Burke Marshall He

12 |13 YLR Winter 2004

In Memoriam: Family, friends, and colleagues gathered together at memorial services in New York City and New Haven last year to pay their respects to the late Burke Burke Marshall ’51, the Nicholas deB. Katzenbach Professor Emeritus of Law, who passed away on June 2, 2003, at the age of 80. A towering ﬁgure in the civil Marshall rights movement of the 1960s, and a beloved professor at Yale Law School since 1970, Marshall’s passing evoked tributes from many individuals who had worked alongside him in his efforts to achieve justice and equality for all.

IN THE 1960s, IN BOBBY KENNEDY’S JUSTICE DEPARTMENT, Burke said and did things that required A MEASURE OF COURAGE his Yale Law School colleagues regarded with awe, though we never told him so directly —at least I never did, to my regret. Of course, we all believed what Burke believed, and pledged allegiance to the same ideals. But Burke—Burke of the soft voice, Burke of the stooped shoulders, Burke of the courteously deferential gesture—Burke stood up when it mattered and declared our shameful hatreds to be wrong and against the law—immediately, completely, and irrevocably against the law.Then, and later, Burke taught us, by word and by example, that there can be no temporizing with injustice, no equivocating with its meaning, no postponement of the urgent demand to root it out completely, but TO ALL OF US who knew him and only the swift and dutiful offer of help to those who need protection against it. worked with him and loved him, Burke Anthony T. Kronman ’75 Dean,Yale Law School Marshall was the right person at the right time at the right moment for the civil rights revolution. At one of those rare, critical, defining moments in the HE WAS SUCH an unobtrusive presence. WHEN I THINK of Burke Marshall, history of our country, the opportunity He became the context for WHAT IS I think of someone who really represents was there to take the right path, and POSSIBLE IN YOUR LIFE.I feel unaccom- the very best that America has to offer in because of Burke we did. panied without him. So, goodbye Burke, its continuing and unfinished business In those crucial years of America’s epic truth-teller, behind-the-scenes freedom of justice and equality.There isn’t any struggle against injustice, Burke traveled fighter, quiet, upright, standup guy, un- doubt that we are a better country thousands of miles to resolve the most self-effacing hero, always-there, gentle because of Burke Marshall.There isn’t difficult civil rights issues of those times. friend. No more long discussions of any doubt that HE REMAINS A HERO for He went everywhere he was needed cases, where your simple questions anyone who understands how difficult most, persuading local authorities to always turn out to be the most crucial America’s journey in dealing with race desegregate bus stations and train sta- ones. No more surprise, early-morning has been and continues to be. I hope that tions and other public facilities. Police phone calls, about the birds outside the as we honor him, as we think of the dogs were called off. Fire hoses were put windows, or your favorite pink flowers, or legacy that he leaves, as we remember away. Peace began to return in Mont- the train trips you dreamed of taking the incredible courage that he showed gomery and Birmingham. James Mered- through the English countryside in the on behalf of his ideals and his rock- ith entered the University of Mississippi. spring….No more four-hour lunches, bottom belief in the American capacity In his quiet unimposing way, BURKE where you, old school, grabbed the check for justice that we will inspire others to GUIDED GOVERNORS, MAYORS, AND He taught us. He inspired us. He led us…. with ever creative and unanswerable follow in those footsteps. I’m struck how CITIZENS alike back from the brink of arguments that became a long-running difficult it seems to be these days for We are a nobler country and a fairer nation today because of Burke. No one unending violence of freedom-rider beat- joke.“You can take me out to dinner people to stand up and speak out, to take ings, lunch-counter sit-ins, and street when you have a job.”“It was my idea.” on the forces of reaction and radicalism, did it better. No one had better judgment or wiser counsel. No one cared demonstrations. Even those who had “You came all this way.”And then late to understand so clearly that many of called the loudest for massive resistance last year, I conceded defeat for the first the same voices that we hear today who more deeply about justice and opportunity for all. His name will be forever began to realize that civil rights was an time.“Burke, you never are going to let wish to turn the clock back were the idea whose time had come. I wish we me take you out, are you?”And so did ones who opposed every step of the way writ large in the history of civil rights of our time. Senator Edward M. Kennedy could send him to the Middle East today. you.“You can pay next time.”You won the important laws that Burke Marshall Edward M. Kennedy that one, too. championed. Senator, Massachusetts Catharine A. MacKinnon ’77 jd Hillary Rodham Clinton ’73 Elizabeth A. Long Professor of Law Senator, New York University of Michigan Law School courtesy of the Marshall family Photographs 12 |13 YLR Winter 2004

