44 FALL 1991
Justice Sandra O'Connor Our Eminent First Professor Dean Carl B. Spaeth Cover: Detail of illustration for "Copyright in the Information Age," the article beginning on page 4. Painted by Barron Storey, 1991. FALL 1991 44 (VOL. 26, NO.1) FROM THE DEAN 2 A Matter of Trust The campus speech issue has more than one side and no easy answers. By Paul Brest
FEATURE ARTICLES 4 Copyright in the Information Age New technologies are expanding the nature STAFF and use of intellectual property. DEPARTMENTS Can the law keep pace? Editor: Constance Hellyer By Paul Goldstein Associate Editor: Ann Dethlefsen 24 Editorial Assistants: School News Susan Infantino (AB '91), Jill Daniels (AB '92), and 10 Ann Babb 42 Contributing Editor: Ruth Welch Our Professor, the President Class Notes Designer: Ev Shiro, Benjamin Harrison and his landmark Stanford Publication lectures on the Constitution helped put your Services 87 alma mater on the map. Production artists: In Memoriam Joanna McClean By Howard Bromberg Prisci lIa Johnson 94 ALUMNI/AE WEE KEN D Alumni/a: Gatherings STANFORD LAWYER (ISSN 0585-0576) is published semi-annually for alumni/re and friends of Stanford Law School. 16 Back Cover Correspondence and materials for pub Coming Events lication are welcome and should be sent to: Editor, Stanford Lawyt'T, Stanford Friends, Football, and Law School,Stanford, CA 94305-8610. Copyright 1991 by the Board ofTrust ees of the Leland Stanford Junior Uni a Famous First versity. Reproduction in whole or in An account of the festivities, including the part, without permission of the pub lisher, is ptohibited. award to Supreme Court Justice Indexes: Articles published since 1980 Sandra Day O'Connor '52 are listed in Current Law Index, LegalTrae, and Dialog's Legal Resource Index. Issues ofthe magazine since 1966 Featuring Dean Brest and Justice O'Connor are available on microfiche through William S. Hein & Co., Inc., 1285 Main Stteet, Buffalo, NY 14209. A MATTER o F TRUST
PA UL BREST delivered the following message at the Law School's 98th Commencement onJune 16. It is based on a talk he gave at Swarthmore College earlier in the month upon receiving an honorary doctor oflaws (LL.D.) degree.
HOUGH this is a day for looking forward to life af ter law school, I'd like to There is reason for concern about glance backwards for a mo ment and consider a great the state of free inquiry in American challenge that faces Stanford and other institutions of universities, and equal reason for higher education-and that faces you as well. concern about the well-being of Let me begin by recounting re cent conversations I had with two diverse students on our campuses. students here this spring. Lisa is an African-American woman who is about to graduate. She has done well in law school, and is on her way to a clerkship with an excellent judge, followed by a job with a prestigious law firm. She hopes even- tually to become a law teacher-a realistic aspira tion, which I strongly support. Our conversation focused on the discussion of affirmative action in a course she had taken this term. Lisa acknowledged that the class discussion had been both considered and considerate, but said that it had made her physically ill. "When people question affirmative action," she explained, "they're questioning my very right to be here." Lisa went on to say-this bright, capable young lawyer-thatduring her three years in law school there was no day on which she did not feel that, because of her race, her qualifica tions and ability were called into question. Jeff is white. He just finished his first year and is going to spend the summer working for the firm that Lisa will join after her clerkship. Hecame by my office to ask my views about affirmative action in faculty hiring-a hot topic around the Law School
2 STANFORD LAWYER Fall 1991 this past year. Jeff, who described himself as politi cally "middle of the road," did not come to argue but to inquire. We spent the better part of an hour discussing some of the basic issues of affirmative action, such as the reasons behind it and the fairness and constitutionality ofdifferent methods of pursu ing it. Jeff's seeming naOivete led me to ask (in a roundabout way) whether he ever discussed these issues with classmates-for Jeff is a gregarious sort; I often see him chatting with friends in the student lounge. He replied that he was reluctant to-lest he
If you feel like you~re walking on eggs, imagine what it feels like to be the egg.
Paul Brest Richard E. Lang Professor and Dean
say the wrong thing. "What could happen?" I It is difficult for any of us to discuss, with asked. "You know," Jeff replied, "some people roll academic dispassion, issues that are central to our their eyes and think you're insensitive or a racist." identity or existence. And if Lisa feels threatened in There are lots of quick ways to dismiss Lisa or her everyday life, she's going to be especially reluc Jeff. You can dismiss Lisa's feelings as the inevitable tant to engage Jeff on controversial issues of racial price of affirmative action, not of any actual dis justice. It's no easy matter to create an environment crimination she has encountered. In any event, she where Lisa feels at ease. The incidence of hate speech should develop a tougher skin, for she'll never be as and violence is on the rise, and even if the campus is protected in the "real world" as she is on the a relatively benign place, the world outside is not. campus. As for Jeff-no one is stopping him from Certainly not for poor people ofcolor. And not even speaking his mind, and if he espouses racist posi for upper-middle-class Black people. You may have tions, well then, he should have the courage of his seen a recent newspaper article about the discrimi convictions and take responsibility for his views. nation experienced by Black consumers-ranging These facile responses are often accompanied by from suspicious looks to false arrests for shoplifting. popular slogans or cliches: "politically correct" to When I asked a Black colleague whether she had brand any view to the speaker's left; "racist" to such experiences, she laughed bitterly. She said she describe almost anything that gives offense; and is often watched closely in department stores. She "privileged" as a redundant modifier of "white had just attended a convention in San Francisco male" or even "white woman"-as if any Stanford where the hotel guards assumed she was a hooker student were not privileged compared to the popu until she started wearing her convention badge lation at large. conspicuously on her coat. These are common oc These easy put-downs may embody some currences for people of color in our country that I partial truths. But they are conversation-stoppers. and other whites seldom experience. They obstruct any genuine understanding of the So, if Jeff feels he's walking on eggs when he problems. talks to Lisa about issues of racial policy, imagine My own view is that Lisa's and Jeff's stories are what itfeels like to be the egg. Yet unless Jeffcan talk interdependent. Though the apocalyptic talk in the without feeling that his every word and gesture will media is way overblown, there is genuine reason for be interpreted with a presumption that he is stupid, concern about the state of free inquiry in American insensitive, or worse, it's a lot easier for him just to universities. There is equal reason for concern about shut up. Both Lisa and Jeff will lose much of the the sense of acceptance and self-esteem-and even opportunity that Law School offers them if they the safety-of students of color, women students, and gay and lesbian students on our campuses. Continued on page 41
