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Winter 1-1-1975 Law School Record, vol. 21, no. 1 (Winter 1975) Law School Record Editors

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The University of Chicago Law School Winter 1975 Volumes 1-20 are available from William S. Rein & Company, Inc., 1285 Main Street, Buffalo, New York 14209, to whom inquiries should be addressed. Current numbers are available on subscription from the William S. Rein & Company, Inc., 1285 Main Street, Buffalo, New York 14209. Please inquire. -The Editor Contents

The Case Method of Legal Education: The First One Hundred Years Max Rheinstein

3

Doctors and Lawyers: War and Peace Bernard D. Meltzer

15

I'm So Busy Noticing I'm Hard of Hearing Allison Dunham

21

Remarks on a First-Year Fantasy to First-Year Students Catherine Hancock

25

Harry Kalven, Jr. Edward H. Levi

29

From. the Law School Faculty Appointments Other

31

Brief Notes from the Law School

38

Editor: Frank L. Ellsworth The Law School Record. The University of Chicago Law School. 1111 East 60th Street, Chicago, Illinois 60637 published for alumni, students, and friends Volume 21, No.1, Winter 1975 Copyright 1975 The University of Chicago Law School Additional copies available

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The Case Method of, Education Legal 3 The First One-Hundred Years

Max Bheinstein"

legal education is known for having The changes which the case method has under­ Americandeveloped its own peculiar system of instruc­ gone reflect the changes in the American views tion, the case method. The constantly growing about legal education, which, in turn, are the effect number of European visitors to the United States of a change in the basic thinking about law, its has observed it in action. But yet it seems that in essence and its role in society. European circles of legal education it is not fully Far into the 19th century, in America as in Eng­ known what the case method really is. It even land, law was regarded as a craft. Like carpentry, appears frequently to be misunderstood and mis­ masonry, medicine, school craft or state craft, skill judged. That is no wonder indeed. As practiced in law craft was acquired by doing. The young man in American law schools, the case method is no who intended to earn a living from practicing at the uniform phenomenon. The term covers a great bar apprenticed himself to a master. He accom­ variety of ways of legal instruction. With some panied him to court, and by doing yeoman's work exaggeration one might even say that there are as in the office learned how to prepare and conduct a many case methods as there are instructors in Amer­ law suit, how to draft legal instruments and how to ican law schools, and their number approximates deal with clients and adversaries. The practical and two thousand. really essential part of training in the law was sup­ At the time of its first application in 1870, the plemented by what was known as "reading in the case method was a clearly circumscribed matter. law." One worked his way through that classic of Today, one-hundred and three years later, it no the Common Law of England, Blackstone's Com­ longer is. What has happened to the case method mentaries, or through its American version, the during this century; what was it in the beginning, Commentaries by Chancellor Kent; or through the what is it today? growing number of treatises on the major branches of the law which had been initiated in the 1830's by Joseph Story. That amazingly productive man was "This paper was presented by Max Rheinstein, Max simultaneously a justice of the Supreme Court of Pam Professor Emeritus of Comparative Law, on the United States and professor of law at Harvard October 12, 1973 at the International Seminar on College in Cambridge, Massachusetts. Harvard, at Legal Education (Seminario sull' Educazione Giuri­ that time was not yet a university in the continental­ dica), convened at the University of Perugia by the European sense, but a college similar to the colleges Italian National Council on Research (Consiglio of Cambridge or Oxford in England, a school en­ Nazionale delle Ricerche). tered by young men at the age of 15 or 16, and arose in the mind of the into Christian Doubts about that notion aimmg at turning them gentlemen in 1869 to the life in business or man who was called rejuvenate ready to prepare themselves for young other of interest themselves in Harvard Law School, which, like the parts a profession and likely to had fallen into a rut. New ideas some contact with the Harvard College, 4 public affairs. As in England natural had become of such a were astir. Science, i.e. science, law was regarded as a desirable part gen­ means observation of were established Science nature, eral education, and so chairs of law prominent. of from books was no longer suffi­ at several of the American colleges, the number experiment. Study fields Attendance at the cient. If were to be sciences, the other which was rapidly increasing. they had also to back to the was natural for students of go original courses of law professors learning sources. If law were to be a science, it had to go who intended upon graduation to be apprentice back to its sources. And what are the sources of lawyers. But colleges were not the only places the Common Law as it had grown up in England where preparation to, or supplementation of, the and been transplanted to America? What else than practical training was available. Some attorneys who the cases determined? For the lawyer found it stimulating and also profitable to collect judicially their wished to be a scientist, it was thus necessary to go apprentices around them and to guide them in from them to the cases, read them, study them and "reading" in class-like organized groups for discus­ derive the rules and principles of the Com­ sion and lecturing. directly in In both kinds of law courses, those of the college mon Law. From such study they would emerge distorted and those of the non-academic law schools, the their pure form rather than in the shape in the sub­ methods of instruction were similar. From one class in which they would so often appear treatises hour to the next the students were assigned chapters jective and all too frequently contradictory seen and from Blackstone, Kent or those books which came to of secondary writers. The principles pure numerous and would be written by the college professors of law. A pro­ true would be clear and not fessor's lectures would supplement, or serve as a by themselves constitute a perspicacious system in students had to detail would reveal themselves as substitute of, a book. Then the which rules of or of a "recite," sometimes literally, what they had read simple applications of general principles higher the law from the heard. Their understanding was tested by their be­ order. Besides, if one studied would become aware of the ing "quizzed" and then clarified and deepened by cases, he necessarily itself in discussion. A touch of practice was introduced Common Law as a phenomenon unfolding through exercises in written pleadings, in the elab­ the course of history. was of Columbus oration of problems and through moot courts. Such the thought Christopher and New In the principal, i.e. the theoretical part of this Langdell, the Harvard graduate young was called to Harvard and kind of instruction, the law was presented "dogmat­ York lawyer who in 1869 was made dean of the law de­ ically." Procedure, characteristically called "prac­ in the year following teachable. It was to The man whom was brought tice," was regarded as not being partment. by Langdell who as President transformed the be learned by and in practice. Knowledge of the to Harvard and Admin­ old into one of the world's univer­ constitution was expected of every citizen. college leading was Charles W. a scientist, istrative law had not yet been invented. Criminal sities, Eliot, by training treatment. Law a scholar in law was too simple to require chemistry. law For use in his own course on the law of contracts courses were more or less limited to private a collection of cases of and within it statutes were regarded as mere patches Langdell prepared fairly and the Common size, chosen to present the rules and on the body of the Common Law; large carefully that were of the field in their historical develop­ Law was a body of rules and principles principles in clear ment. as the chemist would formulate the prin­ not too numerous, that could be articulated Just Lectures of his science on the basis of the experiments, terms and arranged in a systematic order. ciples so students were their own and treatises based upon such a conception were Langdell's expected by of the cases to discover the underlying rules hardly different from those of the contemporary study In this endeavor were to be law faculties of the European continent. Legal and principles. they the books were the instructor who, through asking ques­ learning was book learning and guided by would stimulate discussion with him and systematic treatises. tions, the Common It was a device to teach them the among the students. The true rules of ciples. superb It induced them Law would then become apprehensible. As an ad­ peculiar ways of legal thinking. attention to the facts of ditional guide Langdell included in his first case first of all to pay careful each to the relevant from the 5 book an appendix containing a systematical arrange­ case, separate legally to follow and scru­ ment of the concisely formulated principles as they irrelevant. It compelled them appeared to him. But this appendix was not to be tinize the lines of argument of the parties litigant of "the book," not to be the subject of the students' as well as that of the court. These lines argument and criticized. In the court's -study. It was to do no more than supplement the have to be analyzed from the collection of the true sources, i.e. the cases. Appen­ opinion the holding has to be separated and later cases one dices of that kind were soon dropped in the case­ dicta. In connection with earlier books of Langdell and of his followers. is then carried to the very heart of the art of the The number of immediate followers was small. Common Law, that of evaluating the significance of Langdell's innovation not only met with scorn and a case as a precedent and to estimate its scope. The never tired to resistance among his fellow law teachers, it was case method, Keener pronounce, into that mental ac­ also disliked so much by his students that of the plunges the law student very members of his first class only seven endured the tivity which is the distinguishing mark of the lawyer. ordeal to the end. Under the guidance of a master the young lawyer is it makes him think like Among these seven holdouts was the man to given continuous- exercise; a it is to whom the case method owes its breakthrough, a lawyer and, if the teacher is master, apt James Barr Ames. Langdell was a scholar, but turn the student not only into a good but a superior teaching was not his strong side. Ames was both, lawyer. ac­ was of the case as the a scholar and an inspiring teacher. When he It this aspect method, cepted Langdell's method of instruction, the stu­ superb method in the art of legal thinking, to which Amer­ dents accepted it with an enthusiasm that infected it owes its practically universal adoption in more and more members of the faculty. ican legal education. Among the students who were exposed to the Like their predecessors, Langdell and Ames had contents of the new method was the one who perhaps more than tried to teach the law, i.e. the legal as in a of any other helped to carry the case method beyond order expressed comprehensible system the circle of the law faculty of Harvard. From 1875 articulated rules and principles. That aim may have to 1878 William Albert Keener had been a student been achievable in those days. But more and more at the Harvard Law School. In 1890 he was ap­ did it appear that in the United States this aim and pointed to a new chair at Columbia University, an was no longer attainable. Through legislation institution which was ripe for rejuvenating reforms through the often diverging practice of the courts as Harvard had been twenty years earlier. Made of the several states of which the nation, the United dean by Columbia's new reform President, Seth States, is composed, American law tended increas­ Low, Keener brought to the place a number of ingly to develop differently from state to state. of instruc­ young law teachers who were eager to apply the Which state's law should be the subject Harvard method of teaching law through cases. tion? None of the leading law schools wished to be The most enthusiastic among these was Keener him­ provincial. Students as well as teachers were at­ self, who applied it not only in his own courses but tracted from all parts of the vast country. Harvard incessantly worked as its eloquent advocate in ex­ had no intention to teach just the law of Massachu­ tensive writing. In his own teaching Keener turned setts, or Yale that of Connecticut, or Chicago that out to be master of the Socratic method. In his of Illinois. The "national" law schools were to teach writing he directed attention to the pedagogical American law. But what is American law? It is a merits of the case method. Rules and principles in­ set of common principles and traditions and, above ductively discovered by the students through their all, a common way of thinking, of arguing, trying cases in court and out of it. The es­ own efforts meant m?re to them than ready made and handling formulas memorized from texts. But, beyond and sential feature common to the law of all states of Com­ above all, the method was more than a device to the United States is the Common Law and the familiarize students with the law's rules and prin- mon Law is basically a common method of thinking. If the law schools in the United States wished to In the great majority of the states the legislature avoid provincialism, they had to concentrate on the was not so organized as to enable them competently modes of Common Law thinking, and the most to deal with matters of private law, procedure, or 6 effective way of training in this method is the case commerce. Advocates of law reform had thus to method. Pedagogic concentration on legal method think not only of the legislative process but also of became necessary for an additional reason} Around the courts, which in the tradition of the Common 1850 American law was, perhaps, still comparatively Law had often engaged in what has for a long time simple. With the growth of the United States into been called judicial legislation. Judicial attitudes an industrial colossus, the legal matter became com­ had to be considered for an additional reason. plicated and by the federal structure of the nation Through the exercise of their power of judicial con­ complexity increased. Social problems hitherto trol of the constitutionality of legislation American given little attention required regulation through courts can stop legislative reforms in their tracks. such rapidly expanding new fields of law as ad­ In the early decades of the 20th century, the Su­ ministrative law, labor law, tax law, trade regula­ preme Court of the United States had in fact con­ tion and what not. The body of American law be­ sistently stopped efforts of social legislation. Amer­ came a vast and complicated object. No single ican advocates of law reform thus had to pay close human mind could possibly "know" it, teach it attention to the activities of the courts, they had or learn it. to think not only of the judges but of the attorneys too as well as of the steadily growing number of But was the method of training lawyers through lawyers in the public administration and, of course, cases, and exclusively through cases, the ideal one of the hosts of legal advisers of business. If law was for the country as it developed in the 20th Century? to be a device of social engineering, the legal pro­ The same circumstances which produced the rap­ fession in its totality had to be imbued with the idly increasing complexity of the American law reformist spirit. But it also meant that the lawyers' also pushed in the direction of change, of reform. competency was to reach beyond the law. If law­ Not that the Common Law had ever been immu­ yers were to be the reformers of society, they had table. The decades following the American Revolu­ to know not only the law but also society. Lawyers tion had been a time of pronounced dynamics. The had to be social scientists. The social sciences had legal system that had originated in England had to to be integrated into the law. These were the pos­ be adapted to the different geographic, economic, tulates of Roscoe Pound, of his companions of the social, political and ideological circumstances of school of "sociological jurisprudence" and of their America. The later 19th century was a period of more radical brethren, the "realists." comparative stability. But with the profound changes that set in around the turn of the century Law teachers of the younger generation eagerly and of which the public became increasingly aware, embraced the new ideas. They engaged in pas­ demands for reforms, profund social reforms indeed, sionate about and in become irresistible. disputes legal methodology their scholarly activities turned from the hitherto Law reform, one might think, is the task of the dominant dogmatic inquiries and systematic pres­ legislature. In the United States, this proposition entation to incisive monographic investigation of does not entirely hold. Under the federal system, specific problems of social life, in which the explora­ legislative power is divided between the Congress tion of the social facts was the indispensable prelim­ and the legislatures of now 50 states. The Congress inary to the fashioning of the proper legal solution. is overly burdened and in the early part of the cen­ Law was no longer visualized as a set of fairly well tury its complexion was predominantly conservative. articulated rules and principles. It now appeared Later on it was at times so overburdened that it was as the technique of adjusting conflicts of individual incapable of moving on basic issues. Of the State or group interests in the way best conforming with legislatures many were conservative too, especially the public interest of the community at large, a in the Southern part of the country, where reform process in which change should be achieved without of discriminatory race legislation was demanded violent breaks with tradition. with increasing fervor. The changed attitude toward law, the new view of the role and function of the lawyer required a volume investigation into the detailed functioning reorientation of legal education. The case method of the divorce courts of two states, Maryland and came under critique. What was criticized, however, Ohio, a work that has remained a model for the were not the ideas that the end of legal education flood of socio-legal investigation that was produced 7 was the training in legal thinking or that such train­ in later years. The members of the Institute staff ing should be achieved through guided self-study. were dispersed among a number of law school fac­ The object of the critique was the limitation of the ulties, a fact which in the end strongly increased

