifferent people actually are."

Tesmer feels that her legal educationtaught her how to deal with people andhow to think analytically in various pol-icy decisions.

"Law school wasn't so distinctive inpreparing me for office, but it's distinctlyan advantage to someone who is a legisla-tor and lawmaker. Lawyers tend to thinkmore in terms of issues much more thanothers:'

She recalls Professor Hurst spendingfive weeks on the Dairy Queen statutecomparing his dissection of the statute toan English literature professor discussingShakespeare's Hamlet.

"His class taught me the methods ofreading a statute. To Professor Hurst,statutes were like literary treasures sub-ject to all kinds of interpretation. How alaw is going to affect people in hypotheti-cal situations is very important. As a law-yer you tend to solve problems in a oneto one manner. These combinations wereideal policymaking methods when deal-ing with a variety of actors here in thelegislature: t

From her experiences, Tesmer feelsthat law school trained people to get tothe core of the problem quickly and tothink about alternatives when problemsolving. Creativity, she adds is a greatasset.

"That is not to say that law grads arebrighter and better than anyone else.We've been trained as technicians ofthe humanities. We've been taught toresolve conflicts of public policy on abroad basis."

Tesmer has been elected to the As-sembly since 1972. She became DeputySpeaker in 1981.But her road to electedoffice was not without its obstacles.While still in law school, she ran formunicipal judge in St. Francis, a munici-pality currently in her district, and won.

"I remember one of my professorslaughing at me when I told him I wasrunning for political office."

Nevertheless, she kept at it and even-tually earned her Assembly seat. Beforeserving in the Assembly, she was anAssistant District Attorney for Milwau-kee County for five years.

She sees her job now as a constantchallenge.

"The subject matter is always chang-ing, the players always change and everysession is a new forum and a new crea-tive experience."

She notes, however, that while somethings change, some still stay the same.

"For example, comparable worth is anissue whose time has finally come. Butthings like traffic laws and probate lawrevision are similar year after year."

Tesmer cites traveling to and fromMilwaukee as being necessary, but tough.

"I'm close enough to be able to see myconstituents more often, but it's still anhour and a half trip."

At times, she explains, her jobis chaotic.

"Politics and everything that comeswith it is wide open-not like a court-room where order is the rule. Schedulingis sometimes a mess. Much of the stressinherent in this job builds up when thereis no consensus on an issue."

Tesmer says although it's often diffi-cult to find resolutions that are satisfying,some people that confront her havenowhere else to turn.

"It's very satisfying, though, whenyou can use the process to help an indi-vidual or to make life better in Wiscon-sin. You've got to be able to give citizensrecourse for lapses in the system. Other-wise, how will they have faith in it?"

Repeat offenders, juvenile delinquentsand taxation of the elderly are problemsTesmer feels have defied lawmakersover the years.

"The repeat violent felony criminaloffender should have a minimum manda-tory sentence. There hasn't been a sug-gestion on trying to solve juvenile delin-quency because we are only beginning toadmit that there's a problem. And there'sno acceptable solution for the elderlywho must pay escalating property taxeswhile on fixed incomes."

Some new ideas to try to solve theseand other problems come to the Legis-lative Council Committee, on whichshe is a member.

"We take new ideas and studywhether or not they should be intro-duced as bill proposals. We deal with alllegislative aspects. We review studies oncurrent areas of legislatively proposedchanges in laws and statutes."

Tesmer's other committee assignmentsinclude: Chairperson of the Criminal Jus-tice and Public Safety Committee; Finan-cial Institutions and Insurance; Judiciary;the State Building Commission; and theState Supported Program Study and Advi-sory Committee.

"I'd say that law school helped me agreat deal in learning about the CriminalJustice system. Some of the professorsI had in that area were excellent. Beingfrom Wisconsin and learning Wisconsinlaw first hand was probably the best partabout learning the process."

There is one goal which she wouldlike to accomplish in the near future,becoming a judge again.

"That's something I've always had inthe back of my mind and I'd be honoredto serve in that capacity."

'His class taught me the methodsof reading a statute. To ProfessorHurst, statutes were like literarytreasures subject to all kinds ofinterpretation:

5

6

Senator Charles J. Chvala ('79)16th Senate District, Madison, Wisconsin

With a strong interest in public policyand desire to be involved, DemocraticSenator Charles J. Chvala, 32, ran for theState Assembly while still in law school.

"I took second:' he said, "but it reallygave me a lot of experience and strength-ened my goal of achieving public office."

Chvala considers his legal educationto have been not only preparation for alegal career, but ideal for public office.He sees both elements of his privatepractice in Monona and public serviceas complementing each other.

"A law isn't always implemented theway it was intended and as a practicinglawyer, you can see how rules affect peo-ple's lives. This is a very valuable tool.If there are problems, you can see whatneeds to be adjusted rather than waitingfor a long period of time and seeing theunintended impact."

Time, according to Chvala, is a veryvaluable commodity in the state legis-lature.

"Lawyers are quite often pressed fortime, but not to the extent that a lack ofit would hurt their clients. In the legisla-ture, you try to cover all of your commit-tee assignments, learn as much as youcan about the issues in a very limitedtime, and eventually become an expertat none."

Chvala feels his legal training, espe-cially at the University of WisconsinLaw School, was invaluable.

"It helped a great deal seeing thebroad perspective of public policy rea-sons behind laws. 'Where are we going,what are we really doing, how will thisrelate to society.' You had a chance to seehow statutes were developed and howwords are used as art:'

He says that it's very tough when, as alawmaking body the legislature is forcedto use vague terms in laws.

"Sometimes you have to use thosenebulous words when defining some-thing because there's just no way you cananticipate or agree upon solving prob-lems. You try to cover the grey area andunfortunately leave much of the interpre-tation to the courts. I'm not saying that'sbad, but if we had more time ... ''

Once again, time is a problem. But toChvala, the time spent in law school waslike turning back the hands of the clock.

"It was like returning to high schoolwith the lockers and all. You got to knowpeople much better than in undergrad-uate years:'

Chvala rebelled against first yearanxiety and pressure he thought was self-inflicted by staying loose.

"I remember a first semester partyaround November. It was nice to seeeveryone relaxing a little and breakingaway from the books:'

His instructors influenced him a greatdeal and as a result helped him enjoy lawschool more than he thought he would.

"I really enjoyed the professorsbecause most of them seemed genuinelyinterested in students and their futures:'

He singled out Professors Zile andChurch as being able to communicatetheir material to students "in a very posi-tive way as opposed to trying to intimi-date students in a Paper Chase manner:'

Although Chvala claims to have"never been that much into the U.C.C.:'his experience as a whole in law school,the learning of what's behind a law andunderstanding why things are decided incertain ways, benefited him a great dealas a public servant.

But once more time creeps into thepicture. This time, re-election.

"In order to be effective as a publicservant, you have to be re-elected. It's anecessary element in the process. Itreally hangs over your head and it's atremendous burden:'

In addition to being expensive, Chvalafeels it's tough to put one's legislativecareer on the line every two to fouryears.

"People have to worry about finances,where money comes from. The incum-bent has an advantage because he al-ready knows the ropes. I've been fortu-nate because most of my votes have beenthe same as my constituent consensus.The way you vote on an issue, though,affects not only yourself but otherlegislators:'

Tough issues can't be avoided, he says."If you don't enjoy it, you shouldn't

be up here:'The Joint Finance Committee is one

place where there are a great deal oftough issues. Chvala is a member of thatcommittee which controls the pursestrings of the state.