“THANK YOU, BURKE.” Faculty Activities

Nicholas deB. Katzenbach

left to right Bruce Ackerman BURKE TALKED ABOUT his own com- Anne L. Alstott mitment to teaching. He said, for people Ian Ayres who are serious about justice,“concepts Jack M. Balkin of equal justice before law and due Robert A. Burt Guido Calabresi process of law…have to be learned. If they don’t want to learn, if they don’t have time to care, if they’ve never heard of it, [we] can’t change that….You have to Cal. L.Rev go into this business, it seems to me, Bruce Ackerman The Paradigm Revisited, 91 .743 Jack M. Balkin knowing that. Otherwise, you’re para- Publications (2003) (with Bruce Ackerman); Shooting Lectures and Addresses Cal. L. lyzed by your own inability to reform the The New Paradigm Reconsidered,91 Down the More Guns, Less Crime Hypothe- Faculty of Law, University of Sydney, Rev. Stan. L. Rev. world overnight—to reform it at all. And 743 (2003) (with Ian Ayres); Why a New sis, 55 1193 (2003) (with John Sydney, Australia,“Recent Developments in U. Rich. L. Rev. if you don’t want to be paralyzed, if you Paradigm?,37 1147 (2003) J.Donohue III); The Latest Misfires in Sup- American Constitutional Law”; Julius Stone Am. want to work in this ﬁeld, you’ve got to (with Ian Ayres); Never Again, port of the More Guns, Less Crime Hypothe- Lecture, University of Sydney,“How Rights TO TEACH BY Prospect,May 2003, at 24; Raw Deal, Am. sis, 55 Stan. L. Rev.1371 (2003) (with John J. Change: Freedom of Speech in the Digital do the best you can… BURKE LIKED the Law School. It was his MY SONS TELL ME that Burke made SHOWING Prospect (web exclusive), May 14, 2003; Donohue III); Correlated Values in the Age”; Faculty of Law, Monash University, that something will work and home. He liked teaching. He was an the greatest speech their classmates at Fear Itself, Am. Prospect (web exclusive), Theory of Property and Liability Rules, 32 J. Melbourne, Australia,“Is the Constitution a then count on other people or other excellent teacher. WITH SEVERAL Exeter had ever heard.The occasion was June 3, 2003; Patriot Dollars Put Money Legal Stud. 121 (2003); Marketing Privacy: A Dysfunctional Cage?: A Discussion”and institutions to take it up…. SENTENCES HE WOULD CLARIFY A morning chapel when Burke was pre- Where the Voters Are, L.A.Times, July 17, Solution for the Blight of Telemarketing “Law as a Performing Art”(with Sanford “You’ve got to treat people in accor- VERY COMPLICATED PROBLEM. sented with Exeter’s highest award, the 2003, at 15 (with Ian Ayres); The Vote Must (and Spam and Junk Mail), 20 Yale J. on Levinson); Inaugural Distinguished Lecture dance with the Constitution, you’ve got He liked his students. He kept strong ties John Phillips medal.The headmaster Go On, N.Y.Times, September 17, 2003, at Reg. 77 (2003) (with Matthew Funk); Stud- on Intellectual Property and Communica- to get the police to go along with it, get with many of them. He would tell me spoke at length about Burke’s accom- A-27; Interview with Gabor Halmai, ies in Contract Law (6th edition, 2003) tions Law, Michigan State University-DCL the courts to go along with it….The about their achievements, and failures. plishments.The dean then spoke at even Fundamentum (in Hungarian), Issue (with Edward J. Murphy & Richard E. Spei- College of Law,“Copyright and Free people that should learn from this— But his heart—his heart was in the greater length about Burke’s accomplish- 2/2003, at 51. del); Why a New Paradigm?,37 U. Rich. L. Speech, Or,The Blob That Ate The First our students— aren’t paying attention. past: in the civil rights movement, in the ments and presented him the medal. Rev. 1147 (2003) (with Bruce Ackerman); Amendment.” They’re doing their own thing on their streets of Alabama, in the pictures and The student body politely applauded, Anne L. Alstott Dialing for