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SPRING 1984 VOL. 18, NO.2

Defending the Guilty / Antitrust / Peace Moves / ArtTrade / Land Use Controls

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SPRING 1984 VOL. 18, NO.2

Editor: Constance Hellyer Associate Editor: Michele Foyer Art Director: Barbara Mendelsohn Production Artists: Marco Spritzer, Nancy Singer Student Interns: Emily Brandenfels, Lisa Hudson Cover photo by Leo Holub Other photo and art credits: page 45. Page 4 Page 10 Page 26 Stanford Lawyer is pub­ lished semiannually for alum­ ni/ae and friends of Stanford Law School. Correspondence FROM THE DEAN 2 and materials for publication are welcome and should be FEATURE ARTICLES sent to: Editor, Stanford Defending the Guilty 4 Lawyer, Stanford Law School, Barbara A. Babcock Crown Quadrangle, Stanford, CA 94305. Copyright 1984 by A Conversation with William F. Baxter 10 the Board of Trustees of the with Diana Diamond Leland Stanford Junior Uni­ Antitrust in the '80s: The Zealots vs. the Wackos 17 versity. Reproduction in Thomas J Campbell whole or in part, without per­ mission of the publisher, is AT ISSUE prohibited. Toward an Effective Peace Movement 22 Opinions expressed in by­ John H Barton lined articles are not neces­ Trading in Art: Cultural Nationalism vs. Internationalism 24 sarily shared by the editors or John Henry Merryman by Stanford Law School. Growth Controls: Fueling the Mid-Peninsula House Price Explosion 26 Robert C. Ellickson

SCHOOL NEWS 31 Faculty Notes 43

ALUMNI/AE NEWS Alumni/ae Weekend 1983 28 Class Notes 46 In Memoriam 84 Alumni/ae Gatherings 86 Coming Events Back Cover

LETTERS 88 faculty group photographs. (Carl Spaeth's deanship was as early as 1974 we were able to go. The faculty photographs from earlier times that Front row, L to R: Byron D. Sher, we located were of individuals, and Thomas C. Grey, Michael S. Wald, did not picture the faculty as a Richard J Danzig, Mauro Cappelletti, group.) Needless to say, we would Robert L. Rabin be interested if anybody has or is Second row, L to R: Gerald Gun­ aware of any such pictures-as, ther, Moffatt Hancock, J Myron Jacob­ indeed, we are interested in all stein, Barbara A. Babcock, Kenneth E. pictures reflecting the history of the Scott, Howard R. Williams, William F School. D Baxter, John Kaplan, William Cohen, Paul Brest, David Rosenhan Third row, L to R: William B. Gould, Victor H Li, Robert A. Girard, John H Barton, John Henry Merryman, 1977 Jack H Friedenthal, Thomas Ehrlich (Dean), Richard S. Markovits, Marc A. John Hart Ely Front: Howard R. Williams, Thomas Franklin, Charles J Meyers, J Keith C. Grey, John Henry Merryman, Mann, Lawrence M Friedman, William s you noticed, the current fac­ Barbara A. Babcock, J Keith Mann. D. Warren A ulty grace this issue's cover (minus a few of us, unfortunately in­ Middle: J Myron Jacobstein, Wayne G. cluding the Dean. That's me above). Barnett, Kenneth E. Scott, David L. Instead of boring you with some Engle. 1967 brief but repetitive message, I Rear: William F. Baxter, Marc A. thought it might be fun to share Franklin, Byron D. Sher, Charles J Front row, L to R: Charles J with you-for purposes of compari­ Meyers (Dean), Gordon Kendall Scott, Meyers, J Myron Jacobstein, Robert A. son and/or nostalgia - some earlier Paul Goldstein, and Paul Brest. Girard, Bayless Manning (Dean), John Henry Merryman, Howard R. Williams, Joseph T Sneed Back row, L to R: Byron D. Sher, Lawrence M Friedman, John Kaplan, Jack H Friedenthal, Douglas R. Ayer, William F Baxter, Gordon Kendall Scott, John R. McDonough, Moffatt Hancock, Marc A. Franklin, Dale S. Collinson, Wayne G. Barnett

1961

Front row, L to R: Harry John Rath­ bun, Marion Rice Kirkwood, Carl Bern­ hardt Spaeth (Dean), James Emmet Brenner, Joseph Walter Bingham Second row, L to R: John Henry Merryman, Moffatt Hancock, John R. McDonough, Gordon Kendall Scott, John Bingham Hurlbut, Lowell Turrentine, Samuel David Thurman, David Free­ man (Assistant Dean) Third row, L to R: Edwin M Zim­ merman, John H DeMoully, Richard A. Wasserstrom, Robert A. Girard, Law­ rence Forrest Ebb, Byron D. Sher, Herbert L. Packer, William F Baxter, Philip H Wile

2 Stanford Lawyer Spring 1984 Spring 1984 Stanford Lawyer 3 II I

by Barbara Allen Babcock Professor ofLaw

oW can you defend a per­ son you know is guilty? B I have answered that ques­ tion hundreds of times, but never to my inquirer's satisfaction, and therefore never to my own. In recent years, I have more or less given up-abandoning the high­ flown explanations of my youth, and resorting to a rather peevish "Well, it's not for everybody. Criminal de­ fense work takes a peculiar mind­ set, heart-set, soul-set." While I still believe this, the mind­ set, at least, might be more acces­ sible through a better effort at ex­ planation. My perspective is that of a prac­ titioner as well as an academic. From 1964 to 1972 I was a criminal defense lawyer, first with the firm of Edward Bennett Williams in Washington, D.C., and then as a public defender. I regard those years as immensely satisfying. However, this experience also gave me ample opportunity to observe the pathology of the sys­ tem, which I've continued to follow as a teacher of criminal procedure. I've also read many dozens of books by and about criminal d~fense lawyers, which largely mirror my own experiences. With this background - and with my present security in a good aca­ demic job-I feel able to discuss, without the usual hand wringing or washing, what it is like to defend the guilty.

4 Stanford Lawyer Spring 1984 5 The legalistic or positivist's reason. treated as a real person in our so­ What Is the Question? Truth cannot be known. Facts are ciety (almost by definition, one who indeterminate, contingent and, in has a lawyer is a real person) and Most people do not mean to ques­ criminal cases, often evanescent. A accorded the full panoply of rights tion defending those accused of finding of guilt is not necessarily the and measure of concern a lawyer computer crime, embezzlement, or truth, but rather a legal conclusion affords can enable a step toward tax evasion. Usually the inquirer is arrived at after the role of the de­ rehabilitation. And because the asking, How can you defend a fense lawyer has been fully played. accused comes from a community, robber, a rapist, a murderer?1 The sophist would add that it is the beneficial effect of giving him In its components, the question is not the duty of the defense lawyer his due will spread to his friends and first, How can you when you know to act as fact finder. Were she to relatives, decreasing their anger or suspect that if you are successful, handle a case according to her own and alienation. he will be free to commit other assessment of guilt or innocence, To this might be added the murders, rapes, and robberies? she would be in the role of judge humanitarian's reason: the crimin­ Second, how can you defend a rather than advocate. ally accused are men and women in guilty man? You, with your fancy Finally, there is a difference be­ great need, and it is part of one's law degree, your nice clothes, your tween legal and moral guilt: the duty to fellow creatures to come to pleasing manner. defense lawyer should not let his their aid. Third, how can you defend- i.e. apprehension of moral guilt inter­ The egotist's reason. Defending move to suppress the evidence of fere with his analysis of legal guilt. clear guilt found on his person, criminal cases is more interesting The example usually given is of the than the routine and repetitive work break down on cross-examination person accused of murder who can an honest but confused witness, that most lawyers do, even those respond with self defense. The ac­ engaged in what passes in civil prac­ subject a rape victim to a psychia­ cused may be morally guilty but not tric examination, or reveal that an tice for litigation. The heated facts legally culpable. of crimes provide voyeuristic ex­ eyewitness to a crime has a history The odds-maker chimes in that it of mental illness? citement. Actual court appear­ is better that ten guilty people go ances, even jury trials, come earlier free than that one innocent be con­ and more often in one's career than victed. could be expected in any other area What Are the Answers? The political activist's reason. Most of the law. people who commit crimes are And winning-ah, winning-has themselves the victims of horrible great significance because the cards The garbage collector's reason. Yes, it injustice. This is true generally be­ are stacked for the prosecutor. To is dirty work, but someone must do cause most of those accused of rape, win as an underdog, and to win it. We cannot have a functioning robbery, and murder are oppressed when the victory is clear (there is no adversary system without a parti­ minorities. It is often also true in the appeal from a not-guilty verdict) is san for both sides. The defense immediate case, because the ac­ sweet. counsel's job is no different and the cused has been battered and mis­ work no more despicable than that treated in the process of arrest and of the lawyer in a civil case, who investigation. Moreover, what will arranges, argues, and even orients happen to the person accused of My Own Reason the facts with only the client's , serious crime if he is imprisoned is, interest in mind. in many instances, worse than any­ My reason for finding criminal This answer may be elegantly thing he has done. Helping to pre­ defense work rewarding is an amal­ augmented by a civil libertarian vent the imprisonment of the poor, gam in about equal parts of the discussion of the Sixth Amendment the outcast, and minorities in social worker's and the egotist's and the ideal of the adversary shameful conditions is good work. reason. system as our chosen mode for I once represented a woman­ ,ascertaining truth. The social worker's reason. This is let's call her Geraldine-who was The civil libertarian also tells us closely akin to the political activist's accused under a draconian federal that the criminally accused are the reason, with some difference in em­ drug law of her third offense for representatives of us all. When phasis. Those accused of crime, as possessing heroin. Under this law their rights are eroded, the camel's the most visible representatives of (since repealed) the first conviction nose is under and the tent may col­ the disadvantaged underclass in carried a mandatory sentence of lapse on anyone. In protecting the America, will actually be helped by five years with no possibility of constitutional rights of the accused, having a defender, no matter what probation or parole. The second we are only protecting ourselves. the outcome of their case. Being conviction carried a penalty of ten

6 Stanford Lawyer Spring 1984 not measurable, I think that Geral­ dine's friends and relatives who tes­ tified and talked with me were impressed by the fact that she had a "real" lawyer provided by the system. But in the last analysis, Geraldine was right. The case became my case, not hers. And what I liked most was the unalloyed pleasure of the sound of "Not Guilty." There are few unalloyed joys in life. The lawyer's discipline requires, however, that we do more than re­ spond to the immediate question. We should also consider whether, in fact, the right question is being asked.

Is the Question Right? The persistence and insistence of the question - How can you defend the guilty? - is based on the image of years with no probation and no with rage and righteousness. I tried the defense lawyer using daring parole. The third conviction carried to paint a picture of the impoverish­ courtroom skills and legal techni­ a sentence of twenty years on the ment and hopelessness of her life, calities to free a homicidal maniac. same terms. through lay witnesses and the doc­ Yet this is a fantasy almost never She was 42 years old. During the tors (who were a little on the inade­ realized. few years of her adult life when not quate side themselves). The prose­ The vast majority of those incarcerated by the state, she had cutor and I came close to blows. At accused of crime plead guilty-in been imprisoned in heroin addiction one point, he told the judge he some jurisdictions as many as 90 of the most dreadful sort. She was couldn't continue because I had percent of those charged. Nowhere black, poor, and ugly-and there threatened him (which I had -with is the guilty plea rate less than 60 was no apparent defense to the referral to the disciplinary commit­ percent. charge. But even for one as bereft as tee if he continued what I thought In one rough sense this may ap­ she, the general practice was to was unfair questioning). pear to be a fair result, since most mitigate the harshness of the law by Geraldine observed the seven defendants are guilty of something allowing a guilty plea to a drug days of trial with only mild interest, along the lines of the accusation. charge under local law, which did but when after many hours of delib­ Yet many, in some places most, of not carry the mandatory penalties. eration the jury returned a verdict those who plead guilty do so with­ In this case, however, the pros­ of Not Guilty by Reason of Insanity, out their lawyers', or anyone else's, ecutor refused the usual plea. she burst into tears. Throwing her thinking very seriously about pos­ Casting about for a defense, I sent arms around me, she said: "I'm so sible defenses or extenuating cir­ her for a mental examination. The happy for you." cumstances. doctors at the public hospital Embodied in the Geraldine story, Rather than the popular myth of reported that she had a mental which has many other parts but an adversary system designed to disease: "inadequate personality." which is close to true as I've written produce individuated findings of When I inquired about the symp­ it, are my answers to the question. guilt while protecting precious toms of this illness, one said: "Well, By direct application of my skills, rights, we have a bureaucratic she is just the most inadequate I saved a woman from spending the guilty-plea mill that grinds all alike. person I've ever seen." But there it rest of her adult life in prison. In Overburdened defense lawyers was - at least a defense - a disease constructing her defense, I became without investigation or prepara­ or defect listed in the diagnostic intimate with a life as different from tion arrange for the going_rates on manual of that day. my own as could be imagined, and I cases and trade one off against the At the trial I was fairly choking learned from that. In ways that are others.

Spring 1984 Stanford Lawyer 7 The appropriate question for many defense lawyers is, then, How can you participate in such a process? or even Why don't you defend the guilty? The realities of a criminal justice system in which few are actually de­ fended seldom surface in print. But Life magazine once followed an experienced public defender in his daily rounds in New York City. The defender entered a crowded cell block on the day of trial to discuss a proposed deal with a client he had never seen before. Highlights of the conversation between Erdmann (the lawyer) and Santiago (the cli­ ent) were recorded: "If you didn't do anything wrong," Erdmann says, "then there's no

point even discussing this. You'll go I to trial." Santiago nods desperately. "I ain't plea if you aren't guilty." lawyers willing to represent the ac­ done nothing! I was asleep! I never "But I didn't do nothing." cused, the question of how one been in trouble before." (This is the "Then you'll have to stay in and go defends the guilty would be sub­ first time, since his initial interview to trial." sumed in the larger one of what with a law student seven months "When will that be?" lawyers' work is about. And this is ago, that he has had a chance to tell "In a couple of months. Maybe where the question belongs. his story to a lawyer, and he is longer." There is really nothing different frantic to get it all out. Erdmann Santiago has a grip on the bars. about the ethical dilemmas or the cannot stop the torrent, and now he "You mean if I'm guilty, I get out amoral stance toward society of the does not try.) "I been here ten today?" lawyer in a civil case representing a months. I don't see no lawyer or "Yes." "bad" person- even, or especially, nothing. I ain't had a shower in two "But if I'm innocent, I got to stay in corporate form - than the lawyer months. We locked up 24 hours a In.. ?" representing someone guilty of a day. I got no shave, no hot food. I "That's right."2 crime. ain't never been like this before. I The wrong question is asked and It is true that the facts of criminal can't stand it. I'm going to kill my­ nobody really cares, because most cases are heated and that the stakes self. I got to get out. I ain't -" of those accused of crime are poor are high, but the very same ethical Now Erdmann interrupts, icily and often are minorities. A pressures exist in civil cases to win calm. "Well, it's very simple. Either "we/they" mentality allows the by shading the facts, crossing the you're guilty or you're not. If you're shameful discontinuity between a line in witness preparation, and de­ guilty of anything, you can take the criminal justice system described stroying or creating evidence. plea and they'll give you a year; and, on paper and reality. Perhaps we should shift the focus under the circumstances, that's a Yet unlike other sores on the body of lawyers' work from its traditional very good plea, and you ought to politic that arise from fear and unmitigated devotion to the client's take it. If you're not guilty, you have prejudice, the breakdown of the interest. But until that is done, the to go to trial." criminal justice system is a tract­ defense of the guilty should be re­ ". .. I'm innocent. I didn't do able problem -once we resolve to garded in the same way as the rep­ nothing. But I got to get out of here. solve it. There simply should be resentation of the "bad." I got to-" more lawyers, both public defend­ To inspire more lawyers to enter "Well, if you did do anything and ers and the regular litigating bar, the lists, let us finally turn to an you are a little guilty, they'll give doing criminal defense work in the exemplary life - in the mode of nine­ you time served and you'll walk." same way and with the same expen­ teenth century biographies of saints "I'll take the plea. But I didn't do diture of resources as other legal and statesmen, presented for peda­ nothing." work. gogic effect. In all of the writing by "No one's going to let you take the If there were a large base of and about criminal defense lawyers,