"This committee is really where theaction is. This is where prioritization is amust. Often there are millions of dollarsat stake. We have a major impact on pub-lic policy and I guess that's why I enjoymy job so much."

He sees his job as challenging andrewarding in addition to being satisfying.

It's a great feeling knowing thatyou've been involved in something that'shad a major impact on Wisconsin law:'

Chvala sees the legislative process asa positive involvement in the system.

'Sometimes you have to use thosenebulous words when definingsomething because there's just noway you can anticipate or agreeupon solving problems. Youtryto cover the grey area and unfor-tunately leave much of the inter-pretation to the courts:

"I remember the Sterling Hall bomb-ing and I thought 'what a completelyinappropriate response to a problem: SoI began to work on political campaigns."

Debate in this era was at times heated,and Chvala remembers one eventdistinctly.

"I recall an argument in the 1970'sagainst birth control by Gordy Roselip[former State Senator from Platteville]that really got me fired up. He said thereshould be no birth control and he didn'tcome right out and say it but it was hispremise that we'd have no cannon fodderfor future wars."

From there, Chvala became a MadisonSchool Board Student member in 1972-73 and was eventually elected to the StateAssembly in 1982 before winning hisSenate seat in 1984.

Chvala, who also holds a political sci-ence degree from UW-Madison, hopes tohave an impact on state government and

hopes to keep improving. He'd like to seesome changes in current lobby lawswhich he feels are out of date.

"I really enjoy what I'm doing hereand if I can move up I will, but it's notan imperative goal."

He points to his young family and hisdesire to enjoy them as something thatputs politics in perspective. Moving uprequires something there's never enoughof, time, as well as a little luck.

"Most of the time, it's out of your per-sonal control because there are peopleabove you."

Chvala feels that law school was aseal of approval, a ratification of the factyou're intelligent, and it has enhancedthe opening of doors. He also thinks thatthe state Legislature has a great deal ofactive, bright, intelligent people in it.

"People complain so much about thenumber of lawyers, but the educationand training you get really opens doors."

7

Representative Thomas M. Barrett ('80)14th Assembly District, Milwaukee, Wisconsin

Described as one of the up-and-comersin the Wisconsin State Assembly by hispeers, thirty-three year old DemocraticRepresentative Thomas M. Barrett feelshis legal education was more a prepara-tion for political office than training fora legal career.

"I was too young out of college to getinto political office," he said, "but to tellyou the truth, I really didn't want to beworking at the ripe old age of 23:'

Before choosing to study law, Barrettconsulted with a number of people aboutthe type of advanced degree whichwould be of most use to him as a futurepublic servant.

"It seemed to me that from those con-versations I felt that a law degree wouldprovide me with better preparation thanan MBA or a graduate degree in publicpolicy. Really, it was the great varietyof issues talked about and how certainissues were analyzed that led me tobelieve that this type of education wouldhelp me the most."

So with his BA in economics and PhiBeta Kappa honors from UW-Madison,Barrett jumped straight into law schoolhoping to enter politics after graduationin 1980. The honors graduate was thenelected to the Assembly in April of 1984in a special election and was re-elected inNovember of 1984. In between, Barrettserved as a law clerk for Federal District

Judge Robert Warren in Milwaukee, wasan assistant bank examiner for the FDIC,and worked for the Milwaukee law firmof Smith and O'Neil.

"Working for Judge Warren was reallya great experience because we dealt withsuch a variety of problems; from criminalto real estate law. The exposure was tre-mendous."

Barrett said that clerking made himwant to get more involved in the politicalprocess and even if he was unsuccessful,he could always shift over to full-timepractice.

His interest in politics came at anearly age.

"The first thing I remember was thediscussion of the Civil Rights Acts of1966. It really stuck out in my mindbecause of all of the turmoil surround-ing their discussion. Some kids wantedto be basketball stars, but I wanted toget into politics:'

This interest can be sensed in thefact that Barrett enjoys what he doesa great deal.

"I love what I'm doing here becauseI'm constantly meeting new people andthe tasks we face here at the Capitol areso diverse. It's a job," he said smiling,"that doesn't put you to sleep."

Barrett's committee assignments, fourof five of which he asked to be on, are asdiverse as his interests. He serves as vice

8

chairperson of the Health committee andis chairperson of its subcommittee onInsurance for the uninsured. Others onwhich he sits include: Aging;CriminalJustice and Safety; Elections; and Energy.

"There are a lot of hot issues in thehealth field these days. Hospital costsrise quickly and so do rates."

He predicts a change in financing ofhospital care in the near future becauseso many people can't afford the costsor the coverage provided by many insur-ance agencies.

"And the organ transplant operations,for example, cost a tremendous amount,and the ethical questions involved in whoshould get an organ and the criteria forchoosing these people are very tough andcostly things to decide when human lifeis at stake."

His interest in this area was so keenthat he even attended a seminar on organtransplants this past year.

Juvenile crime funding issues are alsoa concern of Barrett's. Currently heis working on a project which wouldincrease the state's contribution to Mil-waukee County for the incarceration ofjuvenile offenders.

"The state's funding is based on ten-year-old statistics which are in dire needof updating. There has been a 26 percentincrease in violent crimes by juveniles inthe past year alone, but the state has notincreased their help to compensate forthe difference."

The toughest part of his job as a pub-lic servant, Barrett feels, is one's ownconscience.

"It's tough on an issue to do what youpersonally think is right compared withwhat your constituents want:'

He cites as an example the drinkingage bill. His constituents favored thechange which would increase the state'slegal drinking age from 19 to 21yearsof age.

"I was a Vietnam era teenager and Iwas 18when the age was lowered in theearly 1970's. I can easily relate to howyounger people feel."

It was the inevitable loss of federalhighway funds that convinced him tovote for the increase.

On his future, political or otherwise,Barrett wants to take a wait and seeattitude.

"I'm content where I am now, butthere are a lot of different avenues forme to travel. Whether that means doingmore than I am here, I just don't know."

As a student, Barrett said he lovedMadison just because of the great varietyof people and viewpoints. But when hecomes to town from his district in Mil-waukee, he says he sometimes feels like"a faded rose from days gone by."

"Allmy friends from school here aregone, and though I enjoyed law schoolmore than I thought I would, like mostlawyers I'm glad that I'll never have tobe a "I-I, again."

'All my friends from school hereare gone, and though I enjoyedlaw school more than I thoughtI would, like most lawyers I'mglad that I'll never have to bea J 1-U again:

Representative Rebecca Young ('83)76th Assembly District, Madison, Wisconsin

As a recent UW law graduate, fifty-twoyear old Democratic RepresentativeRebecca Young feels her legal educationwas geared toward a legal career.

"I had looked at practicing law moreas a post mid-life correction," she muses,"something that was practical yet chal-lenging."

Youngcame into the Assembly wellseasoned earning her seat in 1984. Shewas elected to the Dane County Boardfrom 1970-76 and was a Madison SchoolBoard member from 1979-85.

"It's very helpful to know Wisconsinlaw within the framework of statutes andthe courts. Law school was the idealplace for that type of learning. My pastpolitical experience helped a great deal,but law school pointed me to law, notpolitics. It would have been very difficult

for me to go out and practice law with afirm because the average age of a juniorassociate is younger than my age."

She points to her other political expe-riences as being just as helpful for legisla-tive preparation. She served as DeputySecretary of the Wisconsin Departmentof Administration and was a memberof the State Highway Commission.

"The point of practicing law isn'tto prepare for the legislature. But lawschool had a very positive effect on meand was a good disciplinary and intellec-tual experience."