STANFORD LAWYER Fall 1991 3
consumers. Yet, new information technologies promise to alter copyright's responsiveness to con sumer demand. To ask, as some do, whether copyright will survive the new in formation technologies is to get the question backward. Copyright law is an instrument, not an end in itself; it aims to serve consumer welfare. The correct question is whether the new information technologies will survive-and flourish-under copyright. How must copyright adapt if it is to serve consumer in terests in an expanding information environment? © CONFIDENT prediction about the technologies that will shape the infor mation environment of the future is of course impossible. Even at this moment, a child may sit before a computerterminal, not dreaming that she will someday invent a technology now unimagined, one that will over turn most of what we know about information's capacity to entertain and instruct. Consider: the revolu tion wrought by the personal com puter is today barely ten years old. Copyright law's responses to the new information technologies are easier to predict. The copyright act now in force is rooted firmly in the first United Statescopyright act passed in 1790. To be sure, two hundred years of technological development have tugged and pulled the law in several directions. Copyright's sub ject matter has expanded from maps, work may someday outstrip tradi mitred - with and without its owner's charts and books to include musical tional modes of publication. consent-across these and other me compositions, choreography, dra At first glance, this proliferation dia in digital form. matic works, motion pictures, sound of media for transmitting informa For consumers, the prospect is recordings and computer programs. tion may portend crossed wires and exciting: more information faster, The law's original exclusive rights information traffic jams. In fact, the less drudgery in research and data to print, reprint, publish and vend opposite is true. As Charles H. gathering, new forms and choices of have grown to include the right to Ferguson observed in a recent issue of entertainment. For producers, the glo perform, display and adapt copy the Harvard Business Review, "the bal information economy is burgeon righted works. Cable and satellite underlying technologies of printers, ing, with the United States a major television have come within copy photocopiers, fax machines, tele exporter. right'S net, as has the rental of sound phone switches, computers, cameras, These developments pose impor recordings and computer software. voice-mail systems, CD players, data tant challenges to copyright law and The same institutions that have archives, and televisions will soon be policy. Copyright is a market-driven shaped copyright law over the past astonishingly similar. In some cases mechanism, a property right that aims two hundred years seem likely to they already are." Increasingly, in to stimulate the production and dis shape it over the foreseeable future. formation will be embodied and trans- semination of information desired by Because these are relatively conserva-
------tive institutions, this means thatcopy One possible development is a Congress may find the answer in right will largely stay its course: division of intellectual property pro a sui generis regime crafted specifi Congress will balance the claims of tection into two tiers: conventional cally to the investment economics competing constituencies, courts will copyright for works like novels, paint of computer-created products. The fill the interstices of the statute, and ings and musical compositions that question is sufficiently important the Copyright Office will continue to reflect an author's personality; and a that the World Intellectual Property guide Congress and creators through different intellectual property regime Organization-a United Nations the copyright maze. for databases and other products of agency charged with oversight of Within these institutional con information assembly. international intellectual property straints, where will information tech arrangements-held a worldwide nologies pull copyright law in the © conference on artificial intelligence coming years? In what directions will and intellectual property at Stanford copyright channel technology? COMPUTER-CREATED products seem Law School in March of this year. likely to test the boundaries of copy © right subject matter over the longer term. Computer programs exist to © HISTORY TELLS us that copyright will day that, with little or no human TECH\iOLOGICAL advances can also continue to widen its subject matter intervention, can produce crossword be expected to create new ways to to embrace the products of new in puzzles, weather maps and even replicate and use copyrighted mate formation technologies. Two issues rial. The great drama of copyright complicate this trajectory-one short reform in the last century has been the term, one long term. law's effort to catch up with the For the short term, there is the decentralization of economically sig question of protection for computer nificant uses of copyrighted works. ized databases. Copyright has pro Home videotaping and audio tected collections of data from the Copyright law is taping, computer downloading, and beginning. But the fit, never felici library and office photocopying all tous, has become increasingly awk threaten copyright's basic incentive ward as data collections have grown an instrument, structure, because the transaction in economic importance. The prob costs of enforcement against these lem is that one part of copyright law decentralized uses will often exceed aspires to protect works of high au not an end in itself. any eventual reward to producers. thorship, while another part bends to How should copyright's exclusive protect the drudge work ofdata com rights be tailored in a world where, pilation. The Germans call the latter It aims to serve increasingly, the most economically kleine Munze-small change-and valuable uses of copyrighted works many countries consign it to the out will lie outside the copyright owner's skirts of copyright. But it takes a lot consumer welfare. effective control? more than small change to create As with new information prod data collections, and the outskirts of ucts, the challenge will be to maintain copyright may prove a dangerous proper rewards and incentives for neighborhood for their survival. information producers. Judging by Apart from subsidy, some form the past, Congress will respond by of protection will be needed if firms expandingcopyright to encompass at are to continue to invest in producing least some new uses. But the expan databases for consumer use. Butcopy other computer programs. The fu sion of rights has been-and may right may not be the answer. The ture promises more elaborate appli continue to