. study material to cases judicially determined. If the the influence of the school of the New Jurisprudence . lawyer was to be the expert in social engineering, The majority of the faculty of the Columbia Uni­ if the law had to be "integrated with the social sci­ versity Law School held on to the idea that it ought ences" and if the science of law was then to become to remain an institution of training for the legal one of the social sciences, the materials to be studied profession. From this it followed that the members in the course of legal education had to be widened had to engage in both instruction and research, that far beyond the opinions reached by appellate courts. their research ought to involve the relations between If carried out consistently, the new ideas would society and law, and that the results of such re­ amount to no less than inclusion in the lawyers' search ought to find expression in teaching, es­ training of at least economics and sociology, if not pecially in the elaboration of new books for study also of history, psychology, and philosophy, not to by the students. A whole series of courses and a speak of the natural sciences. Obviously such a whole set of books for them were indeed elaborated. course of study threatened to submerge the law They did not constitute a radical break with tra­ proper. Besides, the job staggered the imagination dition. Their aim still remained that of training and was simply beyond the scope of the humanly students in the methods of legal thinking and, as a possible. And so one asked what could be done, basis thereof, to convey to them that measure of in­ what ought to be done? formation about the contents of the law that would appear to be indispensable. One also remained con­ Amidst a welter of turbulent dispute, a scheme vinced that the students should educate themselves of sober investigation was initiated by the faculty by their own study of original materials and that of the Law School of Columbia University. For two such self-study ought to be guided by socratically years the Faculty, in full sessions or in committees, conducted classroom discussion. One also held on met, at times every week, to discuss the ways in to the notion that the training in legal thinking which the new needs might be met. In the end the could best be obtained through the study of opinions Faculty found itself split. A minority group thought of appellate courts. But, and this was the innova­ that the task called for the radical transformation tion, cases should no longer be the only, the exclu­ of the Columbia Faculty into an institution devoted sive, material of study. The students should also entirely to research into the relations between so­ be made acquainted with data about social life. ciety and law, and freed from all burdens of instruc­ They ought to be given materials from which one tion. As the majority was reluctant to consent to might observe the forces by which the law is shaped such a radical break, in 1932 the minority left and the impact which the law has on the life of Columbia and was welcomed at the John Hopkins society. In particular the students' eyes ought to be University in Baltimore, Maryland, a famous insti­ opened to the social effects that have flown or that tution of learning which, however, had never so far might flow from the decision one way or another of comprised a department of law. Now it established problems presented for judicial determination. an Institute of Legal Research that should devote It is not easy in clear terms to state the goal. It itself entirely to the study of the facts of the legal was even more difficult, much more difficult to im­ life of society. The new Institute, staffed with emi­ plement the idea. How difficult that task is and in nent representatives of the realist and sociological how many different ways it can be approached, is wing of the legal scholars, was greeted with great illustrated by the books which emerged from the expectations. But it was short-lived. After just one Columbia discussions and by those innumerable year its financial endowment was wiped out by the books of legal instruction which have been pub­ Great Depression. Its only publication was a two- lished since. The number of such new books is vast. It goes transformed. Prototypes must of course be selected into the hundreds. The aim of adapting legal edu­ from among the variety of state statutes. The origins, cation to the new approach to law and the lawyer's background and impact of legislation is illustrated 8 role in society is being universally accepted. There by passages from legislative debates, hearings, com­ may perhaps be one or another law school practic­ mittee reports and other pertinent material. Where ing the old case method of Langdellian styl€:} or even pertinent, as for instance, in administrative law or the pre-Langdell method of lecturing. If it exists at taxation, the endeavor is made to introduce the stu­ all, it lives in obscurity along with another method dent into the mass of administrative regulations. of legal education that once was more readily avail­ By the growing number of American law teachers able, that of studying law through the letters of who have recognized the didactic value of compar­ correspondence schools combined with apprentice­ ative law, references to foreign solutions are oc­ ship in a law office. Today, the regular course of casionally used to stimulate thought about the legal education is attendance at a law school, most American students' own law. of which are now parts of universities and at prac­ Since training in legal thinking is still regarded tically all of which the level of instruction and of as one of the principal aims of legal education, cases creative scholarly work has been rising steadily in continue to fill many pages of the voluminous new recent decades. American law schools still differ in books. As in the Langdellian phase, they are printed quality. They can be arranged along a scale from without the syllabus which in the regular sets of the half dozen or so schools on the top all the way reports tries succinctly to formulate the legal rule

down to institutions of mediocre caliber. But at or rules on which the decision is based - based, that present the techniques of teaching law by "cases is, on the view that was held by the reporter at the and other materials" is in almost universal use. time of reporting and which mayor may not be The books used in this kind of teaching are no shared in later case law development. So it has longer entitled "Cases on the Law of so-and-so." remained to each student for and by himself to in­ The new title is "Cases and Other Materials," or, in terpret the case and see his interpretation tested in most recent times, "Text, Cases and Other Ma­ the class room discussion. In this important respect terials." the case method is still a mainstay in American legal What are the "other materials?" A great many of education. It has proven to be by far the most them are meant to supply the law student with effective device to turn a student into a lawyer, i.e., extra-legal information, with data on economic and a person who knows how to use concepts, rules social life, or practices of business and finance, on and institutions, to give close attention to facts, to history, psychology, criminology, on the cost of liti­ use precedent or to distinguish the new case from gation, on the actual working of the administration the old, to recognize the interests at stake, to see of justice in all its branches from the Supreme Court the individual issue within the context of the public of the United States to the policeman on the beat, interest, in other words, to think as a lawyer. on the activities of administrative agencies. They How much of a course book should be "law," are selected so as to throw light on the law in its how much "other materials"? The decision is left to character as a result of social forces and used as the individual writer. But the space at his disposal their regulator and shaper. They are of the most is limited. The book ought to constitute the study varied kind; statutes, excerpts from learned writing, material for a course of normally 40 class hours, news items, forms of commercial transactions, etc. more or less, in which the contents are to be "cov­ But the "other materials" are not all "non-legal." ered." That means the book should comprise no The new books no longer neglect statute law. This more than 1,000 pages, preferably less; but an oc­ is true not only in those fields of the law which are casional book has close to 1,200 or even 1,400 pages. based on statutes such as taxation, social welfare or The law material is still indispensable; the "other trade regulation, but also in those fields of law materials" are theoretically without limit. But what which are based on those statutes by which the goes into the book must be limited, strictly limited traditional fields of the Common Law are being sup­ indeed, and limited to what is essential for the task plemented, modified and, often enough, profoundly of training in law and to what is understandable to law students. A practical limit is of course given by them in the course of study? The character and the author's own range of knowledge. The task of scope of references must vary with the purpose or selection is delicate. Early enthusiasm for the in­ purposes pursued. clusion of large masses of "social': material has An entirely new feature of the contemporary 9 yielded to more sober deliberation. In successive course book is constituted by text passages of the editions of a coursebook the "social" material is author himself. In the old-type case book, text likely to shrink. After all when entering law school, passages were taboo. In fact, not only the author the students have already spent three or, more fre­ of a case book but also the teacher in the class room quently, four years in college, where they can be was expected as little as possible to reveal his ideas. assumed to have received a good dose of instruction Students were to form their own views and they in the social sciences. were to derive them directly from the sources, un­ In the compilation of "legal" material, selection influenced by the subjective opinion that an author has, of course, been necessary even while it was or teacher might have. Cases inserted in a case book still limited to cases. Langdell and his early fol­ are likely to deal with controversial matters. Which lowers were inclined to include in their case books answer is the right one? The student ought to find a good many decisions of ancient vintage, especially it by his own wits, guided, it is true, by the instruc­ classic decisions of English courts. But as the mass tor, but not so impressed that the teacher's view of modern cases has swollen gigantically, authors would be accepted unquestioned. No wonder then find themselves compelled more and more to con­ that freshmen students have been inclined to wring centrate on modern cases by which contemporary their hands in despair of the "confusion method." problems, developments and methods are demon­ Inducing the students to form their own views, to strated. And should the case material be spread think autonomously for themselves, is still the aim over the country at large, or should it be concen­ of American legal education. But teachers and trated upon a few states that would serve as national course book authors no longer scrupulously refrain prototypes? Should emphasis be placed on cases from expressing views of their own. Indeed there apt to illuminate as broad as possible an area of the are course books which are so conceived that they substantive law, or should they primarily teach not only reveal but even propagate the author's views on issues of social or legal method? And which method: that of the prac­ policy legal method. ticing attorney, the trial judge, the appellate court The books now cover by concise texts parts of the field that neither need nor lend themselves to judge, the legislator, the draftsman, the legal coun-, pres­ selor, the administrative officer? entation by cases. Space and time can thus be If the cases are to each more than legal method, saved for topics for which study of source material if the book is to give some idea of a legal field as is appropriate. a whole, its problems and its institutions, the cases Analogous considerations have influenced the work presented in extenso or in condensed form, must be of the classroom. It no longer consists entirely in supplemented by notes summarizing other cases, the discussion of individual cases. Parts of the or at least by references. course book are merely assigned to the students for Scholarly writing, which occupies a prominent reading, occasionally tested by questions of the in­ place in the United States, is nowadays to be found structor, and supplemented by discussion which not so much in comprehensive treatises as in mono­ students may choose to initiate in class or in the

1 graphic studies, largely contained in law reviews. professor's office. Now many a teacher even resorts Excerpts are frequently inserted in course books. to straight lecturing on those parts of a course which But the book must also contain bibliographical ref­ in his view can be presented in this way better than erences. Should they be so numerous as to be of by time-consuming and often laborious discussion help to the user who has graduated from law school of source material. and uses the course book as a starting point for re­ Present day American legal education does not search on a problem encountered in practice; or follow one single pattern. It never has, not even in should they be addressed primarily to students in­ the hey-day of the case method of the Langdellian terested in pursuing a point that has occurred to style. Even where instruction is based entirely upon the case used was that of to the and pro­ cases, it varies depending on the book talking professor, fessor was bound to it." and, even more so, on the personality of the instruc­ encourage of students is so that tor. Under the modern approach case books greatly The number rarely large of the law contacts between and students 10 vary in content. In 1970, the teacher personal professors could not The ratio between of Contracts could choose among six books. There develop. professors and students tends to be around 1:16.5. At the were seven on Torts, five on Conflict of Laws, six on Law School we for in­ Family Law. No two professors would use a book University of Chicago take, no more than 160 students a The total in the same way, but quite a few professors make stance, year. them out in student is around 450, the number of pro­ up their own sets of materials, try body Xerox form, and elaborate them into printed books fessors 26. An American law school is a It is later on. lively place.

