Editor’s note: In honor of the HCBA’s 100th anniversary, THL wanted to highlight stalwarts of the local legal community. Professor Morrison has taught at the University of Minnesota Law School for 50 years. We're happy to share Professor Fred Morrison’s lecture from September 16, where he talked about changes in the law over the last 50 years.
Half a century ago, on September 16, 1969, I joined the faculty of the University of Minnesota Law School. I want to reflect on my experiences in those 50 years, and on how the law, the practice of law and legal education have changed over that period. It has been an exciting ride!
I owe my appointment here at Minnesota to William B. Lockhart, who was then dean of the Law School. He had tried to hire me two years earlier, but we couldn’t schedule a necessary interview within the time that I had to make a decision on an offer that the University of Iowa had already given me. I was a very late entry into the law teaching market, and had only that one interview, which had resulted in an offer with only a short period to decide. By the time Bill Lockhart called there wasn’t enough time to arrange an interview at Minnesota before that offer expired. I told him about that offer, and my lack of any fallback option. He agreed that in the circumstances I should take the other job, but closed the conversation by saying that he would call back in two years. Two years later—to the day—my telephone at Iowa City rang, and he asked if I would come north for a visit.
Minnesota has always had a number of advantages—a well-respected faculty, a strong national reputation, one of the best law libraries in the nation, a rich cultural life, a major metropolitan area, a state capitol in the metro area, and a more international atmosphere. I was honored to be invited here, and happy when I was able to stay. At the end of my second year here, a colleague’s wife played matchmaker and introduced me to my future wife, Charlotte. We soon settled down and became part of the community here.
The Law School and the Students
In 1969, the Law School, like the rest of the University of Minnesota, operated on a quarter system. School didn’t start until late in September and continued until mid-June. In that first year here, 1969-70, I taught Torts, Legal Process and International Law. The next year, I dropped the Torts course and added Constitutional Law. Those courses have been the core of my assigned teaching for the past 49 years: Constitutional Law, International Law, some seminar related to one or the other of them, and then occasionally another course that was urgently needed that year.
The Law School was then located in an overcrowded Fraser Hall on the East Bank. It was essentially self-contained. There were only 29 members of the faculty. Our students rarely took courses in other departments. Only occasionally did a graduate student from another department enroll in one of our offerings. There were very few women in the student body, as I recall there were fewer than 10 of them in an entering class of 250! More than 80 percent of the students were Minnesota residents. There were usually no foreign students at all. Why would a foreigner want to learn American law?
The Law School moved to the West Bank about a decade later, thanks to the efforts of Bill Lockhart, Bob Stein, and Carl Auerbach, and the financial and political support of many alumni. Indeed, we have been in the new building, now called Mondale Hall, nearly 40 years.
Today we remain one of the top public law schools in the country. We still seek to admit about 250 students each year, but more than half of them are women. But some things are different. There are nearly 60 faculty members. We have more than 60 foreign students in residence, many seeking a formal LL.M. degree; others on semester exchanges with our partner schools in eight foreign countries and from elsewhere. We continue to struggle to attract students of color.
Before I write about the changes that have occurred over the past half century, I want to relate a story from my second year here.
Each year the federal judges in each circuit meet in a “circuit conference” to discuss administrative aspects of adjudication, budgetary needs of the courts, and other administrative matters. The conference invites local law schools and bar association officers to attend. In 1970, Bill Lockhart would normally have gone to that event, but other business kept him away. He asked me to attend in his place. The honored guest at that occasion was Harry Blackmun, who had been appointed to the Supreme Court only a few months earlier. At the beginning of the conference there was a reception to congratulate Blackmun. I went through the receiving line, wearing a name tag that identified me as a professor from the University of Minnesota Law School. We shook hands, he looked at my name tag, and asked me what I taught. I told him “Constitutional Law.” He immediately replied, “That’s too bad!” Taken aback, I asked him why he said that, and he responded that he had taught Wills and Trusts at the U of M for two or three years in the late 1940s. The university had asked him and other distinguished junior lawyers to teach the additional sections that were necessary to accommodate the GIs who were returning from the Second World War. He told me that he knew that he could reuse his lecture notes from one year to the next, but he also knew from his recent experience at the Supreme Court that I would need to revise my presentation of Constitutional Law every year.