be-more halting than term of copyright (typically 75 years cations, and the products will often the expansion of copyright subject for databases) and the Jaw's robust look no different than works created matter. Recent failed efforts to bring array of remedies may offer more by f1esh-and-blood authors. While home videotaping within copyright incentives-and more monopoly pric genius and labor may be required to control suggest a troubling pattern: ing-than database production produce the programs that generate By the time Congress or the courts are requires. At the same time, copyright's these products, no more than the cost in a posture to act definitively, the requirement of original authorship of electricity will be needed to pro new use has become too widespread, may undercut needed incentives. (The duce the products themselves. Who is too deeply entrenched in popular United States Supreme Court has the author of these automated works habit, to be easily dislodged through held, only this past Term, that one of -the author of the computer pro legal rules. When Universal City Stu the oldest forms of database-the gram that generates them, or the com dios filed suit in the Betamax case to telephone directory white pages puter program itself? And where is halt sales of videocassette recorders is uncopyrightable.) the required originality to be found? used to copy copyrighted programs off the air, relatively few American THE NEW digital environment will ages into full-blown works. Do you homes had VCRs. But by the time the increasingly allow the user, rather want to enhance your musical abili United States Supreme Court heard than the producer, to define the terms ties? Digital sampling will soon have final arguments in the case, VCRs and content of access-a trend that you singing like a Caruso. Technol were a fixture in the American home, portends changed conditions for ogy promises far richer audio and posing a practical hurdle to a decision authorship. visual enhancements for the future. for the copyright owner. Repositories exist that collect These developments spell signifi vast bodies of information-finan cant changes for copyright law's un cial, demographic, legal, technical, derlying incentive structure. Little © scientific-making them instantly copyright incentive is needed to pro PARADOXICALL Y, some of the same accessible through computer facili duce a custom-tailored newsletter, technologies that have facilitated ties. Vendors can assemble informa still less for the subscriber to create decentralized uses of copyrighted tion into daily reports tailored to a his own journal from available data. works may also help to solve the subscriber's individual needs. Are Contracts will facilitate the first ar debilitating problem of transaction rangement, self-interest the second. costs. Pay-per-view television is a Again, we may in some areas see current, rudimentary example of a diminished role for copyright's technology's ability to facilitate traditional incentive structure and market pricing for dispersed uses of an increased need for protection copyrighted works. focused on the information reposito For the future, consider the celes As information ries themselves. tial jukebox-a fantastic technology, to be sure, but also, realistically, one © that is not far from hand. A single assumes an facility will store great numbers of As I FORMATION ASSUMES an in copyrighted works in digital form creasing role in private and public sound recordings, motion pictures, increasing role life, access to information may begin novels, newspapers-anyone of to verge on necessity. If copyright which can be summoned on com continues to be enforced, access will mand, beamed up to a satellite, in private and be at a price-one that may, too beamed down to a user, and paid for often, be too high for the poor to by the user through an automated pay. Copyright itself is an inefficient billing system. It is 2 AM, and you public life, mechanism for redistributing wealth. want to hear Bartok's Concerto for Other means will need to be found Orchestra. Which conductor do you to repair the widening information prefer? Fritz Reiner? Zubin Mehta? access to gap between society's haves and Or perhaps Sergey Koussevitzky, have-nots. in the historic 1944 Boston Sym A similar problem recurs on a phony performance? Punch in your information may global scale. The divide between selection and the system will bill you economically developed nations that accordingly-presumably at a price are net copyright exporters, and that reflects the relative demand for begin to verge economically less-developed nations that particular version. that are net copyright importers, The genius of the celestial juke is today growing, not shrinking. box is that it will pay a work's owner on necessity. But, unlike other trade commodities, for every use of his work, at virtually information is a public good and no transaction cost. And, with infor perhaps deserves different treatment mation and entertainment readily in international treaty and trade available whenever the user wants it, arrangements. the temptation to make unauthorized copies should decline; correct pricing © -low prices for a great number of you interested in reading everything uses, rather than high prices for a few aboutdevelopments in contemporary UNDERLYING all this change is a fun -should all but eliminate incentives dance but nothing else? The technol damental paradox: As the copyright for subscribers to copy and store ogy exists for a search service to place industries increase in importance, so works off the system. a custom-tailored dance newsletter the importance of copyright enforce on your doorstep or in your com ment may in some quarters recede. puter mailbox. We are still in the early stages of the © Computer programs exist today Information Age. The public's ac that can manipulate sounds and im- ceptance today of private property PAUL GOLDSTEIN is one of the nation's leading author ities on copyright law. His many publications include a landmark, three-volume treatise from Little, Brown & Co., Copyright: Principles, Law and Practice (1989, supplemented annually) and a widely adopted law school text, Copyright, Patent, Trademark and Related State Doctrines (3rd ed., 1990). Goldstein joined the fac ulty in 1975 and was named to the Stella Wand Ira S. Lillick Professorship in 1985. A popular teacher, he has twice won the School's John Bingham Hurlbut Award for Excellence in Teaching. Goldstein is Of Counsel to Morrison & Foerster, where he works with the firm's in tellectual property group. The present article grew out ofaddresses at the bicen tennial celebration of the in information is far less secure than broad array of consumer demand. copyright and patent laws in its acceptance of private property Notions of private ownership Washington, D.C., and at in land. particularly ownership of something the University of Dayton It takes no greatly refined moral so fugitive as information-are slow Law School in connection sense to know that stealing a cassette to take root in the popularconscience. with its Program in Law and from a music store is wrong. But Yet, as new technologies enable co Technology. having paid for the cassette, you may vert access