a and intensive work for both Variety is increased by the possibility of inventing also place of hard new and students. The "case method" requires new courses and regrouping material under professors for each class hour and work headings such as Trusts and Estates, Family Wealth preparation reviewing and the discussion Transactions, Urban Real Estate Transactions, Es­ to digest, tie together systematize of the classroom. We that each class tate Planning, Transnational Law, or what not. usually figure about three hours of work outside. American law teachers are fond of experimenting hour requires normal load of instruction for the student is with new books and with new methods of teaching, The for dis­ 15 hours a so his work load amounts such as teaching law by assigning problems week, weekly audio-visual or to 60 hours more or less. cussion or for drafting, or by using old and has been programmed material. The case method, both new, difficult in The bulk of the curriculum is likely to continue criticized. The Socratic discussion is classroom It is more difficult than lec­ to be presented in that method which, while still application. It careful and ever renewed called case method, is no longer limited in its ma­ turing. requires prepa­ instructor. In the hands of an terial to "cases." But in addition to its "courses" a ration by the inept and law school regularly employs additional devices. In instructor it can be exceedingly dull, being in the of the discussion method seminars students usually of the third year, but oc­ inept manipulation to en­ is more than in If, and it still is casionally also of the second, are permitted frequent lecturing. infinite of no means rare instruction concentrates gage in research on an almost variety by today, schools on the of cases, students are being bored topics. In a rapidly growing number of law analysis the and the students are given an opportunity to meet prac­ by monotony repetitiveness. The method is The incisive tical problems by engaging in guided and super­ time-consuming. two or even vised work of legal aid for indigent people. There analysis of one single case can require more class hours. How can one thus "cover" a whole are the moot courts and there is that unique Amer­ field of the law class hours? The ican institution, the law review. Edited by students, in, normally, forty answer is: the aim of instruction is not that of these periodicals are the organ of publication of the pre­ but to teach the method bulk of the learned work done by the legal scholars senting any field of the law, of But even the most acute of the country. Law review work is the privilege of legal thinking. legal thinker cannot do without some modicum of the the top students of a law school. Available to all is contents of the law. If he is to understand the mean­ the constant accessibility of the professors. Each must know the and that of them spends his whole working day in his office ing of policy, he problem, cannot be achieved without of at the law school building. The door is open, liter­ presentation fairly in at time. On of the socio-legal order. ally, and every student can walk any comprehensive segments to combine the wall of the Faculty Lounge at the Law School But comprehensive survey is not easy with the incisive discussion of of the University of Chicago, we have framed the particular problems, to each when one tries to combine analysis of picture of a professor and a student talking especially or advocational method. other, together with the citation from that American policy with that of judicial blamed for to the classic, The Education of Henry Adams: "The only So the method is being failing give was his students a comprehension of the legal privilege a student had that worth claiming, systematic system as a whole or even of anyone of its branches. function, it is necessary that the law school have an It is blamed for teaching the students the details of adequate building with classrooms, seminar rooms, the trees without acquainting them with the layout offices for the professors, lounges for recreation and of the forest. socialization. If each professor is to be not only a 11 The case method is also apt to give students a teacher but also a scholar, he must have adequate distorted view of the law. The cases up for dis­ secretarial help. Finally, both professors and stu­ cussion tend all to be taken from the published dents must have a library, and even if the library is reports of courts of last resort. But how many dis­ not to contain a full collection of American law, it putes reach these courts? By far the largest propor­ must have a minimum of some 30,000 volumes. If, tion of disputes are never brought before the courts as the major law schools do, the library is to cover at all. They are resolved by negotiation, mediation England and the other Common Law countries, it or arbitration. Of the cases brought before a court, must contain some 20,000 volumes more. And if it the great majority is terminated by dismissal or set­ is comprehensively to cover only the other leading tlement. In the trial court disputes more frequently legal systems of the world, the number of volumes are about points of fact than questions of law. must surpass the 100,000 mark. The larger the col­ Resort to a higher court must be based upon an lection, the larger, of course, must be the library staff. alleged misapplication of the law. Appellate pro­ An American law school is expensive. Conse­ ceedings are time-consuming and expensive. So the quently, tuition tends to be high and funds for proportion of cases that reach a court of last resort scholarships must be solicited continuously. Fortu­ is minimal, and out of this number of cases the nately, as well situated members of the legal pro­ author of the case book is likely to have picked the fession, the alumni are feeling a continuing affec­ most troublesome, those in which the law has been tion for their old school which finds expression in uncertain and perhaps also remains uncertain. Stu­ generous giving. dents principally exposed to such material can easily In order to evaluate the American method of legal obtain the impression that everything in the law is education it must be seen at work and in the full uncertain, that there is nothing to hold on to. context of American life. I have tried to present All these critiques are true, true that is up to a some ideas of what the so-called case method is point. The method can be dull, a waste of time, in­ and how it developed as the way of preparing young sufficient or misleading, if it is applied by an inept people for the manifold functions of the legal pro­ instructor, and the method is hard to apply, harder fession of the United States. The American way of than the lecture method or the recitation method. legal education may well contain features which The instructor's preparation must be comprehensive might be suggestive for the legal educators of other and perpetually renewed. Above all, the instructor parts of the world. must be a teacher. Ideally he ought to be inspiring. [At the end of the third day of the meeting, Pro­ In any event he must be firm but patient, lucid but fessor Rheinstein was requested to make the con­ not oversimplifying; he must have the gifts of peda­ cluding comment. He responded with the follOWing gogy; and who has them all? remarks.} In spite of its difficulties, the method of Socratic I hope you do not expect me to present a sum­ discussion is working well in the law schools of the mary of the extensive and searching discussions United States. It is criticized often and at times which we have had these three long working days. bitterly by students, professors, and members of the I It would go beyond my capacity and probably be­ legal profession. But nobody has so far invented yond the capacity of anyone to summarize all this any method that would promise to be more effective. within the few minutes which we still have at our By their fruits ye shall know them. And the fruits, disposal. So, what I am proposing to do is to state the graduates of at least the "better" of the American a few of my personal impressions, ideas which hap­ law schools, have proved their mettle as practi­ pened to come to me as I sat here and listened to tioners, as administrators and as policy makers. the reports and to the questions, answers and dis­ However, one fact remains undeniable. The dis­ cussions. The first statement I should like to make cussion method is expensive. If the method is to is that the discussions have been of an extraor- dinarily high standard. The enterprise is officially has never rendered before, but also-and perhaps called a seminar, but I think a better name would be this has not been fully emphasized here-the inclu­ super-seminar. We have been privileged to listen sion of the masses into the shaping of the state and 12 to the expositions of leading experts, of scholars and of society, It was certainly one of the distinctive legal educators who have given profound thought features of older times that that part of a society to the problems of legal education, and they have which counted was rather small. For a long time it thought of it and spoken to us about it notin isola­ was more or less limited to the aristocracy. Then tion but, and this has been the special feature of we had a broadening by the coming of the bour­ this super-seminar, they have placed legal education geoisie in all its variants. Now the masses are into context, into the context of the theories which streaming into the fabric of society; they state their we have about law in general: What is law? Is law demands and they take an active part in the affairs a system? Is law an art? Or a technique? Education of the state. With this we have complexities and has been placed in the context of analytical juris­ complications, and so arises the need for adaptation. prudence and philosophy. Legal education has also Now what does that mean for legal education? In been placed in our discussions within the context the first line it requires its adaptation to the change of educational systems in general. Thus we have of the ideology from the bourgeois society to that seen-perhaps this might have been obvious from of the «new" society. What that new society will the beginning, but the obvious needs every now and be, or even what it is at the present time, we have then to be restated-that if the educational systems only vague notions. We have all kinds of ten­ are different from country to country, obviously the dencies, radical and reactionary and in between, systems of legal education cannot be the same. but they all have in common a feeling that some­ Legal education has been placed in the context of thing must be done, that adaptation must be made. the structure of society and the process of the So probably the greatest need for legal education present transformation of society, the transformation is the influx into the system of individuals who are of our society in technical aspects-industrialization, imbued with the new spirit, which, as far as the the expanding of the world, the inclusion of regions law is affected, calls itself the New Jurisprudence. which until fairly recently have been regarded as This process cannot be brought about by artificial or far away, perhaps as exotic. We now see the world organizing means. It has to come by itself. It will as a whole with all its tensions, with all the changes come by itself-it is already coming by itself. We of its needs, its policies and ideologies. This, I see a change of spirit in the law faculties and law think, is the most essential feature of any attempt schools of all the countries of which we have heard to deal with legal education. It has also become here. This is 'essential. There is a change of spirit, obvious at these discussions-again I speak of some­ a new approach, a new ideology which, I repeat, thing which should have been obvious all along, should not bring a break with the past but rather but which apparently is not, certainly not to all an adaptation in which traditions are maintained. participants-that reform of legal education cannot The new ideology requires practical implementa­ mean a complete break. It cannot mean the recep­ tion. Out of the mass of practical devices I wish to tion in one part of the world of an educational sys­ pick out only two. One is the expansion of the tem developed in another. But we can and must subject matter of legal education. We can no longer expect in all parts of the world the adaptation of stick to what has been called the law. We shall their systems of legal education to the changed cir­ have to look beyond the law into the field of social cumstances of their societies. That means, first of sciences. But that does not mean that a lawyer is to all, legal education must be adapted to the changed be turned into a social scientist. It cannot be done. ideologies. It has been stated here repeatedly, at It is difficult enough to learn to be a good lawyer, the very outset and time and again, that the bour­ and if we try to do too much we shall achieve geois age, the bourgeois society of the 19th century nothing. But what we can achieve, what we must and the early 20th century, is giving way to the try to achieve with all available means, is the open­ welfare state, or the service state, as one may call it. ing of the mind, the sensitization of the lawyer, the It is one of the peculiar features of this transforma­ opening to the world, the awareness that the law tion that services are expected of the state which it does not operate in a vacuum, that it cannot be studied as a self-sufficient entity. troublesome problems with which European legal educators have to cope. Those American law schools But there are practical limits. If we are to deal which aim at the intensive and comprehensive train­ with the economic, political, religious, philosophical ing of policy makers can pick their students, and 13 and sociological aspects of the law, we have to them with care. them out sacrifice in the curriculum some of the attention they pick They pick from a vast pool and they refuse to take the less which we have traditionally given to certain fields well students. You in have to take of the law. We shall have to limit the time that has qualified Europe everyone who has graduated from the gymnasium so far been given to private law. That means that or the liceo. In addition, you have the problem that we shall pay a little less attention to the legal "Sys­ the law faculties have traditionally been the place tem" which has been mentioned here so often, but for the young man or woman who has no other in­ which primarily has been a system of private law. terests in in He who has no But we must deal with such matters as taxation, anything particular. interest in is inclined to take monopoly regulation and social welfare legislation, great anything refuge in the law. After all, the law degree opens many and if we deal with them as they ought to be dealt doors and is regarded as not too difficult to obtain. with, something else has to be sacrificed. That is Consequently, you have vast masses of students one aspect-the expansion of the subject matter with faced by a very small number of professors. Here a corresponding limitation of certain other tradi­ I see one of the of tional subjects which have long been the favorites really tough problems European education the of how to of legal education. legal reform, problem sep­ arate the sheep from the goats. Can you find ways The other practical implication is that we have to to develop a two-track system, one track for the intensify legal training. Perhaps the model of inten­ mass and another for the elite? One might think of sive legal training is that which we have developed a number of special schools for the particularly well in the United States and which has been presented gifted. Perhaps the most outstanding illustration of here so persuasively by my colleague John Merry­ this type is Japan with its Legal Training Institute man. But the intensive which he has de­ training which takes about 250 or 300 out of the several scribed is not the training which all American thousands who every year graduate from Japanese lawyers receive. Mr. Merryman used the term law schools. Only those 250 or 300 can enter the "meritocracy" for this American legal education. legal profession. Obviously this Japanese system is It is, but American legal education is simultaneously too rigorous for Europe. It would not be politically democratic too. That means that almost anybody. feasible. But selection and diversification might be who has gone through college-and everybody who brought about in an informal way, simply through has a high school certificate can get into some col­ individual members of law faculties. It just so lege-can also get into some law school. We have happens that in every law faculty you have some in the United States about 250 law schools. There men who are excellent teachers and who have a is a top group which consists of not quite a dozen. great appeal to large numbers of students. But Below it you have a whole scale all the way down there are others whose minds and whose demands to law schools which are, to put it mildly, not very are so rigorous that the students, at least the mass good. The very poor ones are not numerous. The of the students, stay away. From my own univer­ general level has been rising continuously and most sity days I remember that the law faculty had about of the law schools are quite good. But a good many three or four men who were extremely exacting, of the law schools at the lower end of the scale are extremely rigorous. They were the teachers of a night schools, where neither the students nor the group of people who have had remarkable careers professors are full time. Certainly not all of the and have achieved positions of leadership. This schools which do not belong to the top group can informal way of long standing should be kept in such an intensive as the schools give training top mind in all planning of legal education. It would give, and certainly not all of those who pass the bar not require a great reform. It would simply con­ examination are so trained to be social beautifully tinue something which has always been there, and makers or leaders of engineers, policy society. always will be there. Here I touch on what I regard as one of the most Let me add one last word about a feature of American legal education that appears not to be which is common to all American legal education, fully understood abroad. The method of American and which ought to be emphasized. It is not the legal education is frequently called the case method. use of cases. The distinctive feature is self-study. 14 It has been repeatedly emphasized here that that Our system is not so much a system of legal edu­ term is misleading. Perhaps at one time law teach­ cation, as it is a system of legal study. We expect ing in America was done exclusively by the use of our students to study law from materials which we cases. That time has long been past. Our 'materials hand to them and which we expect them to read for legal education are varied. Of course, we use critically. We thus rely on self-study, which, of cases, considerable numbers of them, but the cases course, we stimulate, and which we try to guide by are not necessarily the mainstay. We present the classroom discussion to be carried on among stu­ students with a lot of material which they are sup­ dents or with the instructor; and we supplement it posed to read and study. The materials may be with such teaching devices as moot court, law re­ statutes or legislative debates, discussions or re­ view, or legal aid clinic. But the distinctive feature ports. They may be discussions of bar associations, of American legal education is the reliance on the inquiries by psychologists or economists or sociolo­ student's own efforts. The subject matter is not he gists, or they may be statistics, or even poetry or given to the student by the professor. No, has fiction. We use all and every means; we also use to get it himself, with the aid and under the guid­ ance a of American lecturing and perhaps everyone of the several of professor. This feature legal thousand law teachers in American law schools may education is transferable. It could well be tried

have his own method. But there is one feature outside of the United States. Doctors and Lawyers: War and Peace 15

Bernard D. Meltzer"

am conscious of an elementary rule for lawyers suggested to the uninitiated that the doctor needed I appearing before the United States Supreme visible demonstration that he was loved or that he Court: "Explain how you got there." You are en­ was indifferent to the value of anyone else's time. titled to a. similar explanation from me. Our Chair­ As a result, my visions of sweet revenge are doing man is my physician. When he invited me to speak battle with your Chairman's suggestion of brevity. to you, I remembered that he once had made a How it will all come out, only time will tell. house call on me-the only time, in fact, that I had I propose .to say a word, first, about the purpose asked him to do so. Plainly, I had to treat his in­ of law as it impinges on the discharge of your pro­ vitation as a command. fessional responsibilities and, second, about the When I asked him how I should carry out my changes in our culture that underscore the need for assignment tonight, he was kind enough to give an reciprocal understanding and cooperation between intelligible prescription. First, he said, avoid cliches our professions, among others. I must begin with and, second, be brief. At first blush, his advice a caution and a disclaimer. My own professional seemed admirable, but a more thorough examina­ interests are remote from some aspects of matters, tion turned up several problems. First, the avoid­ such as malpractice litigation, which, I understand, ance of cliches on an occasion such as this might stir your interest and, from time to time, your sense involve a massive culture shock, too severe for of outrage. This caution is related to my disclaimer: grad�ates exhausted by the rigours of examinations, What I shall have to say is not intended to be legal even under a pass-fail system, and too severe also advice, and if you should decide to bring a mal­ for their families exhausted by the financial de­ practice suit against me, it would, I believe, be dis­ mands of professional education. As for brevity, missed on the ground that your reliance on my re­ the notion of demonstrating that a lawyer could be marks as a basis for action, rather than reflection, brief tempted me, but only for an instant. I was would be wholly unwarranted. saved from a commitment to such unprofessional The essential enterprise of law is to subject men conduct by my memories of waiting in physicians' to the governance of externally imposed rules. In ante-rooms, crowded with patients, whose number an ancient and celebrated declaration, which we have special reason to recall at this melancholy moment of our history, Lord Coke advised the King o Bernard D. Meltzer, James Parker Hall Professor of of England that even the Crown was subordinate Law, delivered this .paper at a meeting of the Uni­ to God and the Law. And so it is, I need not remind versity of Chicago Medical Alumni on June 7, 1973. you, with the medical profession, which is increas-