Young feels that law school did giveher some advantages.

"It gives you an overall framework forapplying similar legal solutions to similarproblems in the real world; very helpfulwhen analyzing new problems."

She cites as an example family lawissues. In order to make changes withinthe system, the structure of the systemitself and the framework behind thechanges must be analyzed and under-stood.

"It's very much like a puzzle. Some-times you have to cut and shape yourown pieces to make things work. Familylaw is very much like this because thereare always exceptions and these issuesare sometimes emotional."

Her previous education consistedof a B.A. from Michigan in 1955and aHarvard teaching M.A. in 1963. Herapplication of what she's learned hasn'tyet stopped.

"I thought that overall, the teachers inthe law school were very good, in partic-ular Professor Clauss. Her AdministrativeLaw and Labor Law classes were veryinfluential."

Young considers herself a very issueoriented politician.

"There's no better way to get in-volved. The best way to influence deci-sions is to make them. That's what keepsmy political clock ticking."

As a full-time legislator, one may thinkthat time is not that big of a problem forYoungwhen it comes to rational decision-making.

"The hardest thing for me to do is totry to feel reasonably informed on whatI'm voting on and then trying to make anintelligent decision."

Other tasks are also difficult."Bills are often a problem, too. It's

often tough to find the best way to pre-sent a bill and sell it not only to yourpeers in the legislature but to the execu-tive branch, too. But it's rewarding, espe-cially when you do your homework."

As an example, she talks about theIndustrial Revenue Bond reform bill.First, there were problems with the billin the Assembly, which were worked outwith minority leader Tommy Thompson.These bonds, which are tax exempt, areused by municipalities to develop andrevitalize depressed areas within thelocality. Young felt that these bonds werebeing given away much too easily.

"It was no cost to the municipality.These bonds were intended not only torevitalize but to promote jobs. Becausethey were being handed out, jobs werehardly a factor."

The change also had to be worked outwith the Bond Counsel, a group of pri-vate attorneys that organize the sale ofthese bonds and stand to make a lot ofmoney in the process.

"They were really fun to work withand we were able to handle all the prob-lems and work out not only the substan-tive problems but the political ones too."

Tobe eligible for an IRB, municipali-ties must now estimate the number ofjobs that would be produced and thatnumber must correspond with a laterstudy showing how many jobs wereactually created.

Young enjoys working on problemsand coming up with solutions, as well ashelping her constituents with variousproblems in the system.

"It's a good feeling when you canhelp someone in a bind."

As vice-chairperson of the JudiciaryCommittee, she feels her legal back-ground is uniquely helpful.

"I can see many issues early on thatI most likely wouldn't have if not forlaw school."

Other committees she serves oninclude Children and Human Services;Criminal Justice and Public Safety; Eco-nomic Development; Education; and theGovernor's Advisory Bicycle Coordinat-ing Council.

"The Criminal Justice committee getsa lot of bills and it helps to know yourway around the legal system. The waythe law actually works in practice manytimes is different from its original intent."

Currently, Young is pushing for a billthat would require appliances to beenergy efficient.

"Right now, one-third of our electricalenergy is taken up by appliances and thishas a substantial impact on utilities."

She thinks that if stoves, refrigeratorsand other appliances were held account-able to energy use guidelines similar toa current California law, consumerenergy costs would be held down in thelong run.

"If energy costs are low, that becomesa valuable attribute in attracting busi-nesses to Wisconsin."

As for her political future, Youngenjoys where she is.

"I have no aspirations for higheroffice. I love it where I am now."

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'There's no better way to getinvolved. The best way to influencedecisions is to make them. That'swhat keeps my political clockticking:

10

Opening Convocation AddressJustice Shirley S. AbrahamsonWisconsin Supreme Court

In Vol. 16, No.3, we reported on a newtradition at our Law School, the OpeningConvocation. In that issue we reprinted thefirst address to the Convocation, given byEmeritus Professor]. Willard Hurst.

In August 1986, Wisconsin SupremeCourt Justice Shirley Abrahamson spoketo the incoming first-year class and theirguests. Justice Abrahamson has a uniqueperspective to share with these new lawstudents: she was a student here, receivingan SJD in 1962. While practicing law inMadison, she also served on our faculty,teaching tax law, until appointed to theCourt in 1976.

Dean Thompson, faculty, Class of 1989,guests of the Class of 1989,and all otherswho are gathered here this evening tocelebrate the opening of the 1986-1987academic year and the beginning of thelegal careers of the entering law students.

Mark TWainwould often begin aspeech with a dramatic pause followedby this announcement: "Aristotle is dead.Plato is dead. Goethe is dead. Nietzscheis dead. And I don't feel so well myself:'

Mr. TWain'scomment aptly describesmy condition this evening and probablythat of many of the entering law stu-dents. I do not feel so well because of thenature of the speech expected on thisoccasion. Ideally the speech would setthe tone for the next three years facingthe new students and should remind thelawyers in attendance of the traditionsand responsibilities of their profession.Furthermore, I am expected to deliver anaddress without orating. To express famil-iar thoughts-familiar at least to the fac-ulty and lawyers in this audience-whileappearing to explore fresh and novelideas. Toconvey a meaningful messageto the entering class, offering solace andsound counsel without appearing to doso too obviously. I am bound to speak tothe occasion and am therefore circum-scribed by it, while at the same time Imust strive to rise above the limitations.I do not feel so well.

Let us turn from me to the membersof the Class of 1989.You have alreadyreceived a great deal of advice about lawschool and know much about law school.Youhave probably read 1-£ and havewatched The Paper Chase. You knowwhat you are about-you have been very

successful in your previous academiccareers. Like law students for the pasttwenty years or so, you have been se-lected on the basis of your intellectualqualifications and your academicachievements. Your paper records dem-onstrate that you are a select group repre-senting this country's best and brightest.Yetyou new law students are probablynot feeling so well either. How do youthink my law school classmates and I feltin 1953?At that time it was said thatthere were two requirements for admis-sion to most law schools: (11you had tohave a college degree; and (21you had tobe breathing. And either requirementmight be waived.

Despite their excellent qualifications,entering law students use such words astension, stress, apprehension, anxiety,doubt, fear, intimidation, terror, andimpending doom to describe the daysbefore they begin law school and the firstmonths of their legal education. Appre-hension is so much a part of the lawschool experience that one student wroteof his first days in law school as follows:

"The first few days of law school havebeen completely overwhelming. I'vebeen determined from the first not to letmyself be intimidated, but I can't everremember being so anxious. The last sev-eral nights I've awakened at 3 or 4o'clock in terror. What if I get called ontomorrow? Do I understand the case wellenough to withstand Thomas's interro-gation? How can I keep all those factsstraight? Hell, I can't even rememberwhat seat I sit in class. [If awaking inthe middle of the night is bad] the night-mares are worst. The recurring night-mare is that I walk into class and every-one is furiously writing their examsand I'm late. I didn't even know wewere having a test."

In the convocation address last yearProfessor Emeritus Willard Hurst accu-rately characterized the first year as abewildering experience. ProfessorGilmore, a noted legal scholar and pro-fessor at Yale Law School, asked: "Whatis a law school? A place where ignorantarmies clash by night; where the embat-tled forces of faculty and students haveat each other in a never-ending fray? Aplace where normal young men and nor-mal young women are, in a few months,

dehumanized? A place where the simpleis made complex, the straight crooked,the clear opaque? A place where neveris heard an encouraging word and thethoughts remain cloudy all day?"

