Retirement of Sanford Kadish

California Law Review

VOL. 79 DECEMBER 1991 No. 6

TRIBUTE

Michael S. Mooret

It is an honor as well as a pleasure to contribute a few words on the occasion of Sanford Kadish's retirement from Boalt Hall. It has been a wonderful privilege to have Sandy as a friend and a colleague (both on the faculty of Boalt and in the larger jurisprudence community) and to have felt his influence on my own work and on my behalf. I cannot repay that debt by whatever I say here, but perhaps I can take up a challenge Sandy put to me years ago when I was publicly commenting on one of his papers. I had told him beforehand that my comments would include so much praise that it might embarrass him, and his reply was that "he could take it." He did take it-in fact, he took it so well that it leaves me with the challenge of trying again. Sandy is now, and has long been, the dean of American criminal law academicians. He is rightly regarded as America's foremost scholar of the criminal law, an eminence earned by his coauthorship of America's leading criminal law casebook, ' his sole editorship of the only comprehensive encyclopedia on criminal law,2 a stream of influential articles and books on many topics of criminal law theory,3 and an unbroken series of prestigious lectures and papers on criminal law that he has delivered

t Leon Meltzer Professor of Law, University of Pennsylvania. Formerly Professor of Law, Boalt Hall School of Law, University of California, Berkeley. 1. S. KADISH & S. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS (5th ed. 1989). 2. ENCYCLOPEDIA OF CRIME AND JUSTICE (S. Kadish ed. 1983). 3. See, e.g., M. KADISH & S. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973). Many but not all of the articles are collected in S. KADISH, BLAME AND PUNISHMENT: ESSAYS IN THE CRIMINAL LAW (1987).

1401 1402 CALIFORNIA LAW REVIEW [Vol. 79:1401 around the world. I shall say a word about each of these before turning to another aspect of Sandy's career. It is difficult to think of a casebook in another major field of law that has shaped the field itself as much as Criminal Law and Its Processes, Cases and Materials has shaped the field of criminal law-perhaps at one time Hart and Wechsler's FederalCourts, but there are no contemporary comparisons. The casebook's organization of the subject, its framing of the issues, even the very cases and examples it selects, have dominated the way criminal law is taught and thought about in the law schools of this country. For example, one of the leading hornbooks on criminal law reads like a commentary on CriminalLaw and Its Processes, discussing the casebook's ideas and examples in detail.4 Even those who are quite skeptical of the notion that criminal law makes any sense use the book's cases and examples to make their skeptical points.' The casebook is and has long been the most often selected casebook in criminal law, but even that fact understates the dominance of the book amongst theoretically oriented criminal law professors. The reasons jus- tifying this prominence are apparent to those of us who regularly teach criminal law from the casebook: it is theoretical in its orientation, sophisticated in its selection of theoretical materials, carefully organized to display the connection of theory to practical concerns, penetrating in its questions and textual notes,6 and analytically clear. As a result, the casebook is a sourcebook for theoreticians interested in the criminal law as much as it is a casebook for pedagogical purposes.7 Equally dominant in the criminal law field is Sandy's comprehensive encyclopedia of criminal law.' Like Paul Edwards' much acclaimed philosophical encyclopedia,9 Sandy's lacks the dry, noncontroversial, and thus tediously neutral tone that one often associates with the word "encyclopedia." The articles it contains were written by committed scholars who had their own points of view on the topics that they addressed. Because these scholars were also the leading lights in criminal law scholarship, the resulting encyclopedia is a large-scale contribution to knowledge and not simply a summary of points too obvious or too bland to draw controversy. Sandy's numerous articles defy any brief description of their con-

4. J. DRESSLER, UNDERSTANDING CRIMINAL LAW (1987). 5. See, eg., Kelman, InterpretativeConstruction in the Substantive CriminalLaw, 33 STAN. L. REV. 591 (1981). 6. See, for example, the particularly clear note on the common law concepts of specific intent and general intent in S. KADISH & S. SCHULHOFER, supra note 1, at 229-31. 7. For an example of the casebook used as a sourcebook, see the references to it in my own book, M. MOORE, ACT AND CRIME (forthcoming 1992). See also J. MURPHY & J. COLEMAN, PHILOSOPHY OF LAW (rev. ed. 1990). 8. ENCYCLOPEDIA OF CRIME AND JUSTICE, supra note 2. 9. THE ENCYCLOPEDIA OF PHILOSOPHY (P. Edwards ed. 1967). 1991] SANFORD H. KADISH 1403 tent. There is a liberal, progressive spirit animating all of them that reminds me of the work of Sandy's predecessors in criminal law theory: Jeremy Bentham and Herbert Hart. Like Bentham and Hart, Sandy eschews both rehabilitative and retributive theories of the general aim of criminal law, maintaining that punishment is an evil to the individual who suffers it, an evil that can only be justified by its bringing about a greater good to society. 10 Sandy has long defended a liberal theory of legislation, again like Bentham and Hart, although Sandy urges the restraint on criminalization on the practical grounds that we gain too little in criminalizing victimless crimes (such as many sex offenses) to justify the costs of enforcing such criminal statutes." These practical arguments have a normative force that is independent of the truth of a harm principle or any other principle of liberty. Sandy also shares the rationalist faith of Bentham and Hart that criminal law doctrines either already do or can be made to cohere both with one another and with the demands of morality. This faith in a rational structure to criminal law is evident in Sandy's demonstration of how criminal law's accomplice liability doctrines fit around criminal law's proximate cause doctrines, so that accomplice liability begins where principal liability ceases (because of a second actor's intervening, criminal action).' 2 Such faith is also displayed in Sandy's arrangement of the doctrines of excuse so as to illustrate their common core.' I The rationalist vision of the criminal law is perhaps most evident in Sandy's continua- tion of the great project that Bentham began: the systematic codification of the criminal law. Not only has Sandy tried his hand at recodifica- tion,' 4 but he has continued to be interested in the history of the codifica- 5 tion movement in the criminal law.'