8 Stanford Lawyer Spring 1984 only one is universally recognized sponsibility, as well as an expres­ as being exemplary- Clarence sion of personal opinion and belief Darrow. that steps over the line of accepted Darrow lived from 1857 until practice. 1938. Most of the things that de­ Yet the way Clarence Darrow fense lawyers dread happened to looked at defending - always in a him: notably, indictment for ob­ perspective larger than the indi­ struction of justice in a case where it vidual and the facts of the crime - is was said that he arranged to bribe a still with us. We're not allowed to potential juror; public obloquy for say the things he said so eloquently and misunderstanding of his repre­ and explicitly. But the fact finder, sentation of Leopold and Loeb; a be it judge or jury, on a guilty plea or frequent cloud over all of his a trial, sees and senses what Darrow activities because he represented said when a defense lawyer truly the despised. represents his client. He had the characteristic criminal Among the defense bar today defense lawyer's view of defending there are hundreds of lesser the guilty as exemplified in a con­ Darrows, giving partial and implicit versation with a friend who asked eXpression to what he could more him, some years after an acquittal in openly state: that the causes of a famous case, whether the accused crime are unknown, perhaps un­ had actually done it. Darrow said: "I knowable, and that, in the end, we don't know; I never asked him."3 all share a common humanity with One of his law partners said, "He the accused. D would defend anyone who was in trouble. Though his motivations were different, he sometimes used Footnotes the same methods as cheap criminal 1. In recent years, however, as white­ lawyers."4 collar crime has increased in both amount Yet Darrow comes to us from the and sophistication, liberal critics of the pages of the not-so-distant past as a criminal justice system have begun to raise mythic figure. This has not hap­ the question in the context of rich and power­ ful defendants and the way in which their pened solely because of the amazing almost unlimited legal resources twist oratorical talent that was the mark results. of his practice. The exceedingly 2. Mills, ]. "I have nothing to do with kind judgment of history is rather a Justice," Life, March 12, 1971, pp. 55-68. result of his ability to convey di­ 3. Stone, 1., Clarence Darrow for the rectly to juries and judges the Defense (1941), p. 254. humanist values that compelled him 4. Id. at p. 355. 5. Darrow, C., The Story ofMy Life (1932), to defend the guilty. pp.75-6. In virtually all of his cases, he spoke much more about the societal conditions that had produced the Art Credits crime, the defendant as an indi­ vidual, and the philosophical diffi­ Engravings by William Hogarth (1697­ culty of distinguishing right from 1764). Pp. 1-2: The Rake's Progress (Scene wrong, particularly for historical VI!), "In the Fleet." P. 5: The Industrious Ap­ prentice, "Alderman of London: Idle One purposes, than ever he addressed Brought Before Him & Impeach'd by His Ac­ the facts of the case or the particu­ complice." P. 6: Cruelty (Third Stage), lars of the defense. "Cruelty in Perfection." Reproduced from It is interesting that virtually none heliographs in The Works of William Ho­ of Darrow's famous summations garth, James R. Osgood & Co. (Boston, 1876). would be considered proper in any Our thanks to the Palo Alto Public Library for the loan of this fine volume. courtroom today. There is clearly Photograph of Clarence Darrow by Nicko­ an appeal to the prejudices, pas­ las Muray (1892-1965). From the collection of sions, and sympathy of the jury that the International Museum of Photography at violates codes of professional re- George Eastman House, Rochester, N. Y.

Spring 1984 Stanford Lawyer 9 A onversation with illiam Baxter

t must be a dramatic change to have been involved in Washington, D.C., at what, I I must assume, was a very .hectic pace, and then come back to Stanford Law School, which certainly has a different flow to it. Yes, it's an enormous cultural shock. You have been here since the '50s, haven't you? Oh, I've been here forever. I graduated from Stanford Law School in 1956, but I began myundergraduate work in 1947. You are right, though-I am still floating on an adrenaline cloud. I find myself waking up at four or four­ thirty in the morning, saying "There must be· some work around here that needs doing." I have always been involved, though, in an active con­ sulting practice, along with teaching, and I will do that again. That will be my salvation, and I will expend all the adrenaline I need. Why did you decide to go to Washington? Oh, the particular post that they offered me is sort of the mecca job of my specialty. It's the job that everybody who practices antitrust or regulatory law would like to have. For me, in particular, since for the past twenty years I had been teaching that they had large parts of it all wrong, there was an unusually strong obligation either to put up or shut up. I wanted to see how much of it I could change, and I changed a fair amount of it.

10 Stanford Lawyer Spring 1984

Some say you made a contribution that will Well, that's right. And that's a very serious problem. It affect antitrust law for at least the next twenty never really worked well. It worked tolerably well as years. long as we had the seniority system and responsible It's still very controversial. party leadership. But with the current destruction of seniority and total lack of party authority, there are 535 Any regrets? little fiefdoms back there. No one has any idea what No major ones. In retrospect you can always see how anyone else is doing. Everybody looks for his own set of you could have done this a little better, or "Oh, I should headlines-a very bad situation. And I don't see any have said this." But all in all, I am reasonably content obvious solution. with the way it played out. There are ways the Constitution could be Why did you resign? changed. Tired. And because next year is going to be a highly We could somehow more closely approximate a parlia­ political year. It's hard enough to do things that are right mentary system. We could have the entire House elected but politically unpopular the first three years of an once every four years-the same year as the president. administration; it may become impossible the fourth Or we could have the president elected once every six year. years and get the House in the same six-year cycle, similar to the Senate. Didyou resign as a favor to Reagan oras a favor But what has happened is that they have created a sub­ to yourself? committee for every member so that every member has I did it as a favor to myself. I didn't want to be in that its own little subcommittee and has its own staff. When political crossfire all year. the hearings go on, more often than not there's only the subcommittee chairman at the hearings, and no one else Did you feel that some of the decisions you in Congress really cares. made-most notably the AT&T decision­ would have had some negative impact on the What do you plan to do here at Stanford? upcoming election? Go back to consulting, teaching, and writing. I've Oh, I don't think so. The reorganization is so compli­ learned a lot about government institutions and a little cated that only a handful of people really understand it; bit more about antitrust law and regulatory functions. I people who do understand it think it's a very positive think I have some new things I want to write about. step. There's a certain amount of misunderstanding about its causing rate increases, which is totally wrong. I read that one of the reasons you left is be­ But I don't think it will be a significant political factor one cause, you said, that although you had been way or the other. involved with antitrust law in a most intimate way the last three years, you have lost track as Did you get a different viewofWashington than a lawyer. you had from here? Yes. I just didn't have time to read the cases, the A little. No major change of viewpoint. More confi­ economic literature, the finance literature. You consume dence in some points of view; more sharpness. the human capital with which you go to Washington and have very little opportunity to restock it while there. Is it easy to accomplish things or did you find it more difficult than you thought to get a pro­ Did you enjoy working in and within the gram or proposal across? Reagan administration? It depends whether or not accomplishing something Oh sure. I was quite properly regarded as a specialist. requires the cooperation of the Congress. If accomplish­ No one called me in to ask me what I thought the budget ing something does, then it is extremely difficult to get deficit should be. On the other hand, I was regarded as a anything done-virtually impossible. If you don't need specialist who had a lot more knowledge and under­ the cooperation of the Congress, then it can be done. standing than most people in the administration on microeconomic and regulatory problems. So I did work Then would you saythat Reagan maybehaving with other people on a variety of problems. some problems accomplishing his original pro­ grams because of the Congress? You probably will be most remembered for your decisions on the antitrust suit against Oh sure. Congress as an institution is a disaster. IBM and the divestiture of AT&T. Do you regret either decision? What would you do then? We can't change it unless we change the Constitution. Oh heavens, no.

12 Stanford Lawyer Spring 1984 company along the right lines? Was it going to be commercially viable? Those were the difficulties with AT&T-the analytical difficulties, the comprehension difficulties; a command of an enormous body of complex technical and industrial data was necessary. IBM involved some of that. A great deal of study went into reaching the conclusion that the government, in effect, after 13 years of wheel-spinning, had not begun to prove violation of Section 2 of the Sherman Act-the anti-monopolization section. Now that January 1 has arrived, the effect of the AT&T break-up will be felt more keenly. Rumor is that telephone rates will double, triple, all across the country. I think that the reorganization will be totally trans­ parent to 99 percent of the population. About the only difference will be that they will have to make a decision whether they want to buy the instrument they are now leasing; and if they want a different type of instrument, they will have to go to the store and buy it - as they would any other appliance. Apart from those two things, no one is going to notice. My understanding is that local rates are probably going to double and that long­ distance rates may come down. In the first place, if local rates go up - and we can talk about that-it will have nothing to do with the divesti­ ture. The divestiture is not going to make any rates go up, down, or sideways. It has no effect whatsoever. Weren't long-distance rates subsidizing local Are you proud of them? rates? Sure. Yes, and they can go right on subsidizing local rates. The divestiture doesn't keep them from subsidizing Which one was harder to arrive at-either local rates. analytically or politically? The fact is that there were a lot of forces at work that Well, IBM was much more difficult to do the right will continue to be at work. Larger and larger portions thing from a political standpoint, because it's perfectly of the telephone industry will become competitive, and obvious that there was going to be enormous criticism. competition drives cross-subsidies out of the system. But I guess what I didn't foresee was that it would We may indeed decide-we should indeed decide-to touch offa heroic effort to dig up some fanciful conflict stop subsidizing local service with a tax on long­ of interest or something-that it would acquire the level distance, .which is what we were doing, but it has of personal character assassination as it did at times. It nothing to do with the divestiture as such. was perfectly obvious that it was going to be inten­ Similarly, local rates will go up because historically tionally criticized by some. It also was fairly clear in the regulators have insisted that those kinds of equip­ advance that AT&T was not going to be subject to a ment be treated as having useful lives of 30 years and great deal of criticism, and it wasn't. Indeed, you came depreciated very slowly, although that equipment offlooking like a hero. Here you negotiated the biggest should have been depreciated over a period of 7 to 10 divestiture in history. The litmus-paper loudmouths years. had a great deal of difficulty criticizing that because it In a regulated context, that has two consequences. looked like the government had won. First of all, it keeps today's rates lower, because you The difficulty with AT&T was the enormous com­ don't have to pay as much depreciation. But secondly, plexity of the problem and acquiring sufficient confi­ it makes tomorrow's rate base bigger, because what dence that you were insisting on the right language in has not been written offin depreciation goes into tomor­ the consent decree. Essentially, are we fracturing this row's rate base.

Spring 1984 Stanford Lawyer 13 This is typical political behavior by politicians who No. It doesn't do people any good to have their busi­ have a time frame that never extends beyond the next nesses pay their phone bills for them. The phone election. They solve the problem by keeping today's system works less efficiently because of these crazy rates low and letting someone else worry about the fact pricing features being forced into it. And you pay your that you are pushing forward in time this enormous real phone bill every time you buy a loaf of bread or a bulging rate base. And because the telephone company blouse at the store. It simply forces up the costs of the has to be allowed to earn a reasonable rate of return on businesses that sell you the things that you buy. this ever-fattening rate base, eventually it has to be amortized. I have mixed reactions as a consumer. We had The FCC, under the new leadership, has recognized a .system that in some ways was working very this and has required depreciation rates be made some­ nIcely. I could call almost any place in the what more reasonable. And the consequence of that is country, or even the world, in seconds. My that we are going to have to be eating our way into this telephone usually works, the service is good. mountain of unamortized costs that the state regulators 'Ye have taken something that is very opera­ have pushed out in front of us. And that, too, will make tIve and reasonably cheap and chaQged it. And rates tend to rise, although, again, it has nothing to do for the next four to five years there is that with the divestiture. unknown out there. So, in short, I would say something along the follow­ ing lines. The costs, as opposed to rates-the costs of That's right. Every change can be greeted with ap­ telephone service will fall, and continue to fall in the prehension. years ahead. The divestiture, by greatly intensifying competition Will it ultimately be better for me-the resi­ in long-distance services and a number of other ser­ dential customer? vices, will tend to cause costs to fall more rapidly than they would have fallen otherwise. Certainly the cost 'Of Oh, sure. On average, I haven't the slightest doubt customer premises equipment will fall very dramat­ about it. ically with competition. We have every reason to expect Everyone's phone costs are going to fall. And, on that switching equipment and other kinds of equipment average, rates will follow costs. The problem is buried will fall similarly. in the "on average" statement, because some people Rates, as opposed to costs, are affected by accounting will benefit more than others. And because of these conventions, involving such things as cross-subsidies accounting distortions that we have had in the past, and depreciation. And for some of these accounting there will have to be, or there will undoubtedly be, a reasons, what has been kept artificially low before is correction period. likely to move back to a more economically realistic On the other hand, we can go right on making these level. mistakes if we are determined to do so. Divestiture The primary thing that has been kept artificially low doesn't make it impossible. Indeed, when I designed before are local residential rates. So local residential the divestiture decree, I carefully built into the decree a rates will be subject to two influences: they will be mechanism that permitted the regulators to go on subject to the influence of falling real costs, but they making all the old mistakes, if they wanted to make the also will be subject to the influence of more realistic old mistakes. They have to make them somewhat more rate-making. Which of those will dominate is not out in the open now, but the means for perpetuating entirely obvious, although I think that even on an those mistakes were carefully built into the consent inflation-corrected basis, local rates will probably rise decree. for a few years while we go through these corrective What has happened is that the regulators have taken processes, and then, after four, five or six years, they advantage of the fact of the consent decree, a big will probably begin falling in real terms as the cost de­ political maneuver. They have thrown up their hands creases become the dominant factor. and said, this strange, mystical force way off in How much will that increase the rates? They are not Washington, D.C., over which we have no control, is going to double or quadruple or any of the silly things going to make us correct these mistakes. So they are that have been said. They might increase as little as 25 sort of using it as a screen, a political excuse, behind or 30 percent. They might increase as much as 50 or 60 which to hide while they change some of these things. percent. Those are the realistic numbers. Now, that doesn't particularly bother me. I am de­ lighted to see them changing these things around, because there were economic errors, and it would be You have said the AT&T divestiture favors better offif they changed. I don't much care if they are consumers, but in a sense it's the business con­ pointing to the divestiture as the cause of these things. sumer, not the residential consumer that is But no one with the slightest comprehension of what favored. the system is about should be deceived.