Some days it may seem that way. Iknow that law professors do not deliber-ately impose those feelings of apprehen-sion, dehumanization and bewilderment.Be assured that the professors are speak-ing English and are imparting importantinformation. Willard Hurst said he didnot understand what was going on in hisfirst year in law school until April. Whenhe went to law school, examinationswere given once a year, in June. Nowexams are given at the end of each semes-ter, and you will have only until Novem-ber to figure out each course.

I remember my first year of lawschool well-all too well. And when,thirty-three years later, I recall the feel-ings of apprehension, bewilderment andinadequacy, I am greatly relieved thattonight I am at the podium rather thana member of the class of 1989.

But on the other hand, I would like tobe with you taking the first-year curricu-lum again. I envy the excitement and joyyou will have in learning a new disci-pline. I envy the excitement and joy youwill have in discovering a different wayof looking at society and its problems andpossible solutions to some problems.

As you go through your first year youwill repeatedly ask yourself-as others

before you have asked themselves: Iswhat I am learning relevant for the prac-tical, real world? This is an important butdisturbing question. What is the realworld? My friends in New YorkCity andChicago told me that my law practice inMadison was not the real world, becauseMadison is not the real world. Theymight even say the state of Wisconsin is

'How do you think my law schoolclassmates and Ifelt in 1953?Atthat time it was said that therewere two requirements for admis-sion to most law schools: (I) youhad to have a college degree;and (2)you had to be breathing.And either requirement mightbe waived:

not the real world. My law clerks tell methat my being a supreme court judge andtheir working for the court are not thereal world. I have yet to learn what is thereal world.

And that's the rub about the questionof relevance of law school education. Rel-evant to what? What are you going to bedoing your first year after law school?Your fifth? Your twenty-fifth? Your forti-eth? Law students do not come to lawschool with well-defined career goals. Ifthey do, they often change them a num-ber of times-during and after school.

Lawyers perform enormously diverseservices. The law school trains peoplewho will practice law in small firms insmall communities and large cities. Ittrains people who will practice in largefirms, indeed in multi-national firms, andwho will regularly commute betweenShanghai, Tokyo and San Francisco tocomplete arrangements for a multi-national joint venture doing business inChina. The law school trains people whowill draft federal and state legislation, vil-lage ordinances and rules and regulationsfor police departments and other admin-istrative agencies. It trains future lawprofessors. It trains federal and state,trial and appellate judges. It trains peoplewho will be governors, legislators andbureaucrats. The law school trains peoplewho will go into finance and commerce.Over a lifetime a lawyer may have posi-tions in government, industry, com-merce, finance and education.

I'm on my fourth career in the law-and that's not because I cannot hold ajob.

The function of the law school is not

to train but to educate. Law school edu-cates not only for your first year out butalso for your last year. A law school edu-cation aims to prepare you for a career,not for a job, for a way of life, not forwinning a case. The law school aims toprepare you to learn how to educateyourself during the rest of your life.

That leaves the question of what kindof law school curriculum is best for pre-paring the law student for a life in thediversity of occupations we call lawyer-ing. This is a subject often debated in stu-dent gatherings, bar associations, facultyoffices, faculty meetings, and in the jour-nals of legal education. There is littleagreement in regard to either the styleof legal education or its content.

Traditionally law school classes havestudied decisions of appellate courts andhave, from these decisions, derived anunderstanding of law. Youwill have suchclasses at this law school. Sooner or lateryou will read a decision that I haveauthored. After you and the professorhave thoroughly dissected the opinion,you may be amazed at how little I appearto have learned from law school andfrom my legal experiences. From theappellate decisions law students and legalscholars derive rules that we call law.

Many students come to law schoolsupposing that the law is a body of rulesand that lawyers are people who knowthe rules. This conception of law schooland lawyers is not totally wrong, but it isonly part of the story. There are rules-thousands of rules, countless rules. Youwill learn some rules, but not all. Law-yers do not know all or even most of therules. Tolearn all the rules is a fruitlessexercise because they are constantlychanging. Furthermore, when you masterrules you recognize that many conflict.When you master rules you know thatmany are ambiguous or that their appli-cation to the fact situation at hand isunclear. And you will soon learn inProfessor Macaulay's and other classesthat there's more to the law than a rulederived from an appellate decision.There's the entire context of the case-the facts of the case, statutes, commonlaw, societal values and conflictingeconomic interests.

Some argue that law schools place toomuch emphasis on appellate decisions.Appellate decisions are not the real worldof law. Legislation and administrativerules are as important as judge-maderules. Most disputes never get to court.Of those that go to court only a small per-cent get to an appellate court-let aloneto the state supreme court.

Tomany law students and the Ameri-can public, the real world of law is thetrial lawyer' s office and the trial court.

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Tomillions of television viewers, PerryMason and Hill Street Blues are about thereal world of law. This fall a new serial-ized drama entitled L.A. Law concen-trates on the personal and professionallives of attorneys. The producers want toshow how practicing law affects the livesof the practitioners.

As for the trial court, I am sure you all

"Ihe function of the law school isnot to train but to educate. Lawschool educates not only for yourfirst year out but also for your lastyear. A law school education aimsto prepare you for a career, not fora job, for a way of life, not forwinning a case:

know Judge Wapner. He presides everyday on national television as the judgeon People's Court. Judge Wapner used tobe a California trial judge. Now he is anAmerican folk hero. Many viewers havesuggested that President Reagan appointhim to the next vacancy on the UnitedStates Supreme Court. I am not suggest-ing that you learn about lawyers and trialcourts from television-although mostAmericans do. The Wisconsin LawSchool offers numerous courses-clinicaland simulated practice courses-to givethe law students hands-on experienceand to offer the student training inlawyering skills.

Much of lawyering-like much ofteaching or judging or any other job-may be repetitive and dull, entailing tech-nical tasks which do not make rigorousintellectual demands. The law schooldoes not teach these repetitive and dulltasks-and should not. The lawyer canmaster these technical skills on the jobwithin a few short weeks or months ofgraduating law school. Clinical coursesshould train the student in reading, writ-ing, speaking, listening, counselling,negotiating, and thinking-and notnecessarily in that order.

The real world of law, others say,requires that the student pursue the lawas an intellectual, theoretical discipline.The most challenging professional taskscall for imagination, judgment and wis-dom, and law must be perceived as ahumanist discipline, incorporating thewhole range of human experience. Thelaw school and the students must bringto the study of law an understanding ofhistory, philosophy, literature, sociology,

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psychiatry, anthropology, and a dozenother disciplines. These disciplines arerelevant in the real world of lawyering.Thus this Law School offers such coursesas jurisprudence.Tegal history, compara-tive law, law and literature, law and psy-chiatry, law and economics.

Neither you nor I need determinewhat is the best style or substance of anexcellent legal education. Here at Wis-consin, you can sample them all-and Iurge you to do so. The case method and

lawyers do not know all or evenmost of the rules. Th learn all therules is a fruitless exercise becausethey are constantly changing:

Socratic dialogue create skepticism andignite an inquiring mind to search forunderlying policies and values. The clini-cal experience gives the law studentinsight into the legislative, judicial andexecutive branches of government, pro-fessional ethics, lawyering and our sys-tem of justice.

The theoretical courses enable the lawschool to provide a continuation of a lib-eral arts education. A good lawyer needsto know something more than legal rules.The something more includes skills ofanalysis and synthesis, the ability to readwith attention to detail and the nuancesof language, the capacity to identify thepremises of an argument, and the abilityto reason from those premises. The some-thing more includes a tolerance foruncertainty and a sense of the directionof the law by understanding the socialcontext of the dispute. The object of a lib-eral arts education, as our colleagues atthe colleges tell us, is to enable womenand men to think clearly, to fee intelli-gently and to act knowingly.