10. For examples of this theory, see S. KADISH & S. SCHULHOFER, supra note 1, at 187-88, 323-27; Kadish, The Decline of Innocence, 26 CAMBRIDGE L.J. 273 (1968). 11. Kadish, The Crisisof Overcriminalization,374 ANNALS AM. ACAD. PO. & Soc. Sci. 157 (1967); Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. CHI. L. REv. 423 (1963). For a debate on this theory of practicality, see Junker, Criminalization and Criminogenesis, 19 UCLA L. REv. 697 (1972); Kadish, More on Overcriminalization: A Reply to Professor Junker, 19 UCLA L. REv. 719 (1972); Skolnick, Criminalizationand CriminogenesisA Reply to ProfessorJunker, 19 UCLA L. REv. 715 (1972). As my predecessor in criminal law at Penn, Lou Schwartz, made clear, these sorts of practical arguments convinced the drafters of the highly influential Model Penal Code to eliminate many "morals" offenses from their Proposed Official Draft. See Schwartz, Morals Offenses and the Model Penal Code, 63 COLUM. L. REv. 669 (1963). 12. See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 CALIF. L. REv. 323 (1985). A shorter version of this piece appears as A Theory of Complicity, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.L.A. HART (R. Gavison ed. 1987). 13. See Kadish, Excusing Crime, 75 CALIF. L. REv. 257 (1987). 14. See CALIF. JOINT LEGISLATIVE COMM. FOR REVISION OF THE PENAL CODE, PENAL CODE REVISION PROJECT (1968). 15. See Kadish, Act and Omission, Mens Rea, and Complicity: Approaches to Codification, 1 1404 CALIFORNIA LAW REVIEW [Vol. 79:1401

Despite sharing the Benthamite zeal for system and rigor in the criminal law, Sandy's articles also display a contrasting virtue, that of openness to the complexity of the data. One of Sandy's preoccupations over the past two decades has been the profound moral questions of life and death-euthanasia and other forms of (arguably) justified homicide, abortion, terrorist countermeasures, suicide, and the like. 6 On these issues Sandy is something of a pluralist about the moral principles that should govern both personal decisions and institutional designs, for he does not attempt to resolve the basic tension between consequentialist and deontological views of morality. He does not adopt such pluralism because he is opposed to unifying and systematic resolutions here as else- where, but because the moral data-at least without being forced- appear to him too rich to yield such generalizations. A voyager on the sea of ideas, Sandy reports the terrain as he finds it, not as his theoretical predilections tell him it should be.17 Sandy's scholarly contributions have not been limited to the criminal law. He and his brother Mortimer (who is also a philosopher) coauthored an article18 and a book19 on the central jurisprudential topic of civil disobedience and the obligations of officials and citizens to obey the law. In an article written early in his career, Sandy also displayed his natural law leanings, criticizing the Supreme Court's due process inter- pretations for their slighting of critical morality in favor of an undue deference to moral conventions.20 He has also authored a classic piece on the now-much-discussed criminal procedure topic of sentencing.2 Despite these and other scholarly interests, however, Sandy's focus has been on substantive criminal law.

CRIM. L.F. 65 (1989); Kadish, The ModelPenal Code'sHistoricaldntecedents,19 RUTGERs L.J. 521 (1988); Kadish, Introduction to A PENAL CODE PREPARED BY THE INDIAN LAW CoMMIsSIONERS (spec. ed. 1987) (adapted from Kadish, Codifiers of the CriminalLaw: Wechsler's Predecessors, 78 COLUM. L. REV. 1098 (1978)). 16. See Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CALIF. L. REV. (forthcoming 1992) (festschrift for Joel Feinberg); S. Kadish, The Goetz Case: The Limits of Self- Defense, Lecture delivered at Hokkaigakuen University (June 9, 1989), in 25 HOKKAIGAKUEN L.J. 138 (1990). Kadish, Torture, the State and the Individual, 23 ISRAEL L. REv. 345 (1989); Kadish, Respectfor Life and Regardfor Rights in the CriminalLaw, 64 CALIF. L. REv. 871 (1976). 17. This openness to the data is also evident in Kadish's excuses paper, supra note 13, for in that paper he allows administrative practicality to assume a role that strict doctrinaire adherence to the principle of fairness in punishments would not sanction. 18. Kadish & Kadish, On Justified Rule Departuresby Officials, 59 CALIF. L. REv. 905 (1971). 19. M. KADISH & S. KADISH, supra note 3. 20. Kadish, Methodology and Criteria in Due Process Adjudication-A Survey and Criticism, 66 YALE L.J. 319 (1957). Although Sandy and I have used this article along with some of my own natural law writings in the seminars that we have cotaught for judges, he tells me that he gave up such natural law leanings when he "put away childish things," assuring me that I too will see the light when I reach maturity. 21. Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 HARV. L. REV. 904 (1962). 1991] SANFORD H. KADISH 1405