to copyrighted works, and feel no compunction about taping a private enforcement increasingly be copy to play in your car-or, per comes cumbersome and inefficient, haps, to give to a friend. Where, you public respect for intellectual prop may wonder, is the harm? erty may emerge as the single best but education. This prophecy-that The harm, of course, is that by safeguard against misappropriation. education about copyright law's making rather than purchasing the Just as travelers today instinctively ability to increase net social welfare additional copies, you deny income stay off a stranger's land, so travelers will be an important focus of public to everyone from the retailer all the in the information environment of policy in the future-perhaps reflects way back to the composer. The ulti the future may instinctively observe an educator's bias. But it is hard mate loser? The consumer. As the copyright law's implicit "No Tres to imagine a more important or, ul rewards to creators, producers and passing" sign. timately, a more liberating mission sellers diminish, so too do their incen Ultimately, the great task for for copyright discourse in the years tives to respond in the future to a copyright will be not enforcement, to come. 0 oDR PRO FESS0 R,
The little-known story of how a President of the United States, Beniamin Harrison, helped launch Stanford Law School. ------
************************************* * * * * THE PRESIDENT * * * " * * * * * * * * * By Howard Bromberg, J.D. * * * TANFORD'S first professor of law was a former President of the United * States. This is a distinction that no other school can claim. On March 2, 1893, * '-4I11P-' with two days remaining in his administration, President Benjamin Harrison * * accepted an appointment as Non-Resident Professor of Constitutional Law at * Stanford University. * Harrison's decision was a triumph for the fledgling western university and its * * founder, Leland Stanford, who had personally recruited the chief of state. It also * provided a tremendous boost to the nascent Law Department, which had suffered * months of frustration and disappointment. * David StarrJordan, Stanford University's first president, had been planning a law * * program since the University opened in 1891. He would model it on the innovative * approach to legal education proposed by Woodrow Wilson, Jurisprudence Profes * sor at Princeton. Law would be taught simultaneously with the social sciences; no * * one would be admitted to graduate legal studies who was not already a college * graduate; and the department would be thoroughly integrated with the life and * * ************************************** *************************************
during Harrison's four difficult years * in the White House. * In 1891, Senator Stanford helped arrange a presidential cross-country * train tour, during which Harrison * visited and was impressed by the university campus still under con * struction. When Harrison was * defeated by Grover Cleveland in the 1892 election, it occurred to Senator * Stanford to invite his friend-who * had been one of the nation's leading lawyers before entering the Senate * to join the as-yet empty Stanford law * faculty. Few expected President Harrison * to accept. Not that Senator Stanford * had failed to make the terms attrac tive. Harrison was offered a limited * teaching schedule; the opportunity * to lecture on any topic he chose; and the then-fantastic salary of $10,000. * But Harrison had already made it * clear that he wanted to spend the years after his presidency quietly. * The President also had to consider the proper role of an ex * president. America had a strangely * ambivalent attitude toward its former chiefs of state: It was thought un * democratic to provide them with * pensions, but degrading to their former office for them to accept * paid employment. Certainly no ex * president had ever joined a college faculty. Teaching per se-much less, * teaching at a struggling young * college-might not be an appropri ate sequel to the nation's highest * Leland Stanford (left) entertained President Harrison (seated) and Postmaster General John office. * Wanamaker (right) at the Senator's campus home during the presidential tour of 1891. Nonetheless, after several weeks Wanamaker would later help Harrison prepare the Stanford lectures. ofzealous effort by SenatorStanford, * Harrison did accept. His reasons * can best be described as patriotic. mission of the university. It was a would open in the 1893-94 acade Harrison had become convinced * dynamic bl ueprint thatJordan hoped mic year without a single professor. during his presidency that Ameri * would attract established scholars. And then Leland Stanford man can public life had been corrupted He was soon disillusioned. Most aged one of the more spectacular by greed and selfishness. The rem * of the well-known law professors coups in the history of American edy, he concluded, was to educate * Jordan approached showed interest education. Americans in the benefits of self in his plans, but no more than that. government and instill a "greater * Two professors did accept offers of reverence for law." If he could in employment; but one subsequently ELAND STANFORD and Ben culcate in new generations the values * decided to go to Cornell, and the jamin Harrison had been of disinterested citizenship and ser * other, after some thought, asked for firm political allies since the vice, he wrote President Jordan, he a leave of absence to observe the [JJ days when they were both would "accomplish a work more * progress of Jordan's plans. It ap United States senators. Their alli lasting than anything I have yet been * peared that the Law Department ance ripened into a close friendship able to do." * *************************************
12 STANFORD LAWYER F311 1991 *************************************
Senator Stanford had encour public, who would pay $1.25 a lec of the gradual unfolding of the aged Harrison to lecture on the need ture ($6 for the series). The site would distinctive elements in American con * for an international code of law, but be the University's largest hall, the stitutional government. He traced * Harrison desired a subject more temporary chapel, which could seat the Bill of Rights, separation of suited to his inspirational purpose. 