The theoretical-the infusion of thesocial sciences and the humanities-doesnot compete with the case method or theclinical course in the academic enter-prise. The case method, the clinical andthe theoretical are partners equippingstudents to evaluate basic premises andchart new directions. A course well

taught-whether a case method course,or a clinical course, or a theoreticalcourse-can fulfill the objectives of alaw school education.

I hope you have come to law schoolwith a respect for the institution. The lawschools strengthen our legal system byproviding, along with a professional edu-cation, criticism and suggestions forreform. The American law school is themajor center of legal research and schol-arship in this country. And Wisconsin isa leader in research and scholarship. Thebooks, pamphlets, monographs, empiri-cal research projects and law reviews inwhich the professors and students ex-plore knotty legal problems are read byjudges, legislators, and policymakers.The legal system thus becomes engagedin a continuing examination and reformof the laws to achieve justice.

Americans link justice and law.Although Americans believe that justiceshould be pursued through law, they rec-ognize law does not always equate withjustice. Americans have a love-hate rela-tionship with the law and lawyers. Onepart of us glorifies our commitment tolaw as a means of justice, the other isoutraged that our law fails to lead to jus-tice and indeed sometimes perverts jus-tice. Toooften the public complains oftoo many laws, too much litigation, andtoo many lawyers. Yetwhen some injus-tice has occurred the place to go is acourt of law where, despite the wholecomplex system, deficiencies and all,justice can triumph.

America's views of law and justice-the legal system as it is and the ideal ofhow it ought to be-will be evident thisacademic year as we celebrate the 200thanniversary of the adoption of the federalConstitution. Our country can take greatpride in the federal Constitution. Itembodies a commitment to democracy,to egalitarian values, and to the conceptthat justice should be pursued throughlaw. But our history is also filled with ourfailures to realize these values. Our pastis marred by slavery, racism, religiousand ethnic bigotry and class and sex prej-udice. Wemust remember this part ofour past, a past that is not yet fullybehind us. But more significant for usand for people around the world are our

successes and our continued commit-ment to realizing our ideals. The underly-ing conviction in America is that the legalsystem can bring justice. Lawyers inother countries practice in systems wherethe country's constitution has been sus-pended for years, where people aredetained without due process, wherejudges interpret the law and decide casesas the country's executive branch dic-tates. These lawyers know and appreciateAmerica's constitutional history and our

/Americans have a love-hate rela-tionship with the law and lawyers.One part of us glorifies our corn-mitment to law as a means of jus-tice/ the other is outraged that ourlaw fails to lead to justice andindeed sometimes perverts justice:

history of an independent judiciary.Under adverse political conditions theselawyers strive to achieve a system of lawsimilar to ours. They believe they willsucceed in their fight.

I hope that you come into law schoolwith ideals and idealism and a strongbelief that your ideals will be realized inmy lifetime and yours. Erwin Griswold,former Dean of Harvard Law School,raised the unsettling notion that law stu-dents bring a larger measure of idealismto the law school than they leave with.I hope not. This law school provides theintellectual breeding ground for ideasand attitudes that make the law a vibrantforce for good. The legal professionshould serve not only the interests ofclients but also the broader concerns ofsociety. I hope a bit of Atticus Finch, thelawyer-hero in To Kill a Mockingbird, livesin each of us and that we can rise abovepersonal and economic considerationsto work in the cause of justice. One per-son-even one with limited resources-can make a difference. When the rollis called, I hope each of you will bethat person.

enty Years ofConsumer ProtectionProfessor William Whitford

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In the fall of 1969, this editor was a studentin a first year contracts class taught by ProfWilliam Whitford. Instead of a normalbook, the class received, in a seemingly end-less series of installments, xeroxed materialswhich clearly reflected new ideas in theteaching of contracts. One of the themes fea-tured in the materials was the emerging fieldof consumer protection.

In this article, Prof Whitford looks backon twenty years of consumer protectiondevelopments, and offers his thoughts onwhere the movement is going.

Prof Whitford is the George Young-Bascom Professor of Law, and has taughtat Wisconsin since 1965. He is currentlyon leave to Boston College.

I began teaching a little over twenty yearsago. From the beginning consumer pro-tection has been a primary researchinterest. It was an exciting area in whichto initiate a scholarly career. The late1960's and the first half of the 1970's wasa time of great innovation in consumerprotection regulation.

Today the opinion is often expressedthat the consumer protection innovationsof this earlier period have been reversedover the past ten years, and that the stateof consumer protection is now aboutwhat it was twenty years ago. This isonly partly true. In this article I willreflect briefly on twenty years of con-sumer protection, concluding with a fewcomments about what it teaches aboutconsumer protection and its prospectsin late 20th Century America.

The DevelopmentsI have grouped the major consumer

protection developments into six cate-gories, as described below:

Product Safety: At the beginning ofthe period the courts were changing thecommon law standard of products liabil-ity from a negligence to a strict liabilitystandard. At about the same time RalphNader successfully championed majorfederal legislation. In the late 1960'sthe National Highway Safety Act wasadopted, authorizing the Department ofTransportation to mandate safety equip-

ment on motor vehicles and to directmanufacturers to order product recalls.In the early 1970's Congress adopted theConsumer Product Safety Act, creatingthe Consumer Product Safety Commis-sion. The Commission can order theremoval of unsafe products from themarket or mandate the inclusion ofwarnings.

Disclosure Regulation: Throughoutthe early 1960's Senator Paul Douglas ofIllinois championed Truth in Lending leg-islation, featuring the then radical viewthat creditors should be forced to calcu-late interest rates in a standard mannerand then disclose this and other creditinformation prominently. Douglas wasdefeated before the legislation was finallyenacted, under the leadership of our ownSenator Bill Proxmire. Once Truth inLending was adopted, however, the log-jam was broken and Congress quicklypassed a wide variety of legislation man-dating disclosure of contract terms. Oneof the last and the most significant of thisstring of legislative enactments is theMagnuson-Moss Warranty Act, requiringmost product warranties to be labeled aseither "Full Warranty" or "Limited War-ranty," and requiring various terms to bestated conspicuously.

Advertising and Deceptive Prac-tices: After Ralph Nader blasted the Fed-eral Trade Commission as a do-nothingagency in the late 1960's, President Nixonappointed the now Secretary of DefenseCaspar Weinberger to turn the agencyaround. He moved to the Office of Man-agement and Budget after six months andwas replaced at the FTCby a prominentPhiladelphia corporate lawyer, MilesKirkpatrick. The two of them replacedall the top staff-our current AssociateDean, Gerald Thain, was plucked fromthe lower ranks to head the Division ofNational Advertising-and together withthis new staff initiated an innovative andaggressive program of regulation ofnational advertising and diverse decep-tive practices. For example, the agencysought to prohibit the manufacturers ofWonder Bread from representing theirproduct as a health food for kids. It pro-posed that false advertisers be requiredto run "corrective ads." Rules were pro-

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posed closely regulating the selling prac-tices of certain sensitive industries, suchas the funeral parlor industry, and plac-ing restrictions on the content of advertis-ing directed at children.