14 Stanford Lawyer Spring 1984 Turning to another area, you took a fairly strong position that manufacturers can forbid their distributors to have any price compe­ tition. How do you feel about that? The position I have taken is that manufacturers should be able to reach agreement with their distribu­ tors as to how those products should be distributed. The U.S. Supreme Court holds a totally dif­ ferent view. It did in 1962, which I guess was the last time they spoke about it .. So maybe we will find out. I just argued a case before the U.S. Supreme Court that may cause them to address themselves to that issue again. It is perfectly clear a manufacturer cannot go to a retail store and say, "Here is my product, I insist that you buy it. And I insist that you market it the way I want you to market it." The manufacturer can proceed only by seeking out retailers or wholesalers, depending upon the configuration of the distribution system, and reaching agreement with them- offering them a satis­ factory price for the merchandise and entering into essentially a consensual relationship. But the retailer's situation is quite different. At the present time, the retailer can tell the manufacturer, whether the manufacturer likes it or not, that he is You never find a discount store wanting to market a going to distribute goods the way he wants to. And brand-new product. They are only interested in a there's no particular reason to think that that's a product after someone else has built a reputation sensible way to run a world; indeed, it's fairly clear, I around it. think, that with respect to some kinds of products at least, unless the manufacturer can control the charac­ What's wrong with that? teristics of his distribution system, that the product No one will invest in building a reputation for a can't successfully be developed and marketed. This is product if the product is going to be rendered unprofit­ especially true with respect to technically complex able the day they complete the process. So the incentive consumer goods, usually relatively new products. to develop and attempt to market complex new prod­ ucts of that kind will be greatly weakened under those Like Apple Computer? circumstances. Like Apple Computer. Photographic equipment. Or digital turntables. Well, I can see that argument in some ways. It No one is going to spend two-thousand dollars on a protects Apple or whoever is manufacturing a digital turntable unless there is someone at the store product. But it disallows the consumer to who can explain exactly why it works the way it works, somehow enjoy the competition that occurs why it is superior to other turntables. And that requires between distributors. a retailer to invest a lot of money in inventory to keep all No. The consumer enjoys the competition between this expensive stuff around - and that he have techni­ Apple and IBM, between Apple and DEC, between cally trained salespeople there on the floor who will be Apple and Control Data, Apple and Adam-there's all standing around on one foot or the other most of the the competition in the world out there. The only com­ day, but who will be there to answer questions when petition that is eliminated is the competition between people come in. two different retailers selling Apple. And even there it But if people can go into the store, take advantage of is not eliminated unless the manufacturer wants to the display inventory, cross-examine the technically eliminate it. trained salespeople for an hour-and-a-half, and then, And why would the manufacturer want to eliminate when they finally understand what this equipment can competition between two different retailers? By and do for them, walk out, say, "Thank you very much, and large, he would like his product sold by his retailers at I am going to get it from the discount store" -why, you the lowest possible cost. The manufacturer has every cannot sustain the distribution system under those cir­ incentive in the world to do business with discounters. cumstances. The notion that discounters would somehow be cut off

Spring 1984 Stanford Lawyer 15 en masse is, again, a very simple, childish piece of Where do automobiles fit into your market political nonsense. classification? There is only one circumstance in which a manufac­ Well, there would be a world market in automobiles if turer wants to suppress price competition between his the government hadn't screwed the market up by dealers. That is where one of the dealers is providing pounding on the Japanese. For example, we got the the kind of sales and service that he thinks is essential Japanese to restrict their shipments of automobiles to to the success of his product, and where the other is the United States, so that, as an economic matter, the rendering that activity unprofitable for the first dealer Japanese are no longer in the market. Notwithstanding, by not incurring the expenses of providing the services they still have a 20 percent market share. and by charging the low prices that go along with not I realize that's a statement you will find puzzling. But providing those services. Now he is destabilizing the the critical question one is asking when one asks if they system, and that the manufacturer wants to stop. are really in the market is whether they can expand their supply in response to the price increase. And since Some have said that you singularly favor busi­ the number of Japanese automobiles is fixed, the ness; others label you "too soft on business." Japanese cannot expand their supply of automobiles in Are these accurate? response to a price increase, and therefore they They don't mean anything. How do I know what they exercise no disciplinary influence whatsoever on the are talking about? price of American automobiles. We have taken them completely out of the marketplace. Well, I presume they mean whatthe consumer Similarly in carbon steel, we have taken most of the groups calla "let-the-consumer-be-damned"at­ European suppliers completely out of the marketplace. titude. And there are other respects in which we and many other countries have closed their markets. There are a lot of things where there is not a world So the question as to whether something is a local market. Local motion picture exhibition: a theater in market or a national or international market is simply a New York City is not in competition with, say, the New question of fact that varies from case to case. Varsity Theater in Palo Alto. So the geographic scope Now, I said that loud and long-perhaps in ways that of markets varies enormously depending upon the some people understood for the first time in their lives. product or service you are talking about. On the other hand, there was nothing radical about that proposition. Anyone who is semiliterate in economics Why is the perception so different? would have made that statement fifty years ago. Some Because people don't understand what they are talk­ gave me much too much credit on that particular point. ing about. Give me an example where people are wrong. Perhaps it was saying the right thing at the The consumer groups-the Consumer Federation of right time in the right place. America, for example - came out with a big bla~t about Okay, maybe all those things. resale price maintenance that was obviously wrItten by There is one more thing I would like to say. Although someone who had never taken Econ 101, and it was just I am pleased with the disposition of the two big cases, I absolute political gibberish. don't regard those cases as the most important thing I was able to accomplish, to the extent I was able to If you have been accused of being too soft on accomplish anything. business, you also have been complimentedon But probably the most important and the most long­ havingthe U.S. assumeaninternationalglobal lasting thing is that I think that I really got most of the approach to the marketplace. Isthataccurate? 400 lawyers in the Antitrust Division to realize in a Well, not terribly accurate. much more focused and articulate way that the only In some products there is a world market. Certainly disciplined context for thinking about or talking about in specialty steel, computer software, robotics and the public interest is in terms of consumer welfare and unrefined petroleum. And where there is a world mar­ economic analysis. ket, of course you have to recognize that there's a world They didn't all agree with the answers that I got when market. I employed those devices, but that's okay. That's not There are a lot of things where there is not a world nearly as important as the fact that, by and large, I market. Local motion picture exhibition: a theater at convinced them that those are the tools to be used in the New York City is not in competition with, say, the New final analysis. Varsity Theater in Palo Alto. So the geographic scope And if I am right in thinking that I brought about that of markets varies enormously depending upon the kind of mental process change, well, that is going to be product or service you are talking about. around for a long time to come. D

16 Stanford Lawyer Spring 1984 n s: The Zealots vs. the Wackos

by Thomas]. Campbell Associate Professor ofLaw

'he Reagan administration's approach to antitrust enforce­ T ment has stirred up a contro­ versy over the ends and means of trust-busting. Some of the issues involved were raised in the brief opposing certio­ rari of Monsanto v. Sprayright, a resale price maintenance case set for argument this December before the U.S. Supreme Court. The plain­ tiff won at trial, and on appeal. All was going well for the plaintiff, even after a petition for certiorari was filed, until the Justice Department filed a brief urging certiorari be granted and the case reversed. The respondent argued that the government's brief was a treatise on what the law should be, and bore no relation to what the law was, or to what the facts of this case were. If the "zealots" in the antitrust division are intent on changing the law, the brief continued, they should bring their theories to the Congress, and stay out of cases such as this. These respondents were relying, of course, on 72 years of Supreme Court decision law dealing with ver­ tical price agreements. Assistant Attorney General William Baxter, who heads the Antitrust Division and holds a chair at Stanford Law School, * has a description for the Supreme Court decisions upon which the Sprayrite attorneys so diligently rely: "esoteric, baseless, simply made up, wacko." Hence, the subtitle of this article, "The Zealots vs. the Wackos."

Spring 1984 Stanford Lawyer 17 I hope that my topic will have in­ least cost. Even ifthe price ofoil is reduced to one terest beyond antitrust, for I believe That sounds like a worthy goal. cent a barrel, it would not right the the antitrust area is an example of What is missing? Explicit concern for wrong done to the people by the trusts two trends with more general appli­ who pays for the product-the con­ which have destroyed legitimate com­ cation in this administration: the sumer. Explicit concern for who petition and driven honest men from use of economic doctrine in the face makes the product-the nation of legitimate businesses. of sometimes noneconomic stat­ shopkeepers, worthy competitors, utes; and the heavy reliance on the the noble small businessmen, those And Judge Learned Hand authored rule of prosecutorial discretion con­ whom Justice Peckham called "small what many consider the conclusive trary to congressional direction. dealers and worthy men." And ex­ word on this subject, in the Alcoa I do not necessarily find these ap­ plicit concern about who accumu­ case, with language that was subse­ proaches wrong. Nor are theyunique lates the wealth- a diverse group of quently embraced by the Supreme Court itself: to this administration. The Depart­ consumers, or a wealthy, bloated, ment of Justice has not enforced the octopus-like trust? Itis fruitless to try Congress ... did not condone '[{ood Robinson-Patman Act for many to claim that these interests play no trusts" and condemn ((bad" ones: it years, relying on economic grounds. part in the genesis of the antitrust forbade all. Moreover, in so doing it And as for pronouncements about laws. Quite the contrary-the pages was not ·necessarily actuated by eco­ the antitrust laws, Justice Oliver of legislative history and early case nomic motives alone. It is possible, Wendell Holmes opined that the en­ law virtually drip with unctuous so­ because of its indirect social or moral tire Sherman Act was a "humbug licitude for these goals. effect, to prefer a system of small born of economic ignorance and in­ The great Senator Sherman him­ producers, each dependent for his competence." That, I believe, is the self spoke in these words of the evil success upon his own skill and char­ nineteenth century translation of of trusts: "among them all, none is acter, to one in which the great mass of "wacko." more threatening than the inequality those engaged mustaccept the direction Turning to the first point - eco­ of condition, of wealth, and oppor­ ofafew. nomics-this administration's anti­ tunity ...."He observed that "[some] trust enforcement approach has combinations [might be able to] re­ But the current administration been a conscious, painstaking effort duce prices by bettermethods of pro­ does not favor these noneconomic to establish one overriding principle duction." But this was a Faustian goals. We have new merger guide­ as the goal of antitrust: economic bargain to be rejected, since "[the] lines, allowing higher levels of indus­ efficiency. This term translates saving of cost goes to the pockets of try concentration. Before, a small roughly to producing the amount of the producers." producer could sue to prevent even products that consumers demand as Another member of Congress so small a concentration as seven closely as possible to the priority in speaking on the Sherman Act rose in percent of the market. We have re­ which they are demanded, and at the agreement: duced enforcement actions against

18 Stanford Lawyer Spring 1984 vertical price-setting through resale ments among competitors. When I 1983 annual meeting in Atlanta urg­ price maintenance. As the adminis­ was director of the Bureauof Compe­ ing an exemption from the FTC Act tration's critics would describe it: a tition at the Federal Trade Commis­ for all professionals. One delegate big, powerful, overreaching con­ sion, I authorized complaints against likened the FTC to an 800-pound glomerate is allowed to tell maand pa the second and third largest mergers gorilla with bad breath. drugstores on the cornerexactlyhow in history-Mobil's attempted acqui­ And I personally testified before much they must charge for tooth­ sition of Marathon, and Gulfs at­ Congress, in opposition to a bill to paste, and consumers must pay that tempted q.cquisition of Cities Ser­ allow United States shipping lines to price. A dominant firm twice or ten vice. Both mergers were stopped. agree among themselves on prices times the size of a small company Bill Baxter has put 127 business­ and routes, because such agree­ trying to enter the market, and with men in jail, and has collected over ments would result in higher prices cost advantages overa smallerfirm ­ $47 million in fines for bid-rigging on for every consumer item that had to can drop its price so low that the new highway construction, a record un­ be shipped. player can't earn a profit and has to paralleled in Antitrust Division his­ The first response is this: eco­ drop out, after which the dominant tory. He has stretched the Sherman nomics cuts both ways. Once you firm can lift its price again. Act §2 past the breaking point, to have decided to make it your goal, Thurman Arnold, the antitrust charge the president of American and disregard the other suggested chief in the Franklin Roosevelt ad­ Airlines with conspiracy to attempt goals of antitrust, a whole vista of ministration, used to say that bring­ to agree to fix prices, even though the enforcement actions opens up. ing an antitrust case was much like a other party to the potential con­ Most obvious as targets are those Plains Indian hunting buffalo - all spiracy was far from agreeing; he people, whether professional men you had to do was shoot an arrowinto was calmly tape-recording the whole and women or local government the herd and you'd be sure to hit conversation! agencies, who see their higher call­ something. These days, critics And the FTC chairman, far from ing as justification for some "ration­ would say the Indians are spending rolling over in the face of the most alization of the market." all their time contemplating their ar­ powerful professional trade associa­ The Supreme Court had an answer rows, asking whether it is efficient to tion in the United States because it for such assertions, in the National use them, since, if you wait long bears the prestigious name Ameri­ Society of Professional Engineers enough, a buffalo is likely to drop can Medical Association, pressed the and the City of Boulder cases: no dead of its own accord. antitrust suit and brought the na­ noble purpose that reduces economic What defense can be made for this tional organization and many locals efficiency is adequate to excuse an enforcement approach? First is to under FTC order. So aggressive did antitrust violation. And this adminis­ look at some other types of antitrust he become in his endeavors that the tration has pushed that principle enforcement that are going on, spe­ American Bar Association was without stinting-so much so that cifically in the horizontal area: agree- moved to endorse a resolution at its your phones may no longer work, but

Spring 1984 Stanford Lawyer 19 you have the comfort of knowing, as tion would rise. Who pays for that you sit there listening to static on a higher cost of production? The large, long-distance call, that you are not dominant firm? Only in part. The paying to subsidize some ten-cent consumers of the product? Only in local call from a pay phone! part. The real victims are producers There is another answer as well. It and purchasers of other goods, per­ requires the realization thatthe other haps totally unrelated, who cannot goals of antitrust- protecting small obtain the resources to produce businesses, lowering prices to con­ those other goods, or have to pay a sumers, allowing room for the little higher price to obtain them because guy in every market-are not free of more resources are being consumed cost, although the lore is to the con­ in the first industry than are neces­ trary. In the Northern Pacific case, sary to produce those goods. the Supreme Court held: So exactly whom are we helping The Sherman Act ... rests on the and whom are we hurting? We are premise that the unrestrained interac­ helping a less efficient producer; and tion ofcompetitive forces will yield the we are hurting hundreds of other best allocation of our economic re­ producers and consumers in indus­ sources, the lowest prices, the highest tries we cannot begin to trace. And quality, and the greatest material even if we hurt the dominant firm a progress, while at the same time little-call it the Octopus Corpora­ providingan environment conducive to tion - the days are long past when a the preservation of our political and robber baron would be deprived of social institutions. his greedily acquired loot. Rather, the shareholders of the dominant But these worthy goals are simply firm will be hurt. I, for one, have no not all achievable at the same time. way of estimating whether those Many mergers will lower average shareholders are more or less worthy costs in an industry, but necessarily than the shareholders of the smaller leave less room for the small pro­ firm -or the consumers themselves. ducer. Agreeing to guarantee a retail All three groups are likely to include price for your own product is often pension funds, insurance companies, the only way to obtain a spot in a and well-meaning universities prestigious retail store, yet it does which, deprived of lucrative invest­ leave less freedom for the discount­ ment opportunities, will have to ask ers. Allowing a larger firm with more from their alumni/ae. lower costs to undercut a new en­ There still remains, at least to me, trant's price will deter suchentry, but something that is unsettling. And to allow the entry would increase the this introduces my last main point. overall cost levels of that industry. To review: the antitrust laws have As an enforcement matter, where trust laws, which were written in the many purposes-that must be there was no plausible economic broadest possible terms, would be in­ granted. We should try to vindicate efficiency reason to hesitate or even formed by and would change with those purposes. But it is appropriate where the record was uncertain, I economic circumstances. To accept when the goals are at cross-purposes would not fail to bring a case. But in less efficient means of production is to champion economic efficiency­ the face of higher costs, I would hesi­ suicide for American industry in the that which will lower costs because tate. This was for two reasons. circumstances of these times. such a course eventually redounds to First is that the United States, in a My second response meets the the entire economy's benefit. competitive world economy, simply "other" social goals argument head Still, what do you do when the law cannot afford to increase its costs. on. Assume for a moment that siding says to ignore efficiency?Sure,there's Many goals that might have been with the efficient course in an anti­ plenty of room for elbowing around. affordable' when the United States trust context means allowing a large, The Sherman Act requires proofthat was the dominant producer of almost entrenched companyto receive more trade has been restrained; the Clay­ all manufactured goods are luxuries moneythan it otherwise would, and a ton Act requires proof that compe­ to pursue in today's environment. smaller company to receive less. But tition has been injured. These pre­ Chief Justice White noted in the very if the advantage were given to the requisites can be used to defend an first Standard Oil case that the anti- smaller company, the cost of produc- economic choice most of the time.