800 people. powers, checks and balances, judi * The Centennial of the Constitution There, surrounded by reproduc cial review, federalism, and other * had fallen during his presidency, and tions ofRaphael Madonnasand with features of the United States Con Harrison had been greatly impressed a Bible by his side, Harrison pre stitution to similar provisions in * by the effect of the celebrations on sented his meticulously prepared lec the colonial charters, the state * the nation. What better way to in tures to packed audiences. In these constitutions, and the previous spire Stanford students with a love lectures, Harrison boldly took up confederations. The two hundred * of American civil institutions than the most vigorous scholarly debate years ofexperimentand refinement * by explicating the history of that of his day on the Constitution. One a process guided by the "compelling fundamental document of the re side of the debate-what might be hand of Providence," the devout * public, the Constitution. called the "revolutionary" theory Harrison was always careful to add * Harrison decided to present a was epitomized in Gladstone's had brought forth "the most free series of six lectures on the subject famous description of the Constitu and perfect system of government * and spent the summer and fall of tion as "the most wonderful work that men have ever enjoyed." It * 1893 in diligent preparation. In this was an argument well suited to undertaking, he had the benefit of Harrison's purpose of making the * the outpouring of scholarship sur Harrison's Stanford students' "love of our institutions * rounding the recent Centennial. deeper and more intelligent." Harrison devoted several hours a lectures, which were * day to reading the latest treatises * on the history of the Constitution; followed eagerly HE LECTURES were followed commentaries by British scholars eagerly not only at Stanford * comparing the American constitu throughout the but throughout the nation. * tion with their unwritten one; and LlJ People were curious as to the letters, pamphlets, and debates nation, introduced what a newly retired President * of the founding fathers. After orga would have to say about the form * nizing his copious notes, Harrison the general public to of government over which he had dictated successive drafts to his per just presided. Seven stenographers * sonal secretary, until he felt that he the evolutionary attended Harrison's first lecture, had gotten his lectures just right. and verbatim transcripts appeared * Exhaustively researched and care theory of in several newspapers. Subsequent * fully composed, they were cogent, lectures were also extensively re coherent, and forceful. the Constitution. ported throughoutthe country. These * accounts were nearly unanimous in * praise, with "masterful," "adroit," N MARCH 5, 1894, the for ever struck off at a given time by "charming," "lucid," and "schol * mer President, accompanied the brain and purpose of man." arly and dignified" among the enco * [JJ] by his secretary and a Pres The opposingview-"evolutionary" miums. Readers responded with a * byterian minister, arrived as it were-was advanced by the spate of excited and enthusiastic on the Stanford campus to the cheers new professional class of historians, letters. Harrison seemed to have in * of waiting students. He was given a trained in universities and writing in deed accomplished his purpose of suite of rooms in Encina Hall, then academic journals, who had risen up making the Constitution better * the men's dormitory. in opposition to what they consid known and respected. * From the time Harrison's fac ered a romanticized version of The reactions ofstudents-who ulty appointment had been an history. Patiently poring through had to take in the dense and com * nounced, there had grown a great older documents and records, they plex material in one-and-one-half * clamor to hear him. It was therefore attempted to show that the Consti hour sittings-were more restrained. arranged that Harrison would de tution flowed from the long and The editor of the Stanford Daily, * liver each lecture twice: the first time difficult experiences of colonial writing some thirty years later, com * to the University faculty and to America. plained that he could not "recall one students in law and other social sci Reflecting his intensive study of memorable utterance." And two * ences; and the second time to the the latest scholarship, Harrison took brothers-Encina residents who had remaining students-all otherclasses the side of the new historians. His become acquainted with Harrison * being canceled-and to the general lectures were a careful exposition described the lectures as the "least * **************************************
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enjoyable" that they had heard at removed the only University offi United States Senate." * Stanford. cial with experience at the highest Harrison's tenure at Stanford, * Perhaps more significant, how levels of government. Without the though brief, was of great signifi ever, was the reaction of the apple founder's guiding hand, the cance. From a national perspective, * cheeked Stanford student who would University administration dismayed the Stanford lectures were a major * someday himself be President: the former President by allow educational and civic event, present Herbert Hoover. "I profited by the ing unauthorized publication of ing to a broad audience-apparently * lectures," he would recall. Harrison's Harrison's lectures, and by ineptly for the first time-the evolutionary * stay also gave the earnest 19-year handling a theft of wine from theory of the Constitution. In addi old his "first contact with a great Harrison's room. (An account of tion, Harrison's professorial under * public man"-an amusing episode this curious episode appeared in taking established university teach * still vivid to Hoover when he began the June 1991 issue of Stanford ing as worthy of an ex-President. writing his memoirs some twenty Magazine.) Several ofHarrison's immediate suc * years later [see opposite page]. Perhaps the most important rea cessors in the Oval Office would in * Harrison, though at Stanford pri son for Harrison's change of plans, fact follow his example. marily to speak on constitutional * history, also participated actively in * the life of the University. The former President delivered speeches on * Founders Day, at the Students' Mid * winter Fair, and to the Stanford Christian Association and the Trust * ees; visited the Stanford chapter of * his old fraternity, Phi Delta Theta; and gave several tender eulogies to * his friend, Leland Stanford, who had died the previous summer. * Among his many get-togethers * with student groups, Harrison had a private meeting with 70 law * students. He encouraged them to * engage in "profound study," not only of the decisions of cases, but * of the general principles that de * termined those decisions. The former President also urged them, once they * become lawyers, to put the well * being of society before their own professional goals. They should be * "influential ... on the side of justice, * good morals, and right politics." however, was the severe strain that To Leland Stanford's young uni teaching exacted onthe weary former versity, the appointment of the * President. He had found the task of former President brought a new and * RESIDENT HARRISON left preparing definitive lectures-they precocious stature. Stanford Univer * Stanford on April 16, 1894, would eventually be published as a sity and its influential founder had [PJ for his home in Indiana book-so draining as to be "work accomplished a feat that had eluded * polis. His plan, he then an and not fun." Nor was delivering the even the most hoary and prestigious nounced, was to resume his lectures lectures any easier. Harrison was of the eastern colleges. * the following year, bringing the story famous for his oratorical abilities But the greatest impact of Har * of the Constitution from its adop one of the reasons why Senator rison's tenure at Stanford was on the tion to the present day. Stanford was so eager to recruit newly launched law program. For * It never happened. Harrison him-and enjoyed the swirl and merly spurned and humiliated by * remained officially on the faculty noise of the political hustings. But several professors, the Law Depart until 1896, but did not return to when he looked out on a hall ment became the most glamorous * the Stanford campus. There were packed with 800 eager Stanford department in the University the in several reasons. Leland Stanford's students, notebooks open, pens in stant Harrison joined. Enrollment * death had broken the strong link of hand, Harrison felt "more trepida more than doubled, the library * friendship. Equally important, it tion" than when he "addressed the expanded, and the vacillating pro- * **************************************