Sandy and I have shared many a podium over the years-from the presentations at UCLA on George Fletcher's (then) just-issued book,22 through papers and lectures in honor of H.L.A. Hart at the Van Leer Foundation in Jerusalem, at All Souls College, Oxford, at the Max Planck Institute at Freiburg, at the celebration of the Model Penal Code's twenty-fifth birthday in Philadelphia, to our continued annual coteaching of a jurisprudence seminar for California state judges in Berkeley. I know that these have been only a small fraction of the papers and lectures that Sandy has given around the globe and that have helped to secure his reputation as one of the world's leading authorities on criminal law. Yet this portion has provided me with some of my fondest memories of Sandy: sharing more than one midnight beer in the town square of Freiburg, an Italian lunch in London, museum-hopping in Los Angeles, or Sandy excusing himself midsentence during our jointly taught seminars for judges in Berkeley-nominally to visit the men's room, but actually to see what predicates his coteacher could scramble to attach to the subject that Sandy had so fleetingly introduced. Another image of Sandy that comes to mind is of him tooling around the Berkeley hills in one of his souped-up sports cars. It is appro- priate that these cars have been plated "BOALT," for the license plate symbolizes a contribution of Sandy's besides those to the world of criminal law scholarship. Sandy has been a promoter and a caretaker of institutions, particularly of this law school. My first contact with Boalt was during the 1969-1970 academic year, when I came here as a legal writing instructor. Those were the heady days when some members of the class of '72 in my legal writing sections protested what they took to be the authoritarian nature of moot court by dressing as Indians, munching marshmallows, and inviting the judges to come down off the bench and "join the people." Sandy became dean when such an atmosphere pre- vailed and guided the law school through some of its most turbulent years. He is to be thanked for his faithful stewardship of the academic enterprise, then-perhaps even more than now-in danger of being swamped by demands for political action and immediate "relevance" of the politically correct kind. One of his lasting accomplishments was his promotion, in collaboration with others, of the Jurisprudence and Social Policy (JSP) Program, Boalt's graduate program for the academic study of law that is unique among American law schools. As one of Boalt's most distinguished senior academics, Sandy continued to be concerned with the law school's welfare after his deanship. He has sought to enrich the intellectual life at the school by hosting and running a program for outside speakers that has brought to Boalt's

22. G. FLETCHER, RETHINKING CRIMINAL LAW (1978). 1406 CALIFORNIA LAW REVIEW [Vol. 79:1401 faculty a smorgasbord of ideas.23 He has participated in the governance of the JSP Program through its committee and is a tireless promoter of the school's graduates. He has always taken a keen interest in Boalt's younger academics, encouraging them by his own genuine curiosity and his willingness to share it-particularly over coffee at a caf6 that used to be called Roma. One of my deep regrets at leaving Boalt in 1989 was that I would no longer receive my regular Kadish memos, "Post-Roma Thoughts," on various topics we and others had discussed over coffee. Sandy has also done more than his share in fostering institutions outside the law school. A past President of the Academic Senate of the University, a former member of its powerful Budget Committee, a former President of the American Association of Law Schools (AALS), and a former President of the American Association of University Professors, Sandy to this day continues to lend his time and his intelligence to pro- moting the kind of institutional arrangements in which ideas can flourish. Most recently I suggested his name to the President of the AALS as chair of the planning committee for an upcoming workshop in jurisprudence because I knew that even at that comparatively nonglamorous administrative task he would care enough to make it the best it could be. (His placement of me on that same committee might have been similarly motivated, but revenge is also a possibility.) Sandy has thus been one of an increasingly rare combination-a contributor to the cutting edge of ideas in his own field, while at the same time a performer of the administrative spadework necessary for others to have the best chance to make their own contributions. There is always a good deal of sacrifice involved in talented scholars doing this kind of institutional spadework, and those like myself who have benefited are thankful to Sandy for making it. Those who know Sandy at all know that to talk only of scholarly achievement and administrative contribution leaves something important unsaid. Left out are the personal qualities that have made Sandy not only a valued colleague but also a special friend. Early in our friendship Sandy said to me that he wished to be a friend, not a dean or other authority figure. Although he was not then my dean, I understood what he meant: often the very success of those who succeed in some dimen- sion leaves them short of friends even if surrounded by admirers. Some- times that is so for successful academics because they themselves pretend to an infallibility and an authority that invites only obsequious venera- tion. Not so for Sandy. He has worn his many accomplishments and accolades gracefully. He has displayed true greatness in refusing to present himself as a "great man." He has never sought to insulate his ideas

23. See, for example, the important symposium on liberty and community that Kadish planned in part and hosted: Law, Community, and Moral Reasoning, 77 CALIF. L. REV. 475 (1989). 1991] SANFORD H. KADISH 1407 from criticism because they are his ideas, as those who regard themselves as "great" or as "the leading authority" on this or that often do. Nor has he been infected even slightly with what might be called the "Picasso Syndrome"-the syndrome of successful academics who think that they can put hand to paper and produce a masterpiece without doing the thought or reading that made them successful to start with. Sandy is still as open to criticism and as thoughtful and careful a thinker and a writer as when he began his academic career. That is because Sandy has kept his essential modesty, and he has done so when his many rewards and successes would have made it so easy for him to have lost it. Those who meet Sandy for the first time are often struck by his youthfulness. Part of it is his modesty, but part of it is the easily pro- voked, easily detected twinkle in his interactions with people. Mixed in with a very great kindness to and an interest in others, Sandy has a wry amusement about the foibles of this life, for himself and others. He gives off the "vibrations" (as our sixties students used to say) of one whose life has been enhanced by a healthy sense of humor. One of Sandy's and my mutual friends, the late John Kaplan of Stanford, died two years ago. His last work was a review of Sandy's collection of essays, Blame and Punishment.2 4 John's last writing, fit- tingly enough, was a labor of love for his old friend, Sandy. Equally full of praise and humorously expressed competitive challenge, John's review illustrates the loyalty and affection Sandy has garnered from his friends. In an enterprise like scholarship that is essentially a solitary one, Sandy's presence has made criminal law scholarship a warm and friendly area in which to work. Although he now formally retires from teaching, I hope and expect Sandy's contributions to continue for a long time to come. In closing, I am brought to the Roto-Rooter man. Sandy had the misfortune several years ago to injure his back, resulting in his remaining at home to recover. Using the time to take care of some of the mundane details of daily life, he was visited one day by the Roto-Rooter man, who was called to unclog the drains. Looking at the array of pictures, awards, and etcetera, on the wall of Sandy's study, the duly impressed Roto-Rooter man gushed, "You must have really been somebody." The increasing rate at which Sandy's articles and speeches have been prolifer- ating as he has approached retirement, the recent issuance of the fifth edition of his criminal law casebook, and Sandy's plans to continue teaching criminal law as an emeritus professor confirm the Roto-Rooter man's appraisal in all but its past tense.