Harry Blackmun was right. Much of what I originally learned as a student and much of what I taught as a beginning teacher, is now wrong. Think of Roe v. Wade, which Blackmun would decide within the next few years. Think of Craig v. Boren, the first of a string of cases that extended strict scrutiny to gender discrimination. Think of other topics, like state taxation of interstate transactions. Constitutional law is growing and changing all of the time.
Indeed, there were also significant changes in the state constitutional law of Minnesota, during this same period. In the early 1970s the Minnesota Legislature created a Constitutional Study Commission, headed by former Gov. Elmer Anderson, to recommend changes to the state’s Constitution. With the work of State Senators Jack Davies and Bob Tenneson, Professor Carl Auerbach, the late Diana Murphy, then a law student at the University, and others, it produced, among other changes, a document that had been edited into modern English, and shortened by the elimination of redundant and excessively flowery language. Much of the research work for these changes was done by our Law School students, who were enrolled in a special seminar that I taught.
Today, I want briefly to discuss three things. First, the changes in the law itself over that half century; second, changes in the practice of law; and third, changes in legal education.
The Law
Let me start with changes in the law. The law I originally learned was heavily dependent on “rules” or “principles” that were handed down through judicial precedents. For example, when I was studying law, the main control on environmental harms was the law of nuisance. My neighbor had a right to use his property, but not a right to emit unreasonable odors, smoke, or other noxious vapors. One author defines a nuisance as a situation where the tortfeasor is “deemed to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land. . .” There is no hard and fast standard there; much is dependent on whether the fact-finder thinks that the actions of the defendant are “reasonable.”
Today we have abandoned that approach. Increasingly we are not asking the question of reasonableness, but rather specifying in absolute terms the extent to which we will permit pollution. We now use terms like “parts per million” to measure water pollution or “decibels” to measure the offensiveness of noise, and other similar scientific terms. The law tries to move from the subjective to the objective measure.
Look at how that has affected the state statutes. When I came to the University in 1969, I asked that a copy of the Minnesota Statutes be placed in my office. All of the general state statutes (together with an index) were contained in only four volumes! Today, we have the 2018 statute book—15 volumes. Our quantity of state law has increased by a factor of nearly four.
But that isn’t all. There were no published administrative rules in 1969. Such rules existed, but there was no central repository for them. You could sometimes get mimeographed copies by going to the agency and asking nicely. Today there are 12 additional volumes of Minnesota Administrative Rules, plus an updating supplement. So we now have a total of 27 volumes of legally enforceable state laws and rules; we had only four of them when I started teaching.
At the federal level it is fairly common now to have federal laws that run to several hundred pages. Massive quantities of federal regulatory law now appear in the Federal Register every day.
What we are seeing is a shift in the paradigm of law from what is called “rational” decision-making, thinking that requires the judge or agency to evaluate each situation in light of the surrounding facts and to make a subjective decision of whether that is reasonable or not, to a system of “cognitive” thinking, in which the judge or agency simply applies relatively fixed definitions (usually in measurable terms). Rather than asking whether the emissions are “reasonable,” the modern judge must ask whether they exceed a fixed number of parts per million or the like.
How and why did this change come about? Fifty years ago we accepted a test of “reasonableness” because the practicing bar (and the judges) were a relatively homogenous group of people. Like the classes I met when I first started teaching, they came from the same stratum of society, had similar educational backgrounds, and would be almost unanimous in reaching the same set of conclusions if asked “What a reasonable person would do in these circumstances.” Today, with the recognition and empowerment of a much broader slice of society, there might be a broader range of responses to that same question. So the careful legislator or administrator now drafts the law, or regulation make the rules much more specific. That gives us thicker books of laws and regulations, but it also provides more precision in addressing the underlying questions. It forces us to identify standards in ways that are not subject to the unarticulated preconceptions of decision-makers, but rather on objective measures.