14 STANFORD LAWYER Foil \99\ *************************************
fessor on leave came to teach. In the sometimes difficult years to follow, * the Stanford Law Department, soon * to be the Stanford Law School, could always take inspiration from the lofty * example set by its first professor. 0 * * * * The Lectures * Although somewhat dated by their * too-heavy emphasis on the evolu tionary nature of constitutional * formation, Harrison's Stanford lec * tures still make interesting and informative reading. They are con * tained in Views of an Ex-President * (Bowen-Merrill, 1901), a posthu mous collection of Harrison's * speeches published by his widow. Once and Future Presidents * The drafts ofthe lectures -over 860 pages worth-are among the [STORY SOMETIMES takes curious turns. One such was * Benjamin Harrison Papers at the Li brary of Congress (also available on the encounter at a Stanford baseball game ofthe twenty * microfilm). From these documents, third President ofthe United States and the impression * it is possible to observe Harrison's painstaking preparation, as well as able student who would eventually become the thirty-first in that * the extensive readings and authors high office. Their meeting-described by Herbert Hoover in his * he used for authority. -H.B. memoIrs-was both amusing and revealing: * * * "Former President Benjamin Harrison had been induced by * Senator Stanford to deliver a course of lectures upon some phases HOWARD BROMBERG taught Legal * Research and Writing at Stanford of government. I profited by the lectures. But then as manager of Law School from 1988 to 1990 and * the baseball team I had a stern duty to perform. We had no is currently a candidate for the J.S.D. * degree. Trained in both history and enclosed field. We collected the 25 cents admission by outposts of law (Harvard B.A. 1980 and J.D. * students who demanded the cash. One afternoon Mr. Harrison 1983), he has been commissioned to * write the history of Stanford Law came to the game. Either he ignored the collector or the collector School's first 100 years. Readers * was overcome with shyness. Anyway that outpost reported to with papers, anecdotes, or photo * graphs from the School's past are me that Mr. Harrison had not paid. I collected the money. Mr. encouraged to get in touch with * Harrison was cheerful about it and bought also an advance ticket Bromberg at Escondido Village * 96-D, Stanford, CA 94305; tele to the next week's game. He would not take the 50 cents change phone (415) 497-0887. * from a dollar. But I insisted that we were not a charitable * institution and that he must take it. Justice must occasionally be * * done even to ex-Presidents ..." * -Herbert Hoover, The Memoirs of Herbert Hoover, * Vol. 1: Years ofAdventure (Macmillan, 1951), p.21. * * * *************************************
STANFORD LAWYER Fall 1991 15 Friends, Football, and a Famous First
"T HE START was right here, and tinguished attorney whom Dean Brest justice. The session ended with a ques the heart still is." With these termed "president of the most exclu tion-and-answer period, followed by warm words, Sandra Day O'Connor sive club in the world: the Men's Aux a reception in Crocker Garden. (Ex '52-the first woman to serve on the iliary to the Supreme Court"-John]. cerpts from the O'Connor events U.S. Supreme Court-accepted the O'Connor III '53. Dean Brest's tribute and the Justice's School's 1990 Alumni/x Award of The O'Connors had spent time talks to students and alumni/x Merit. the previous day with students at the appear on pages 20 to 23.) The award ceremony, with Dean School. On the invitation of Women Alumni/x Weekend proper was Brest as host, took place before some of Stanford Law, Justice O'Connor launched Friday at 5 PM with the now 200 happy graduates and friends atthe spoke to a standing-room-only audi traditional reception at the campus all-classes banquet on Saturday, Sep ence in Crown Quad's largest class home ofPaul and Iris Brest. Members tember 22, during the annual Law room. WSL co-chair Jamie Grodsky of ten classes (all from years ending in Alumni/x Weekend. Guests included ('92) and Professor Barbara Babcock oor 5), plus the indefatigable Half University president Donald Kennedy, (the School's first woman professor) Century Club, then scattered for their several alumni/x jurists, and the dis- joined in introducing the trail-blazing respective reunion dinners.
16 STA FORD LAWYER Fall 1991 FROM THE CAPITOL The Saturday morning program be gan with a talk by Professor-cum Congressman Thomas J. Campbell (R-12th California) on what he has learned as a freshman legislator. Some nuggets: ~ "Process controls substance. There fore, the person who controls the agenda has great power." ~ "Thirty seconds wins over thirty minutes any time." ~ "As the proximity to an election narrows, the ability to affect votes by positives decreases, while the ability to affect votes by negatives grows." ~ "Your influence in the House is in versely proportional to the time you spend on C-Span. " ~ "There is, at the end ofthe day, some justice." Congressman Campbell con cluded this somewhat wry presenta tion on a more serious note: "What really matters is whether the votes you cast will be ones you would be com fortable with twenty years hence."
YOUNG LAWYERS Next on the program was a panel of graduates from the Classes of 1980 and 1985. Their assignment: to give their views, as relative newcomers to the legal profession, on their prac tice and, more generally, their quality of life. The panelists represented a range ofcareerchoices. Ramon Gonzales '80 is a law-firm partner specializing in labor and employment law litigation with Sutin, Thayer & Browne of Al buquerque. BradJones (JD/MBA '81) is involved in high-tech industry in vestments with Brentwood Associates of Los Angeles. Ascanio Piomelli '85 is dedicated to legal services as direc tor of the East Palo Alto Community Law Project. And Nancy Rapoport '85 specializes in bankruptcylawand liti Top: Adam von Dioszeghy '70 gation as an associate at Morrison & and companion, with Law Fund Foerster of San Francisco. Professor chair William F. Kroener III '71. Robert Weisberg '79 served as mod Above: panelists Ramon erator. Gonzales '80 and The perspectives of the panelists Nancy Rapoport '8S. were-as might be expected-varied. Right: Congressman But interestingly, all seemed generally Tom Campbell. satisfied with their choice of law as a profession, their post-law-school careers, and their lifestyles.