24. Kaplan, Book Review, Kadish on CriminalLaw, 76 CALIF. L. REv. 769 (1988) (reviewing S. KADISH, BLAME AND PUNISHMENT: ESSAYS IN THE CRIMINAL LAW (1987)). 1408 CALIFORNIA LAW REVIEW [Vol. 79:1401

Stephen J. Schulhofert

In the world of business and the professions, retirement is a major rite of passage. Usually it marks the end of active engagement with the concerns of one's working life and the beginning of new options and opportunities, a time to discover and enjoy, at long last, the things one really wants to do. So it is for many academics. But for the best of academics, "retirement" is a misleading term to describe what happens at age seventy. And Sandy Kadish is beyond question one of the best, the preeminent criminal law scholar of his generation. So what, precisely, is the special event that the CaliforniaLaw Review is acknowledging and perhaps cele- brating in these pages? Viewed through the cold lens of uncompromising functionalism, academic retirement could be defined as the involuntary relinquishment of administrative responsibilities. No more committee work. NO MORE FACULTY MEETINGS!!! And of course-a most important matter-no more full-time teaching, one loss that I know Sandy will regret. Etymologically, a retirement is a withdrawal, a disengagement. But Sandy's "retirement" will mean no such thing. It will not mean any slackening of his interest in the pressing educational and criminal justice questions of the day. It will not mean any lessening of his intellectual engagement or productivity. On the contrary, the event that the law review marks with this issue signals a strengthening of engagement: not a retirement but a liberation of energies, an invigoration, a renewal of com- mitment to the concerns of a professional lifetime. For his criminal law colleagues at other law schools, there can be nothing but pleasure in the anticipation of this passage from the preoccupations of institutional responsibility to full-time immersion in the questions that dominate our field. On the Berkeley campus, the occasion is bound to be more bittersweet. But as Boalt's law review editors, students, and faculty take note of Sandy's withdrawal from active teaching, they pay tribute as well to a lifetime of energetic and fruitful contributions to the intellectual and institutional well-being of a great school. Sandy Kadish began teaching in 1951, just three years out of law school, and joined the Berkeley faculty in 1964. As Sandy prepares to move forward, those at Boalt today can give thanks for twenty-seven years of successful teaching and intellectual leadership, including seven years as dean, together with stints as President of the American Associa-

t Frank & Bernice J. Greenberg Professor of Law and Director of the Center for Studies in Criminal Justice, University of Chicago Law School. 1991] SANFORD H. KADISH 1409 tion of University Professors and, later on, as President of the Associa- tion of American Law Schools. The scholarship alone is breathtaking in its scope, variety, and importance. (Sandy would wince if I said anything about its impressive volume, so I won't.) I need hardly mention the significance of Sandy's many earlier writings, including his landmark work on "victimless" crime;1 a Harvard Law Review piece that helped give birth to the sentencing reform movement;2 his article on due process' that, after almost thirty-five years, remains one of the most cited articles ever to appear in the Yale Law Journal;4 and his influential book on the perplexing problems of discretion, disobedience, and nullification of law.' There is also his penetrating examination of the doctrines and intuitions that sometimes permit the taking of human life, a tour de force that illumi- nates medical experimentation, transplant surgery, abortion, and euthanasia.6 More than a law professor, Sandy has been a searching moral philosopher who has pushed inquiry into some of the deepest and most perplexing issues of our time. He is more than a philosopher (Sandy might say less than a philosopher), too. He knows the trenches of practical reform, having enjoyed service (and disappointments) as Reporter for the California Penal Code Revision Project.7 Not surprisingly for anyone who knows Sandy's bent, he saw transcendent themes in the workaday problems of legislative reform. Many years later, in a tribute to Herbert Wechsler, he provided a rich description of the forces and personalities involved in criminal law codification efforts of the nineteenth century and traced the significance of that history for the successful accommodation of "rational" justice, practicality, and politics in the reform efforts of today.8 But, as I said, there is no need to discuss Sandy's well-known early work, and in order