in a ingly entangled web of law, enforced an un­ cases or by settlements. Finally, the Commission re­ congenial system of and reparations penalties. ported that 50% of a group of physicians recently The operation of that in medical system malprac­ responding to an AMA poll indicated that they tice cases has spawned a cluster of that would not problems render emergency care regardless of 17 were said to be so profound by President Nixon that whether a statute protecting good samaritans was he directed that a Commission' be established to in effect. I am skeptical that that poll is a reliable deal with them. That established in Commission, indicator of what doctors would do in a crunch. 1971, filed its report in 1973.4 I will draw on some In any event, the Commission's findings suggest that of the findings of that as I to report attempt provide neither the actual nor the anticipated incidence of some for the web of perspective legal, medical, eco­ litigation explains whatever reluctance there is nomic, sociological and factors that psychological among doctors to serve as good samaritans. Crime make the up malpractice problem. in the streets is probably a much more important I don't want to be fail­ Although unlawyerlike by factor than the law in the books or the law in action. to ing emphasize the I ven­ gloomiest contingencies, Whatever the magnitude of the risk imposed by ture to that fears of say legal liability expressed by the law, it is a familiar argument that the doctor's some doctors seem to me. competent extravagant plight is essentially the same as that of other citi­ Thus, the Commission's statistics, although they in­ zens, who are increasingly subject to regulation, and dicate that the of has tempo malpractice litigation that doctors, like others, can protect themselves by been also indicate that the risk ex­ increasing, of insurance at a price, and thereby shift the risk of posure for physicians as a group is low. and relatively liability, through the pricing mechanism can I that low" are weasel words recognize "relatively distribute most of the costs of insurance to the con­ it a and that is human failing to minimize the risks sumers of medical services and third party payors. that others bear. Nevertheless, find one of These you may points are, I believe, valid but not unquali­ the Commission's statistics interesting, i.e., on the fiedly so. basis of the claim in there experience reported 1970, Insurance, while it can protect against direct is less than one chance in of an incident financial 100,000 losses, cannot protect against more subtle that will rise to a medical occurring give malpractice but quite important threats posed by malpractice suit each time a doctor or a dentist treats a patient. litigation. Insurance plainly cannot protect against This is it figure obviously quite crude; assumes that the wound to one's sense of competence and dedi­ the incidence of claims is a malpractice matter of cation or to one's name; nor can it protect against chance. It does not to reflect the purport dispro­ the undermining of that peculiarly important ingre­ portionately higher risk borne and dient of by surgeons treatment-confidence in the medical pro­ anesthesiologists, among other variables. fession-or' important against the diversion of energy for dep­ Nevertheless, some of some comfort ositions you may get and court appearances in the demeaning from the crude I mentioned. figure just adversary environment of a trial. It is understand­ There is one situation in which fears of liability able, although deplorable, in my view, that Dr. seem to be and be a plainly exaggerated may ra­ Northrop, a member of the Commission, reacted to tionalization for other concerns. I refer to the Good malpractice litigation with this prescription: "Prac­ Samaritan situation, the of rendering emergency tice defensive medicine. And above all, and this is aid a who to see by physician happens an acci­ the most important thing, despise what could and dent. The Commission stated that there was no should be honored, jurisprudence." decision in which a officially reported physician had I shall return to this comment about jurisprudence been sued for his efforts under those in a conditions; moment. What is of more fundamental im­ for one case filed in except recently Hawaii, which portance to the quality and availability of medical has a samaritan incidently good statute; it also re­ care is the doctor's exhortation to practice "defen­ that it had no information on sive ported unreported medicine." Defensive medicine in this context

calls for some definition. Let me use the °Report ot the Secretary's Commission on Medical Malprac­ Commis­ tice, Department of Health Education and Welfare Pub­ sion's, that is, "the alteration of modes of medical lication, No. (05.) 73-88 (June 11, 1973). practice, induced by the threat of liability, for the mean to that or principal purposes of forestalling the possibility of I do not suggest lawyers, doctors, lawsuits by patients as well as providing a good or citizens generally, should be complacent about legal defense in the event such lawsuits are insti­ the defects in our legal system. Plainly, our pro­ 18 tuted." The Commission broke down this definition fessions, severally and jointly, must work harder in into two subgroups, «Positive defensive medicine," the interest of reform. And, I would add, my col­ it added, "is engaging in a test or other diagnostic leagues have not been idle. This is not the place to or therapeutic procedure which is not medically assess their efforts, to appraise alternatives to exist­ justified, for the sole or primary purpose of prevent­ ing standards of liability and damages, or to recite ing or defending against the threat of Liability." the difficulties of achieving the political consensus And "negative defensive medicine" is the failure to which is the prerequisite for legislative reform. But take steps because of litigation considerations even it is, I believe, appropriate to remind you that the though such steps are likely to benefit the patient. law has as its ideal rational standards of perform­ The Commission referred to various opinion sur­ ance and accountability, that it looks for such stand­ veys that indicated that 50% to 70% of the physicians ards wherever it can find them, and that law-making polled said that they engage in defensive medicine. institutions-courts as well as legislatures-will give It is not, however, clear that the pollsters used the weight to the judgment, experience, and integrity same definition as did the Commission. In any case, of doctors. the Commission found that the extent to which de­ The law must, however, resolve conflicting claims fensive medicine is practiced is unknown. The Com­ and values. And so doctors, like others, may be mission did not, however, specify with any particu­ heard but not heeded by the law's institutions. But, larity the medically unwarranted action that would contrary to Dr. Northrop, I urge you not to despise be a shield against liability, and as to some exposed jurisprudence but to care for it enough to help im­ specialties, such as anesthesiology, it is hard for an prove it. The alternative to jurisprudence, as the outsider like me to guess what they would be. doctor used that term, has, after all, been the fist The Commission did suggest, although somewhat and the club and modern improvements thereon. delicately, that ethical questions were raised by the And the consequence of following his prescription practice of defensive medicine. Plainly, positive de­ would be a less informed law and a law that would fensive medicine involves over-utilization of health stumble even more than it does as it seeks to do

care facilities and strains the resources of medical justice in the particular case and as it calls on all delivery systems and of patients. And negative de­ of us to remedy our defects and to be accountable our standards of fensive medicine may lead doctors to play it safe for lapses from governing per­ because of remote and insurable legal risks even formance. mean to medical though immediate medical considerations may call I do not, of course, suggest that for bold innovation. diatribes against the law are based on the premise I do not mean to underestimate the instinct for that doctors should be exempt from appropriate on dissatis­ self-preservation or to presume to be your moral standards of accountability or, indeed, tutor. But I cannot refrain from raising the question faction with the content of existing standards as of whether defensive medicine as defined by the abstractions. My impression is that the procedures Commission does not deserve unequivocal profes­ of the law are a more important source of inter­ sional condemnation. professional antagonism. It is true that those pro­ The answer implied by the Commission is that cedures sometimes are abused by unscrupulous law­ such condemnation would be a futile gesture unless yers and badly managed by incompetent judges. it were coupled with a reform of the abuses inherent But the sources of antagonism are deeper than what in our liability system. That answer is, in my view, I will loosely call the malpractices of my own pro­ unacceptable, first, because abuses in the legal sys­ fession and appear to involve differences in training tem do not warrant treatment designed to protect and in working habits and insufficient understanding the doctor and, second, no matter what changes are of those differences. That essentially phychological made in our earthly legal system it will remain explanation has been offered by David Louisell, a imperfect. law professor, and Harold Williams, a doctor and a lawyer, in their work on Medical Malpractice. Re­ are not always at their adversaries' throats; on the ferring to organized and interprofessional antag­ contrary, they accomplish a good deal of construc­ onism, the authors say: tive problem-solving as adversaries. Furthermore, lawyers no less than doctors are troubled by as­ 19 The professional education, training, and habits pects of our adversary process: our mysterious rules of thought of lawyers and physicians profoundly of evidence that exclude much that is relevant and differ. The modern law curriculum is essentially stifle natural communication, the fallibility of hu­ a continuing Socratic dialogue. Medical instruc­ man observation and memory, the conscious or un­ tion is largely didactic and authoritative. Perhaps conscious distortion of partisan-witnesses, expert the reasons for this largely inhere in the nature and amateur alike, the countervailing hyperbole of of medical education, although one may question counsel, the vagaries of juries, the inadequacies of whether its techniques are excessively dogmatic. some judges, the need to decide one way or the The controversial method is the meat of the law­ other no matter what the doubts. These character­

moved Learned one of our yer not only because he functions in an adversary istics of litigation Hand, system but because he has been nurtured in con­ most respected judges, to say that next to illness troversy from his first day in law school. The and death he most feared to be a participant in physician on the other hand has been conditioned litigation. to objective scientific inquiry and to him notorious It is not surprising, then, that the doctor-de­ contest, with its emotional overtones, is apt to be fendant or witness in this alien, hostile and some­ for the a disruptive element in the search for facts. While times rude forum should feel antipathy the lawyer typically sees challenge in open dis­ lawyer who is cross examining him and for the

un­ to trial or putation, the physician may see in it only system that subjects him the ordeal of or a cross-examination. that will be necessary insult, especially when his own Perhaps antipathy brother physician's treatment of a patient is called reduced if physicians reflect on two points. First, into question. the adversary method is the lawyer's basic tech­ Moreover, the nature of the lawyer's everyday nique, which he is duty bound to employ in the problem is akin to his conditioning and tempera­ interests of his client. The individual lawyer who the ment. Of course, the trial lawyer functions in the discharges his professional obligation through heart-land of notorious controversy. But even use of that method is no more to be blamed for the causes with than the office lawyer in drafting a contract ... knows pain that he in dealing disputes involved in with that over his shoulder are peering the critical eyes is the doctor for the pain dealing of the lawyers for the other parties, actual or po­ disease. Second, the adversary method, like other tential, to the transaction. Many physicians, on kinds of strong medicine, appears to work reason­ the other hand, are likely to think of their con­ ably well in resolving conflict. At least, we have tacts with other physicians over a mutual patient not been able to devise a basic procedure more ac­ a with our and values. as ideally constituting a cooperative effort di­ ceptable to society, history rected toward the single objective of the patient's At the same time, let me assure you, the pro­ health. Such physicians feel that although some­ cedural rules are subject to unending scrutiny and times differences of professional opinion will un­ continuing reforms, some of which have indeed on with fortunately erupt into adversary disputation, usu­ made inroads the adversary system. Thus, ally they should be resolved harmoniously by the cooperation of the medical profession, impartial mutual and objective inquiry and assessment. In medical testimony plans have been established with are to be a view to or of ex­ any event, normally these differences curbing neutralizing partisanship so dis­ in cases. Similar have kept under cover for there is nothing quite perts personal injury panels which been established for medical concerting to a patient as a dilemma about malpractice cases, to as a of several attending physicians to believe. .. . thereby overcoming what used be viewed medical conspiracy to cover up medical errors. As Louisell and Williams recognize, their ob­ Further development of such panels promises to confidence and servations can easily be pushed too far. Lawyers promote interprofessional rapport the or the consultation room. But others as well as justice. In addition, psychiatrists, among laboratory will no doubt see that those immediate others, have submitted useful and influential criti­ among you demands cannot in the end be sealed off from what cism of the legal criteria and procedures for dealing issues and and criminal I have for convenience called public 20 with issues of insanity responsibility. that those issues in their own right merit your at­ These examples make it plain that many physicians In I am confident that the nec­ and lawyers have narrowed the interprofessional tention. any case, cooperation, which has al­ gulf and have engaged in fruitful collaboration. essary interprofessional will continue and There is another set of issues that call for such ready begun, grow stronger. confidence let me not occa­ collaboration and that are, I believe, 'even more My is, emphasize, moral im­ sioned the need for a happy ending on an oc­ complex and more sigfinificant in their by such as but rather the fact that the plications than malpractice and procedural prob­ casion this, by between our in view, lems. These issues arise from the achievements of differences professions are, my overshadowed the the responsibilities, medicine in prolonging life, from the new biology, by attributes, in com­ to fill the the I like to believe, we have and from the new morality that has sought pressures that, intellectual and faiths. These mon. Both call for vacuum left by the erosion of religious professions of a the to issues include definitions of life and death in, for moral capacities high order, resiliency frustration and the deferral of satis­ example, the context of abortion or organ trans­ accept defeat, faction. Both of our are also increasingly plants. They include questions as to the sanctity of professions a torrent of lit­ life and the freedom of the individual in the con­ fragmented by specialties producing that threatens the whole man, in both his text of euthanasia, eugenics, genetic manipulation erature Both of them in­ con­ and human capacity. or improvement, sterilization, and population professional volve the tensions between and profession­ trol. There are, of course, other important public cupidity alism inherent in fee-for-service arrangements. Both issues of a different order, such as those arising for to the from proposals for the financing of medical care of them also call disciplined sensitivity circumstantial evidence. And for the medically indigent and the related problems grubby particulars of the of doubt with of adequate supply and delivery systems, and the they call also for management to the most vital interests of those who protection of professional autonomy against the respect on us. Both of in demanding the long and distorting reach of government. I also depend them, to those reflect the have in mind the housekeeping and financial issues most exacting loyalty interests, for basic commitment of our society to the dignity and created by new bureaucracies, whose demands freedom of the individual. for the proper paper work proceed at a gallop while their payouts Finally, the ad­ crawl. discharge of our respective responsibilities, monition of late Karl Llewellyn, is I do not mean to suggest that law and medicine my colleague, without ideals, he said, is a have the answers for all these prickly matters, many in point. Technique without are a mess. of which call also for insights of theologians and menace, but ideals technique You have an echo of the Hippocratic philosophers. But I do not know of any other pro­ may caught Oath in comment. Let me draw from fessions who are closer to the light or whose large­ Llewellyn's wish I take wish minded collaboration promises to be more pro­ that Oath my and, it, everyone's meet the demands ductive. for the Class of 1973, that you and and "life and It would be natural and justifiable if many of you of competence integrity enjoy art" the "brooding omnipresence" gave those large issues considerably lower priorities -notwithstanding than the immediate demands of the surgical table, of the law. I'm So Busy Noticing

I'm Hard of Hearing 21

Allison Dunham �

warranties: a and even be the rule of some of you I may have to apologize, hung by implied hard of in the business of selling warrants that the Tothat in itself may be something hearing person are of fair For, if Mr. Blum in Washington. But I too got carried away by my goods average quality. standard of our Law School for fair advisers. When Frank Ellsworth asked me whether is the average at the Amer­ then I am in breach-I neither wear I would speak to you during my week quality lectures, neckties nor make ican Law Institute, he reported that some of you snappy snappy jokes. Commercial I think I have a way out for myself with respect had seen my article, "Due Process and most of At the Law School annual alumni Law," in the last issue of the Supreme Court Review to you. dinner in the Dean told me he was and would like me to continue with that subject. I Chicago pleased and Dunham­ no that the old timers-Kalven, Meltzer, readily acceded to this request in small part, be­ I have an out also me and were still around. So, I think cause it is a subject which interests plagues before into I find no fault with from the UCC: when the buyer entering me in legislative drafting. the contract has examined the goods as fully as he th� request. desired or has refused to examine the goods, there Then Frank, remarking that my title was quite an is no with to defects which technical, asked me to get a snappy title-one like warranty regard examination to have revealed. As I look at Wally Blum created for the equally boring subject ought I think most of examined my goods in first of taxation. I agreed to this and produced this title you, you Either refused to examine one of which, I frankly confess, I am very proud. My year property. you other courses or did examine them, and you trouble started when I tried to produce something of my in the still want to So, I do not need to warrant worthy of the title. I am mindful of the rule buy today. talk will conform to title. Uniform Commercial Code that any description of that my the. that the There is another problem, however, of which I the goods creates an express warranty I must Some of you graduated before Wom­ goods shall conform to the description. might dispose. en's Lib was invented and some of you may be in­ clined to interpret any expression by a person my