Debt Collection: As part of LyndonJohnson's War on Poverty, federalfinanced legal services were provided thepoor. The Legal Services Program's con-sumer protection activities focused pri-marily on debt collection issues. Theybrought many test cases. The leadingcase interpreting the unconscionabilitysection (Section 2-302) of the UniformCommercial Code, Williams v. Walker-Thomas Furniture Co., (350 F.2d 445(D.C.Cir. 1965))was brought by a legalaid agency. Legal Services also played arole in bringing a series of cases to theUnited States Supreme Court whichtested the applicability of procedural dueprocess to various historic debt collectionremedies, particularly ones that permit-ted the creditor to take action by self help(such as repossession of automobiles) orby ex parte court order [e.g.. replevin).The first of these cases arose from Wis-consin. Sniadach v. Family FinanceCorp., 395 U.S. 337(19691.The courtinvalidated a long-time Wisconsin statutethat permitted wage garnishment by exparte court order. Legal Services was alsoactive in promoting adoption of legisla-tion and administrative rules protectiveof the defaulting borrower, particularly iflow income. At the state level by far themost far reaching legislation of thisnature is the Wisconsin Consumer Act.At the federal level, the Federal TradeCommission was persuaded to adoptrules effectively repealing the holder-in-due-course rule for consumer transac-tions and mandating a three day cooling-off period for most door-to-door sales.Although not a project of the Legal Ser-vices Program, towards the end of the1970's Congress adopted a massivereform of the Bankruptcy Laws, whichamong other things made bankruptcya much more available and effectiveremedy for consumers overburdenedwith debt.

Consumer Self Help: Most con-sumer protection legislation now pro-vides for recovery of attorney fees and amodest amount of exemplary damages(e.g., two or three times actual losses)whenever a consumer successfully liti-gates a claim under the legislation. Theidea is to provide consumers a financialincentive to litigate violations, therebyaiding in abetment. Ideally such legis-lation would motivate a section of theprivate bar to specialize in such cases.Efforts have also been made to revitalizesmall claims courts, and to establish con-sumer arbitration systems, so that con-

sumers could obtain redress without theneed for an attorney.

Political Organization and DirectAction: Throughout this twenty yearperiod the dream of the most ardentconsumer activists has been the estab-lishment of a grass roots consumer move-ment that would be a significant partici-pant in the marketplace and the politicalsystem. The particular forms proposedfor these new consumer organizations arewidespread. Consumers Union, the pub-lisher of Consumer Reports, has been onemodel, but that organization has alwayshad a rather limited, upper middle classmembership. "Public Interest" LawFirms undoubtedly received the mostpublicity, at least in the legal profession.(SeeWeisbrod et al., "Public InterestLaw: An Economic and InstitutionalAnalysis" for a scholarly justification forthe emergence of public interest lawfirms. Most of the articles in this com-pendium were written by University ofWisconsin faculty members, many ofthem from the Law SchooL1Early in thistwenty year period, a moribund Con-sumer Federation of America, a member-ship organization, was revitalized, withan important assist from the AFL-CIO,to lobby Congress for pro-consumer legis-lation. Others worked to form consumerbuying co-ops. Reflecting disenchant-ment with the legal process in a few cit-ies consumer direct action groups wereformed to picket merchants that wouldnot voluntarily provide redress to con-sumers deemed entitled to some remedy.

The RetreatsProduct Safety: Wisconsin's junior

Senator, Bob Kasten, has been the princi-pal sponsor of proposed federal legisla-tion that in many respects would returnthe country to a negligence standard fordetermining a manufacturer's liability fordefective products. The legislation hasyet to be enacted, but several states haveadopted legislation setting caps on recov-ery of general and punitive damages. Thespecific regulatory statutes remain inplace, but during the Reagan adminis-tration the agencies charged with theirenforcement have been inactive, and suf-fered substantial budget cuts. Since thebasic legislation is in place, under a newAdministration it would be possible forregulatory activities to return to the1970s' level without further Congres-sional action, other than some budget-ary enhancement for the enforcementagencies.

Disclosure Regulation: All the legis-lation remains in place, and it is believedthat compliance with it has been substan-tiaL Violation of a disclosure regulation,

when it occurs, often is on a standardform contract, which makes it easy todetect and amenable to a class action,seeking a remedy for all consumersaffected. Legal services lawyers regularlycomb standard form contracts looking foran "out" for their clients by finding a vio-lation of some technical disclosure regu-lation. This activity no doubt accountsfor the high level of compliance withdisclosure regulation, despite very littleenforcement activity by enforcementagencies. At the same time, however,doubt has arisen about how useful disclo-sure regulation is. There is a widespreadfeeling that despite the disclosure, con-sumers pay little attention to the informa-tion. On the other hand, truth in lendingenhanced public understanding of in-terest rates. It used to be that interestrates were always quoted as between6 and 9 percent, and lenders stronglybelieved that nobody would ever acceptan interest rate purporting to exceed12%. Though it may not affect their shop-ping and saving behavior, consumersnow have a clearer understanding ofwhat credit costs them.

Advertising and Deceptive Prac-tices: Almost all of the FTC's initiativesfailed to bear fruit. Many of the test casesinitiated in the early 1970's were not liti-gated to successful conclusion, oftenbecause a Commission judgment up-holding the complaint was reversed onappeal. Even where the Commissionobtained a favorable court ruling (seeWarner-Lambert v. FTC, 562 F.2d 749(D.C.Cir. 19771;cert.den., 345 U.S. 950(1978!,upholding the corrective advertis-ing remedy.], changes in personnel at theCommission resulted in few cases beingfiled in which the new precedent couldbe applied.

In the late 1970's Congress passed leg-islation specifically prohibiting the FTCfrom completing various innovative rule-making proceedings, including the oneconcerning advertising directed at chil-dren. With the Reagan Administration,changes were made at the Commissionerand top staff levels of the FTC that haspretty much insured that new consumerprotection initiatives would not comefrom the FTC. An exception has beenattacks on anti-competitive aspects ofoccupational licensing (e.g., restrictionson advertising by lawyers). The Commis-sion has been fairly assertive in this area,which can be seen as pro-consumer activ-ity. Several years ago the then Chairper-son of the Commission (James Miller,now head of OMB) proposed that Con-gress amend its basic authorization stat-ute to restrict the Commission's jurisdic-tion by restrictively defining "deception,"but this legislation was not adopted. As

a result the basic statutory frameworkremains unchanged, and with a changein personnel the Commission couldreturn to its early 1970's form.

Debt Collection: The test case litiga-tion has yielded little consumer benefit.The courts have not utilized the uncon-scionability section of the DCC in a waythat makes it a significant consumer pro-tection device. In a series of decisionsthe Supreme Court applied the due pro-cess clause to debt collection remediesin a way that required little significantchange-with the exception of wage gar-nishment, where Supreme Court deci-sions have led to the effective abolitionof ex parte wage garnishment. Legislativechanges, particularly at the state level,have been more significant. Though nostate has adopted legislation as compre-hensively pro-consumer as the Wiscon-sin Consumer Act, many states haverestricted deficiency judgments andbroadened exemptions. The Federal FairDebt Collection Act puts more severerestrictions on the activities of collectionagencies than many states have previ-ously imposed. In the early 1980's credi-tor interests made a major effort to con-vince Congress to restrict the availabilityof a bankruptcy discharge to those con-sumers judicially determined to beunable, except with great hardship, topay their debts. This heavily lobbied ini-tiative was mostly rejected by Congress,though a face-saving, largely symbolicrestriction on the bankruptcy dischargewas enacted (Bankruptcy Code 707(b)).Bankruptcy remains a more availableconsumer remedy in this country thanin any other Western nation.