20 Stanford Lawyer Spring 1984 But this is not always so. The siders necessary. In these cases, we doctrine. But, perhaps more tellingly Robinson-Patman Act is one such simply cannot prove that the practice to the audience I need to convince, it example. It was passed explicitly to persists for economic reasons. is not efficient. Thelikely response of help small business by requiring The Administration's spokesmen the Congress to such continued be­ manufacturers to charge the same would, I believe, rely on a presump­ havior is to draft much more specific price to all similarly situated retail­ tion that if a practice is being statutes, making concrete particular ers. It also outlaws any discrepancy followed and is not demonstrably practices it wants prosecuted, elimi­ in the amount of money for promo­ anticompetitive, it must be for an nating prosecutor's discretion as tions or advertising paid by manufac­ efficient reason. The presumption I much as possible, and requiring the turers to retailers. The ban is abso­ would defend is that the law is meant expenditure of scarce resources to lute. No finding of economic harm or to be enforced - unless it would do investigations of such behavior and benefit is required. more harm than good to do so. But not other kinds of behavior. Frequently, however, price and those who hold the first view would This has already come to pass. promotional discrepancies of this say that such prosecution is unneces­ This spring, for the first time, the kind are verydesirable. Consider one sary. If the practice were inefficient, FTCbudget has a line item for prose­ example: a tacit cartel among pro­ sooner or later the market would cutions of resale price maintenance ducers to charge the same price, a weed it out. The firm would suffer violations. Whether the Congress cartel that can be broken down by against its more efficient rivals and could go one step further and compel quiet price concessions in the form of would drop the practice or perish. actual expenditure for prosecutions advertising allowances from a manu­ It is for this reason that it takes is a constitutional issue I must leave facturer to some distributors. Yet the zero Chicago school economists to to my teacher of constitutional law, Robinson-Patman Act makes those change a light bulb. The bulb will Dean Ely. I would have great reser­ illegal. It essentially promotes the change itself. vations about any such attempt, cartel's operation and inhibits the More deeply, the problem with re­ though some claim could be made to cartel's demise. It's the policeman lying on the presumption which, I compel the Federal Trade Commis­ guarding the door while the poker believe, is true in the long run, is that sion, if not the Justice Department, game goes on inside. the law compels a different presump­ to do just this, since the FTC sits What should a law enforcement tion. This particular law does not outside of the executive branch. agency do? Enforcing the law in this contemplate a longer run; it seeks a And on the part of the courts, I fear context is a transfer of money that transfer of wealth now, not an effi­ the likely response to this attitude the Congress has legislated, presum­ ciency nirvana eventually. will be a general lowering of toler­ ably knowing its costs. Why should In failing to respect this aspect of ance for the fundamentally correct that surprise us? After all, every year antitrust law, the apologists for non­ economic contributions that this ap­ the tax laws collect money, and the intervention are making a serious proach otherwise has to offer. appropriation bills distribute it. Con­ long-run mistake of their own. The So you have the zealots versus the gress has simplyfound one more way laws are made byCongress and inter­ wackos. Over the last ninety years, to tax and spend. We can point this preted by the courts. To fail to en­ Stanford Law School has produced out. We can measure its costs to the force any of those laws as a general some of each. This Administration economy. We can complain. But we policy is to stymie the governmental has given unparalleled opportunity cannot ignore the law. system. No one would disagree that for both schools to be heard from­ This issue has received some scarceenforcementresources should some voices resounding from within, prominence recentlyin the areaofre­ be spent where they can do the most others crying in the wilderness. To sale price maintenance or vertical good. No one would quarrel with a some degree both are being heard on price setting. In my view, there are prosecutor's discretion not to charge the Farm. many instances where retail price an offense when such a charge would Whether ultimately proven right setting by a manufacturer has good do more harm than good in any given or wrong, it does not surprise me that economic justification, and to pre­ case. Stanford people are in the thick of vent the practice would harm the But that is not what is being said this development. The intellectual economy. But there are also many in­ here. In relying on the general pre­ vortex has moved away from the stances where, as far as one can tell, sumption of economic efficiency, the Stanford of the Eastand the Stanford resale price maintenance is not eco­ noninterventionists are directly con­ of the Midwest and has returned to nomically helpful. The evidence just testing the congressional determina­ where it belongs, to Stanford-your isn't there in every case that guaran­ tion that, whether efficient or not in alma materand my new home. D teeing a resale price will ensure a general, certain conduct is not to be market niche, or make certain the permitted. *Professor Baxter, who has since returned to amount of salesmanship by the re­ This policy, I believe, is wrong as a Stanford, discusses his antitrust policies in tailer that the manufacturer con- matter of the separation of powers the preceding interview (pp. 10-16). - En.

Spring 1984 Stanford Lawyer 21 At ISSUE

TOViardAn Effective Peace Movement

by John H. Barton Professor ofLaw

n 1964, Supreme Court Justice I Douglas wrote: ... time is shorter than people think; the areas of friction that can easily trigger the nuclear holocaust are spreading; military solutions are now the only impossible solutions. Across the world, men have somehow got the message ofON THE BEACH by Neville Shute and FAIL-SAFE by Burdick and Wheeler. Men are filled with fear ofwhat the bomb can do and are becoming more aware ofthe need for a Rule of Law that will take the place ofthe Armed Forces. * Except that the books and movies have changed, Douglas might have been writing today. The fear and awareness of which he was speak­ ing helped achieve several arms control agreements in the 1960s and contributed to SALT in the early 1970s. Yet, that force was politically spent by the mid 1970s, and those earlier arms control agreements have brought only a limited benefit. Is today's interest in nuclear weapons control likely to be more successful? Today's movement is different. It international strategy. Its center­ The political thrusts of the two is perhaps in large part a reaction to piece-the nuclear freeze-is al­ times differ in two important ways. specific Western deployments and most uniformly regarded by arms First, today's movement is much to specific United States adminis­ controllers as a poor idea, save to more broadly supported than was tration statements and may fade as the extent that it might open the that of the 1960s, which was in large these issues disappear. Neverthe­ way to later reductions. In contrast part one of intellectuals and scien­ less, it is stronger in Congress and to the discussions of the 1960s, the tists arguing that arms control the public than in the executive and military aspects of security and the strictly served the national interest. it reaches well beyond the diplo­ politics of international organiza­ When the executive responded to mats and scientists traditionally in­ tion are nearly forgotten. this argument, it faced a reluctant terested in defense issues. This is partly because those in the Congress and only rarely expected The new movement, however, 1960s failed to educate the public to gain much public support. brings a much less well elaborated about security issues, and thought

22 Stanford Lawyer Spring 1984 they could succeed by dealing only might reduce our incentives and be technical and nonpolitical, and with their allies in the government. Europe's incentives to export arms, therefore lacked staying power. It is partly a result of American em­ or that might forestall future con­ The 1980s movement, when it phasis on technological solutions flicts over the flow of refugees from expands its constituency at all, over political solutions. Primarily, rapidly growing developing nations tends to look to traditional liberal however, it reflects the fact that the to slowly growing developed issues such as nuclear power and new movement is much more a des­ nations. the environment. On a global level perate protest and a reaction to the Some of these arrangements may -and perhaps within the United horror of nuclear war. require international agreement; States as well-these are middle­ The current movement does have others may be achievable through class issues, unlikely to generate a sophisticated domestic strategy: legislation in the tradition of the the sustained political thrust political action to achieve congres­ War Powers Act or the Nuclear needed to build international order. sional resolutions, encourage presi­ Non-Proliferation Act. We may It is rather movements built first dential action, and elect a sympa­ have to wait to deal with the Soviet around economics and political free­ thetic president and Congress. Union; there is no value in paralysis dom that will create the interna­ But this sophistication may be in the meantime. tional organization later able to con­ wasted. Without political leader­ Second, the strategy must focus trol weapons. The alliances needed ship for a more precise and work­ on the reform of international orga­ are not just among traditional lib­ able agreement concept, efforts to nization. Arms control has seemed eral nonprofits; they are also with negotiate a freeze are likely to lead popular and feasible; international international business and with back to a package similar to the organization unpopular and infeas­ national labor groups and even, as SALT II package that failed before ible. Yet, serious analysis has al­ with the Socialist and Christian Congress. ways coupled the two. The state­ Democratic parties in Europe, polit­ More important, history suggests ment by Justice Douglas quoted ical parties in different nations. grave doubt whether a first agree­ above was taken from a preface to a We will have many disagree­ ment would bring the predicted collection of actual disarmament ments about these economic and momentum for reductions. In 1972, proposals, the most important of political issues - but that is a reason SALT I called for a SALT II in five which -that of Grenville Clark and for alliances that reach such issues, years, but SALT II has not yet Louis Sohn-sought major reform and for organizations that bring us come. The sequence of weaker and of international organization as part together as disagreeing and think­ weaker naval treaties during the of disarmament. Woodrow Wilson ing individuals. The most important 1920s and '30s similarly argues that made the same point in working for role for international organization is second agreements are much peaceful settlement procedures and to give us a way to face and discuss, harder to reach than their prede­ for the League of Nations. to resolve, or to live with those dis­ cessors. We must move on with this task, agreements without war- and that In short, the current antinuclear both to prepare for actual arms is what we will have to do to make movement may have little effect control and to respond to today's deep arms control possible. unless there evolves a workable tensions. We may not yet be able to We can begin with our disputes in global strategy within which its reform the United Nations, nor can the free world over the magnitudes arms control goals can be placed. I new international organization yet of economic deficits, the behavior of would suggest three central postu­ help in our relations with the USSR. multinational corporations, or the lates for that strategy. Nevertheless, we can improve or­ treatment of linguistic minorities. First, the strategy should pay ganizations dealing with economic If we succeed at all, we will at­ much more attention to the develop­ and monetary questions, with dis­ tract Soviet participation long be- ing world than to the Soviet Union. pute settlement, and with regional fore we have to seek it. D East-West stress focuses attention security in the rest of the world. on strategic arms control-and also Moreover, we can build new organi­ makes that arms control difficult to zations - particularly those, like the *Foreword, Current Disarmament Proposals negotiate. In contrast, there are directly elected European Parlia­ as ofMarch 1, 1964, p. xix (World Law Fund, now many opportunities for making ment, that give individual citizens 1964). peace in the developing world, an an opportunity to participate and area which is the scene of war and give political parties a chance to Professor Barton, a member of the whose conflicts are the most likely transcend national boundaries. Stanford Law Class of 1968, joined source of nuclear war. Third, in building these organiza­ the faculty in 1969. His publications We should now be seeking ar­ tions, it is essential to seek political include The Politics of Peace: An rangements that might help provide allies from a broad front. The 1960s Evaluation of Arms Control (Stan- peace in Central America, that antinuclear movement sought to ford University Press, 1981).

Spring 1984 Stanford Lawyer 23 At ISSUE

Trading in Art: Cultural Nationalism vs. Internationalism

Without that kind of insistence on by Matisse, a French artist, should the real thing, so that even the best not be exported from Italy. by John Henry Merryman reproduction is a poor second best, It is undeniably within the power Nelson Bowman Sweitzer the raison d'etre of art museums of nations to enact and attempt to and Marie B. Sweitzer would disappear. Authentic pieces enforce such laws, no matter how Professor ofLaw of the culture are what museums unreasonable they seem. However, want to preserve and display and it is not only foolish, but actually de­ collectors to collect. This peculi­ structive, for any nation with a large arity of works of visual art, which stock of undocumented, unhoused, applies to ethnographic and archae­ unprotected, often undiscovered work of art is a piece of the cul­ ological objects as well, has impor­ antiquities to prohibit their export. A ture. Paintings and sculpture, tant practical consequences. If there is an international market like music and literature, define us Most nations (Switzerland and for these objects, such restrictions to ourselves, give us cultural iden­ the United States are major excep­ guarantee that: tity, enrich our lives and extend our tions) have enacted laws limiting • excavation and export will be car­ experience. They develop the other the export of cultural objects. ried on covertly, callously, and half of our brain, the half that can Nations attempt to keep such ob­ anonymously, with no resulting doc­ easily wither in the rationalist at­ jects from leaving their boundaries umentation, with irretrievable loss mosphere of law school and law for a variety of reasons. Some of of archaeological and ethnographic office. their restrictions seem completely information, and with irreparable Paintings and sculpture are frag­ reasonable and deserve interna­ damage to sites and objects; ile in a way that does not affect tional support. • the income from trade in such ob­ works of music or literature. If the An example is Mexico's intention jects will go to the wrong people; original manuscript of Schubert's to retain the Aztec Calendar Stone • any opportunity to pursue a ra­ Quintet in C were destroyed, the in the collection of the National tional policy for systematically work would live on. Editions, cop­ Museum of Archeology in Mexico representing the national culture in ies, "reproductions" of the Quintet City. It is a unique monument of an foreign museums and collections is would survive in music libraries indigenous culture; the government foregone; throughout the world and would, of Mexico owns it; it is adequately • national scholars, museum per­ for most purposes, be perfectly sat­ housed and protected; and it is pub­ sonnel, police, and customs offi­ isfactory substitutes. Loss of the licly displayed. cials will be frustrated, demoralized manuscript would be a tragedy, but Other examples of retention are, and corrupted; and a minor tragedy. however, completely unpersuasive • the most valuable works will be But if a great painting or sculp­ - for example, the insistence of the most likely to leave the country. ture is destroyed - even one that has Mexico and other Latin American In short, nationalistic measures been widely reproduced-the trag­ nations on hoarding and prohibiting purporting to retain and protect cul­ edy is of a different order. The work the export of multiple examples of tural property may in practice con­ of art is somehow embodied in the pre-Columbian sculpture and cera­ tribute to their loss and destruction. object. Rightly or wrongly, we want mics that may never be displayed, Blind cultural nationalism is a self­ to look at the real thing. Just as studied or documented at home, but defeating policy. fakes and forgeries falsify the cul­ would be welcomed in foreign A more cosmopolitan attitude, ex­ ture, so reproductions seem inade­ museums and collections. Or the no­ pressed in the Hague Convention of quate to represent it. tion that a private~y owned painting 1954, is that "cultural property be-

24 Stanford Lawyer Spring 1984 the Directive obstructs responsible international trade and promotes the destructive black-market condi­ tions described above. A more positive development was the enactment by Congress, also in 1982, of legislation implementing United States adherence to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property. The new Cultural Property Law2 provides for the establishment by the President of a Cultural Property Advisory Board. When a foreign na­ tion complains of a threat to its cultural heritage and asks that the United States act, the Board weighs the various interests involved, determines whether this is the kind of case in which we should (in con­ cert with other art-importing na­ tions) intervene, and makes its recommendation to the President. The Cultural Property Law, un­ like the Customs Directive, makes it possible for the United States to deal fairly with the concerns both of nations of origin and of our own museum, archaeological, anthropo­ logical, collector and dealer inter­ ests, on a case-by-case basis. In the longing to any people whatsoever is today we are the most generous­ long run, this approach offers our the cultural heritage of all man­ with the possible exception of Can­ best prospect for the effective pres­ kind." These words in a major piece ada- of all the art-importing nations ervation, study, and enjoyment of of international legislation have in enforcing trade restrictions im­ unique and fragile objects that form extraordinary importance. posed by nations of origin. an irreplaceable part of the "cultural They say that archaeological and In some respects, indeed, we have heritage of all mankind." D ethnographic objects in Peru and gone too far, as in a dubiously paintings in Italian churches have grounded 1982 Customs Directive! significance not only for Peruvians restricting the importation of cul­ Footnotes and Italians, but also for people of tural objects from South and Cen­ other nations. Mankind as a whole 1. Seizure and Detention of Pre-Colum­ tral America. bian Artifacts, Manual Supp. No. 3280-01, has a legitimate interest in seeing The Directive represents what U.S. Customs Service (Oct. 5, 1982). and studying these objects; in their some call a "blank check" approach: 2. Pub. L. No. 97-446 (1982). proper protection, restoration and anything another nation decides it display; and in the existence of a doesn't want leaving the country licit market and appropriate oppor­ automatically becomes subject to Professor Merryman developed these tunities for loans and exchanges seizure, expropriation, and return thoughts at greater length, amply among museums. by our customs agents. No indepen­ footnoted, in the introduction to a The United States has tradition­ dent judgment is made about special issue, devoted to international ally favored free trade in cultural whether the objects are adequately art law, of the New York University objects; they could enter (and leave) protected, studied, or displayed in Journal of International Law and without restriction and were free of the nation of origin, or whether they Politics (15:4, Summer 1983). duty. Beginning in 1971, however, are indeed vital to its own represen­ this policy has been eroded, until tation of its national culture. Thus

Spring 1984 Stanford Lawyer 25 At ISSUE

GroVith Controls: Fueling the Peninsula House Price Explosion

pened. There is now persuasive evi­ area remained flat, and ~ctually fell dence that the Mid-Peninsula's in the city of Palo Alto. (The Bay by Robert C. Ellickson astronomic housing prices stem in Area as a whole was the slowest Professor ofLaw significant part from the antigrowth growing region in California during policies for which the Bay Area is the 1970s; its rate of population noted. growth was only equal to the na­ I base this statement on the tional average, a far cry from the results of a study that a dozen Stan­ Bay Area's historic pattern of hav­ he cost of housing in the area ford Law students and I have pub­ ing double the nation's growth rate.) Tsurrounding Stanford has, in the lished in the Stanford Environmen­ This slowing of development past ten years, risen to an extraordi­ tal Law Society's latest annual activity during a period when house nary level. House prices on the Mid­ volume. * The student contributions prices soared is an economic Peninsula are the highest in the Bay include analyses of the land-use curiosity, and strong evidence of the Area, which has itself become the policies of specific Mid-Peninsula existence of some impediment to most expensive metropolitan hous­ municipalities such as Palo Alto, the supply of new housing. ing market in the United States. Mountain View, Atherton, and Los Was the impediment a shortage of Young families suffer most from the Altos Hills. In the course of pre­ physical space? Not really. The high prices. Yet institutions such as paring an introduction to the stu­ perception of many Mid-Peninsula Stanford, which depend upon infu­ dent essays, I gathered data on residents that their area is "fully sions of new talent, also feel the trends in the Mid-Peninsula's pop­ developed"'reflects more their envi­ paIn. illation and housing prices, and ronmental preferences than insup­ The Mid-Peninsula's house-price researched what is known about the erable physical and economic reali­ explosion has coincided with the economic consequences of growth ties. The hills above Berkeley and imposition of stringent legal restric­ controls. Beverly Hills have been developed tions on housing development in the I found that, as recently as 1972, as sites for single-family houses, an Stanford area. The civic leaders Mid-Peninsula house prices were option that could be physically dup­ who have imposed these growth only about 10 percent above the licated in the Palo Alto foothills as controls typically deny the exist­ national average. By 1982, how­ well. And experience in Foster City ence of any link between their ever, they were at least twice the and other bayfront areas shows that actions and the housing crunch. national average. Within the short the Palo Alto baylands could be They generally attribute the house­ span of a decade, the Mid-Peninsula economically developed for housing price boom entirely to the blossom­ emerged from the pack to become of all types. As any visitor to the ing of Silicon Valley and to a physi­ the second most expensive submet­ region immediately observes, the cal shortage of developable sites on ropolitan housing market in the Mid-Peninsula is in fact rather gen­ the Mid-Peninsula. United States, trailing only West erously supplied with open space. Local political leaders should not Los Angeles. Moreover, sites that have already be permitted to disclaim so casually During this same time span, how­ been developed are not inherently their own role in what has hap- ever, the population of the study unavailable for future development.