� of a male chauvinist Arnold I. Shure Professor of Urban Law. This age as the expression pig. about annual the When I designed the title I did not think paper was presented at the meeting of either but as I started to outline my talk I Washington District law alumni held in conjunction group, to wonder how of talk with the American Law Institute, March 17, 1973. began many you thought my .... " � was on women in the Law School, a relatively new ligation of habitability, before the landlord phenomenon as far as quantity is concerned. Let has been heard in court to determine whether us put that at rest at once. My "noticing" referred or not there was a breach. to in the title is sex-blind; I am talking about con­ An endless list of every day transactions could have 23 flict and dispute in the real world. been prepared, and I asserted that there is not a Well, what is my topic? Its background is a series bilateral contract in existence in which one of the of Supreme Court cases, particularly Sniadach and parties is not permitted by the contract or contract Fuentes, which have led some commentators and law to take action on the basis of his own asserted lawyers with clients to assert that no contract can legal conclusion before a court has determined what be arranged so that one party to a contract can take the law applicable to the transaction is. Having action on the basis of his asserted legal conclusion, produced the absurdity that I intended-a rule that until after he has notified the other party of his in­ nobody could act until a court authorized his ac­ tention and has had the validity of his conclusion tion-I then sought to list a number of factors or certified by a court after an adjudication. You will principles which could be followed in distinguishing recall in Sniadach that under Wisconsin procedure some situations from the others. a could assert that a creditor debtor owed him I did not list as a principle a fact of which you money and thereupon obtain a court order without are all aware: the last of these decisions was a 4-3 a hearing on the merits of the claimed debt or de­ decision with two members of the present court, fault, directing the employer of the debtor to pay Powell and Rehnquist, not sitting. I know that some a portion of the debtor's wages to the creditor. In people in the commercial world are relying on this Fuentes the seller of a gas stove which had not been fact to get them out of their difficulty. under Florida law to paid for, attempted have the Not I. I think we must face the issue squarely. sheriff seize the stove and deliver it to the seller You will note that in all the situations I presented, before a court determined that the debtor was in the action taken before adjudication does not fore­ default or was a debtor. close adjudication. If the tenant withholds rent, In article I that if cases my suggested these stood the landlord can bring a proceeding to determine for this extreme it would be a position, dramatic whether the withholding was privileged. If the in commercial in change existing law, particularly mortgagee threatens to exercise the power of sale on the law of secured transactions. I asked whether the mortgagor's default, the mortgagor can bring an these cases the rules or changed following practices: action to enjoin the sale until his defenses or claims a state statute which an a) compels employer to are disposed of. So, what we are really talking about withhold asserted income tax from an em­ is the adversary system. In the adversary system before it has been ployee's wages determined somebody has to be an aggrieved party-that is, a whether taxes are any owed; plaintiff-and the question is whether one of the the VCC which authorizes a secured b) credit to parties to a consensual arrangement can put the the collateral without repossess judicial pro­ onus of an aggrieved party on the other. cess on the creditor's assertion of a default; In my article I suggested that the most congenial all but one c), the DCC (in jurisdiction) and real explanation of the cases was the conclusion that this estate mortgage law (in about 25 to 30 juris­ can always be done, if the actor remains responsible which authorize the secured dictions) creditor for the consequences of his acts. Thus, self-help on his of default the to assertion by debtor repossession of the automobile off the street by an sell the collateral after giving the debtor notice agent of the creditor was alright and was different but before a court has certified that there is from the Fuentes case, where he enlisted the aid of a default; a government official, thereby relieving himself from d) the landlord and tenant law, developed in the responsibilty for the acts of the overzealous or rough DC and now widely copied, which authorizes sheriff. In the former case he was responsible for a tenant to withhold rent payments on the ten­ the acts of the agent, but not in the latter. I sug­ ant's assertion that the landlord has breached gested that if the creditor wanted the immunity some obligation of the lease, such as the ob- which action pursuant to court order gave him, then demand the he had to have all the trappings of a court order, mortgagee may accelerate the debt and that is, notice and hearing. entire unpaid balance "without notice to the debtor." an clause. Every public interest law firm or legal aid office I regard this type of clause as overkill is no the debtor 24 has a case in which a 70 year old lady lost her house Practically speaking there way

can to the debt without or car or something, because the creditor, according be made pay unpaid notice, to the old lady, seized the object and sold it without just as in a demand note you cannot in reality collect aware of de­ notifying her he was going to do so. Every creditor until you have made the debtor your in the same or similar situation has a case in which mand. It can only mean that if I, the creditor, err he sent her two or three or more notices-even in giving the creditor enough notice, you the debtor acts called on her and warned her of the threatened agree that I am not to be responsible for the much differ­ seizure and sale-and yet she ignored the notice and of my agent. The error does not make did not become really aggrieved until she discov­ ence when foreclosure is judicial foreclosure, but it a difference where a of ered that the object had been taken away from her makes great deal of power to and sold. In a sense these two versions of the same sale is used. I suggest that the risk of failure give

on but not to the event are the result of the anonymity and imper­ notice should fall the creditor, the sale. Debtors are better sonality of a society with immense populations. But extent of queering a and conclusive life has to go on, and immense populations should served by having quick, cheap, than the sanc­ tell us that we cannot live with a system which re­ foreclosure procedure by threatening the chance of the occa­ quires judicial determination before any action. tity of all sales because of notice in fact. A What can we do? Until Chief Justice Kurland sional failure to give monetary restores the principal that most law is not constitu­ claim against the creditor for the mistaken or wrong­ tionallaw, it is dangerous to suggest that one way ful sale is enough, with certain exceptions. out of the difficulty is to determine whether the The problem is that we may make our commercial to a if we have too much actor's conduct or his asserted privilege is uncon­ system grind halt, noticing. that notice will be then scionable or is really an overkill. If it is highly likely given, no at the debtor's What do I mean by an overkill or apparent over­ there is hard of hearing except kill? There are many form mortgages around which own choosing or negligence. have a clause which provides that on default the Remarks on a First Year to Fantasy 25 First Year Students

Catherine Hancock"

afternoon, and welcome to law school, the haunting in its elusiveness. You will all file into Goodland of Oz. I would like to start off with a Room II on Monday for your first rehearsal, and Spanish proverb which I feel is excruciatingly ap­ Professor Epstein will hand out the symphonic and appropriate to Pat's and Dick's and my situation in scores. And then you will look in your pockets briefcases and find that all have is speaking to you. Loosely translated, the proverb is, you brought your or washboard for a cider "Tell the truth once, and you'll never be trusted kazoo, your bass, your jug a horn. And with these instru­ again." Each of us is giving you a vision of the truth for french starting will learn to the law. at the risk of your skepticism and distrust. ments, you play an Each case is I must admit that I am generally regarded as an Law is Andrew Wyeth painting. in the museum of a eccentric, perhaps even as a masochist, by my framed and hanging casebook, friends. This is because whenever I am asked, "What stark, obscurely symbolic of something greater than itself. It frustrates and until did you think of first year law school?" my answer you hypnotizes you, it shufHe on to the next is 'that I enjoyed it. As you will soon discover, my you leave half-digested and vision of law school is an unusually positive one. frame. Law is theatre of the absurd. When discuss And even though I know that I am telling you the you the law in talk all around and truth, my truth, I advise you to distrust me, at least class, you it, ponder the of its You are wait­ until/ you create your own vision. implications Non-Meanings. for Godot. of the Law What is my vision of law school? That Law is Art. ing The presence hangs It is music, it is painting, it is drama, it is the dance. heavily abstract in the air, but you wait for the con­ the which never arrives. Law is a symphony. Its substance is melody, its clusion, Rule, procedure is rhythm, its juries are chirping operatic Law is perfectly executed classic ballet. Judges in choruses, its lawyers are the orchestra, its judges dance haughtily on pointed toe predictable the conductors. It is impossibly rich, repetitive, and chorus lines in their opinions. They bounce deli­ cately around and away from the reasons, and twirl sparkling sidesteps past the contradictions-until a Rudolpf Nureyev judge like Cardozo, or Harlan, or OMs. Hancock is a member of the Class of 1975. This Friendly, comes leaping violently out into center presentation was made at the Orientation of the stage to thrill the audience with his surpassing Class of 1976. vigor of analysis.

Law is alive and each breathes its own are subject about to take, you are all now lawyers, irre­ Criminal Law is a idiosyncratic identity. Sunday­ vocably, although you do not know it yet, although go-to-meetin' preacher. He picks sociologists' pock­ you have not seen the vision. The Merlin of the ets for theories of rehabilitation of deviants a la Admissions Office has cast his magic wand over you, 27 Clockwork And as he he Orange. preaches, glances and you are all lawyers. You are wearing invisible over either no one will nervously shoulder, hoping black robes, you walk through an incense laden notice that he is a carrying Saturday special, and Green Lounge, you carry invisible candles to the blood feuds with a flick of his altar of settling society's the Supreme Court Reports. You are all Chaucerian on trigger finger. pilgrims the road to Canterbury; you is the old man of the covered are an Property sleepy law, intellectually gawdy and incompatible group. with moss and down fossilized feudal All I can weighed by do is wish you luck on your pilgrimmage, monuments. As a sixteenth century wolf landlord in and hope that you manage to tell a few memorable tries to slink sheep's clothing past him, the old man stories along the way. awakens with a Rip van Winkle yawn of surprise You may be tempted in the months ahead, to look to find himself in the twentieth and on our century, puts back visions, on my visions of Law as Art, out a cobwebbed hand of to a charity give freezing as Life, as Wonderland, and say, "She was so wrong, tenant a or two. all that an penurious remedy is just illusion." If you say this, I can only Civil Procedure is a weak-chested, thin fellow reply in the words of Mark Twain: "Don't part with with thick bi-focals which him the curse of give your illusions. When they are gone you may still simultaneous and telescopic microscopic vision. He exist, but you have ceased to live." is lost in the labyrinth in Crete, with only the fraying thread of the Federal Rules to guide him out of the maze. He quivers with each step at the thought that the monster minotaurs of the Federal judges may lunge out at any moment, swallow his case in one gulp, and throw him out of court.

Poor arteriosclerotic Contract lies wheezing on his deathbed, weakened by everyone's lack of consid­ eration. His overfictionalized veins are impossibly burdened with the pulsing blood of new theories, until, miraculously, the products liability doctor ar­ rives, and manages to make a life-saving transplant, with a heart of tort.

Law is Wonderland. I hold out my hand to you and pull you through the looking glass into a world of double mirrors where everything is distorted be­ yond your wildest dreams. The professors are all mad hatters, asking all you bewildered Alices, "Why is today's case like that case five weeks ago?" "Why is a raven like a writing desk?" they demand. You sit in perplexed silence. "You're absolutely right!" they exclaim. "There is no answer!" The language of the law is pure Jabberwocky. You all remember "Twas brillig and the slithy toves did gire and gimble in the wabe." How about, "Twas infra, and the plea to wit/A breach in limine demurred/Malfeasance was the plaintiff's claim/ And quantum meruit." As all sit you here, contemplating the plunge you 28

Harry Kalven, Jr., Harry A. Bigelow Professor of Law died on October 29, 1974. A member of the law faculty since 1945, Mr. Kalven was a leader in the contemporary move­ ment to study law and legal institutions from an interdis­ ciplinary perspective. For more than a decade, he directed the University's Jury Project, a pioneering study, which re­ sulted in two books, written in collaboration with Hans Zeisel, Delay in the Court (1959) and The American Jury (1966). If there is such a thing as the "compleat" lawyer, the Law School was privileged to have him in Harry Kalven. His principal fields of teaching were torts and constitutional law. His interest in First Amendment issues led to his often cited article, "The Metaphysics of Obscenity" (1960), and to his book, The Negro and the First Amendment (1965). Mr. Kalven's whole career was interwoven with the Uni­ versity and its community as well as with the Law School. The idea that the Law School was an indivisible part of the University was one that he held dear and did much to sup­ port. Accordingly, a University-wide service was held in Rockefeller Memorial Chapel on December 6, 1974. Speakers included Edward H. Levi, Catherine Hancock, Owen M. Fiss, Walter J. Blum, Ramsey Clark, and Stanton Wheeler. Following is one of the tributes to Mr. Kalven. The Fall issue of The University of Chicago Law Review will be dedicated to Mr. Kalven's memory. Harry Kalven, Jr.