1. Kadish, More on Overcriminalization:A Reply to ProfessorJunker, 19 UCLA L. REV. 719 (1972); Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & SOC. Sci. 157 (1967); Kadish, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. CHI. L. REv. 423 (1963). 2. Kadish, Legal Norm and Discretion in the Police and Sentencing Process, 75 HARV. L. REv. 904 (1962). 3. Kadish, Methodology and Criteria in Due Process Adjudication-A Survey and Criticism, 66 YALE L.J. 319 (1957). 4. See Shapiro, The Most-CitedArticlesfrom the Yale Law Journal, 100 YALE L.J. 1449, 1462 (1991). 5. M. KADISH & S. KADISH, DISCRETION To DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973); see also Kadish & Kadish, On Justified Rule Departuresby Officials, 59 CALIF. L. REV. 905 (1971). 6. Kadish, Respect for Life and Regard for Rights in the CriminalLaw, 64 CALIF. L. REV. 871 (1976). 7. CALIFORNIA JOINT LEGISLATIVE COMM. FOR REVISION OF THE PENAL CODE, PENAL CODE REVISION PROJECT (1968). 8. Kadish, Codifiers of the CriminalLaw: Wechsler's Predecessors, 78 COLUM. L. REv. 1098 (1978). 1410 CALIFORNIA LAW REVIEW [Vol. 79:1401

not to tax the patience and cite-checking capacities of the CaliforniaLaw Review, I will avoid further reference to Sandy's pre-1982 scholarship. Nine years ago in these pages, with the relish that only an outsider could bring to the event, I commented on Sandy's retirement from the Boalt deanship. 9 I was sure that his quiet, good-humored leadership would be missed, but for me the occasion was one of unalloyed pleasure. I anticipated that more of Sandy's energy and phenomenal intellectual resources would be devoted to criminal law scholarship and the enrich- ment of knowledge. I foresaw important contributions to the advance- ment of truth. But there was pure selfishness, too-the anticipation of more time to pursue my own interests and projects in collaboration with Sandy, formally and informally. I was not disappointed. Since leaving the deanship, Sandy has published four particularly valuable articles and three books, at least two of them very important as well. (I will say something about the third book a bit later.) First a word about the articles. The Model Penal Code's HistoricalAntecedents 10 provides an illumi- nating and valuable critique of the codification movement. Act and Omission, Mens Rea, and Complicity I carries forward the analysis of codification by contrasting the treatment of some especially tough questions of conceptualization and policy in the American, British, and Cana- dian penal reform efforts. Excusing Crime 12 presents a comprehensive analysis of the structure of criminal law excuses. It not only develops an integrated theory to account for our intuitions about when blame can attach, but also goes on to explore the complex intuitions about whether criminal justice practices can be justified-can be right-even when they require us to treat individual persons unjustly. Complicity, Cause and Blame 13 brings a combination of rigorous analysis and thoughtful intui- tion to bear on several of the most difficult concepts in the criminal law. It enabled me for the first time to see hidden connections between causa- tion and complicity and to understand some of the hardest puzzles in the field. Of course there is more. Since leaving the deanship, Sandy has also published three books, one of them a work in four volumes. The three books are written from three different perspectives and serve three very different purposes. It is almost as if Sandy, an otherwise modest and

9. Schulhofer, Kadish Returns, 70 CALIF. L. REv. 518 (1982). 10. Kadish, The Model Penal Code's HistoricalAntecedents, 19 RUTGERS L.J. 521 (1988). 11. Kadish, Act and Omission, Mens Rea, and Complicity:Approaches to Codification, 1 CRIM. L.F. 65 (1989). 12. Kadish, Excusing Crime, 75 CALIF. L. REV. 257 (1987). 13. Kadish, Complicity, Cause and Blame A Study in the InterpretationofDoctrine, 73 CALIF. L. REv. 323 (1985); see also Kadish, A Theory of Complicity, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.L.A. HART (R. Gavison ed. 1987). 1991] SANFORD H. KADISH 1411 unassuming fellow, likes to remind us that he has not just extraordinary depth, but also amazing versatility. Blame and Punishment 14 collects some of Sandy's best essays on criminal punishment. By integrating them into a coherent approach to the organizing premises of criminal law doctrine and moral accountabil- ity, it provides not only a valuable resource but a statement of principle that everyone concerned with the foundations of responsibility and blame has to confront. The Encyclopedia of Crime and Justice,1 5 for which Sandy served as editor-in-chief, comprehensively covers the field of criminal justice. It covers topics ranging from the field's conceptual and philosophical concerns, to its sociology and political organization, to its most complex and technical details of practice and procedure. No one else in the field could have brought to bear the breadth of knowledge and diversity of intellectual tools needed to span such disparate material and bring such a project to successful fruition. And few others (if any) would have had the calm perseverance and tact needed to coordinate (and mollify) the long roster of virtuoso performers whose contributions were required. In fact, the Encyclopedia owes its existence to heroic Kadish efforts in drafting, edi- torial revision, mediation, and diplomacy, not least of which was his Sol- omonic rescue of the subject of "Strict Liability" from the twin shoals of traditionalism and Critical Legal Studies. The two books just mentioned are works of the first importance. The former probes the hardest questions of criminal responsibility and pushes our understanding of this difficult subject several steps further and deeper. The second presents the current state of the art, in readily accessible language, over the entire range of subjects with which the student or criminal justice professional is concerned. Quite different in character, the two books have in common (as one expects from Sandy) their significance as invaluable resources and lasting contributions to the field. I have to be more reticent in commenting on the value of the third of Sandy's recent books, the fifth edition of Criminal Law and Its Processes,1 6 his landmark contribution to the teaching of criminal law. I do think it fair to mention that when the book first appeared in 1962 it took the field of criminal law class materials by storm, revolutionized the prevalent approach to teaching the first-year course, and projected a vision of the subject matter that deservedly dominated the field. I think it fair to add as well that the book preserves, thanks to Sandy's continued