26 Stanford Lawyer Spring 1984 applied in the teeth of strong de­ mand for housing, are the key con­ straints that send residential real estate prices through the roof. To mention one study, Michael Elliott of the MIT Department of Urban Studies and Planning found that house prices in California have jumped most sharply in areas, such as the Mid-Peninsula, where cities and the surrounding counties have both controlled growth. That growth controls may raise housing prices hardly constitutes an unassailable policy argument against the imposition of these con­ trols. Cost-benefit analysis might show that a growth control that inflated prices was nevertheless worthwhile because of its incremen­ tal environmental benefits. More­ over, cost-benefit analysis is itself not an uncontroversial technique for making policy decisions. Nevertheless, the evidence that links growth controls with high housing prices indicates that the achievement of environmental goals may have costly conse­ quences for housing consumers and institutions; such as Stanford, that must compete for talent in a na­ Low-density housing can be cleared Mid-Peninsula cities have also tional market. Opinion leaders who to make way for higher-density helped tighten the housing tourni­ continue to deny even the possi­ housing. Urban areas are con­ quet. For example, Palo Alto's land­ bility of a linkage between growth stantly being reshaped through an use plan of the 1960s authorized de­ controls and expensive housing run evolutionary process. Despite velopment of the city's large foothill the risk of discrediting themselves sharply increased housing prices, area at moderate residential densi­ in the debate over land use policy. D this sort of redevelopment activity ties. Since 1972, however, Palo Alto has slowed on the Mid-Peninsula­ has required in the entire foothills evidence of the impact of recent area at least 10 acres per new dwell­ *Land Use and Housing on the San Francisco legal constraints on development. ing unit - seventy times the land area Peninsula (available for $10 from the Stan­ No one disputes that legal restric­ per house typical of developed Palo ford Environmental Law Society). Professor tions on the production of housing Alto neighborhoods. As another ex­ Ellickson presents his findings in more detail became much more severe during ample, San Mateo County, which in the preface to that volume. the period when housing prices shot controls development in unincorpo­ upward. Both state and local gov­ rated areas within its boundaries, Professor Ellickson sinterest in hous­ ernment did their part. During the now allows on average only 1 new ing issues dates back to the Johnson Environmental Decadeof the 1970s, unit per 12 acres in its foothills and Administration, when he served on California enacted many statutory mountains, and the county planning the staffofthe Presidents Committee requirements-for example, the commission has tentatively ap­ on Urban Housing. He joined the one calling for the preparation of proved a new plan reducing the Stanford faculty in 1981 after eleven "adequate" environmental impact average permitted density to less years at the University of Southern reports-that have made it easy for than 1 unit per 25 acres. California, and teaches land use plan­ opponents to use litigation to slow Both economic theory and a fist­ ning, property, and torts. or stop proposed real estate ven­ ful of empirical studies have mani­ tures. fested that growth controls, when

Spring 1984 Stanford Lawyer 27 Alumni/ae If'eekend 1983

A GoodTime asHad

embers of current reunion Members of the Class of 1958, La Tour in Palo Alto), 1963 (Chez M classes turned out in force now 25 years out of school, threw Louis-formerly L'Omelette), 1968 October 7 and 8 for Alumni/ae themselves into a round of activities (at the campus home of Professor Weekend 1983 and related events. planned by Reunion Chairman Wayne and Jacqueline Barnett), and The Class of 1938 set what may be James Danaher. These included 1978 (also on campus, chez Toby a School record for participation at dinner and dancing on Friday even­ and Dave Montgomery). The new a 45th reunion. More than half its ing (also at the Menlo Country format of Friday evening reunions members, along with their spouses, Club), a pre-game barbecue on Sat­ was pronounced a great success. attended a special dinner Friday the urday, and a Sunday brunch hosted Alumni/ae Weekend began in 7th at the Menlo Country Club in by Richard G. Mansfield and his earnest Saturday morning (after a Woodside. The success of the eve­ wife, Elinor (Weiss) Mansfield ('62). sunlit breakfast for Inner Quad ning owed much to the efforts of Re­ Other celebrants that evening members on the Irvine Gallery bal­ union Chairman Aylett Cotton. were the Classes of 1948 (dinner at cony) \yith talks by Professors Jack

Leon Carley and Lucien Shaw, with spouses Lucille and Bea, get reacquainted 1958 graduates Peter Katsufrakis and at the Class of1933 reunion. Constantine George visit on Friday evening.

1

28 Stanford Lawyer Spring 1984 . d at the Bea u'l1:wtn . and carlos barbecue. Don petro~~8 pre-game Class of 1 H. Friedenthal and Barbara A. Babcock. Friedenthal, chairman of the School's Admissions Committee for the past four years, noted that "the quality of the student body is the cornerstone of the School." Those involved with the admissions pro­ cess are, he said, looking for students who are "not only bright but broad-gauged." The School's policy on minority candidates is "to recruit vigorously but not to signifi-

Rob Faisant and Peter Hoss enjoy a Class of1958 reunion gathering.

Spring 1984 Stanford Lawyer cantly adjust our standards." The cardinal-clad fans cheered on. proof of the pudding, he noted, is Alumni/ae Weekend 1983 ended that minority admittees do very (except for the indefatigable Class well. "This is," he concluded, "a of 1958) with a Saturday evening program that works." banquet at the Faculty Club. Here Babcock spoke eloquently about the Half Century Club met. And the dilemmas and rewards of de­ three of the "threes"- the Classes of fending the guilty-the subject of 1933, 1943, and 1953-were re­ her article beginning on page 4. united. Dean John Hart Ely then re­ A warm farewell was given dur­ viewed the state of the School. This ing the banquet to Victoria (Vicky) has been, he reported, "an unusually Diaz ('75), who was leaving after strong and lively year," including two years as assistant dean for de­ marked strengthening of the Law velopment and alumni/ae affairs. and Business program in both per­ Presenting her with several me­ sonnel and curricular terms;the per­ mentos of her years at the School, manent establishment of a student Dean Ely expressed the School's loan fund for summer public inter­ official appreciation and his own est work (through a gift from Law sense that he was losing a particu­ School benefactors Kenneth and larly trusted advisor who had done Harle Montgomery); and the addi­ much to help him into the deanship. tion of strong new staffand faculty The rest of the evening was given and the filling of several endowed over to dancing and the stuff of chairs. (For various developments, which reunions are made-remi­ see the School News section.) niscing, catching up, exchanging The afternoon was reserved for phone numbers, and heartfelt vows the Stanford-UCLA football game. to meet soon again. Though the contest itself was Alumni/ae Weekend 1984, with marred by unlucky turnovers, the special reunions for the "fours" and George and Barbie Denny were sun still shown, the (in)famous Band "nines," will take place November 2 among the many dancers at the played better than it looked, and the and 3. D Friday night 1958 class reunion.

Dean Ely's good wishes for departing Assistant Dean VictoriaDiilz (75) were warmly seconded by her coworkers Kate Godfrey ofthe Law Fund and Elizabeth Lucchesi ofAlumni/ae Relations, during the all-ialumni/ae banquet Saturday evening.

30 Stanford Lawyer Spring 1984 5 William Cohen Endowed Chairs for Cohen, Gould, Scholes Cohen, the C. Wendell and Edith M. Carlsmith Profes­ Two members of the fac­ A. Beardsley Professorship sor of Law, is an authority ulty-William Cohen and in Law, first held by Charles on constitutional law. William B. Gould IV-have J. Meyers, who followed Constitutional Law been named to endowed Ehrlich as dean. Cases and Materials-a Law School chairs. Their The Beardsley chair text he coauthored with appointments became offi­ was established in 1965 Edward L. Barrett, Jr.-is cial February 14 at the Uni­ through a bequest to Stan­ used in some 50 law versity Board of Trustees ford by Mr. Beardsley, who schools throughout the meeting. earned both his AB ('06) country. Three months earlier a and JD ('08) degrees at the Cohen has also pub­ third professor-Myron S. University. lished two other constitu­ Scholes, who holds a joint Beardsley was a distin­ tionallaw case books: appointment with the guished Oakland attorney Comparative Constitutional Graduate School of Busi­ and founding partner of Law Cases and Materials ness-became the Frank Fitzgerald, Abbott & (with Mauro Cappelletti, E. Buck Professor of Fi­ Beardsley." A great believer 1979), and Constitutional nance at the GSB. Scholes in the value of practical ex­ Law: Civil Liberty and Indi­ continues his concurrent perience, he taught part vidual Rights (with John appointment as professor time at the Law School for Kaplan, 1975). of law. nine years. His will pro­ In addition, he teaches Professor Cohen is now vided for law scholarships and writes in the fields the C. Wendell and Edith as well as for the chair that of torts and federal M. Carlsmith Professor of bears his name. jurisdiction. Law. The chair, which was The Buck chair, which "Professor Cohen is a established in 1977, is Professor Scholes now dedicated and demanding named after its donors. Mr. holds, was previously held teacher, and his courses Carlsmith, a 1928 graduate by noted GSB professor challenge the brightest of the School, was senior George L. Bach. students," said Dean Ely, partner in Carlsmith, Carl­ Scholes, 42, came to who reported Cohen's ap­ smith, Wichman & Case of Stanford last year as the pointment to the trustees. Hawaii. University's first business/ Cohen, in a recent inter­ He and his wife, the for­ law appointment. A lead­ view, said that his chief mer Edith A. Mattson (AB ing finance theorist, he goal in teaching "is not to '28) both graduated from earned both PhDland MBA train people to think as I Stanford, as did over 25 degrees from the Univer­ do, but rather to think for other members of the sity of Chicago. His back­ themselves. Carlsmith family. Those in ground, which includes an "I'd like them to be the field of law include Mer­ endowed professorship in skeptical and develop their rill L. Carlsmith (AB '28, JD finance at Chicago, was own ideas-to make up '30), Donn Wendell Carl­ described in a recent issue their own minds about smith (AB '50) and Carl of Stanford Lawyer (Winter tough questions." Duane Carlsmith (AB '58). 1982/83, p. 26). Cohen, 50, clerked for Cohen is the second Brief biographies of the Supreme Court Justice holder of the Carlsmith new holders of the Carl­ William O. Douglas in chair, following Thomas smith and Beardsley 1956-57, after earning both Ehrlich, former dean of the chairs-both seasoned his BA (1953) and law de­ Professor Scholes School. members of the Stanford grees (1956) from the Professor Gould has Law faculty-follow. University of California, While in law school, he been named to the Charles Los Angeles (UCLA). was editor-in-chief of the UCLA Law Review and

Spring 1984 Stanford Lawyer 31 5 earned election to the and a book now in press on Order of the Coif. Japanese labor law and Students Open East Palo Law Clinic Cohen joined the Univer­ practice, as well as numer­ sity of Minnesota law fac­ ous papers and articles. After more than two years of planning and fund raising, ulty in 1957, leaving in 1959 "Japan is interesting be­ the student-run East Palo Alto Community Law Project for UCLA, where he taught cause its system is funda­ (EPACLP) has established a legal services clinic in the for eleven years before his mentally different from largely low-income and minority city of East Palo Alto. appointment in 1970 as a ours, but the law is very Opening ceremonies for the clinic, which is located in Stanford Law professor. similar," he said in a recent a house at 1395 Bay Road, took place April 13. Susan He was invited to Arizona interview. "They have in ef­ Jackson Balliet, formerly a directing attorney at the Legal State University in 1981 as fect reshaped U.S. labor Aid Society of San Mateo County, has been hired as ex­ Charles J. Merriam Distin­ law to fit their own society ecutive director. guished Visiting Professor. and values." The EPACLP became active in the community last year At Stanford, Cohen was Gould is also deeply in­ through an outreach program for the public on legal chairman of the Law terested in the Republic of rights and resources. Two sessions-on consumer law School's Admissions Com­ South Africa, where black and landlord-tenant issues-have already been pre- mittee in 1978 and 1979. workers are struggling to Cohen is currently working win union rights and on the seventh edition of recognition. Constitutional Law Cases, "I've tried to be not only a From 1963 to 1965 he as well as an article on the scholar and writer, but also Gould has served as an role of Justice Douglas in a proponent of change," impartial arbitrator of dis­ served as an attorney with the National Labor Rela­ the Rosenberg atomic spy he says, noting that his putes between labor and tions Board in Washington, case. speeches are widely re­ management for the past D.C., and from 1965 to He is married to the for­ ported in the South African 20 years and is a member mer Nancy Mahoney (JD press. of the National Academy of 1968 was in private law practice in New York City. '75), an attorney with Syn­ A forceful courtroom Arbitrators. He recently served as Gould joined the faculty tex. They have one child, advocate, Gould often of Wayne State University Margaret, 5, and live in represents individuals in co-chairman of a California law school in 1968, where Palo Alto. job bias suits against State Bar ad hoc commit­ employers. tee on wrongful dismissals. he became involved in the William B. Gould IV In a landmark 1981 case In the committee report, re- . Detroit Edison case. Gould, the new Charles A. against Detroit Edison, he leased in February, he ar­ He served as a visiting Beardsley Professor in won the largest per capita gues that arbitration should professor at Harvard in Law, is an expert on labor judgement that had ever be available to both non­ 1971-72 before joining the law, with a strong interest in been awarded for dam­ union and union employ­ Stanford Law faculty in the employment discrimination ages to members of a ees who lose their jobs. fall of 1972. issues. class suffering discrii­ Gould, 47, grew up in Gould has since been a "Bill Gojuld is among the mination. Boston and Long Branch, visiting scholar at Cam­ most prolific and renowned Gould was also lead New Jersey, earned his bridge University in members of our faculty," counsel in the 1977 U.S. v. bachelor's degree in 1958 England (1975) and at the Dean Ely said in his report Trucking Employers, Inc. at the University of Rhode University of Tokyo (1975 to the Trustees. case, the fi rst successfuI Island, and his law degree and 1978), the second time The American Bar Asso­ challenge of a govern­ at Cornell in 1961. as a Guggenheim fellow. ciation last year awarded ment-negotiated agree­ He was with the United And in 1982-83 he was a Gould a certificate of merit ment involving employ­ Automobile Workers, AFL­ fellow at the East-West for his book, A Primer on ment discrimination. CIO, as assistant general Center in Honolulu. American Labor Law "The reason I went into counsel in 1961-62, and He and his wife, the for­ (1982). law was a concern with in­ was admitted to the mer Hilda Fitter, live on the He has also written justice," he explains. "For Michigan bar in 1962. Stanford campus. They Black Workers in White me the law and moral prin­ He then studied for a have two sons in college Unions: Job Discrimination ciples are very closely year at the London School and a third at Palo Alto in the United States (1977) connected." of Economics. High School. D