Fall 1991 STANFORD LAWYER 17 VIEW FROM THE BRIDGE Other alumni/ MUCH TO CELEBRATE A large contingent of the visiting alumni/ 18 STANFORD LAWYER Fall 1991 Opposite page, lelt: Professor Robert Weisberg '79, panel moderator. Top: John J. O'Connor III '53 and John H. Bickel '60. Below: Former Associate Dean Jack Friedenthal and Jo Anne Friedenthal '60. This page, top: The welcoming party, hosted by (below) Dean Paul Brest and Iris Brest. Center: Professor emeritus Moffatt Hancock at the (rocker Garden luncheon. Below, lelt: Roderick Hills '55 and Stanford president Don Kennedy at the 011 alumnif;l! banquet. Fall 1991 STANFORD LAWYER 19 ------Alumni/ce Weekend 1990 ------ In Praise of Sandra Day O'Connor '52 N SEPTEMBER 25, 1981-almost Some years after her graduation, Onine years to this day-Sandra Justice O'Connor had occasion to re Day O'Connor became the nation's flect on her years at the Law School. 102ndJusticeofthe Supreme Courtof In a letter thanking law students who the United States. She was the second had started a book fund in honorofher Stanford Law School graduate named appointment to the Supreme Court, to the Court and the first woman ever she wrote: to become a member of that body. "It was at Stanford Law School that it all began; it was there that I commenced my long, totally unex • pected walk into history. The Law I want to give you a sense of the School was such a joy to me (except wonderfully whole person who lies be possibly during dead week). I mar hind these facts and transcends them. veled at the talents of great profes Sandra Day was born in 1930 to sors. I developed some of the closest Harry and Ada Mae Wilkey Day, who friends I will ever have. I crammed made their home and their living onthe for finals at the end of my first year Lazy B Ranch, a large spread on the with my good friend Bill Rehnquist. New Mexico-Arizona border. The I met my husband on a Stanford Law dayshe was born, her fa ther was stuck Review assignment.... Beyond those in a federal courthouse in Tucson personal relationships, my opportuni battling a bunch of lawyers in a case ties for service as an assistant attorney that had dragged on for years. He re general, as a state senator and as a counted: "I don't remember telling judge all flowed from the school you Sandra Iwanted her to be a lawyer, but now attend." after dealing with slick lawyers for ten years, I thought: 'Damn, I'd like to have a little legal advice from some By Paul Brest • where in the family.'" Richard E. Lang Sandra O'Connor's life up to and While Sandra Day spent some of Professor and Dean including Law School gave her good her early years in El Paso, which had reason to believe that the world would the best schools around, her real love treat her based on her own merits. So was her home on the Lazy B. This was her first efforts at finding a job as a a working ranch, and she worked. "I also be her first year of Law School. recent graduate must have come as a didn't do all the things that boys did," Needless to say, she excelled, and was shock. "I interviewed with law firms she recalls, "but Ifixed windmills and a member of the Law Review and the in Los Angeles and San Francisco," she repaired fences. " Order of the Coif. recalled. "None had ever hired a woman associate before, and they were notprepared to do so." (One firm • • actually counteroffered with a job as Upon graduation from high One evening in her third year, a secretary.) But, she said, "I wasn't school at the age of 16, she applied to Sandra was working on a Law Review frustrated. Iwas just redirected toward Stanford, where she was accepted de assignment together with a second public service, and it hasn't been dis spite stiffcompetition from returning year student-one John O'Connor. appointing." GIs. Sandra Day was the president of They had dinner afterwards-and for her dorm and of Cap & Gown; she the following 41 evenings. When majored in economics-not a typical asked about this years later, she • women's subject at the time-and mused: "Beware ofproofreadingover From 1965 to 1969, Sandra graduated with great distinction. a glass of beer." O'Connorserved as assistant attorney Sandra Dayattended Law School general of Arizona (she was the first under the so-called"3-3 "plan, by woman, of course). In the words of a which a student's senior year could • colleague: "She had a mind like a steel 20 STANFORD LAWYER Fall 1991 trap. She drove a hard bargain and It was while serving as a court of respect and regard for the Constitution didn't cave in." appeals judge that she received a of this country." From 1969 to 1975,she served in phone call from William French the Arizona Senate, and was chosen Smith, President Reagan's Attorney majority leader (needless to say, also General. Mr. Smith had been a part • the first woman). Senator O'Connor's ner at the Los Angeles firm that had justice O'Connor has taken a views were described as in the Repub made the interesting counteroffer leadership position in at least two ar lican mainstream with "moderate to when she had sought her first job af eas of constitutional law. One is the conservative commitments, though on ter law school. She recounts that when law concerning the separation of many issues she disregarded political the Attorney General telephoned to church and state. Even Laurence ideology.... She was strictly an issue ask her if she could come to Washing Tribe, not known for his lavish praise, oriented person. If the program was ton to talk about a position there, "I says that"her religion test is the best good for the state, it didn't make a effort around." whole lot of difference to her which The other area is federalism. jus side initiated the issue." (Among other tice O'Connor is the only member of things, she supported the Equal Rights the current Court ever elected to a Amendment.) public office, the only one to serve in a A Democratic colleague described legislature. Senator O'Connor's workstyle with awe: "She worked interminable hours and read everything there was. It • was impossible to win with her. We'd Each Halloween, justice go to the floor with a few facts and O'Connor brings a pumpkin to her let rhetoric do the rest. Not Sandy. chambers for her clerks to decorate. She would overwhelm you with Last year, in honor ofthe justice's first her knowledge." grandchild, the clerks fashioned a Grandmajustice, who sported yellow curls and a pleased smirk. A blissful • looking pumpkin baby attired in a During this period Sandra pink dress lay in its arms. The justice O'Connordecided to take up golf. She holds the affection not only ofher chil took daily lessons with the club pro at dren and grandchild, but of her clerks Paradise Valley Country Club for sev Alumnif;e Award of Merit recipient and, as she describes them, her grow eral years, and only then played her ing number of "grandclerks" as well. first game-and shot under 90. Her brother once said: "Whatevershe did, immediately guessed he was planning whether it was important, unimpor to offer me a secretarial position-but • tant, or semi-important, or very im would it be Secretary of Labor or Sec justice Sandra Day O'Connor portant, she just would do it with retary of Commerce?" for what you have given yourState and perfection.... Ifyou said, 'The job is The rest, as they say, is history the Nation in an extraordinary career to wash the dishes,' she would do it -a history that is still unfolding. devoted to public service and for the betterthan anyone else." A friend said example you have given the students, that "with Sandra O'Connor there both the women and men, ofStanford ain't no Miller time." • and other law schools-it is an honor At her Senate confirmation hear to present you with the Law School's ings, Senator