29

Edward H. Levi�

Kalven was a young man, forty years ago, of the day before he died, I was among the many Harrywhen I first came to know him. He had already who were privileged to learn from him. entered the world of the University of Chicago, Harry joined the faculty of the University in the which he came to possess and which possessed him. Law School in 1945. It always will be a joy to recall He was then a in student the College, responding the growth in intellectual power and accomplish­ with delight and with a special thoughtfulness to ment of a mind so creative and so sensitive. His the intellectual and moral excitement of the Univer­ contribution to the understanding of the law and sity, which was attempting in some collective way, legal institutions is among the most significant of but with strong adversary protagonists, to establish our time.' Nothing he touched was left without an understanding of the shared cultural heritage added insight. There was a toughness of scrutiny and to give renewed meaning to the ideas of the and perseverance in him, but it was always marked good society and a good life. He was fortunate then, with grace and inspiration. He was in the grand as he was later as a student in the Law School, in the tradition of the law which he described in one of his

last was a guidance of an extraordinary group of teachers, essays, and he magnificent collaborator. Robert Hutchins, Richard McKeon, Mortimer Adler, This was not a collaboration of dependence. Rather Malcolm Sharp, Charles Gregory, Max Rheinstein, it reflected a philosophy about individuals, ideas, Wilber Katz among them. Fortunate not only be­ and problems. Individuals were seen for the best cause of what they had to give but because of his which was in them; ideas for the brightness which be out exceptional capacity for response and for apprecia­ could coaxed of them; problems for the way tion. Harry always gave a great deal to those who they could be reshaped so new solutions could be worked with him. A compilation of materials in found. And his work dramatically moved to new jurisprudence which I co-edited in 1938, when ground. He was a citizen of the University. He Harry was a student in the Law School, carries the knew its better ways. He believed in rational dis­ notation of the editor's gratefulness for the help re­ course and the kindness and mutual respect essen­ ceived from Harry Kalven. I take pride in that tial for our kind of community.. most minor, not unusual, acknowledgment, because His influence was felt in every corner. He taught it came so early in his career. Throughout his life in the College; he was a member of the Governing and indeed through a long session on the afternoon Committee of the Social Science Collegiate Division, and a member of the Council of the University. He � Attorney General of the United States: Karl N. accepted assignments during periods of difficulty, Llewellyn Distinguished Service Professor of Juris­ when he knew the strains and pressures upon him prudence, on leave Qf absence. would be enormous. He represented faculty and students when they were in trouble, as he repre­ sented others in the larger society, and always with that kindness and respect which marked his every 30 action. He took on burdens which were not his own. His biography reflects that he was the leader of the University of Chicago Jury Project, an interdisci­ plinary study of basic issues of modern jurispru­ dence. The study is the highest achievement of an approach long advocated but never before accom­ plished. But no complaint from his pen nor other­ wise reveals that he took upon himself, in the face of unseemly personal attacks, the defense of the conduct of a prior stage of this study for which he was not responsible and before his leadership. The University of Chicago, as we know, is built upon the strength and quality of unusual men and women. Harry Kalven was a prince among us. His influence and life went beyond the University, but his worlds

were interrelated. And he made of them one world.

This was his character. 'With poetic perception, with gaiety and sympathy, he sought and created patterns of coherence. He understood the meaning of form. He found completeness. In writing of his academic career for the Univer­ sity, he spoke of his daughter, three sons, and "my lovely wife." When he was made Harry A. Bigelow Professor of Law, he wrote: In a sense this brings things full cycle. For it was Harry Bigelow who provided importantly my first experience with the distinctive culture of the law. On the last afternoon when I spoke with him, both of us understood we were rethinking the im­ plications of pioneering work he had accomplished years ago with others. There was great satisfaction in this, and it was usually with others, for his gen­ erosity was great. The University of Chicago was a most important part of his life. He gave life to the University. For all his modesty, he would be the first to know and appreciate that his work and his values will be reflected in the better self of the

University until the memory of man runneth not to the contrary. From The Law School 31

Elements the Law which in LEVI ApPOINTED of evolved Jurisprudence the world. Karl from his famous course which he Llewellyn, whose notable contri­ ATTORNEY GENERAL AND developed with Roscoe Steffen. butions to American legal thought LLEWELLYN PROFESSOR At the time of the appointment, inspired the creation of the Chair, Dean Phil C. Neal said: "Mr. Levi's would surely have been gratified that Edward H. Levi, former President appointment as the first holder of the first Llewellyn Professor is of the University and Dean of the the Llewellyn Professorship of Edward Levi, his former student Law School, has been appointed as Jurisprudence fittingly recognizes and colleague." the Karl N. Llewellyn Distinguished Mr. Levi's major contributions to Mr. Levi was sworn in as Attorney Service Professor of Jurisprudence. contemporary thought about the General on February 7th. At the This appointment, made prior to role and limits of law and the nature ceremony, he said: "We have lived his appointment by President Ford of the legal process. The appoint­ in a time of change and corrosive as Attorney General of the ment insures the distinction which it skepticism and cynicism concerning United States, was by the approved has been hoped would attach to the the administration of justice. Nothing University's Board of Trustees. new Llewellyn Chair as one of the can more weaken the quality of life The Chair was established at the pre-eminent Professorship of or more imperil the realization of University's Law School in 1973 to honor the late legal scholar and philosopher, Karl Llewellyn. Mr. Llewellyn joined the University in 1950 and was Professor of Law at the time of his death in 1962. A list of the contributors to the Llewellyn Professorship appears elsewhere in the Record. A graduate of the Law School in 1935, Mr. Levi has been a member of the faculty since 1936 except for the five years he served in the Department of Justice during World War II. In 1950 he was appointed Dean of the Law School and held this post until he became Provost in 1962. He served as President from 1968 until his appointment as Attorney General. He began his legal writing in the fields of bankruptcy and reor­ ganization and of federal procedure. His later writings deal with trade regulation, law and economics, jurisprudence, and legal education. His Introduction to Legal Reasoning has become a classic analysis of the American judicial process. Other important publications include Gilbert's Collier on Bankruptcy and Edward H. Levi - we the we all hold dear than our ternative lend the Levis' to goals BEARDSLEY ApPOINTED TO failure to make clear word and the nation, but we insist that by THE FACULTY a deed that our law is now an instru­ everyone understand that it is loan ment for and it is and not a gift." partisan purposes E. has been 32 James Beardsley not an instrument to be used in ways appointed Associate Professor of which are careless of the higher Law. Mr. Beardsley received his values within all of us." BLUM ApPOINTED B.A. with honors in political science On a was February 8th, reception from UCLA in 1959. He WILSON-DICKINSON PROFESSOR received held in Hutchinson Commons his J.D. degree cum laude from The honoring Mr. and Mrs. Levi by the Blum has been Harvard Law School in 1964. From for the Walter J. appointed faculty. Speaking faculty, 1964 to the newly-established Wilson­ until his appointment he had Philip B. Kurland concluded his Dickinson Professorship of Law. been with the Los Angeles law comments "Once before by stating: firm of The new chair has been estab­ Gibson, Dunn & Crutcher. Edward took leave from the Uni­ lished by the Trustees of the From 1969 to 1973 he was in the versity to go to the Department of University with funds from the Paris office of the firm. Justice. He does that again. For John P. Wilson Memorial Fund, While on leave of absence from under the robe of the Attorney an endowed fund established in his practice from 1966-1968, Mr. General of the United States, there and served as 1929 with a gift from the son and Beardsley taught remains the gown of the Karl of the founders of the Head of the Law Department at the Service daughter Llewellyn Distinguished of Lesotho firm presently known as Wilson & University Botswana, Professor of Law, on leave of McIlvaine. The Wilson Memorial and Swaziland, in South Africa. absence. This occasion marks the Mr. studied at the Fund was initially used to create the Beardsley for us to wish Edward opportunity of Paris from 1971-1973 John P. Wilson Professorship, cur­ University and Kate, Godspeed, even as we rently held by Professor Kenneth and received his Dipl6me d'etudes look forward to their return. The Davis. A of the Fund superieures (droit price-droit des need for their services Culp portion country's in 1973. He is was used in 1957, with the per­ afJaires) March, does not diminish our own. mission of the donors, to assist in presently a candidate for the - for we have no al- Unselfishly Doctorat d'Etat en droit building the new law school. The price. Mr. fields of John P. Wilson Reading Room was Beardsley's special interest include commercial named in recognition of this use law, Walter J. Blum shown at a recent Wine Mess. of the Fund. corporations, and comparative law. The Wilson-Dickinson chair is

intended to honor the memory of the donors of the Wilson Fund WHITE ApPOINTED PROFESSOR Anna W. Dickinson and John F. B. Wilson, the son, who was also a James White, Professor of Law leading lawyer in Chicago. The at the University of Colorado, has decision to establish the new chair been appointed Professor of Law in was made with the interested the Law School effective July 1, participation of John P. Wilson, Jr., 1975. Professor White was a visiting and William R. Dickinson, grand­ member of the faculty last year. sons of the original John P. Wilson, He was graduated from Amherst both of whom have continued the College in 1960. After taking an M.A. in at Harvard in 1961 family tradition in the firm of English ' Wilson & McIlvaine. Mr. Dickinson he entered Harvard Law School. is a partner in that firm and He served as Treasurer and Book Mr. Wilson is now of counsel. Review Editor of the Harvard Law Mr. Blum, who graduated from Review and received the LL.B. the Law School in 1941, has been on degree in 1964. He practiced in the faculty since 1941. Boston from 1965 to 1967 with the At the time of the appointment firm of Foley, Hoag & Eliot, and has Dean Phil C. Neal noted: "The been a member of the University Wilson Gift has been a most im­ of Colorado faculty since 1967. portant resource during the history He is the author of The Legal of the Law School, and I am happy Imagination (Little, Brown, 1973). that it is now to serve the additional His fields of special interest include purpose of honoring an outstanding Criminal Law, Criminal Procedure, member of this faculty." Family Law, and seminars based on Howard Association since 1970 and is current President. Mr. Heinz will offer a seminar on aspects of the legal profession. Both Mr. Landers and Mr. Heinz 33 will also be Visiting Scholars at the American Bar Foundation. Mr. Landers will be conducting a study of the Truth in Lending Act in order to see how it works and to recommend suggestions for im­ provement. Mr. Heinz will be con­ ducting a study of the Chicago Bar Association in conjunction with Edward Laumann, Professor of Sociology at the University and Director of the Center for Social Organization Studies. The Visiting Scholars program at James E. Beardsley the American Bar Foundation is an on-going program of the Foundation his book, of which annually has several distin­ involving exploration JONATHAN M. LANDERS AND the relationships between literature guished law professors in residence JOHN P. HEINZ: VISITING FACULTY and legal thought. who, on occasion, hold Visiting Faculty appointments at the Jonathan M. Landers, Professor of Law School. Law at the University of Kansas GARETH JONES AND GlDON Law School, and John P. Heinz, GOTTLIEB: VISITING PROFESSORS Professor of Law at Northwestern University Law School, will be BIGELOW TEACHING FELLOWS Gareth Jones and Gidon Gottlieb Visiting Professors at the Law School will be Visiting Professors of Law next year. Mr. Landers received .his Five Harry A. Bigelow Teaching for the Winter and Spring Quarters A.B. from Colgate University and Fellows are currently in residence 1976. Mr. Jones, who is Professor his J.D. from Harvard in 1965 where at the Law School for the academic of Law at Cambridge University, he was a member of the Harvard year. The Fellows' primary respon­ England, has been a visiting faculty Law Review. Prior to joining the sibility is to design and carry out a member at a number of American faculty of the University of Kansas program of instruction for the first law schools, including Harvard, the Law School, he was associated with year students in legal research and University of California, and Indiana. the firm of Rosenman, Colin, Kaye, writing. Professor Richard Epstein His fields of interest are Contracts, Petschek, Freund & Emil in New has responsibility this year for Trusts, Restitution, and Legal York City. His fields include Civil coordinating the program and ad­ History. Procedure, Commercial Law, and vising the Fellows. The program is Mr. Gottlieb, who is Professor of Creditors' Rights. intended to impart basic lawyerly Law at New York University Law Mr. Heinz received his A.B. in skills through frequent assignments School, will offer courses in Juris­ 1958 from Washington University that aim to stimulate the problems prudence and International Law. and his LL.B. from Yale in 1962. of a real law practice. Mr. Gottlieb received his LL.B. in He taught Political Science at The Fellows, named for 1954 from London School of Washington University from 1958- Harry A. Bigelow, are Economics and an LL.B. in 1956 �960 at which time he became Gregory Stewart Alexander from Trinity College, Cambridge Attorney-Advisor for the Office of received his B.A. magna cum laude and a LL.M. from Trinity College in the Secretary of the Air Force in in English and philosophy in 1970 1957. He received his J.S.D. from Washington for thr�e years. He has from the University of Illinois, Harvard in 1962. Prior to joining been on the Northwestern Faculty Urbana-Champaign, and his J.D. the faculty at New York University since 1965. His interests include cum laude in 1973 from the North­ Law School, Mr. Gottlieb was a Criminal Law, Evidence Law western University School of Law. Senior Exhibitioner at Trinity Col­ and Criminology, Law and Social He participated on the Northwestern lege and associated with Shearman Change, Legal Research and University Law Review editorial & Sterling. He is the author of Writing, and Regulated Industries. board and served as Associate Note The Logic of Choice (1967). He has been Director of the John and Comment Editor. Following graduation he clerked for The Honorable George Edwards, United States Court of Appeals for the Sixth Circuit. In addition to his 34 Bigelow assignment, he is teaching the Conflicts of Law course with Max Rheinstein this quarter. Stephen M. Goldman received his A.B. in 1968 from Duke Uni­ versity where he was a member of Phi Beta Kappa. He was graduated cum laude from the University of Michigan Law School in 1971. At Michigan he was a member of the Board of Editors of the University of Michigan Journal of Law Reform. From 1971-1973 he was a graduate student in politics at Oxford University (Brasenose College) and is a candidate for the Phil C. Neal Ph.D. This past year Mr. Goldman clerked for The Honorable John rent academic year . In accordance In announcing his decision, Dean Paul Stevens, United States. Court with the Statutes of the University, Neal noted: "It has been very of Appeals for the Seventh Circuit. a committee of the faculty has been to me to be a part of the He is a member of the Colorado Bar. gratifying elected to confer with the President of the Law School Gretchen R. Morris received her development of the and to make these and to see what A.B. from Stanford in 1959 and University during years recommendations concerning the I believe to be the growing strength pursued graduate study at UCLA choice of a successor. The chairman of our student body, our faculty, in 1961 and 1963. She was grad­ of the committee is Professor and the stature of the School. I am uated from the University of Oregon Walter J. Blum. convinced that the younger faculty Oregon she was associate editor of Dean Neal plans to return to added during recent years constitute the Oregon Law Review and a full-time at the Law School the collection of member of the Order of the Coif. teaching strongest young and to resume work on scholarly teachers and scholars of any law School of Law in June 1971. At projects, including his part of a school in the country, and that the This past year she clerked for The multi-volume history of the United future of the School is very Honorable William M. McAllister, bright." States Supreme Court. His main Oregon Supreme Court. fields of interest since coming to the Suman Naresh was graduated Law School in 1962 have been with honors from the University of Constitutional Law and Antitrust KATZ ApPOINTED ASSOCIATE DEAN Delhi in 1964 and also received a Law. In addition to these courses, B.A. in Jurisprudence from Cam­ he has given a seminar on the cur­ Stanley N. Katz, Professor of Legal bridge in 1974. He is a Barrister­ rent business of the Supreme Court History at the Law School, has been at-Law, Inner Temple, in London. and has taught Civil Procedure. named to the newly created post of George Syrota received his law This year he also taught the first-year Associate Dean in the Law School. degree from Oxford Universitv course in Elements of the Law, for­ Mr. Katz will assist the Dean in (Balliol College) in 1973. At Oxford merly taught by Edward Levi, Karl the administration of academic he was the recipient of the David Llewellyn, and Soia Mentschikoff. affairs in the School and will have Markham and Jenkins law prizes. Appointed in 1962 as the sixth special responsibility for curriculum The past year, as a Fulbright scholar, dean in the School's seventy-two planning and for the he attended the University of development year history, Dean Neal will have of the School's educational and Virginia Law School and received served as dean for twelve and a half research the LL.M. degree. programs. years, the longest tenure except that In announcing the appointment, of James Parker Hall, who was dean Dean Neal pointed out that the NEAL TO from 1904 to 1928. The other deans Law School has a verv RELINQUISH DEANSHIP University's . have been Joseph Henry Beale small administrative staff in com- Phil C. Neal, Dean of the Law (1902-04), Harry A. Bigelow parison with other schools of similar School, has asked to be relieved of (1930-40), Wilbur G. Katz (1940-50), size. He said that the appointment the deanship at the end of the cur- and Edward H. Levi (1950-62). of an academic dean will strengthen the School more time by permitting 1970 and Head of Readers; Services awarded an M.A. from The Uni­ to be devoted to questions of policy and Reference Librarian in 1972. versity of Chicago's School of Social and long-range planning. In January, 1974 he was appointed Service Administration, where he Mr. Katz, who has served as as Acting Law Librarian following held the position of Fieldwork In­ Chairman of the 35 Law School's the retirement of Leon Liddell. structor in the early 1940's, and in Admissions Committee for the past Mr. Liddell retired as Law Li­ recent years a lectureship. Mr. two years, joined the Law School brarian and became emeritus on Meeker was an Assistant Professor in 1971 after in faculty teaching the, January 1, 1974 after fourteen years in the Division of Social Service at at Harvard history department as Law Librarian, having come to Indiana from 1946 to 1950. He has University and the University of the Law School in 1960 from the served as consultant to courts and Wisconsin. His fields of teaching at directorship of the University of correctional agencies in Puerto Rico the Law School have included con­ Minnesota Law Library. His tenure and West Germany. In 1966 Mr. and American stitutionallaw, torts, here, with one exception, was the Meeker was a Fulbright Lecturer in legal history. He is currently longest of any of the head librarians Japan. The annual Irving Halpern one of the sections teaching first-year of our Law School. It has been an Award of the National Council on of civil procedure. extraordinarily successful period in Crime and Delinquency for Ex­ Author of numerous articles on the development of the Law Library. cellence in Probation Practice was American colonial and legal history, Under Mr. Liddell's leadership the conferred on him in 1967. Mr. Katz is the of editor the collection has approximately From 1968 to 1972, Mr. Meeker in Monograph series, Studies Legal doubled and the staff and services was a member of the Illinois Law and an History, associate editor of of the Library have been brought to Enforcement Commission. He is The Journal of Interdisciplinary a position rivaling the best law past president of the Illinois History. His books include New­ libraries of the country. Academy of Criminology and has castle's New York: Anglo-American At the time of Mr. Liddell's served as a member of the Illinois Politics, 1732-1753 (Harvard, 1968) retirement, Dean Phil C. Neal noted Department of Corrections Adult and New Perspectives on the that: "under Mr. Liddell's leadership Supervisory Board and of the American Past, edited with Stanley the Library has not only become a Boards of Directors of the American Kutler, 2 vols. (Little, Brown, 1969). first-class general collection but has Correctional Association and the Mr. Katz was Fellow in Law and attained distinguished strength in a National Council on Crime and American History at Harvard Law number of selected fields, including Delinquency. School in 1969-1970 and a Fulbright foreign law. I believe it is not too As Administrator of the Center Fellow at of King's College, the much to say that the quality of the for Studies in Criminal Justice, of in Law been University Oxford, London, Library has transformed Mr. Meeker is responsible for co­ 1959-60. He earned his A.B., M.A., by Leon Liddell's tenure ordinating a variety of research and Ph.D. degrees from Harvard. as Librarian." projects sponsored by the Center and for publications dealing with major issues in the field of MEEKER, NEW ADMINISTRATOR criminal justice. BOWLER ApPOINTED LAW LIBRARIAN FOR THE CENTER