The Practice of Law
That change in how we draft law has also deeply affected the practice of law. When I started to teach here half a century ago, the practice of law was primarily delivered by solo practitioners or by firms with no more than three or four lawyers. There was only a handful of firms that exceeded ten lawyers in size in all of Minnesota. The biggest “law shops” in Minnesota at that time were the attorney-general’s office, the University law faculty, and one or two firms with 20 to 40 lawyers. The University of Minnesota had only one lawyer in the University Attorney’s Office. At that time our faculty members were frequently involved with the practicing bar, because our professors could be specialists with a deeper expertise in the legal questions involved than could any individual in ordinary practice.
Law schools, like law firms, have experienced growth, but the growth in firm size has been greater and much more rapid. There was a point at which a reversal of roles occurred. Fifty years ago, I, as a law professor, had the luxury of dealing with only a small segment of the corpus of the law. I could be a “specialist,” limiting myself to public law issues—constitutional and international law, but doing so with a greater level of detail than the typical practitioner. Over those 50 years our law school faculty has roughly doubled in size, while the typical large firm has increased in size by a much larger factor. Major national firms now have hundreds of lawyers each. Most of them are experts in smaller and smaller subdivisions of the law.
Technology has accelerated that phenomenon. By consolidating firms in different geographical locations into a common professional organization connected by the Internet, law firms have made it possible for lawyers to sub-specialize the work of the individual lawyer even further.
Today, many of the practitioners with whom I interact have a much more detailed view of a much more limited range of issues than I have. I was once valued as a specialist; I am now valued as a generalist.
Legal Education
When I joined the faculty, the first year curriculum consisted of Contracts, Property, Torts, Civil Procedure, Constitutional Law, Criminal Law, plus a course called “Legal Process” that gave an introduction to legislation and regulatory agencies. Today, the first year curriculum consists of Contracts, Property, Torts, Civil Procedure, Criminal Law and Constitutional Law plus a course called “Legislation and Regulation.” No, the Curriculum Committee has not been asleep! Fifty years ago, most of those courses were year-long, with a terrifying exam on all of them sometime in late June. They are now more intensive one-semester offerings. Some of their material has spawned second- and third-year courses that explore their complexities in greater detail.
One big change in legal education has been its opening to groups that were effectively excluded half a century ago. When I started teaching fewer than 5 percent of the class were women; today, 50 years later, they are a majority of the entering class. We have been less successful in attracting students from minority groups, but, even there, there is increased representation of those groups today.
Several things have, however, changed even more dramatically.
One of those is clinical education. Fifty years ago, our clinical education faculty consisted of two non-tenure track professors who supervised clinical education, largely in Municipal Court proceedings. Today, we have a much more extensive list of clinical offerings, including the Center for New Americans, dealing with immigration issues, a Tax Clinic, Consumer Credit Clinic, and many others. In part this again represents the growing specialization in the practice of law that I mentioned above. In part it reflects the growing demand for such instruction from students in the Law School.
Another change is the internationalization of legal education. When I came, there were no international students. Law was seen as something that, unlike chemistry or engineering, was inherently limited to domestic enrollment. We had a program granting a “Master of Arts in American Law” for foreign students, but rarely enrolled even one such foreign student. Over the past 25 years, we have grown an extensive program, now with more than 60 foreign students in our student body each year. Many of those are persons who are graduates of foreign law schools who spend a year in our LL.M. program, learning American approaches to legal questions. Others are exchange students with our exchange partners at law schools in eight other countries. A few come here seeking S.J.D. degrees, legal education’s equivalent of a Ph.D., so that they may teach in their home countries.
Another great change has been the incorporation into the faculty of individuals with advanced degrees in other fields. When I joined the faculty, I was our only Ph.D., and my graduate degree was in a relatively closely related field, political science. Today about a quarter of our faculty have doctorates in many other fields. That contributes to the depth of our research and our ability to cross fertilize our research with methods and insights from other fields.
I should add one further observation. After teaching for about a decade, I came to realize that I was missing something—practice experience. I took leave for one year to practice at the Popham Haik Schnobrich Kaufman & Doty firm where I provided legal advice to a variety of clients, both public and private. That was followed by a year as the Counselor of International Law at the U.S. State Department, where I became involved in cases before the International Court of Justice and in the Iran-U.S. Claims Tribunal. Both of these leaves gave me greater insights into the law that I was teaching.
Teaching was, however, my calling. I am pleased to have been a mentor to so many young people who have become successful lawyers.