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    Wisconsin Lawyer
    August 01, 2003

    Letters to the Editor

    John McCarthy Jr.Gordon D. Payne

    Wisconsin Lawyer
    Vol. 76, No. 8, August 2003


    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 personal attack on others. Letters endorsing political candidates cannot be accepted. Please mail letters to "Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email them to

    Honoring a Mentor, Phil Habermann

    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 assignments.

    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 Committee.

    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

    Reflecting on Wisconsin's Legal History

    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 guarantees.

    Gordon D. Payne, Villa Park, Ill.

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