32 Stanford Lawyer Spring 1984 sented, and others are planned. ates who helped get the project going-James P. Steyer, The project was begun by a group of law students who Cynthia Robbins, and John Preiskel. "wanted to get Stanford involved in the local community," Other faculty members involved with the project are says Peggy Russell, a third-year student who is 1983-84 Paul Brest, William Simon, Eric Wright, Nancy Millich, EPACLP president. East Palo Alto, she points out, "has Miguel Mendez, Samuel Gross, Thomas Heller, Michael suffered from a chronic lack of legal representation." Wald, and Robert Mnookin. A second motive has_been "to provide Stanford law Although academic credit will not be offered for work in the clinic per se, seminars that will permit students to in­ tegrate their clinical experiences with academic work will be offered on a regular basis. D

Dray '72 Heads Development Program

Barbara Glidden Dray re­ turned to the School No­ vember 14 to assume the newly created post of As­ sociate Dean for Develop­ ment and Alumni/ae Relations. Dray, who was assistant dean for four years (1977­ 81), has close ties to the School and is well known to Law Clinic founders (clockwise from left) John Preiskel '83, Steven its graduates and friends. Dinkelspiel ('85), Jim Steyer '83, Michael Calabrese ('84), Stephane For the past two years, Atencio '83, Peggy Russell ('84), and Cynthia Robbins '83. she has been with the Palo Alto law firm of Cooley, students with more practical legal education-especially Godward, Castro, Huddle­ in services for the poor." son & Tatum, specializing Associate Dean Barbara Dray Student volunteers, headed by Steven Dinkelspiel in venture capital (Class of 1985), have raised over $250,000 to cover the financing. secretary to the Board of clinic's expenses during the first two years of operation. "Barbara Dray has Visitors. Donors include the San Francisco Foundation, Irvine served Stanford Law Her responsibilities in­ Foundation, Peninsula Community Foundation, Hearst School with distinction, clude those previously Foundation, Stanford Public Interest Law Foundation, and and we are delighted she held by Victoria Sainz Diaz, many private individuals. has agreed to return in the who resigned last fall after All in all some 50 Stanford law students are actively broader capacity of asso­ two years as assistant involved in the project. ciate dean," Dean Ely dean. The management and financing of EPACLP, which is said in announcing her "I can't tell you how de­ organized as a nonprofit corporation, are independent of appointment. lighted I am to be back at Stanford Law School, though individuals associated with Dray is responsible for the Law School, doing work the School are prominent in its leadership. all of the Law School's de­ I love with people I admire The Hon. LaDoris H. Cordell ('74), former dean of stu­ velopment and alumni/ae and enjoy," Dray said re­ dent affairs, is chairman of the board of directors. Profes­ activities, including princi­ cently. "I learned while I sors Jack Friedenthal and Barbara Babcock are also pal and major gift fund was away how much it mat­ members of the board, as are the Hon. Thelton Hender­ raising. She also serves as ters to me to work for an in- son, SLS student Peggy Russell, and three 1983 gradu-

Spring 1984 Stanford Lawyer 33 5

stitution in whose mission for the School," she says, Award for excellence in re­ School's assistant dean for I believe." "makes my work so re­ search and writing, and development and alumni/ Dean Dray is focusing on warding. "It's just terrific to contributed to Air Pollution ae relations in 1977, and student financial aid-"the be back." in the San Francisco Bay during her four years in that School's most pressing fi­ Dray, 40, earned her AB Area, a study published in post served on the Califor­ nancial priority"-and con­ at Stanford with distinction 1971 by Ecology Center nia Committee of Selection tinues to work on projects in 1965, in history. She then Press. for the Rhodes Scholar­ like the Law and Business joined IBM in San Jose as a Dray was admitted in ships, the Stanford Univer­ Program. "I am particularly personnel data systems 1972 to the bar of Washing­ sity Committee on Public eager," she added, "to get coordinator. ton State, where she was Events, and the Stanford started on some of John She returned to the Uni­ for five years associated University Search Commit­ Ely's initiatives and hopeful versity in 1966 to become with the Seattle law firm of tee for a Vice-President that my experience in the assistant to the dean of Davis, Wright, Todd, Riese and Provost. last three years will be students and activities ad­ & Jones, specializing in In 1981 she was admitted helpful as we put together viser, a position she held antitrust litigation. While in to the California State Bar our Law and Technology until 1969, when she was Seattle, Dray served as and to practice before Program." admitted to the Law state chairman for the the U.S. District Court for Dray welcomes the op­ School. Stanford Law Fund and the Northern District of portunity to work again with Here' she served as treasurer for the Stanford California. the Law School's alumni/ae president of the Stanford Law Society's state Dray, a resident of Los and friends, "whose abid­ Legal Aid Society, won an organization. Altos, has two children: ing respect and affection Hilmer Oehlmann, Jr. She became the Elizabeth,11, and Adam,9.D

Public Service Loan Program is Endowed

The student loan program for summer public service work is now fully and permanently funded, thanks to a $300,000 gift to endowment by Kenneth F. and Harle Montgomery of Northbrook, Illinois. The new funding will permit up to 20 law students per year to meet their summer living expenses and part of their pending tuition while working in relatively low-paying public interest or government internships. "We think that there is in our student body a good deal of untapped interest in serving the public good, which currently is underrealized because of today's financial pressures," Dean Ely says. "Lots of students are heavily in debt and can't afford to do public-interest law work during a summer," he points out. "The purpose of the program is to lend them enough money to get through." Eleven students participated in the program in 1983, its first and pilot year, taking summer jobs with such organi­ zations as Public Advocates, Inc., the Mexican American Legal Defense and Educational Fund, Alaska Legal Dean Ely (left) celebrated the establishment ofthe public service loan Services Corporation, National Center for Immigrants' program with donors Kenneth F. (right) and Harle Montgomery. Rights, Office of the Public Defender in San Francisco, and United States Attorneys' offices in Northern and for the first two years they need pay only interest. California, Boston, and New York. Any graduates who are then working full time in a pub­ Participating students will not be required to begin re­ lic service position and earning less than $27,000 per payment on the loans until six months after graduation, year (adjusted for inflation) will be forgiven the loan prin-

34 Stanford Lawyer Spring 1984 cipal payments during the years of such employment. Carole Cooke, a second-year student who received a Students Stage Shakespeare Play loan last year, says of her summer with the U.S. Attorney's office in Mount Shasta: "It was terrific to get courtroom experience, for I had wanted to know if I had any litigation skills. It felt good-going to work for the federal govern­ ment permanently is now something I would really consider." Another second-year student-Kirby Heller, who worked for Public Advocates last summer-observed that the School's new loan program benefits more than just those immediately involved: "Because some stu­ dents participated last year, many others became more exposed to public interest law, and that will be better for Stanford Law School." The Montgomery Loans will be administered by a committee chaired by Assistant Dean Margo Smith and including two students. Mr. and Mrs. Montgomery have been generous bene­ Portia (Palacio, left) urges an unrelenting Shylock (Gordon, factors of the·School. In 1980 they endowed the first clini­ right) to show mercy, as the Duke (McBride, center) looks on. cal legal education chair in the country-The Kenneth and Harle Montgomery Professorship of Clinical Legal For a few days last winter, Classroom 190 was transformed Education, now held by Professor Paul Brest. into a theatre for a production of The Merchant of Venice. Mr. Montgomeryis a two-term (1979-81 and 1981-84) It was an event for the Law School and by the Law member of the Board of Visitors. School in every imaginable way. The play's dominant A 1928 graduate of Harvard Law School, he has been theme-the nature of justice-could't have been more awarded honorary degrees from Dartmouth College, relevant. And because the actors were fellow students, Columbia College in Chicago, and Miles College in faculty, and staff, a wonderful rapport existed between Birmingham, Alabama. audience and performers. Montgomery is a partner of the Chicago firm of Wilson The cast included Cristina Palacio (Portia), Professor & Mcilvaine and a trustee of Presbyterian-St. Luke's Hos­ Robert Gordon (Shylock), Chip Pitts (Bassanio), John Ott pital in Chicago and of the Chicago Fine Arts Foundation. (Antonio), Associate Dean Thomas McBride (Duke of Mrs. Montgomery is a member of the Stanford Class Venice), and Gary Cole (Gratiano). of 1938. Her many cultural and civic activities include Credit for direction goes to Marc Fajer, a second-year serving as a director of the Chicago Council on Foreign student whose other productions at the School include Relations and as a trustee of the Scripps Clinic and Brecht's In Search ofJustice (in March 1983) and Lanford Research Hospital in La Jolla. 0 Wilson's Hot-I Baltimore (February 1984). 0

ment and communications where Charles founded Silverberg '55 law-an interest shared by and now oversees the Names Book Fund both father and son. Entertainment Law after Father The late Mr. Silverberg Department. was a noted Los Angeles Charles Silverberg, who Charles D. Silverberg has attorney who served as earned both his AB ('53) endowed a book fund in counsel for numerous in­ and JD ('55) degrees at memory of his father, Her­ dependent motion picture Stanford, has for many bert T. Silverberg (1904­ producers and authored years been a generous 1962). The new fund will many articles relating to supporter of the Law Li­ help the Law Library main­ the entertainment field. military duty in Korea, was brary and School. A mem­ tain and expand its collec­ His firm, which Charles the predecessor of Silver­ ber of the Board of Visitors tion of works in entertain- joined on return from active berg, Rosen, Leon &Behr, since 1981, he is currently

Spring 1984 Stanford Lawyer 35 its vice-chairman and will through the new "Herbert T. "The Law Firm as a Social tice" by Professor Rhode of become chairman this fall. Silverberg Entertainment/ Institution"-was, Dean Ely Stanford-included Paul He has also been serving, Communications Law Me­ said, "an early coming­ Saunders of the law firm of in calendar 1982 and 1983, morial Book Fund" will bear together on a set of topics Cravath, Swaine & Moore as chairman of the Law a special bookplate de­ that undoubtedly will be and Murray Schwartz of the Fund Westside (Los Ange­ signed by Charles' niece much discussed and stud­ UCLA law school. les) Inner Quad group. Cathy Tetef (AB '80). D ied in coming years." John Heinz, of the Amer­ Books purchased Stanford Law Profes­ ican Bar Foundation, and sors Lawrence Friedman, Edward Laumann, a Uni­ Deborah Rhode, William versity of Chicago sociolo­ Simon, and Robert Mnookin gist, then presented a pa­ School Holds Conference on were the prime organizers per on Washington, D.C. Law Firm Trends of the conference, which law firms. Comments fol­ Robert Gordon introduced lowed by two Washington Twenty-two noted lawyers ary 24-25 to consider the and chaired. law firm members-Michael and academics from nature and future of the law Speakers and commen­ Boudin, of Covington across the country gath­ firm. tators included partners in & Burling, and Richard ered at the School Febru- The conference-titled leading law firms, in-house Danzig, of Latham Watkins counsel, and professors of &Hills. sociology, political sci­ UC-Berkeley Professors ence, economics, and phi­ Robert Kagan, of the Politi­ losophy. Together they pro­ cal Science Department, vided a comprehensive and Robert Rosen, Sociol­ look at the values and eco­ ogy, offered sociological nomics of large corporate perspectives on corporate law firms. law firms for the next panel, The first panel focused which included as com­ on social values and client mentators Magali Larson, relationships in such firms, of the Sociology Depart­ as analyzed in a paper by ment of Temple University, Robert Nelson of the Amer­ and Professor Robert Post ican Bar Foundation. Pro­ of UC-Berkeley's Boalt fessors Simon of Stanford Hall. Law School and Stewart The often troublesome Macaulay, of the University issue of how partners di­ of Wisconsin Law School, vide law firm income was served as discussants. explored in a paper by Commentators on the Stanford Law Professors next paper-"Ethical Per­ Ronald Gilson and Robert spectives on Legal Prac- Mnookin, in the first panel of the second day. Peter Pashigian, of the Graduate Practicing lawyers and academics discussed the future of liThe School of Business at the

Law Firm as a Socia/Institution. 11 University of Chicago, and Steven Kelman, of the Ken­ nedy School of Govern­ ment at Harvard, were discussants. In the final panel, Profes­ sor Abram Chayes, of Har­ vard Law School, and

36 Stanford Lawyer Spring 1984 Antonia Chayes, of the firm Myers & D'Angelo, was of Csaplar &Bok in Boston, Kudos to cited for "unusual depth considered the growing Four Alums and breadth of involvement trend among corporations as a volunteer for the Law of employing in-house Four Law School alumni School and special gifts counsel rather than outside have been honored by programs." firms. Philip Lochner, asso­ Stanford Associates for He has been active in ciate general counsel with outstanding service to the University fund raising Time Inc., and James University. since the mid-60s. A past Freund of Skadden, Arps, Myrl R. Scott (JD'55) and class agent, he joined the Slate, Meagher &Flom, R. Chandler Myers (AB'54, special gifts program as a offered comments. JD'58) both received volunteer in 1973 and Professor Gordon, in awards on January 27, at served as regional vice­ summary remarks, likened an Associates regional chairman for Los Angeles the current state of knowl­ dinner in Los Angeles. in 1977. He was recently edge about law firm trends A third recipient­ Scott, Law Fund president named area chairman for to "an old map, where the Kendyl K. Monroe (AB'58, 1982-83 Southern California. LLB'60) was given his coastlines are clearly indi­ Friend of the Law Library Myers is a past president award April 27, at a recep­ cated but where there exist and a past president of of the Stanford Law Society tion in New York. in the interior large blank both the Southern Califor­ of Southern California and David S. Jacobson areas marked 'Here There nia Law Society and the served on the Board of Vis­ (AB'30, LLB'34), the fourth Be Tigers.' " Stanford Club of Los itors from 1970 to 1973. honoree, was presented So what is the future of Angeles County. with a special citation "for Kendyl Monroe '60 the large corporate law firm Scott was praised, in his lifelong services," at the Monroe is a partner in Sulli­ as we know it today? The Associates award citation, annual Gold Spike banquet van & Cromwell of New participants cordially as a volunteer with high differed. last Sept. 23. York City. His specialties standards and objectivity, are corporate, finance, The bearish included Myrl Scott '55 "whose caring, concern and tax law. Prof. Chayes, who noted Scott, whose record of and conscientiousness that morale among the in­ Stanford service goes have benefitted Stanford creasing numbers of in­ back to 1969, is a partner University and especially house counsel seems high in Sheppard, Mullin, the Law School ..." compared to that among Richter & Hampton of Los Chandler Myers '58 law firm members. Angeles, where he spe­ Myers, a senior partner in Freund was more bul­ cializes in corporate, real the Los Angeles firm of lish. The pie of legal work is estate, securities, and not, he said, finite. And the tax law. mood, at least among He served as president members of his firm, is of the Law Fund in 1982 "go, go, go." and 1983, following two Financing for the confer­ years as national chairman ence was provided from of the School's Inner Quad the Kirkwood-Kuhn Dean's program and six years Fund. The resulting papers (1969-72 and 1977-80) on will be published in a forth­ the Law School's Board of coming issue of the Stan- Visitors. ford Law Review. 0 Scott is currently vice­ An active Stanford vol­ chairman of the Law Fund unteer since 1963, he has and a member of the Uni­ for almost a decade served versity's Annual Fund as Law Inner Quad regional Council. chairman for New York. He is also a long-time Myers, Southern California leader He is also a past mem-

Spring 1984 Stanford Lawyer 37 ber of the Board of Visitors ents ... his mastery of intri­ (1975-78) and of its Execu­ cate laws and legislative School Enters Computer Age tive Committee (1976-78). bills, strange IRS rulings, Monroe is being hon­ and peculiar court deci­ With a muted chorus of changing, in a patois of ored not only for leader­ sions affecting the future of clicks, beeps, and whirs, hacker English, tips on how ship in fund-raising'efforts the University and the work the Law School has gone to use (and not use) the but also (the Associates ci­ of Stanford Associates ... electronic. new technology. tation reads) "for being a and for his critical role in Faculty and staff alike It all began quietly in voice of Stanford Univer­ the formation and early ex­ are peering at screens 1977, with the introduction sity and its Law School in ecution of the programs on alight with iridescent green in the Law Library of com­ the East ... and for interest which Stanford University's letters, capturing key­ puter-based book cata­ and hospitality extended to fund-raising efforts de­ strokes, monitoring mega- loguing, along with an in­ Stanford faculty, staff and pend today." o bytes, and excitedly ex- terlibrary loan system. Com- students that knows no geographical boundaries." Wright of the U.S. Court of Most Forum speakers David Jacobson '34 Students Sponsor Jacobson's special citation Appeals in Washington, come during the lunch was, like Jacobson himself, Name Speakers D.C., former presidential hour, give a short talk, and "one of a kind." A member candidate John Anderson, then open the floor for ex­ A parade of nationally consumer advocate Ralph tended questioning by known speakers visited the Nader, biologist and envi­ students. School this fall and winter ronmental crusader Barry The Forum has in addi­ under the sponsorship of Commoner, New York attor­ tion been organizing the student-run Stanford ney Roy Cohn (of Army­ panels on topics of interest Law Forum. McCarthy hearing fame), to law students, such as "We're interested in peo­ and private investigator the management and mar­ ple with something to say Harold Lipset. keting of law firms. about the law that we might Also popular are the not otherwise hear," says "Lunch with a Professor" Forum President Gary and "Meet-the Alumni/ae" Cole, a second-year series (the latter cospon­ student. sored with the School's Recent speakers in­ Alumni/ae Affairs office). clude FBI Director William "We welcome the partici­ Webster, Judge J. Skelly pation of graduates," Cole says. Interested readers may write to: Stanford Law Forum, Stanford Law of the Stanford staff for 32 years, he retired in 1969 as School, Stanford, CA secretary to the University. 94305. 0 His entire Stanford ca­ reer, with the exception of four years as executive as­ sistant to President Donald B. Tresidder, has been de­ voted to fund raising on behalf of the University. Jacobson deserved rec­ ognition, according to his citation, for numerous con­ tributions, including "his finely tuned lawyerly tal-