14. S. KADISH, BLAME AND PUNISHMENT: ESSAYS IN THE CRIMINAL LAwV (1987). 15. ENCYCLOPEDIA OF CRIME AND JUSTICE (S. Kadish ed. 1983). 16. S. KADISH & S. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS (5th ed. 1989). 1412 CALIFORNIA LAW REVIEW [Vol. 79:1401 freshness of insight, its innovative perspective and its continued status as one of the subject's leading pedagogical tools. I have been fortunate in having the opportunity to appreciate Sandy's scholarship not only on the page but in a close collaboration that now spans more than a decade. Our work together on the fourth and fifth editions of CriminalLaw and Its Processes afforded me many hours (not too many, but it was a lot!) of stimulating interaction and challeng- ing conversation. Occasionally an acquaintance assumes that I am one of those "junior" authors who bears virtually the entire responsibility for writing and producing a book. Nothing could be further from the truth. In fact, though Sandy in theory accepts a fifty-fifty division of the chap- ters, he remains immersed in every section and page. I suspect that he not only loves the give-and-take of collaboration (and disagreement) but also retains an intense interest in the welfare of his most famous offspring and perhaps a mild anxiety about my potential for altering its personality and character. Very much open to new ideas, Sandy nonetheless holds deep convic- tions about the organizing principles of criminal responsibility and about the best way to teach them. He can cling tenaciously (and persuasively) to his vision, but as my principal editor and critic, he has remained unfailingly gracious, even when illogic, wrongheadedness, lack of cogency, trendiness, and other modem failings could have sorely tried his patience. Sandy has been my collaborator not only on the two casebook editions, but also on countless manuscripts and letters that we have exchanged over the years. Though circumstances and the flukes of tim- ing have conspired to keep us on separate campuses since 1979, he has been a steady source of colleagueship and generous assistance throughout. So it is with the greatest of pleasure that I join the California Law Review not only in paying tribute to the many achievements that lie in Sandy's past, but also in looking forward to the many years of productivity and service that lie ahead. 1991] SANFORD H. KADISH 1413 George Rutherglent

Other contributors to this collection have known Sandy better than I have. They have been colleagues or collaborators. I only owe my career to him. From my years as a law student at Boalt through my appointment as a teacher at Virginia, Sandy has always freely given me his time, his assistance, and his counsel about matters ranging from scholarship to academic administration. He has been generous even-or perhaps especially-when he confessed to some perplexity about how I had gotten into the situation that required his advice. It was, for example, through Sandy that I became interested in teaching at Virginia. At the time his collaborator and friend Monrad Paulsen was the dean at Virginia. It was only because of Sandy's candid and impartial advice that I regarded a job there as even a conceivable possibility for a student, like myself, from the Berkeley of the sixties and seventies. We did not, after all, regard it as a state that was in the vanguard of the revolution, at least not since Jeffer- son's times.1 I met Sandy when I took his seminar in philosophy of law during my second year in law school. Like many law students, I took such seminars partly out of nostalgia for my undergraduate studies, which had been in philosophy. Sandy quickly disabused me, and the other members of the seminar, of any such sentimentality. He forced us to take a long, hard look at concepts of fault in philosophy and the criminal law. Sandy was and still is one of those few scholars who is distinguished for his work in both fields. From that seminar, I took away an enduring belief (which has sus- tained me through many law review footnotes) in the need to combine close legal reasoning with a more fundamental and abstract perspective on the law-the "echo of the infinite" that Holmes recommended nearly a century ago.2 This conviction was derived not just from what was taught in the seminar, but from how it was taught. Like all the best law teachers, Sandy taught by example: going to the heart of the issue, taking care to fairly present the arguments on each side, encouraging his students but demanding much of them. Occasionally he responded to our comments and questions, or our answers to his questions, with what I then took to be impatience; I now see from my own experience that he

t John Allan Love Professor and John V. Ray Research Professor, University of Virginia. 1. Anyone acquainted with the University of Virginia will recognize this as the obligatory reference to its founder. 2. Holmes, The Path of the Law. 10 HARV. L. REv. 457, 478 (1897). I still harbor some doubts of whether Sandy would approve of this expression of sentimentality, sanctioned by tradition though it is. 1414 CALIFORNIA LAW REVIEW [Vol. 79:1401

exercised admirable restraint. Somewhat to Sandy's chagrin, I think, I have always been an imperfect student of criminal law, a failing I attri- bute to the grisly facts with which most criminal cases begin and the dismal punishment with which they often end. What I do know of criminal law I learned from Sandy's teaching and from his books. What I really learned from him, although I didn't realize it at the time, was how to be a legal scholar. In the years since, "law and.. ." courses like Sandy's seminar have multiplied. After my time, during his tenure as dean, Sandy brought this movement to Boalt in a formal institutional fashion through the program in Jurisprudence and Social Policy (JSP). While most administrative work in a law school seems to be Sisyphean-what is done laboriously one year seems to be undone with greater labor a few years later- Sandy's work with the JSP program has been Herculean. From my dis- tant viewpoint, he did more than create a program (which must have taken untold hours); he created a model for the interdisciplinary study of law. Many of the "law and.. ." courses scattered throughout the curric- ulum at other law schools end up as "law or.. ." courses in which the study of law is quickly forgotten in the amateur pursuit of some other discipline. Just as in his seminar, Sandy has insisted upon the highest standards of argument and scholarship on both sides of the line that divides law from other disciplines. While I was a student, I assisted Sandy in the final edit of his book, Discretion to Disobey.I Perhaps he thought that students of my generation were experts on the latter, even if we were somewhat deficient in the former. That book, which he wrote with his brother Mortimer, a professor of philosophy, has always struck me as the best model of interdisciplinary legal scholarship. It also strikes me as emblematic of the essential unity of Sandy's career. The arguments he presented in his seminar were no less sophisticated than the arguments he presented in his book. His work as an administrator was no less demanding or rigorous than his work as a scholar. All of his work met and served the highest standards of scholarship. My generation of students was demanding in other ways. We were, as I gather Berkeley students still are, critical of our legal education. Our goals were different and, we thought, more important than the faculty's. Having switched sides, I am now more tolerant of the faculty's view. But whether or not we were right as students, I would be satisfied if our generation succeeded as well, in its own way and time, as Sandy has succeeded in his.