Consumer Self Help: The specialremedies (attorney fees, exemplarydamages) designed to stimulate con-

sumer litigation have been only moder-ately successful, at best. Few lawyersmake a living out of litigating such cases.As a result, private litigation has not beena significant force to inducing compliancewith consumer protection legislation,with the exception of disclosure regula-tion for the reasons stated above. Smallclaims courts are generally more atten-tive to consumer interests than theywere twenty years ago, but only a smallpercentage of consumers litigate in themnonetheless. As a result small claimscourts remain primarily courts in whichcreditors can obtain collection at lowcost.

Political Organization and DirectAction: Grass roots consumer organi-zation never really got off the ground,except in a few isolated communities.Consumer issues have proved not to be aviable political organizing device. Publicinterest law firms continue to exist, butto a large extent they are foundationfinanced. Significant exceptions are theorganizations affiliated with Ralph Nader,which along with a few others receive asignificant amount of grass-roots finan-cial support.

SummaryThough there certainly have been

retreats in the past ten years, they havenot been as extensive as the develop-ments that occurred in the first ten yearsof the period under discussion. Con-sumer protection remains much moreexpansive than it was when I began myteaching career. At the same time impor-tant lessons about how best to protect theconsumer have been learned. Reformefforts that I have put under the headingsConsumer Self Help and Political Organi-

15

zation have been modestly successful atbest, but not primarily because of politi-cal opposition. We have learned that con-sumers seem unwilling to expend thetime and effort needed to protect them-selves in our litigation and political sys-tems. Since few people regard consumingas the activity that merits the highest pri-ority for their time-especially in thesetimes in which the two wage-earner fam-ily predominates-perhaps this inatten-tion to consumer protection should beexpected. It means, however, that if weare to have consumer protection, it mustbe dependent in significant part on pub-lic agency enforcement.

There remains the question whethermore consumer protection than existedtwenty years ago, or even more con-sumer protection than we have now (asI would favor), is a good thing. As I havejust argued, there is always an element ofconsumer protection that is paternalis-tic-it necessitates some government offi-cial seeking to protect people in theirmarketplace transactions when com-monly they could have protected them-selves if they had only been willing todevote enough time and energy to thetask. Thoughtful reflection might haveled the consumer to question the mis-leading advertising; if she would take thetime to read and understand a standardform contract, she might discover theabusive terms that could be avoided byshopping elsewhere or not buying at all.In our culture government action to pro-tect people from their own folly is alwayslikely to be controversial. But then mer-chant action to exploit the understand-able and expected follies of consumers islikely to be viewed with disdain as well,creating the demand that consumer pro-tection regulation is formed to satisfy.

16

Visiting Faculty:Alan WeisbardAlan Weisbard comes to the UW LawSchool from the Benjamin CardozoSchool of Law where he is an assistantprofessor specializing in ethical problemsin medicine research. He will instruct acourse in bio-ethics and the law in thespring, and will teach other courses atthe Medical School and in the Collegeof Letters and Science.

After graduating from Harvard Uni-versity in 1972, and continuing his workin economics as a graduate student there,he went on to YaleLaw School, where heearned his J.D. in 1977.

Weisbard said he had long been inter-ested in "how society deals with scienceand technology." A course in medicineand the law at Yaleprompted his specificinterest in the legal ramifications of med-icine. And when his wife began to pursuea masters in Health Education, he said,her interests inspired him to investigatethe field further.

In 1980,Weisbard was appointedAssistant Director for Legal Studies for

the President's Commission for the Studyof Ethical Problems in Medicine andBiomedical and Behavioral Research.Through 1982, P.C.E.M.R. investigatedand reported on the increasingly polemicissues surrounding compensation forresearch injuries, decisions regarding life-sustaining treatment, genetic engineer-ing, and similarly controversial questionsrelated to medicine.

Weisbard pointed out that these issuesare new, and are issues with "relativelyfew precedents." For this reason, he said,he teaches Bioethics and the Law as onemight approach a course in jurispru-dence. Medicine is a field where, Weis-bard said, "law and ethics come closetogether in a vivid and interesting way."

Weisbard said he was attracted to theUniversity of Wisconsin because of its"leading program in medical ethics."And he was interested in the Law Schoolbecause "it is known nationally for itsinterdisciplinary work."

17

Alumni otesThe firm of Schulz & Schapenkahm,Milwaukee, Wisconsin, announces thatSean Duffy ('86) and Stuart Eiche ('78)have joined the firm, and that the firmhas changed its name to Schulz, Schapen-kahm & Eiche.

Wheeler, Van Sickle & Anderson,Madison, Wisconsin, announces thatPatricia Thimmig ('78) and StuartMondschein ('78) have become share-holders. Floyd Wheeler ('31) hasbecome of-counsel after 55 years inpractice.

Laud Roman ('85). former law clerkto Chief Justice Nathan S. Heffernan ofthe Wisconsin Supreme Court, has joinedthe Madison, Wisconsin, firm of Clifford& Relles.

Agatha Melamed ('72) has beenmade a partner in the Los Angeles officeof Bryan, Cave, McPheeters & McRob-erts. Ms. Melamed is in the litigationdepartment.

Robert Onan ('64). a partner in Jen-sen, Parker and Onan, in Minneapolis,recently delivered a paper in German toseveral European business groups enti-tled "US Product Liability Law Today-How Manufacturers and World TradersCan Cost Effectively Prevent, Containand Manage Their Litigation Exposures.

Steve Long ('77) was awarded the1985 Lon O. Hocker Memorial Trial Law-yer Award by the Missouri Bar Founda-tion. The award is presented to the lead-ing trial lawyer in the state who is under36 years old. Mr. Long is a member ofthe firm Shughart, Thompson & Kilroy,in Kansas City.

Lynn Sarko ('81j, formerly AssistantUS Attorney for the District of Columbia,has joined the Seattle law firm of KellerRohrback.

Thomas Grogan ('82) has beenappointed Legal Counsel for the Univer-sity of Wisconsin-Oshkosh.

Ellen Kozak ('69) is the author ofEvery Writer's Practical Guide to Copy-right Law, published by Inkling Publica-tions of St. Paul, MN. Ms. Kozak, who isin private practice in Milwaukee, is alsothe author (under the pseudonym "[arrodComstock") of a series of science fictionnovels published by Pinnacle Books.

Quarles & Brady, Milwaukee, Wiscon-sin, announces that Michael S. Weiden('69). Ann M. Meyerhofer ('79). andMichael L. Zaleski ('66) have becomepartners in the firm. Mr. Zaleski will bein the Madison, Wisconsin, office.

Greg D. Richardson ('81) has ac-cepted a position as Regional Director ofJustice Fellowship, based in the Washing-ton, DC, area.

Additional AlumniAssist the w SchoolThe tradition of celebrating graduationanniversaries by making special giftsto their alma mater is well establishedamong Wisconsin's undergraduatealumni. Until last year, however, efforts

law graduates to recognize such mile-stones had been sporadic. As individuals,

alumni have been generous to theBut, by and large, contributions

come from them as individuals, notrecognition of their membership in a

oarticular class.That changed in 1986. Two Law

;chool classes, those of 1936 and 1961,made special efforts to mark their 50thand 25th anniversaries with class gifts tothe School. The Class of 1936 was partic-ularly successful in its undertaking, rais-ing a total of $50,000-$1,000 for every

"year out." Alum Joseph Fishelson, Presi-dent of Red Head Brass Co. of Shreve,Ohio, got the 50th Anniversary Fund roll-ing by providing his class with an excep-tionally generous matching gift incentive.Mr. Fishelson agreed to match, dollar fordollar, contributions made by his class-mates during the year leading up to lastMay's alumni weekend. The "challenge"worked, and contributions from othersin the class reached $25,000 by the dead-line date. Those contributions, togetherwith Joe's gift of an equal amount,resulted in the "Class of 1936 FiftiethAnniversary Fund."