Richard L. Bowler has been Ben S. Meeker has been appointed appointed Law Librarian effective Administrator of the Center for January 1, 1975. He was graduated Studies in Criminal Justice at the from Hobart College cum laude in Law School. 1964 with a major in Sociology and For the past 23 years Mr. Meeker was elected to Phi Beta Kappa. He has been Chief of the Federal Pro­ received his J.D. degree from this bation Office in the U.S. District Law School in 1967 and then at­ Court in Chicago. In addition to tended the Graduate Library School this position, Mr. Meeker was at the University. While in the Director of the Federal Probation Law School he worked for the Legal Training Center from 1950 until Aid Program, the Civil and Criminal 1970, at which time the Training Federal Defender Programs, and Center was moved to Washington, private practitioners in both D.C. criminal law and civil practice. Mr. Meeker, a native of Mr. Bowler became Documents Mt. Pleasant, Utah, received his and Assistant Circulation Librarian A.B. in 1933 from Emporia College in the Law Library in 1960 and was in Kansas, where he majored in to in promoted Reference Librarian Psychology. In 1940 he was Stanley N. Katz Brief Notes from the Faculty

36

guarantees of equality such as the MEMORIAL SERVICE FOR Equal Rights Amendment; and SCHWARTZ JUDGE ULYSSES S. analyzed the development of the U.S. Constitution's equal protection A memorial service for public clause. Judge Ulysses S. Schwartz, who died Law School faculty members on December 3, 1973, was held in the the organizing committee were: Weymouth Kirkland Courtroom Walter J. Blum, Stanley A. Kaplan, of the Law School on Philip B. Kurland, and Phil C. Neal. 1, 1974. February Conference participants from the Schwartz was a Chicago Judge Law School faculty were: Gerhard and for more than lawyer jurist Casper, Richard A. Epstein, Harry 60 Even after he had years. officially Kalven, Jr., Bernard D. Meltzer, from the Illinois resigned Appellate and Geoffrey R. Stone. Court in 1970, where he had served for 20 years, he returned to active service at the request of the Illinois Supreme Court and remained CHICAGO BAR ASSOCIATION in that capacity until early 1973. SYMPOSIUM In between sessions at the Conference on Schwartz served for many Judge Discrimination co-sponsored by the Law In the Bar years on the Visiting Committee School and the Anti-Defamation League January, 1974, Chicago to the Law School. of B'nai B'rith. Association held a Symposium on Speakers at the memorial service "The Law, the Bar and Public Virtue." This first event of the were Edward H. Levi, President of Stanley N. Katz, Professor of major the University; Justice Walter V. Legal History at the University and Association's Centennial year was Dean of Schaefer of the Illinois Supreme coordinator of the Conference, says chaired by Phil C. Neal, Court; Judge Edwin A. Robson of that legal problems of discrimination the Law School. Kenneth W. Dam, the U.S. District Court in Chicago; have changed since the last Con­ Professor of Law at the Law School of and Judge Daniel J. McNamara of ference on Discrimination in 1963: and formerly Executive Director the Illinois Appellate Court. "The thrust of the new demands is the Council on Economic Policy, entitled The memorial speeches have been not simply to prevent discrimination, made the initial presentation "The of printed in a pamphlet which is but to aid formerly deprived groups Special Responsibility Branch." available from the Alumni Office to gain or regain a competitive Lawyers in the Executive at the Law School. position in SOciety." "Ethical Conflicts in Representing The opening paper, "Thinking Clients in Washington" was pre­ About Race: Changes of a Decade," sented by Abe Krash, J.D. '49, a firm of DISCRIMINATION CONFERENCE was presented by Owen M. Fiss, partner in the Washington Porter. C. AT THE LAW SCHOOL former Professor of Law. The four Arnold & Roger Cramton, conference sessions examined the J.D. '55, Dean of Cornell Law School, was Chairman of the On May 3 and 4, 1974, a Conference controversy over preferential quota who formerly Conference of the on Discrimination co-sponsored by systems; examined implications of Administrative the Law School and the Anti­ new legislative and administrative United States and Assistant Attorney Defamation League of B'nai B'rith machinery designed to prevent and in the Office of Legal Counsel, was convened in the Weymouth Kirk­ remedy discrimination; considered the commentator on Mr. Krash's land Courtroom of the Law School. demands for constitutional paper. Education. He will be a member ROSTOW SPEAKS AT THE and Culture at Williamsburg, of the curriculum committee. The LAW REVIEW BANQUET Virginia. Institute, the leading Mr. Ellsworth has also been scholarly organization for literary On 24, 1974, appointed to serve on a Special and historical scholars in the early May Eugene Rostow, 37 Committee on Resources for Sterling Professor of Law and Public Legal American field, is the publisher of Education of the Association of the William Affairs at Yale University, spoke at and Mary Quarterly American Law Schools. The of a the annual banquet honoring out­ and monographic series. Committee will concern itself with going staff members of Law Review­ At the National Archives the between resources and the Hinton Moot Court Com­ growing gap Conference on "The American available for education and the mittee. Mr. Rostow was Under­ legal Revolution: Frames of Reference," need for additional resources to secretary of State during the November 9-10, 1973, Mr. Katz gave enrich law school Johnson administration. programs. a paper on "Constitutionalism and the American Revolution." Mr. Rostow was Visiting Professor at the Law School in 1941. Mr. Katz has been appointed Last December Stanley A. Kaplan Professor of History at the Uni­ was on the faculty of the short course, versity. He has also been appointed Walter J. Blum, Professor of Law, "Securities Regulation," sponsored to the Governing Committee, New Division of was appointed by President Levi to by the Southwestern Legal Collegiate the College. serve on a committee to nominate Foundation. Mr. Kaplan gave two recipients of the Rosenberger Medal, lectures: "Introduction to the On January 27, 1974, the Law an award established in 1917 by Securities Exchange Act of 1934" Faculty of Cambridge University Mr. and Mrs. Jesse L. Rosenberger and "Broker-Dealer Regulation and voted to award the Yorke Prize to to recognize any accomplishment of Short-Swing Profits Under Section 16 John H. Langbein for his book, great benefit to humanity. of the 1934 Act." Prosecuting Crime in the Renais­ This May, the Administrative In May, 1974, Mr. Kaplan was a sance: England, Germany, France. Conference of the United States moderator for the program "Lawyers This book was published in January, appointed Mr. Blum a member of and Accountants on Trial: 1974, by Harvard University Press the Steering Committee of the Professional Liability," which is the in association with the American Administrative Conference to study first National Institute of the new Society for Legal History, as part of Tax Procedures of the Internal Section on Litigation of the their series, Studies in Legal History. Revenue Service. The Administrative American Bar Association. He The Yorke Prize is awarded annually Conference of the United States is a moderated the session on "Problems for an essay on a legal subject. permanent, independent Federal of Proof and Presentation of Evi­ dence in Cases La and agency established by Congress to Against wyers Professor Jo Desha Lucas has examine administrative procedures Accountants Under the Federal been appointed by Chief Justice throughout the executive branch and Securities Laws." Burger as Reporter to the Advisory to make recommendations for im­ Committee on Appellate Rules for provements to the President, the Last spring Stanley N. Katz, the Federal Courts. Mr. Lucas is one agencies, the Congress, and the Professor of Legal History, was of the leading authors in the field Judicial Conference. Some of the elected to the Council of the of practice and procedure and has tax procedures which the Steering Institute of Early American History held a number of posts, including Committee will examine are: con­ fidentiality of taxpayer information, extraordinary collection procedures, use of civil money penalties, and availability of information to the public.

Allison Dunham, Arnold 1. Shure Professor of Urban Law, is a member of the University committee for the selection of the Nora and Edward Ryerson Lecturers.

Assistant Dean Frank L. Ellsworth was appointed to serve on the Advisory Committee of the Illinois Professor Richard A. Epstein, Geoffrey R. Stone, and Stanley N. Katz at the recent Institute for Continuing Legal Conference on Discrimination. lished by the Law School. This booklet is a guide to the collection of Simons' personal papers, lectures, speeches, published and unpublished 38 manuscripts now in the custody of the Law School. The guide was by Clara Ann Bowler, compiled . Research Assistant. Mr. Simons (1899-1946) was Professor of Economics in the Law School. Copies of The Henry C. Simons Papers may be obtained for the price of $10 through the Publications Assistant, The University of Chicago Frank From left, Assistant Dean Frank Ellsworth, Dean Phil C. Neal, Jean Allard, and Law School, 1111 East 60th Street, Law Alumni Association. Greenberg at a recent meeting of the Board of Directors, the School Illinois 60637. Mrs. Allard, JD '53, is the current president of the Association and Mr. Greenberg, ID '32, Chicago, first vice-president.