3. M. KADISH & S. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973). 1991] SANFORD H. KADISH 1415

Jesse Chopert

Sanford H. Kadish came to Boalt Hall in 1964 from the University of Michigan. In the years since then he has been a powerful presence at this law school, on the Berkeley campus of the University of California, in the community of law schools nationwide, and in higher education generally throughout the country. There has been no one in the long history of distinguished Boalt Hall faculty members who has brought our law school greater distinction. The accompanying tributes describe Sandy's extraordinary scholarly accomplishments, which place him at the pinnacle of his field in the United States and abroad. Indeed, there is no one I know of who assumed the deanship of a major law school as a senior scholar (that's a euphemism for "after the age of fifty") and, after a successful tenure, returned to serious creative scholarship. Moreover, as a teacher Sandy has been an inspiration to his students, bringing to the classroom the insight and clarity that have made him one of the world's leading figures on the criminal law. But I will focus here on his record of service to higher education, a record of distinction equivalent to his intellectual attainments. Sandy was appointed dean of this law school in 1975 and served until 1982. During that time he was responsible for several major initia- tives. By far the most significant was the creation and nurturing of the Jurisprudence and Social Policy (JSP) program, for which he and Profes- sor Philip Selznick were largely responsible. This program involved the addition of twelve members to the Boalt faculty who are trained in areas other than law-including economics, history, philosophy, political sci- ence, and sociology. They join the law-trained (J.D.) faculty in staffing a doctoral program in the academic study of law and an undergraduate major in Legal Studies as well as offering an imposing array of interdisciplinary law school courses. The JSP program is unique in American legal education. Spectacularly successful, it is widely recognized as a model for interdisciplinary legal education and a source of excellent teaching prospects. Sandy also established a number of important programs for intellectual collegial exchange. He organized an outside speaker colloquium series that continues to flourish today, as does the weekly Faculty Prandium he began, at which between fifteen and fifty colleagues regularly join for lunch. He arranged international faculty exchanges with German and Japanese universities, developing a model that his junior

t Dean and Earl Warren Professor of Public Law, Boalt Hall School of Law, University of California, Berkeley. B.S. 1957, Wilkes College; LL.B. 1960, University of Pennsylvania; D. Hu. Litt. 1967, Wilkes College. 1416 CALIFORNIA LAW REVIEW [Vol. 79:1401 colleagues are now using in adding Italy, France, and perhaps Spain. In connection with the Japanese program, he raised a substantial amount of money for collaborative research, an activity that has now become the core of the law school's developing American-Japanese Legal Studies Program, named in honor of the late Professor Sho Sato. Sandy's administrative contributions to the law school were also very important. He undertook an ambitious effort to double the level of annual giving, spearheading a Boalt Hall Centenary Campaign that included a set of lectures by distinguished scholars and jurists. He helped organize and house the Robbins Collection for Canon Law, which became world-famous during his tenure as dean. He expanded the law library and superintended the introduction of new research technology to the point where our library is one of the most sophisticated facilities of its kind. In all, Boalt Hall is a markedly better place because of Sandy's stewardship. Sandy has also been a leader in University governance, serving for a time in many key faculty positions at Berkeley. For example, he was chair of the Academic Senate's Planning Committee from 1967 to 1969, chair of the Senate Policy Committee from 1969 to 1972 (a period of peak opposition to the Vietnam War marked by bitter and tragic contro- versies over People's Park and ROTC at Berkeley), a member of the Budget Committee in 1973-74, and a member of the Chancellor Search Committee that nominated Albert Bowker. Sandy's administrative activities extend well beyond the boundaries of the law school. He is one of only two people who have been both president of the American Association of University Professors (the sole professional organization in the United States representing all college and university professors), which is directed to advancing the interests of higher education, and president of the Association of American Law Schools (the official organization consisting of all accredited law schools in the United States that meet its standards for admission), which is directed to improving the legal profession through legal education. In addition, he recently served as vice-president of the American Academy of Arts & Sciences. Sandy was my predecessor as dean of Boalt Hall. His tenure was indelibly marked by a standard of intellectual rigor, dignity, fairminded- ness, principle, and personal concern for our colleagues that was a great challenge to approach. His treatment of me, in his then-new role of former dean, will be even more difficult to emulate. He was always encouraging, during good times as well as rough ones. He cheerfully (well, at least not too grudgingly) undertook every task, large and small, that I asked him to do-and I called on him always when the matter was difficult or delicate. He was unfailingly sympathetic when informing me of 1991] SANFORD H. KADISH 1417 unpleasant news that I should have, but could not otherwise have, known. He often made suggestions, but never in a way that carried a tone of criticism. We are delighted that Sandy has chosen to remain at Berkeley. If his entire professional career and engagement in the life of the mind are any guide, he will "retire" to emeritus professor status as he "retired" from the deanship to professor status. Thus, we all will continue to enjoy his warmth, sagacity, and collegiality for many years to come, his future students will have the benefit of his unique scholarly abilities and accomplishments, and I will keep enjoying his warm friendship and that of his wife, June (who tries her best, usually successfully, to keep him in line).