The youngsters in the Class of 1961did something similar to mark their 25threunion. During the year leading up to

the alumni weekend, several class mem-bers made exceptional gifts to the LawSchool's Capital Fund, then in its con-cluding phase. With such generous con-tributions earmarked for endowment,the more than $7,000 in additional giftsraised for a separate "Class of 1961 25thAnniversary Fund" is quite credible.Special thanks to Jerry Shea ('61) for hisleadership in this undertaking.

While these class efforts were takingplace, the estate of Elizabeth BrandeisRaushenbush, mother of Professor WalterB. Raushenbush, made a testamentarygift of $40,000. This sum was added tothe Justice Louis D. Brandeis Scholarshipfund which the Raushenbush family hadpreviously established at the Law School.

18

Faculty NotesCharles Irish taught "Tax Reform Issuesin Newly Industrialized Countries" at theAcademy of International Taxation in Tai-wan, August-September 1986. He alsoconsulted with officials from the WorldBank and the International MonetaryFund and government officials in theEastern Caribbean about tax policy inthe region last November. Keeping busy,Prof. Irish spoke to groups of lawyers,accountants, lay persons and the Univer-sity community on the TaxReform Act of1986. He did not, however, have anythingto do with the new W-4form.

Walter Dickey recently returnedto our teaching faculty after a term asDirector of the Wisconsin Division ofCorrections. Prof. Dickey had beenappointed by Governor Earl, and servedalmost four years as the head of theprison system.

Ann Althouse has had her article,"How to Build a Separate Sphere: FederalCourts and State Power," accepted forpublication in an upcoming issue of theHarvard Law Review.

John Kidwell's article, "Should Law-yers Read Economic History?-The Pat-ent System in the Industrial Revolution,"was recently published in the AmericanBar Foundation Research Journal.

Lynn LoPucki is servicing as Chairof the Association of American LawSchool's Section on Creditors' andDebtors' Rights. Professor LoPucki hascreated a computer-role playing methodof teaching this course at the Law School.

Thomas Palay has had two articleson health maintenance organizationspublished recently: "Relational Contract-ing, 'Iransaction Cost Economics and TheGovernance of HMO'S," in the TempleLaw Quarterly; and "Organizing anHMO By Contract: Some TransactionCost Considerations," in the NebraskaLaw Review.

William Whitford has published anarticle entitled, "The Appropriate Role ofSecurity Interests in Consumer Transac-tions," in the Cardozo Law Review. Prof.Whitford is also currently chairing theAssociation of American Law School'sContracts Section.

Zigurds Zile presented a paper on"Implementation of Environmental Lawin the USSR" at the conference on SovietAdministrative Law in Trento, Italy lastDecember.

Gordon Baldwin is serving as theChairman of a Subcommittee of the ABASection on International Law & Practicecharged with studying Title XII of theDiplomatic Security and AntiterrorismAct of 1986.

Howard Erlanger is an IndependentReview Officer for the Wisconsin Depart-ment of Public Instructions. He reviewsbriefs and other documents submitted byparents and school districts in disputesover special education placements andwrites decisions.

Ted Finman served as the Chair ofthe UW-Madison Task Force on Enroll-ments. In addition to an official report,Prof. Finman also published an article onthe new, reduced enrollment policy forthe Wisconsin Alumnus magazine.

Stuart Gullickson is engaged in atwo-year study of practice in the U.S.District Court for the Western Districtof Wisconsin. The study will result ina book to be published by ContinuingLegal Education in Wisconsin. This courtis one of only three federal trial courtswhich had declined to enact local rules,remaining free to innovatively apply theFederal Rules of Civil Procedure.

Gary Milhollin published an article,"Dateline New Delhi: India's NuclearCoverup," in Foreign Policy.

While teaching at the University ofToronto as Bissell Professor of Canada-U.S. Relations, Richard Bilder deliveredfour lectures on "When Neighbors Quar-rel: Canada-U.S. Dispute SettlementExperience." The lectures will be pub-lished in book form by the University ofToronto. Prof. Bilder was at that Univer-sity on leave during the fall semester.

Frank Remington received theDistinguished University AchievementAward from the UW-Madison AlumniClub at its recent Founders Day eventin Madison.

Editor' s Note

19

Not surprisingly, the recent publicationof remarks by Robert 1. Habush (Vol.17, No.2), on the liability "crisis," hasbrought comment from our readers. It isactually gratifying that so many peopleread our publication, not limited to ourown alumni. Watch for another view-point on the issue in an upcoming issue.

On 28 January 1987 the Law Schoolwas visited by Eugene C. Thomas, Presi-dent of the American Bar Association.Mr. Thomas is a partner in the Boise,Idaho, firm of Moffatt, Thomas, Barrett& Blanton, and knows Dean Thompsonfrom his term as Dean of the Universityof Idaho Law School. In an all-schoolassembly, Pres. Thomas mentioned thatDean Thompson would be giving him aride to Milwaukee and the State Bar ofWisconsin Mid-winter Meeting after the

Mystery Picture

assembly. This, it seems, caused someconcern since Pres. Thomas rememberedthat the Dean traveled about Idaho bymotorcycle!

More seriously, Pres. Thomas calledon all lawyers, and lawyers-to-be, to takean active role in the political process,especially with respect to internationaljustice. He reported on a recent tour ofChina where he witnessed a criminaltrial involving the theft of scrap alumi-num. According to Pres. Thomas, Chinahas a long way to go before reachingthe level of protection we equate withcriminal law.

Another letter has come in regardingthe mystery picture in Vol. 17, No.2.Margaret Baggot Dadd identified herself.Margaret is now a "part-time lawyer ina small town general practice," married

to a county judge and the mother offour children.

As I am writing this column, a letteridentifying the person in the last mysterypicture has finally arrived. Until today itlooked as if this picture would be the firstto defy identification. Was it a mistake touse a photo with only one person in it?Finally, T. Dennis George ('66), of Seattle,came to the rescue: the student picturedis William F. Broll ('66), now practicinglaw in San Francisco. Dennis was presentand remembers the picture being taken.

The mystery picture in this issue origi-nally appeared in the 1969 Law SchoolBulletin. Four students are shown in theStudent Lounge; and, on the table, is Vol.2 of the Wisconsin Statutes dated 1963.Who are these four students?

20

University of Wisconsin Law School44th Annual Spring ProgramMay 1-2, 1987

11:30a.m, The Wisconsin Center, 702 Langdon Street

Friday, May 1

Saturday, May 2

Benchers Reception and DinnerFeaturing UW Law School Professor GordonBaldwin, speaking on

"The Northwest Ordinance:Fundamental Law or a Trivial Pursuit?"

The Wisconsin Center, 702 Langdon Street

Reception

Benchers members and guests

Noon

SPRING PROGRAM SCHEDULE

6:00 p.m. Tripp Commons, Memorial Union800 Langdon Street

Annual Meeting of the Wisconsin Law AlumniAssociation and Luncheon: President HowardPollack presiding.

Business will include the election of officers anddirectors and the Dean's report to the Alumni.

Special recognition of the following reunionclasses: 1937, 1942, 1947, 1952, 1957, 1962, 1967,1972,1977 and 1982. Members of these classesare invited to present brief remarks.

Presentation of Distinguished Service Awards.