38 Stanford Lawyer Spring 1984 puter terminals also to data sources and/or the dertake empirical projects a second mini-computer, appeared in a few adminis­ University main-frame a few years ago," says for use at home. trative offices with heavy computer) were strategi­ Romano. "But the dramatic "I've broken the habit of records-keeping and/or cally placed around the reduction in the cost of writing my first drafts on accounting functions. And School. Some 25 are used computers and their influx yellow legal pads. Now I do a handful of pioneering by faculty, 11 by faculty in the Law School has them on the computer it- faculty members singly secretaries, 3 by students purchased assorted elec­ involved in publications, tronic hard- and software and 2, in the Law Library, for their own work. provide access to the But despite these early LEXIS data base. The bal­ and piecemeal advances, ance are used to speed the School was still a long staff work in such adminis­ way from realizing the po­ trative offices as admis­ tential of computers for text sions, financial aid, regis­ preparation, instruction, trar, development, finance, and research and analysis. and placement. The recent leap forward Within the next few dates from the fall of 1982 months, Law School re­ when, at the request of searchers will also begin Dean Ely, an intensive, tapping the "Westlaw" le­ function-by-function study gal research data base. In of word- and data-pro­ addition, up to 24 personal cessing needs throughout computers (PCs) are the School was launched planned to complete the Professor Roberta Romano, computer buff by Associate Dean needs of faculty members Thomas F. McBride and and secretaries. Systems Manager Joan Another and important changed all that. As a con­ self. The ideas come more Galle. priority is computer access sequence, it's far more fea­ freely when I don't have to The study not only for general student use­ sible to test theories about put them down in finished defined needs and oppor­ tentatively in the form of 6 the legal system." form or structure. tunities for improved effi­ PCs in dedicated Library Computers also playa "It's easy to reorganize, ciency, but also laid out a space. As Dean McBride central role in Professor move things around, re­ plan, now more than half notes, familiarity with mod­ Robert Mnookin's innova­ write, and evaluate. So I do implemented, for a co­ ern text-editing and data­ tive seminar, Advanced more drafts. But in the end ordinated, schoolwide processing techniques Financial Planning. "Prior it takes less time and is, I program of computer is fast becoming "an experience with comput­ think, actually better." acquisition, training, and unavoidable aspect ers is not," he says, "a pre­ The rapid and coordi­ uti Iization. of a 'complete' legal requisite." But by the time nated "computerization of (Interested readers can education." students finish, they will the School" has, Dean obtain the study report, For many Law School have learned (on IBM PCs McBride observes, "put Plan for Computerized computer users, there's no with Lotus 1-2-3 programs) Stanford well in the van­ guard of law schools" both Support Systems for Stan­ going back. how to make complex pro­ ford Law School, by writing These include profes­ jections and analyze alter­ in its existing computer Joan Galle, Systems Man­ sors like Roberta Romano, native plans for clients. systems and in planning ager, Stanford Law School, whose empirical research The appeal of the com­ for the future. "This is im­ Stanford, CA 94305.) would be virtually impossi­ puter for most Law School portant," he says, "not only As of January 1984, ble without the data orga­ professors is, however, in for internal efficiency but nearly 50 mini-computers nizing abilities of modern word processing. "It's also to prepare our gradu­ (chiefly personal comput­ electronic brains. made a dramatic change ates for the world into ers) and terminals (linked "It would have been ex­ in my scholastic output," which we are sending tremely expensive to un- says Professor Thomas them." 0 Heller, who just purchased

Spring 1984 Stanford LaWyer 39 5

Student Offers Cure for Chronic Prolixity

Carol Dumond '83, during her tenure as editor of the SLS student newspaper, exposed an insidious syn­ drome not unknown in legal circles: "erudition

addiction. 11 Here, for the delectation of our readers, are excerpts from her arti­ cle. Dumond is now with the San Francisco archi­ tectural firm of Warnecke &Associates. When I first came to Stan­ ford, I was impressed by the stockpiles of verbal ammunition possessed by my fellow law students. It on a regular basis. was a little frightening to be Some poor souls, how­ and promoting of EA vic­ • HOPEFULLY, although it surrounded by so many ever, couldn't stop. They tims), sufferers rarely dis­ sometimes retains its old people who kne\tv as many went right on using words cover the problem before meaning, is now also used words as I did. Even more of five syllables in class. A the age of 65 or 70. to mean "I/we hope that," awesome was the fact that few didn't even unwind in But wait! There is hope. I as in "Hopefully, the boys these people actually used casual conversation. have devised, as a public will be home for Christ­ all those words, in real sen­ They're still at it-tossing service,a brief quiz [see mas." This usage has been tences, every day of their off words like "parame­ box] to help EA victims to resisted by hardliners, but lives-and most of the time ters," "suppuration," and identify themselves. it does seem to fill a gap. correctly, too. "quasi-Albigensianism," as The road to recovery is • AMONG is another casu­ The level of vocabulary if nursed on tea brewed difficult but not impass­ alty. Now the word used to displayed in class during from the crushed leaves of able. The following brief express an interchange the first few weeks seemed Webster's Third. course in modern (post­ among more than two enti­ to indicate that none of my These pitiful wretches Cosell) English may ties is BETWEEN. Practice fellow students knew any suffer from one of the most smooth the way. the following sentence until words (except "the") de­ insidious mental impedi­ • PHENOMENON and it doesn't sound weird any­ rived from Anglo-Saxon ments known to man: CRITERION have been more: "Between the five, I roots. Franco-Latinate filled erudition addiction (EA). lost. They have been re­ like this one best." the air, punctuated here The worst feature of this placed by PHENOMENA and there with a little Greek • Note that BETWEEN con­ dread disease is the lack and CRITERIA; the plurals or German. tinues to be used where of awareness by its vic­ are now PHENOMENAS I assumed that all this two entities are concerned, tims. The impairment itself and CRITERIAS. stuffy usage was the natu­ sometimes with excessive prevents them from zeal, as in "There was a ral result of each speaker's noticing. • The same thing has hap­ wish to impress professors pened to MEDIUM in the chair between each table." Further, since law firms Similarly, things no longer and classmates, and that have always stood up sense of mode of transmis­ it would soon wear off. To sion; the singular is now fall into cracks-they fall bravely for the rights of the "between the cracks." an extent, I was right. By erudition-addicted (back­ MEDIA and the plural MEDIAS, as, formerly, Really. October most of us were ing this commitment by "in medias res." back to speaking English disproportionate hiring • FEWER is rarely used,

40 Stanford Lawyer Spring 1984 and only when the sen­ • Computers are impact­ quiet desecration. you could talk perfect tence does not also con­ ing on English. These days And, finally, keep in mind English-but who would tain the word LESS. The we ACCESS INFO instead the words of the immortal you talk it at?" D change is considered to of finding things out; we IN­ Clarence Darrow: "Sure, be due to anti-Catholicism TERFACE instead of put­ on Madison Avenue, result­ ting things together; we ing in a whole generation are, or are not, HARD­ of copywriters who didn't WARE COMPATIBLE, in­ have nuns in grade school. stead of fitting (or not) in • LIGHT is still with us in our surroundings. You all its meanings but one. must come to terms with When referring to a food or this situation, whether you beverage that has been like it or not. Press "Return" made in such a way that its when you are ready to calorie content is lower goon. than usual, the word to use • Most people are not is LITE. Thus, you will hear RELUCTANT to accept of things like "lite cheese," the new usages in English. "lite beer," "lite chocolate This is because people fudge pudding," and aren't reluctant to do any­ "Mouton Rothschild '32 thing anymore; instead, Lite." they are RETICENT. The • The objective case (ME, old meaning of reticent is HER, HIM and THEM) after gone, but we really don't prepositions has all but need it now that people disappeared, largely due have stopped being reti­ to the fear of objectives cent altogether. bred into children who are Although this list is by unable to figure out why no means exhaustive, it adults get upset at the should at least get you expression "Him and me used to some of the new went out." These children usages making the rounds grew up believing that ob­ these days. jective case pronouns You are likely to run into were always wrong (they many new-fangled expres­ didn't have nuns either). sions unprepared; in that They are now unable to case, DO NOT allow your say, "Between him and me, teeth to grind. That is the we worked it out." Instead, quickest way to go into they say, "Between he and erudition shock. I, we worked it out," or The best thing to do "It worked out well for she when ambushed by a and I." Springing Neologism (as • We have also lost AF­ EA therapists call them) is FECT, which has been re­ to yawn immediately, steer placed by IMPACT ON. For into the skid, and let it carry instance, if you see a train you with it. This method headed down the tracks has been proven effective toward your stalled car, you in 98 percent of cases. might well wonder, "How Just remember that you will the impact impact on can't fight the entire mass my life expectancy?" of men leading lines of

Spring 1984 Stanford Lawyer 41 deputy public defender in the Office of the Santa Students Learn of Clara County Public Defender; and Leida B. Schoggen, Public Interest Opportunities assistant U.S. attorney in the Office of the United States Attorney, San Jose. "Awesome" was the way one student described the The final panel, on impact litigation, was moderated School's November 5 conference on public interest law by Professor Eric W. Wright of Santa Clara Law School. alternatives. Speaking were Alan L. Schlosser, staff counsel with the "Motivating," said another. American Civil Liberties Union (San Francisco); Fredric The conference-a Law School first-was designed D. Woocher, staff attorney with the Center for Law in the "to inform students of the many exciting and challenging Public Interest (Los Angeles); Norma Cantu, director of opportunities available in the public interest field," said education litigation for the Mexican American Legal Lecturer Nancy Millich, a prime organizerof the day-long Defense and Educational Fund (San Francisco); and Pro­ event. fessor Edward Steinman of Santa Clara Law School. Panels were presented on environmental litigation, Students were encouraged to meet with individual criminal litigation, client-oriented public interest law, speakers by appointment and or informally during the impact litigation, and public interest law in small and breaks and post-conference wine and cheese reception. large firms. More than 100 students, including 26 from other law The impetus for the conference came at least in part schools in the area, attended. from a group of concerned stUdents, 19 of whom took Support for the conference was provided by the part in the planning committee. Millich and Placement Dean's office, Placement, and the student-run Stanford Director Gloria Pyszka were the responsible staff Law Association. 0 members. Dean Ely, whose interest in broadening the perspective of students is well known, gave welcoming remarks. The panel on client-oriented law, which Professor Firm Honors William H. Simon moderated, featured Sheila Brogna, Kadison '48 with senior attorney with Legal Services for Children (San New Law School Francisco), Lynda Burton, attorney with the San Mateo Fund County Legal Aid Society, Mike Gilfix, director of Senior Adults Legal Assistance (Palo Alto), and Teresa Nelson, Stuart Kadison ('48) re­ director of Mental Health Advocacy (of San Jose). ceived an unusual gift for Opportunities for public service by law firm attorneys his sixtieth birthday-a were described by Michael Rubin of Altshuler & Berzon Law School fund named in (San Francisco), Jean McCown of Blase, Valentine & his honor. The new "Stuart Klein (Palo Alto), Charles N. Frieberg of Heller, Ehrman, L. Kadison Student Loan et al. (San Francisco), and Jack Londen of Morrison & Fund" was endowed by his Foerster (also San Francisco). Eva Jefferson Paterson, fellow partners in the Los assistant director of the San Francisco Lawyer's Angeles firm of Kadison, Committee, served as panel moderator. Pfaelzer, Woodard, Quinn The environmental litigation panelists included Allene &Rossi. Zanger, a California state deputy attorney general in the Kadison learned of the Office of the Attorney General's Natural Resources gift during a firm celebra­ Section (San Francisco); and Alletta d'A. Belin of Shute, tion November 18, where Mihaly & Weinberger (San Francisco). Bruce Tichinin, he was presented with a framed memento from the an attorney with Tichinin &Mitchell (Morgan Hill), A birthday surprise far Stuart served as moderator. School. Kadisan (with wife Carita) Professor Miguel A. Mendez of Stanford moderated the "There is nothing that my partners and the Law panel on criminal litigation. He was joined by Sharon A. lieve, as I was trying to be­ School could have done to Meadows, assistant federal public defender in the Office lieve, that 60 was a give me greater pleasure," of the Federal Public Defender, San Francisco; Joseph B. milestone to be reached Kadison said later, "unless Thibodeaux, deputy district attorney in the Office of the in the distant future." 0 Santa Clara County District Attorney; Rosemary Morrison, you had all ignored the oc­ casion and gone on to be-

42 Stanford Lawyer Spring 1984 Professor Cappelletti, Faculty Notes who is currently teaching Guess Who? at the European University Professor William F. Institute in Florence, Italy, Baxter resigned his post also recently traveled to: with the national Adminis­ Belgrade, for the first World tration and retu rned to Congress of Constitutional Stanford in mid-December. Law; Paris, to preside over Reflections on his years in the annual conference of Washington as President the International Associa­ Reagan's antitrust chief tion of Legal Science; and appear in the interview be­ Stockholm, Cambridge, ginning on p. 10. Rome, and Santander, Professor Baxter and Pro­ Spain, to deliver lectures. fessor Thomas Campbell, Professor Robert C. another former Reagan Ellickson has published Administration official, both two articles-"Cities and participated in two recent Homeowners Associa­ panels: "Antitrust in the tions" and "A Reply to Eighties," the principal pro­ Michelman and Frug"-in gram of an event spon­ the University ofPennsyl­ sored by The Conference vania Law Review (130: Board, New York City; and 1519,1602). On June 7 he "Joint Ventures in Anti­ appeared in Boston at the trust," sponsored by the AALS conference on Institute for Corporate teaching torts to debate Counsel, Los Angeles. "The Place of Economic Professor Campbell Theory in the First Year went on to serve as pro­ Torts Course" with Jeffrey Santa-a/k/a Crim Law Professor John Kaplan-was fi.n~ing gram chairman of the O'Connell of the University checking his book and checking it twice, out Antitrust Section at the of Virginia law school. An who's been naughty and nice, before preSiding for the American Bar Association's editorial by Professor El­ 15th year over the annual Law School holiday party. D annual meeting, March 21­ lickson on the economic 22, in Washington, D.C., consequences of growth where he also moderated controls appears on a panel on antitrust and page 26. Professor Marc A. the Enrichment Series of reindustrialization. Franklin delivered the in­ the University of Oklahoma Dean John Ely is the au­ vited Marshall P. Madison law school, Professor Professor Mauro Cap­ thor of "Professor Dwor­ Lecture at the University of Franklin delivered a lecture pelletti was elected presi­ kin's External/Personal San Francisco, October on "The Current State of dent of the International Preference Distinction" in 25, on the subject "Good Libel Law in the United Society of Procedural Law the Duke Law Journal Names and Bad Law: A States." The next day, he during the Society's sev­ (1983:959). In October he Critique of Legal Protection addressed the midwinter enth congress, in Wurz­ addressed the National of Reputation." Earlier that convention of the Okla­ burg, Germany. While Association of Women month he was a featured homa Press Association on there, he and Stanford Judges and in December, speaker at "The Pen and the subject, "A Hard Look Law alumnus Bryant Garth with Professor Mark the Gavel," a conference at Contemporary Libel ('75), now an Indiana Uni­ Kelman, participated in a sponsored by the Arizona Law." versity professor, pre­ conference on "Economic Bar Foundation with a num­ A third edition of Frank­ sented a report on "The Liberties and the Constitu­ ber of media and journal­ lin's torts case book, this Protection of Collective tion" at the University of ists' organizations. one co-edited with Profes­ and Diffuse Interests in San Diego. Civil Litigation." On February 9, as part of sor Robert L. Rabin-