Dollars, N.Y.Times, Sept. 30, Publications own laptops at the back of the room. songs of those days, in the drive for and settled back on the hard wooden Lectures and Addresses 2003, at A29; Charity Begins At Schedule A, Don't Use Those Words: Fox News Owns And whatever [we’re] trying to teach equality and social justice. benches to hear his speech. Burke went Interdisciplinary Workshop on Work, N.Y.Times,p.A21, col. 1 (April 15, 2003) (with Them, L.A.Times,August 14, 2003, at B15. them…isn’t getting through because the Burke is gone. But his spirit is with us. to the podium and turned to the Family, and Public Policy,Washington Barry Nalebuff); An Educated Consumer, attention of the people in power to I do hope that his dream about equality headmaster and dean: ‘THANK YOU,’ University, St. Louis,“No Exit.” Forbes 95 (June 09, 2003) (with Barry Robert A. Burt whom it should get through is not being and social justice will stay with all of us said Burke, and sat down.The student Nalebuff); Blackbox for Cars, Forbes 125 Lectures and Addresses given to problems of this sort. forever. body rose as one man, shouting, Ian Ayres (August 11, 2003) (with Barry Nalebuff); International Consensus Conference on “I don’t get discouraged by that, but I Aharon Barak applauding, and stomping. Chapel Lectures and Addresses Sarbanes/Oxley's First Birthday,Market- End-of-Life Care in the Intensive Care can see that anyone looking…from the President, Supreme Court of Israel was over and there was time to get "To Insure Prejudice: Racial Determinants place Public Radio Commentary (July 30, Unit, Brussels, Belgium,“Lessons from U.S. outside would say,‘Well, you’ve really a breakfast snack at the Grill before the of Taxicab Tipping,”lectures at the Univer- 2003) (with Barry Nalebuff); Blackboxes for Law”;The Hastings Center, Garrison, New done nothing.’I mean if you take a grand ﬁrst class began. Burke always knew sity of North Carolina, Northwestern Uni- Cars,Marketplace Public Radio Commen- York,“The Culture of Death in American concept, like those in the 14th Amend- his audience. versity, Australian National University, Uni- tary (Sept. 16, 2003) (with Barry Nalebuff); Medicine.” ment, and [ask] ‘Are they real, are they Let me conclude by saying for myself versity of New South Wales, American Law Exactly Who’s In the Right in This Labor true, even in the United States?’The of a friendship of more than sixty years and Economics Association; Olin Lecture, Dispute?, Yale Daily News 2, Sept. 4, 2003, Guido Calabresi answer is no. And [we] can’t affect that. and, I know, for all his friends, colleagues, University of Michigan Law School, "Can at 2; (with Barry Nalebuff); Making Ideas Awards and Recognition All [we] can do is teach, so that people students, and a nation grateful for what Legal Creativity Be Taught?"; American Law Take Flight, Business 2.0 133 (Oct. 2003) Charles E. Rapallo Award, of The who want to learn can learn….” he did for all of us in so many different and Economics Association, "Lessons for (with Barry Nalebuff); Patriot Dollars Put Columbian Lawyers, presented at the Christopher Stone ’82 ways,“Thank you, Burke.” Future Empiricism from the 'More Guns, Money Where the Voters Are, L.A.Times,July Thirty-Eighth Annual Award Luncheon, Director,Vera Institute of Justice Nicholas deB. Katzenbach ’47 Less Crime' Debate." 17, 2003, at 15 (with Bruce Ackerman); Want Waldorf Astoria Hotel, New York; Professor Publications to Call Me? Pay Me!, Wall St. J.,October 8, John G. Fleming Memorial International Why Not?: How to Use Everyday Ingenu- 2003, at A24 (with Barry Nalebuff). Award for Torts Scholarship, New York; LL.D. ity to Solve Problems Big and Small degree, Honoris Causa, University of Mary- (with Barry Nalebuff, 2003); Is Discrimina- land School of Law, Baltimore. tion Elusive?, 55 Stan. L. Rev.2419 (2003);