DISTINGUISHED FELLOWSHIPS the of the Illinois and ideological center chairmanship geographical AWARDED Committee on Appellate Rules. of the movement, University of Law Professor Richard A. Chicago Robert Burns, J.D. '74, has been In Bernard D. Posner has a textbook that May, 1973, Meltzer, produced awarded one of 48 Kent Fellowships Parker Hall Professor of and expands many of James Law, pulls together by the Danforth Foundation. Mr. was elected a Fellow of the the new critiques. At its heart, the Burns will use his fellowship to book is a of a American Academy of Arts and 41S-page expansion continue his work in the study of short simile: a courtroom is like an Sciences at the Academy's 193rd law and philosophy. After grad­ economic annual meeting in Boston. The marketplace." uating from the Law School, he will now The review in The Academy includes 87 faculty appeared resume studies toward his Ph.D. members of the Chronicle Higher Education. University. of in Philosophy at the University. A second year student, Larry Fenster, has been designated one of POSNER AND THE ROMANCE UST Cumulative Index 1950-1970 IS Luce Scholars for next year by the ECONOMICS AND LAW to United States Treaties and Other BETWEEN Henry Luce Foundation. Luce International (in four Agreements Scholars are given financial support In an article titled, "The Romance volumes) is a new research document for a full year of study, work and Between Economics and Adolf Law," by prepared by Sprudzs, Foreign travel in the countries of East Asia. Luther Professor Richard Law Librarian and Lecturer in Law Munford, Mr. Fenster will return to the Law A. Posner's new book, Economic at the Law and 1. School, Igor School in 1975 after his year abroad. Analysis of the Law, was reviewed. Kavass, Professor of Law and Law Mr. Munford begins by observing, Librarian at Duke University "The disciplines of law and eco­ School of Law. In cumulative form nomics have not seen much of each for the first time, the four index other since the days of Jeremy volumes provide access to these Bentham, the 18th-century English treaties and agreements by TIAS lawyer who was the principal ad­ number, date of treaty, country, and vocate in his day of the utility subject. This book was published maximization theory on which by William S. Hein & Company, Inc. modern economic thought is based. in late 1973. But what was for a long time only a flirtation betwee� schools that spoke essentially different languages has THE HENRY C. SIMONS PAPERS blossomed in the past decade and a half into an ardent romance. In December, 1973, The University Not surprisingly, there is a booming of Chicago Law School Library business in translation." Publications, Bibliographies and Cathy Hancock, a member of the Class of 1975, presents some flowers to Max Rheinstein Munford continues Guides to No.9: The by noting Research, on the final day of the course on Conflict of appropriately: "From Chicago, the Henry C. Simons Papers was pub- Laws on behalf of the Class. 'OLDER' MEMBERS IN

THE LAW SCHOOL STUDENT BODY

Many faculty and some alumni 39 who have visited the Law School have noticed an increasing number of "older" students in residence. There are, in fact, 31 students in this year's second year class who graduated from college in 1970 or earlier. Following are capsule biographies of some of these "older" students:

Christopher Berry (Notre Dame '68, University of Southern California M.B.A. '69) had been serving as a Marine Corps Naval Flight Officer. Alan Blankenheimer (Wesleyan '70) Solicitor General Robert H. Bark, JD '53, shown at a recent visit with students. had completed his qualifying ex­ amination and a substantial portion of his dissertation for the Ph.D. in John Hancock (Stanford '69) had has authored several medical pub­ the of Ideas History from Brandeis. served in the Army, worked on the lications with her husband, Chase Ralph Nader congressional study P. Kimball, Associate Professor of George Chapman (Cornell '69) had project and most recently served as Medicine and here at been teaching Economics and Psychiatry a research assistant in the Treasury the University. History at a private secondary Department. school in Ohio. Christopher Klein (Brown '69) had been in the Marine James Clark (Brown '70) had been Roger Huff (Antioch '69) had served serving Corps in the Coast Guard since since 1969. serving as a legal officer aboard a graduation. in the His most recent assignment was destroyer Navy. Staughton Lynd (Harvard '51, Pollution Control Officer for Columbia Ph.D. '62) taught History Joel Cope (Reed '67) had been a Louisiana. at Spelman College and Yale and lecturer in Philosophy at Chicago most recently worked with the while working toward his Ph.D. Martin Jacobson (Pennsylvania '69, Institute for Policy Studies in New York University M.B.A. '73) had Sally Damon (Smith '70, Brandeis Washington, D.C. been on active duty with the Navy M.A. '72) had been working as a since 1969. Joseph Mathewson (Dartmouth paralegal assistant for a Boston '55) had worked as a reporter for the Wall law firm. Henry James (Harvard '70) attended Street Journal, served as a producer Harvard Divinity School, worked as George Curtis (Fordham '70, Virginia and political editor for WBBM-TV a researcher for Common Cause, Ph.D. '73) had been teaching Legal (Chicago) and was Press Secretary and most recently served as Assistant History at Virginia. to Governor Richard Ogilvie. to the Director of the Education Seth Eisner (Northwestern '67, Penn­ Commission of the States. James Olson (Wesleyan '69) had sylvania Ph.D. '73) had been served in the Navy as a legal officer. Alexis Kennedy (Illinois '68) had teaching English at Pennsylvania. been serving as Deputy Director for Marilyn Podemski (Oregon '68, Mary Gold (Marygrove College '59, Program Planning and Development Oregon M.A. '69) had taught Michigan M.A. '60) had worked in in the Dayton, Ohio Model Cities English in an Oregon public personnel management for the Program. secondary school. Department of Health, Education Charles Kennedy (Florida State '68) Phillip Recht '68) served and Welfare and most recently (Williams had been an officer in the Air Force as a submarine officer in the Navy served as Management Assistant to since 1968. and had one of his the Clerk of the Court, U. S. District completed year M.B.A. work here at the University. Court for the District of Columbia, Anne Kimball (Smith '58, Vermont in the area of court administration M.A. '60) had spent most of her time Carol Rose (Antioch '62, Chicago and systems analysis. since 1960 raising four children. She M.A. '63, Cornell Ph.D. '70) had As on a toe. been teaching History at Ohio State Carlvin Ward (Amherst '70) had you hang by Now will University since 1970. served as Chief Planner for the your grip loosen, Addiction Planning and Coor­ And you'll yell "Look out below!" Schamis '68, Jeffrey (Rochester dination Agency in Newark, New On the ladder of success, 40 Chicago Ph.D. '72) had been an Jersey and was an instructor at the you got vertigo. instructor in here at Philosophy in Newark. Rutgers campus Around this ladder the University. golden Are bodies piled high.

Schuman 0 tried for Joseph (Carleton '69, LADDER OF SUCCESS People glory. Harvard M.A.T. '70) had worked as They thought that they could fly. a bank teller and the Director of the But they were mistaken, In our great society, Alternative Service Program of the As by now you know. as all Americans know, Greater Milwaukee Conference on On the ladder of success, A man can be a hero Religion and Urban Affairs. they got vertigo. Wherever he may go. Rayman Solomon (Wesleyan '68, He can reach the kingdom "This verse, also known as "Vertigo," Chicago M.A. '72) had been working where wealth and power grow, was created by Paul Strandberg, J.D. '74. The occasion for its on his Ph.D. in American Legal If on the ladder of success, performance, to a western tune untran­ History here at the University. he don't get vertigo. sung country scribable by the author, was a dinner Steven Sutton (Yale '69) had done I started out in grade school held by the faculty in honor of the grad­ on 1974. community work in Alabama, served Sprinting up the rungs. uating class of 1974 May 14, as a staff assistant for the Illinois I was a star in high school Constitutional Convention and was and heard my praises sung. an administrative assistant in .the I levelled out in college, THE KARL N. LLEWELLYN CHAIR Pollution Control Division of the then in law school fell so low. Illinois Attorney General's Office. On the ladder of success, In May, 1973, on the 80th I got vertigo anniversary of the birth of Karl N. Ricki Tigert (Vanderbilt '67, North Llewellyn, President Edward H. Levi Carolina M.A. '72) most recently Now students take this warning. announced the establishment of the served as a staff associate in the Pitfalls still abound. Karl N. Llewellyn Chair in Public Administration Service here You may get high from Harry, Jurisprudence. in Chicago while her husband, John, but Wally'll shoot you down. Llewellyn joined The University completed his studies in the As you climb towards heaven, of Chicago faculty in 1951 and was Law School. and the firms start calling low, Professor Emeritus of Law at the On the ladder of success Steven Wallach (Harpur College '67, time of his death in 1962. He earned don't get vertigo. Purdue Ph.D. '73) had been serving his B.A., LL.B., and J.D. degrees on a clinical psychology internship First you'll feel dizzy, from Yale University. He taught at at Vanderbilt University And your pace will slow. Yale's Law School and later became Medical Center. Next your step will falter the Betts Professor of Jurisprudence at Columbia Law School. He also was a professor at Leipzig and Harvard Universities. The architect of the Uniform Commercial Code, he was a life member of the Conference of

Commissioners on Uniform State

Laws. He also served as President of the Association of American Law Schools, a position presently held by his widow, Soia Mentschikoff. Llewellyn wrote extensively on legal matters. His book, The Common Law Tradition - Deciding Appeals (1960), was awarded the Henry M. Phillips prize by the Science and Philosophy of Juris­ prudence. His other works include a collection of at the recent Bramble Bush (1930), Members of the Law School Visiting Committee listen to student presentations meeting of the Visiting Committee on February 20, 1975. essays; Put in His Thumb (1931); a Daniel W. Meyer Northwest Industries John C. Pryor '10 Roger M. Quinnan George R. Richter, Jr. Victor G. Rosenblum 41 William W. Sadd '60 William A. Schnader Foundation Schnader, Harrison, Segal & Lewis Bernard Segal Hal M. Smith '54 Jay M. Smyser '58 Wallace J. Stenhouse, Jr., '55 Susman & Asher Foundation Charles C. Tillinghast, Jr. The Honorable Roger J. Traynor William Twining '58 Jerome S. Weiss '30 J. Gillis Wetter '59 Lawrence A. Wien Lawrence A. Wien Foundation, Inc. Jeb Wofford

it book of verse; Prajudizienrecht und make especially appropriate that CONTRIBUTORS Rechtsprechung in Amerika (1933); such a memorial be established (Gifts and pledges to $1,000) The Cheyenne Way (1941), an in Chicago." Terence J. Anderson '64 anthropological study on which he Norman Abrams '55 Carl A. Auerbach collaborated with E. A. Hoebel; DONORS TO THE Kathleen Beaufart and Jurisprudence: Realism, Theory, LLEWELLYN CHAIR James E. Beaver '58 D. Beem '55 and Practice (1962), a collection of Jack FOUNDERS Renato Beghe '54 essays wrote his Robert M. Llewellyn during (Gifts and pledges over $10,000) Berger '66 last 30 years. Harold J. Berman Anonymous Nicholas J. Bosen '66 Gaylord Donnelley Roger D. Billings Eric Haessler H. F. Birnbaum The professorship has been International Business Machines Mrs. Samuel W. Block established through contributions Peter D. Lederer Stanley Block '57 Soia Mentschikoff Llewellyn A. '51 from former Hugh Brodkey students, professional Norman I. Miller Heather S. Brown associates, and friends of Mr. Yung F. Chiang '65 Tom Llewellyn. Central committee mem­ GUARANTORS Christopher Robert C. Claus '57 include: (Gifts and pledges from $1,000 to $10,000) bers Nicholas deb. Katzen­ Frederick F. Cohn '62 bach, former Professor of Law at Aladdin Industries Prof. Joe Covington Chicago, JD Yale; Eric R. Haessler, Mr. and Mrs. Robert E. Allard '58; '53 The Honorable Oscar H. Davis Gilbert F. Asher '64 Thomas E. Davitt LL.B., Harvard; Lawrence R. Eno, Jack Lani Bader '60 John P. Dawson LL.B., Columbia; Peter P. Lederer, Ingrid L. Beall '56 Jane M. Dickerson Allison Dunham The of Walter J. Blum '41 J.D., University Chicago; Isadore Brown Thomas Ehrlich and Walter D. Malcolm, LL.B., Suzanne Brussel Clarke '56 Frank L. Ellsworth Harvard. Secretary of the Philip F. Cohen Thomas E. Ervin Robert T. Cornwell '58 Russell Fairbanks Committee is Assistant Dean Mr. and Mrs. Eugene Davidson A. Daniel Feldman '55 Frank L. Ellsworth. Dextra, Baldwin, Mcgonagle Foundation Martha Field '68 The Honorable Nanette Dembitz Edwin '63 At the time of the announcement F'irmage Ambrose Doskow Mitchell Fisher of the Llewellyn Chair, Dean Phil Joseph DuCanto '55 Brian D. Forrow C. Neal expressed the hope that the Richard R. Elledge '61 J. L. Fox '47 Lawrence R. Eno The Honorable Henry J. Friendly Chair will come to be recognized Carl W. Funk Nina Moore Galston "as a pre-eminent post in the field Philip T. Goldstein '57 John Gaubatz '67 William W. Golub Ann Glendon '61 of Jurisprudence at an American Mary and Edward Levi Lloyd A. Hale '59 Hyman N. Glickstein law school." Dean Neal continued: Joseph V. Heffernan Edward S. Godfrey "This important project establishes George M. J affin Raymond Goetz '50 Albert E. Jenner David B. Goshien '62 a fitting memorial to the life and Richard S. E. Johns Graubard, Moskovitz, McGoldrick, works of one of the great law Anne E. Kutak '62 Dannett & Horowitz teachers and scholars. Although Karl Jerome F. Kutak '28 Ernest A. Haggard Robert J. Kutak '55 Robert Hamilton Llewellyn's contributions trans­ David L. Ladd '53 Henry Harfield cended any single institution, his Peter F. Langrock '60 Frederick M. Hart Fairfax Leary S. influence upon The University of Geoffrey Hazard Mr. and Mrs. Edward Levi '35 T. '65 Law School and the Larry Hoyle Chicago Thayer Lindauer '63 John Hudson '62 existence here of his collected papers Mrs. Arthur S. Meyer William C. Jones George M. Joseph '55 Frank D. Mayer, Jr. '59 Richard Schwartz Jack Joseph '52 Laurel McKee '64 Milton N. Scofield Arthur Karger Vincent L. McKusick Thelma B. Simon '40 Delmar Karlen Maurice H. Merrill Edward D. Sims arion Duncan F. Kelmartin '67 The Honorable Millard L. Midonick Joseph A. Sinclitico 42 Charles D. Kelso '50 Phil C. Neal A. A. Sommer, Jr. Lillian E. Kraemer '64 B. W. Nimkin Alphonse M. Squillante Homer Kripke Bernard J. Nussbaum '55 George N. Stevens LeRoy Lamborn Paul Oberst Frank R. Strong Irwin L. Langbein Alan R. Orschel '64 Robert E. Sullivan Noble W. Lee Prof. Elvin Overton John K. Tabor Rex E. Lee '63 Harriet Pilpel Kenneth S. Tollett '55 Richard H. Lee Sidney D. Pinney, Jr. Erwin Tomaschoff '61 Morris I. Leibman '33 Mordecai Rochelin R. Bruce Townsend The Honorable Harold Leventhal Victor S. Rosenblum Harold A. Ward III '55 Carl S. Lloyd '20 Leonard D. Rutstein '55 The Honorable Sterry R. Waterman Adam M. Lutynski '71 Irvin C. Rutter Herbert Wechsler Brunson MacChesney Howard R. Sacks Howard C. Westwood Wex S. Malone Gordon D. Schaber Victor Whitehorn J. Keith Mann A. Bruce Schimberg '52 Mr. Jerre S. Williams David E. Mason '64 John Schuchardt '64 Kim A. Zeitlin '70 photography credits William Mares, p. 28; remaining photography by Richard L. Conner '75

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