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Vol. 76, No. 8, August
Letters to the editor: The
Wisconsin Lawyer publishes as many letters in each issue as space
permits. Please limit letters to 500 words; letters may be edited for
length and clarity. Letters should address the issues, and not be a
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be accepted. Please mail letters to "Letters to the
Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax
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I was taken aback when I learned of the Feb. 11 death of my mentor,
Philip Habermann, the State Bar's first executive director. Phil and I
became acquainted in 1956 upon my graduation from Marquette Law School.
Phil operated at the Bar a placement service, and he assisted me in
becoming placed with Attorney Clyde Schloemer in West Bend. Later,
Clyde, who was on the State Bar Board of Governors, asked if I would be
interested in a new position with the State Bar as a full-time staff
attorney working with the Grievance, Professional Ethics, and
Unauthorized Practice committees, and assisting Phil with other
I began these new duties in November 1958. When the supreme court
expanded and recodified the grievance system in the 1960s, I became the
State Bar's grievance administrator, investigating grievances against
Bar members, and reporting to the Executive Director and Executive
In late 1977 the supreme court established a new disciplinary system,
and I was placed in charge of that program as the first administrator of
the Board of Attorneys Professional Responsibility (BAPR).
During my career, Phil continually gave me great support. He
encouraged me to become active in the ABA's professional responsibility
activities, which resulted in my becoming a founding member of the
National Organization of Bar Counsel, the lead professional group for
all bar disciplinary counsel, and an early president of that group.
Phil attended my retirement party from BAPR in 1996, and I had the
opportunity to publicly thank him for the great assistance he afforded
me over the years.
John B. McCarthy Jr., Madison
Yes, it is time to reflect on Wisconsin's legal history over the past
100 years, having had significant national impact, and there not
following but more than prompting. It is no accident that Mr. Ranney has
carved his narration, the most powerful way of conveying truth if fully
disclosed, to fit.
Lest we forget, our jurisprudence - the kind giving rise to the
profession and its practice - reached its zenith in private remedy, not
public enforcement, particularly in matters commercial. The "force" of
Progressivism was its modeling and channeling of what one author
described as the "Fabian Freeway" to government control of the means of
production - a stark violation of the fundamental political principle of
separation of power, a principle against which efficiency militates. The
economic theory or ideology driving the political faction that
substituted Marx's division of labor for Smith's was no small part in
the Progressive solution to maintaining (inventing?) the "balance of
power between labor and capital," a conception at the time with which
the realities did not comport, and need not have comported but for its
coercion to, ultimately, national(ist) significance in the 1930s.
Oversight and inspection were part of Smith's "labor," something
performed by "management," something going to value, and there beyond
the craftsmanship of the worker, something that, but for the artificial
divorce, would have contributed significantly, and not only to worker
safety. Yet, armed with this powerful conceptual "separation," even
generated by the cynical perception of greed, the solution was still not
necessarily the intervention of the state with its manifold bureaucracy,
driven by concerns more of privilege and not necessarily economic, the
prestige of political power having an attraction of its own.
By substituting the state for management, starting with "working
conditions," a temptation to those in governance was presented to which,
first the legislature impetuously succumbed, creating a force which
thereafter the judiciary could not withstand in its attempt to maintain
the critical distinction between policing crime and regulating commerce,
the former being the principal function of government, the latter being
the principality of private enterprise, with its cardinal "right" of
property, something going well beyond reality or material domination.
Then-attorney Brandeis realized this when he coauthored his famous
article on privacy, though not so far as the right was construed in
reaction to the intrusion.
The love of "government," as opposed to the reverence for what John
Adams called "the Divine Science" - governance, was initiated before the
Progressives. But no group has had greater influence on subsequent
events in characterizing the challenges of the modern period and
narrowing the solutions to them, and there to the adoration and use of a
"contrivance" which, as subsequent events demonstrated, albeit not here
(yet), could not overcome itself in sustaining essential divisions of
governance, to genocidal consequence.
Yes, it is time to reflect on our legal history, and to refine the
departure "forward" to prosperity, a "progress" without the
"regression." And, there is no better place to start than in a
well-balanced narrative of the events and people having shaped our
course with a healthy sobriety respecting our own bias, bearing in mind
our oath to uphold the Constitution and the Republic(s) it
Gordon D. Payne, Villa Park, Ill.
John McCarthy Jr.Gordon D. Payne