Spring 1984 Stanford Lawyer 43 Tort Law and Alternatives Gould chaired a collo­ School and the American tion. Professor Hancock's (Foundation Press)-was quium in October on Job jewish Congress, October classic Torts and the Con­ published last spring. Security and Worker In­ 16 in St. Louis. His lecture flict of Law (Michigan, Franklin was also quoted at volvement, at the Center for topic, "The Constitutional 1942) was reprinted, also length in a recent New York the Study of Democratic In­ Convention Controversy," by Hein, in 1982. Times article (December stitutions, in Santa Bar­ was also the subject of his Professor John Kaplan 18) on libel law as it applies bara. In November he de­ keynote address at a con­ discussed capital punish­ to business situations. livered a paper on "Union ference in Los Angeles ment issues in two recent Involvement in Manage­ and of interviews on a num­ Professor Paul Goldstein invited lectures. His topic ment Decision Making" for ber of radio stations has published two new ar­ for the Robert R. Ray Lec­ another colloquium, held around the country. ticles on copyright law: ture at Southern Methodist by the Eason-Weinmann Professor Gunther also "Derivative Rights and University, in February, was Center for Comparative participated in a recent Derivative Works in Copy­ "Can Capital Punishment Law of Tulane law school. panel on writing judicial right" (Journal of the Copy­ Be Efficient?" And in And in December he deliv­ biography, at the annual right Society, 30:209-52) March, as Dunwoody Lec­ ered a paper on Black meeting, in Baltimore, of and "Adaptation Rights turer at the University of trade unions in South Af­ the American Society for and Moral Rights in the Florida, he spoke on "Ad­ rica, at the African Studies Legal History. He has in United Kingdom, the ministering the Death Association annual meet­ addition spoken to Stan­ United States and the Fed­ Penalty." ing in Boston. ford alumni/ae groups in eral Republic of Germany" San Francisco and Los Professor John Henry (International Review of A study by Samuel R. Angeles on evaluating Industrial Property and Gross, acting associate Merryman presided over a the Burger Court. lively panel on "Art in Public Copyright Law, 14:43-59). professor of law, has been Gunther recently served Places," October 20 in He also moderated an all­ rnuch cited this winter in on a review panel of the day program in Septem­ courtrooms and the media. New York City. The artist National Endowment for ber, The Public Lending Gross and psychology Christo described his the Humanities, examining Right, sponsored by the graduate student Robert "Gateways" proposal for grant applications pertain­ Center for the Book and Mauro showed, in an anal­ Central Park. Gordon ing to the 1987 Bicenten­ held at the Library of Con­ ysis of recent FBI data, that Davis, the city park com­ nial of the U.S. Constitu­ gress. And in January, at murderers with white vic­ missioner who had denied tion. He is also a member the 1984 AALS national tims are much more likely permission for the project, of two University commit­ then explained his posi­ meeting, he both pre­ to be sentenced to death tees-the Provost Search sented a paper ("Intellec­ than murderers with black tion. "There was a vigorous Committee chaired by tual Property Protection for victims-indicating, Gross audience response to both President Kennedy, and Industrial Designs") and says, that the death pen­ presentations," Merryman the Administrative Panel on moderated a Property Sec­ alty, as currently imposed reports, "but no blood was the Stanford University spilled." tion program (titled "The in the United States "does Press. Revolution in Landlord not meet the Supreme He and Albert E. Elsen, cooperating professor of Tenant Law: Has It Really Court's requirement, set Professor Emeritus J.E. art and the law, were the Made a Difference?"). out in the 1972 case of Fur­ Moffatt Hancock has just keynote speakers at a sym­ man v. Georgia, that the had a collection of his es­ Professor William B. posium on The Moral Right penalty not be invoked ar­ says published under the Gould IV-newly named of the Artist, November 22 bitrarily." Gross expects title Studies in Modern to the Charles A. Beardsley in Jerusalem. Merryman these findings to be most Choice of Law: Torts, Insur­ Professorship in Law (see spoke on the same topic relevant in capital appeals ance and Land Titles pages 31-32)-has re­ the next day, for the Univer­ where the victim is white. (Hein, 1984). The Chief ceived a certificate of merit sity of Tel Aviv law faculty. Justice of Canada, Bora from the American Bar As­ Professor Gerald Gunther November 24-Thanksgiv­ Laskin (since deceased) sociation for his book, A delivered the Jerome W. ing Day-found him at the contributed the foreword Primer on American Labor Sidel Memorial Lecture, while Harvard Professor' Hebrew University of Jeru­ Law (MIT Press, 1982). sponsored by the Wash­ salem, where he pre­ Emeritus David Farquhar ington University Law sented a talk on "Law in Cavers wrote the introduc-

44 Stanford Lawyer Spring 1984 Radically Different Cul­ economics and law, is School, where he took a tures" and enjoyed a turkey editor of Setting National historical look at the growth luncheon in his honor. Priorities: The 1984 Budget of the administrative state. Professor Merryman's (Brookings Institution, That same month he views on international art 1983) and author of its"In­ chaired a panel at a Co­ trade restrictions appear troduction and Summary" lumbia University Law on page 24. and a chapter on "The School meeting on admin­ Budget and the Economy." istrative law and the politi­ Professor Robert H. Professor Pechman has cal economy. The third edi­ Mnookin was honored by also recently completed tion of the torts casebook the American Psychologi­ the fourth edition of his Rabin has edited with Pro­ 'cal Association at its 1983 book, Federal Tax Policy, fessor Franklin (see above) CREDITS annual meeting, where he which was published by was published last spring. Photographs: cover, Leo Holub; Was first recipient of the Brookings in December. p. 2 (Ely), Jane Reed; 2-3 (faculty Distinguished Contribution Professor Roberta groups), Stanford Law School; 4, to Child Advocacy Award, Professor A. Mitchell Romano is the author of Stanford News and Publications; 9, Nickolas Muray (from the col­ given by the Association's Polinsky moderated a two recent publrcations. lection of the International Mu­ Division of Child, Youth, panel in October at a Hoo­ The first, "On the Benefits seum of Photography at George and Family Services. ver Institution conference of Loss Recoupment: A Eastman House, Rochester, N. Y.); Mnookin, the citation read, on policy options for cata­ Response" (written with 18-21, Ed Souza; 28-30, John Sheretz, Paul Wood, and Victor B. "has substantially ad­ strophic losses. In Novem­ Mark Campisano), ap­ Levit; 31 (faculty) and 33 (Dray), vanced our understanding ber he gave a lecture on peared in Tax Notes, Octo­ Stanford News and Publications; of the enormously complex the economics of contract ber 17,1983. The second, 33 (students), Lisa Hudson; 34, relationships among child, law to Bank of America Sheldon ofLos Altos; 35, Michele Metapolitics and Corpo­ Foyer; 36, Foyer and Hudson; 37 family, and state.... His staff lawyers, in Los rate Law Reform, is Work­ (Scott), Sheretz, (Myers), Ray articles on foster care, in­ Angeles. ing Paper No. 13 (Septem­ Huff; 38 (Jacobson), Stanford determinancy in child-cus­ A book by Professor ber 1983) in the School's News and Publications; 39, 43, Emily Brandenfels; 42, Richard S. tody adjudication, and bar­ Polinsky-An Introduction Law and Economics Pro­ Cohen; 47, Berton Crandall; 53, gaining in divorce are not to Law and Economics­ gram series and will ap­ Sirlin Studios; 66, Marvin Carlson; only classics in farlli1y law; was published in April pear in Volume 36 of the 67, Lester Sloane; and 86-87 they are gems of interdisci­ 1983 by Little, Brown. His Stanford Law Review. (San Francisco events), Val Flesch, (Anaheim), Buchner & plinary scholarship.... His other recent publications Professor Myron S. Young. work has stimulated seri­ include "Risk Sharing Scholes has been named Artwork: pp. 4-8, Hogarth (infor­ ous academic attention to Through Breach of Con­ mation on p. 9); 17, Barbara Men­ to the Frank E. Buck Pro­ problems of family law; tract Remedies," in the delsohn; 22-27, Steve Reoutt; 38, fessorship of Finance at H perhaps equally impor­ June 1983 issue of the Gustav Dore, Moody and San­ the Graduate School of key at the Agricultural Hall, Isling­ tantly, it has stimulated Journal of Legal Studies, Business. His joint appoint­ ton" (detail), Graphic, 1975; and careful analyses with cau­ and "Products Liability, 40, Phiz (illustration for Bleak ment continues with the tion appropriate to the Consumer Mispercep­ House by Charles Dickens). Law School. state of our knowledge." tions, and Market Power" During the APA meeting, (coauthored with William Professor Kenneth E. which took place in Ana­ Rogerson) in the Autumn Scott has been appointed heim in August, Mnookin 1983 Bell Journal of to the board of directors for gave an address on abor­ Economics. Bell National Corporation, tion policy concerning a holding company with Robert L. Rabin became, adolescents, drawing on Bell Savings &Loan of San as of March 1984, first material from his forthcom­ Mateo as its major subsid­ holder of the A. Calder ing book, In the Interests of iary. Scott, a member of the Mackay Professorship in Children: Advocacy, Law Stanford Law Class of Law. (A biographical article Reform and Public Policy. 1956, is an authority on will appear in the next is­ banking law and the fast­ Joseph A. Pechman, visit­ sL1e.) Professor Rabin gave changing field of financial ing professor of business, a legal theory workshop in services. D November at Yale Law

Spring 1984 Stanford Lawyer 45 A~v\1f~ GATHERINGS lumni/ae on both coasts have A enjoyed many events together in the past few months. Stanford Law Societies of the Midpeninsula held a recep­ tion on Jwy 26 at the Stanford Facw­ ty Club, where Dean John Hart Ely discussed recent developments at the School. The Dean was also present at an Inner Quad reception September 15 at the Atherton home of Jill and John Freidenrich ('63). Stanford Women Lawyers gave a reception September 7 in San Francisco, at the St. Francis Yacht Club, where Dean Ely and other guests honored Professor Barbara Babcock for her outstanding con­ tributions to legal education and women's rights. The event also celebrated the establishment of a Stanford Women Lawyers Scholar­ ship Fund. The San Francisco Law Society sponsored two luncheons at the Commercial Club. The first, held on October 28, featured Professor Dean Wayne Alley '57 (left) of the University of Oklahoma law school, and his wife Marie, talk with Professor and Mrs. J Myron Jacobstein at Stanford's AALS reception John Kaplan as guest speaker. At the in January. next, on February 10, Professor Gerald Gunther discussed "A 1984 Perspective on the Supreme Court: Olympic Guardians? Orwellian Vi­ Up north, at the Seattle and fall (see inside back cover). You sions Realized?" CITYCLUB, the Washington may be sure of a warm welcome San Francisco was also the setting State L&w Society organized a from the School and your fellow for the annual meeting of the dinner October 26 with the Dean. alunmni/ae. American Association of Law Dean Ely was also a guest two *** Schools, where a reception was days later, in Portland, Oregon, Dean Ely wants those of you who held January 6 for graduates who where the Portland Law Society have heard him wax eloquent at have joined faculties here and sponsored a luncheon at the Port­ various gatherings- about the unique elsewhere. This event, which took folio Restaurant. strength of the School's faculty in place at the Hyatt on Union Square, An East Coast reception for alum­ terms of its ability to combine diver­ was hosted by Dean Ely and attend­ ni/ae was held August 1 in Atlanta, sity of opinion with mutual trust- to ed by several members of the Stan­ during the American Bar know that his opinion has been cor­ ford Law facwty. Association annual meeting. roborated by at least one objective On October 13, during the annual Robert A. Keller III ('58) hosted the source. In an article about Harvard California State Bar meeting in event, at the Atlanta Hilton, and Law School in the March 26 issue of Anaheim, an alumni/ae luncheon Professor Kaplan spoke. The New Yorker, Calvin Trillin was given at the local Marriot Hotel. Lastly, the Washington D.C. writes: Dean Ely participated, as did Pro­ Law Society gave a reception Oc­ fessor Thomas J. Campbell, who tober 11 at the Capitol Hill Club, It's obvious that disagreements about gave a speech entitled, "Stanford with Dean Ely as guest speaker. appointments or grading exist in just Comes to Washington: the Reagan We encourage you to mark your about any law school. Why are they so Administration Antitrust Policy" calendar for Stanford Law alum­ intense at Harvard? One reason is (genesis of the article on pp. 17-21). ni/ae events scheduled this summer sheer size. ... It is about the only pro-

86 Stanford Lawyer Spring 1984 SWL honoree Barbara Babcock (center) and Alumni/ae Relations Stanford Women Lawyers cochairs Christine Curtis '71 (center) and Director Elizabeth Lucchesi (right) welcome a potential future SWL Pat Cutler '71 (right) join Assistant Dean Margo Smith '75 (left), at member- Maura Dumond, daughter of Carol '83 (left). the September 7 SWL reception in San Francisco.

minent law school where people in­ volved in Critical Legal Studies have acquired a large enough base to be effective in faculty politics. ... At Yale, most of the young left-wing faculty members who developed the ideas that later became known as Critical Legal Studies were not given tenure. .. and the faculty is now strongly influenced by a school oflegal thinking known as Law and Economics. ... Stanford is sometimes spoken of as the one other major law school that has on its faculty the full array ofpolitical and legal posi­ tions, but Stanford is apparently much more peaceful. Harvard professors who are asked to speculate on what causes the difference in atmosphere are likely to say "The weather, maybe," or "Per­ sonalities." Dale Hanst '60 (right) takes time from hIS duties as California State Bar chairman to lunch with Dean Ely wishes to make it clear Dean Ely and SLS alumni/ae during the Bar's annual meeting. that he does not know Mr. Trillin. D

Spring 1984 Stanford Lawyer 87 Letters

To the Editor: reported justification is that other law schools have a higher median Your latest issue brings news of two GPA. Aside from the institutional in­ disturbing developments, both of security evidenced by this justifica­ which unfortunately reflect an ap­ tion, the change does not make any parent retreat to the past. The first, sense from the point of view of peo­ and by far the most disturbing, is ple who serve on hiring committees, the decline in minority represen­ which I assume is the target audi­ tation in classes entering the Law ence. Having been involved in the School. I am confident that an anal­ hiring process, I can tell you that ysis by minority group representa­ those who are interested in academic tives would disclose that while performance in law school tend to financial aid is important, the rea­ rely on class rank rather than grades sons for the decline are more com­ as a comparative index. plex than solely the financial aid I sincerely hope that Stanford's issues cited in your article. Willing­ peak into the 20th century has not ness to provide financial aid is only ended. one indicator of institutional recep­ Thank you for this opportunity to tiveness and commitment. share my thoughts. The other unfortunate develop­ Owen D. Blank ment is the abandonment of the 3K AB '70, JD (3K) '73 (pass/fail) system. The 3K system al­ lowed students to go to law school for purposes other than participating in the same grade race they just com­ Reply: pleted at the college level. If the school is so uncertain of its admis­ We at the School were also distressed . sion criteria that it is unable to trust with the decline in minority enroll­ the judgment of the men and women ment, which is why Deans Ely and it admits to make the choice between Smith so stressed the point and why it the grade system and the pass/fail was underscored in the report of the system, the school ought to re-exam­ Board of Visitors meeting. Fortun­ ine its admission criteria rather than ately, the tide seems to have turned; eliminate students' rights to make whereas the Class of 1985 had 19 choices. minority group members, the Class of The elevation of the median grade 1986 has 31. from 2.75 to 3.2 at the same time the The grading system was altered not 3K system is eliminated is illustra­ in order to please law firm hiring com­ tive of the silliness that accompanies mittees, but rather to improve the qual­ the grading game. The justification ity of the education received by Stan- for the raise is equally comical. The ford law students. The School has no plans either to reexamine its admis­ sions criteria or to begin assigning class ranks to students. * ** We thank Mr. Blankfor permitting us to print his letter, and encourage other readers to follow suit. Please address letters to: Editor, Stanford Lawyer, Stanford Law School, Stanford, CA 94305. (Space constraints may limit the number and length of letters pub­ lished, but all will be read with great interest.) - Ed.

88 Stanford Lawyer Spring 1984