Meir Dan-Cohent

There is but a thin line in our imagination between retirement and demise. Mandatory retirement is designed to do to a person's professional life what first degree murder-or, in some cases, euthanasia-does to one's natural existence. Writing on the occasion of a friend's retirement, it is hard to avoid a eulogy. What a relief, therefore, to mark the retirement of Sandy Kadish, whose life, professional and otherwise, is in such full swing as to defy and ridicule any such morbid intimations. Sandy at seventy is one of the youngest adults I know, certainly more youthful than I myself am or have been since at least my bar mitzvah. The physical and mental energy he exudes are for us, Sandy's temporally less-advanced friends, a source of envy and admiration. They are also grounds for cautious optimism: that with luck, our youth too may perhaps still lie in our future. To base on Sandy's example a hope for one's own extended or belated youth is of course to indulge a fantasy. To model one's professional aspirations after Sandy's career is to fall into presumption. Sandy's scholarly stature can be easily summed up by saying that he is quite simply the leading scholar in his field-criminal law theory. But though undoubtedly true, even this description understates the significance of Sandy's contribution. He is one of the rare scholars who are not just brilliant practitioners in a given area, but whose work transforms and helps redefine the area they practice. Criminal law theory as we understand and practice it today in this country is in a large measure Sandy's own creation. In writing these comments I am looking at a volume of Sandy's collective essays, Blame and Punishment. It is a mag-

t Professor of Law, Boalt Hall School of Law, University of California, Berkeley, and Tel Aviv University, Israel. 1. S. KADISH, BLAME AND PUNISHMENT: ESSAYS IN THE CRIMINAL LAW (1987). 1418 CALIFORNIA LAW REVIEW [Vol. 79:1401 nificent achievement: the essays range over most of the central issues of criminal jurisprudence and they illuminate each issue they touch with enviable elegance, insight, and depth. Still, like many other great works this one is to a certain extent the victim of its own success: in looking at the many classics with which this collection is studded (e.g., The Crisis of Overcriminalization,The Decline of Innocence, and so on), one must con- stantly remind oneself that truths we all now take for granted were first announced as transforming insights just a short while ago in these essays. Sandy Kadish's methodological contribution is as great as his substantive one. Over the years many have tried to emulate, and a few have occasionally succeeded in approximating, the exemplary synthesis of philosophical sophistication and legal acumen that is the hallmark of Sandy's work. But these and other writings (including the remarkable book Discre- tion to Disobey, coauthored by Sandy and his brother2) do not exhaust Sandy's contribution to criminal law. He is also the main author of a set of teaching materials entitled Criminal Law and Its Processes.3 It is I think no exaggeration to say that, with the possible exception of the American Law Institute's Model Penal Code, these materials are the sin- gle most influential document in shaping the study and the teaching of criminal law in America today. The formative role that this teaching tool has played in defining criminal law as a field of study for generations of students and scholars is in itself ground enough for thinking of Sandy as the dean of American criminal law. This accolade was confirmed in Sandy's appointment some years ago as editor-in-chief of the Encyclope- dia of Crime and Justice 4-- a first, definitive resource of its kind. Being Sandy Kadish's colleague is for these reasons one of the greater honors that this law school and this university can bestow. For quite some time now I have been one of the lucky recipients. But I have been even more fortunate than that. I feel entitled to claim (and I rely on Sandy's good grace or veracity for him not to deny it) that for all these years I have been his friend too. However, public displays of affection are (for me at any rate) even more embarrassing than the public expression of professional admiration; after all, in our line of business, we are primarily used to criticizing each other's work. Moreover, being with someone on intimate terms does not always sit well with keeping that person's real stature firmly in focus. It was therefore an important reminder for me of the unique privilege of Sandy's friendship when some

2. M. KADISH & S. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES (1973). 3. S. KADISH & S. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS (5th ed. 1989). 4. ENCYCLOPEDIA OF CRIME AND JUSTICE (S. Kadish ed. 1983). 1991] SANFORD H. KADISH 1419 years ago a justice of the Israeli Supreme Court, upon hearing of my association with Sandy, exclaimed, "Oh, he is truly a great man!" I may perhaps be forgiven for being impressed by how far abroad Sandy's reputation has travelled and for the fact that it took a reminder from overseas to reassure me of what we have all known all along. The giants of the legal profession, however, often come in a more forbidding, imposing, and-they will excuse my saying so-more self-important format than does Sandy. That someone can be such an accomplished legal scholar, and yet be so full of humor, verve, and conviviality, and to top it all be such a mensch, of course augments Sandy's greatness; but these gifts can also sometimes obscure that greatness from sight for those in close prox- imity to the subject. But what does all of this have to do with Sandy's retirement? Admittedly, not very much. The retirement is mainly an occasion for us, Sandy's friends and admirers, to celebrate him. Still it would be inaccu- rate to imply that the retirement had no effect on Sandy himself. As one would expect, Sandy's retirement marked an immediate increase in his scholarly productivity. Freed from some institutional chores (of which he has always done more than his fair share), Sandy has already com- pleted a splendid article in which he tackles the philosophical and legal issues raised by the decision to discontinue life-sustaining medical treatment.' Perhaps no less impressive than the product was the spirit in which it was done. Sandy displayed in the course of this project the enthusiasm and absorption-as well as the anxieties and doubts-that befit someone vying for tenure. But here again Sandy simply embodies an important truth: that there is no rest, let alone retirement, for the truly creative spirit. We should be grateful for Sandy's example, give him another cheer, and let him go back to work.

5. Kadish, Letting Patients Die: Legal and Moral Reflections, 80 CALIF. L. REv. (forthcoming 1992) (festschrift for Joel Feinberg).