Baucus asked the nomi Alumni/a:: Award ofMerit; and in this • nee how she wanted to be remem tenth year of your appointment to the From 1975 to 1981 judge bered. She replied: "The tombstone Supreme Court, to wish you many, O'Connor served on the Maricopa question-what do I want on my many more and extend my hope that County Superior Court and then on tombstone? I hope it might say: 'Here you'll return to celebrate some ofthem the state Court of Appeals, appointed lies a good judge.' IfI am confirmed," with us.D to the latter position by Governor she went on to say, "I am sure that I Bruce Babbitt, who spoke of her "as would be remembered as the first Excerpted from Dean Brest's tonishing intellectual ability" and her woman to have served on the Supreme remarks in presenting the seventh "great sense of judgment." Court. I hope that in addition I would annual Alumni/a? Award of Me be remembered for having given fair rit, on September 22, 1990 at the and full consideration to the issues that Alumni/a? Weekend banquet. • were raised and to resolving things on an even-handed basis and with due Fall 1991 STANFORD LAWYER 21 ------Alumnike Weekend 1990 ------ The Making of a Justice INE YEARS AGO this very day The activity of the Senate Judi N[September 21,1981] the Senate ciary Committee has certainly in was voting on my nomination for the creased through the years in terms of Supreme Court. I remember sitting in their desire to actually question the a little back room at the Senate, wait nominees. For many, many years it ing for the vote. I could hear the pro was thought improper for judicial ceedings on a P.A. system. The nominees to be questioned at all. If I senators' names were called, and they remember correctly, the first time that all said, "pass." The names were called a nominee actually appeared before again, and again they all passed. I the Committee was the appointment was in a near state of disarray, think ofJustice Brandeis. Then it was done ing, "What'shappening?" Finally, one only a little bit; just a few questions ofthe senators wandered in, and said, were asked. "Oh that happens all the time. We With the nomination of Judge never get around to it until the Bork we saw perhaps the most exten third roll call." Well, they finally did sive questioning of a potential Justice get around to it, and it was an aston and very full replies by the nominee. I ishing and surprising day. doubt thatthe Senate is going to retreat from that involvement. It does provide national television coverage for the • participants, and that's sometimes ir I thought that I would share with resistible. I think the nation is quite you a little commentaryon the process fascinated with the process anyway of selecting a Justice. President John and rightfully so, so I would be sur Adams once said, "My gift ofJustice prised to see any retreat from the cur John Marshall to the people of the rent level of inquiry. United States was the proudest act of my life." Another less satisfied Presi By Hon. Sandra Day O'Connor '52 dent referred to one of his appoint AssociateJustice, • ments to the Supreme Court as "my U.S. Supreme Court What are the factors influencing biggest mistake." Well, how do Presi the selection of a nominee to the dents go about giving such gifts or Court? It is hard to generalize. Justice making such mistakes? Holmes once said the job of a jurist Inalmost 200 years, only 104Jus Convention. It replaced the original requires a combination of Justinian, tices [105 countingSouter] have actu language, "reject and approve." Al Jesus Christ, andJohn Marshall. That ally served on the Court, which comes most all the debate at the Constitu combination, as we all know, is rarely to about one nomination every other tional Convention concerning the attained. Because the nominee will year. A nomination to the Court, then, judicial branchfocused on the process usually outlast (in office at least) the is in terms of frequency about half as for appointing Justices. The criteria President who makes the appoint special as a presidential nomination. for selection were notdebated. Thedele ment, there can be no doubt that the A nomination to the Court also in gates simply assumed that the sel President generally seeks through the volves infinitely less public participa ection would be on the basis of merit. appointmentto have a lasting effect on tion and releasing of balloons, but it Doctor Benjamin Franklin suggested the Court and the nation. Unsurpris is still the occasion for public interest. the Scottish mode of appointment in ingly then, all but twelve nominees which the nomination proceeded from have been of the same political party the lawyers, who always selected the as the President making the nomina • ablest ofthe profession in order to get tion, but it's generally conceded that The constitutional requirement rid of him and share his practice Presidents are frequently disap that Supreme Court appointments be among themselves. pointed. made with the "advice and consent" When asked whether a person of the Senate was inserted during the becomes any different when he puts on closing days of the Constitutional • a judge's robes, Justice Frankfurter 22 STANFORD LAWYER Fall 1991 responded, "If he's any good, he • expedient-it has become settled law. does." Presidents Jefferson and The degree to which the Supreme Madison were exceedingly disap The appointments to the Court of Court will interfere with economic leg pointed at the failure of their appoin another Stanford alum, President islation is now severely circumscribed. tees to resist the influence of Chief Herbert Hoover, are illustrative ofthe In a real sense the very structureofour Justice John Marshall. Theodore unexpected results of these appoint government with its huge administra Roosevelt was similarly chagrined at ments. You will recall that President tive apparatus was made possible by some of the rulings of Justice Oliver Hoover placed three Justices on the the switch of the Hughes Court's ap Wendell Holmes. When Holmes cast Court in the four years of his presi pointees ofPresident Herbert Hoover. his vote against the government in an dency: Chief Justice Charles Evans It's always dangerous to play the important antitrust case, Roosevelt is Hughes and Associate Justices Owen "what if?" game with historical facts, reported to have said, "Ican carve out J. Roberts and Benjamin N. Cardozo. but I think it is possible that constitu of a banana a judge with more back They were still members of the Court tionallaw and perhaps the structure bone than that." As Alexander Bickel during the years when a number of ofthe Supreme Courtitselfwould look has said, "You shoot an arrow into a President Franklin Roosevelt's New different today if President Hoover far distant future when you appoint a Deal legislative proposals and enact had been more concerned with ideol justice, and not even the man himself ments were struck down. This persis ogy and less with qualifications and can tell you what he will think about tent habit led to the Roosevelt balance in making his appointments. some of the problems he will face." Court-packing plan and ultimately to Imagine if, instead of Benjamin President Truman captured the heart Justice Roberts's switch in time that Cardozo, President Hoover had ap of the problem in these remarks: saved nine. pointed his conservative Attorney "Packing the Supreme Court simply There is little doubt about the very General William Mitchell; orif instead can't be done. I've tried it and itwon't real effect the switch has had on con of Charles Evans Hughes, the Presi work. Whenever you put a man on the stitutional jurisprudence. The view dent had appointed a free market ideo Supreme Court, he ceases to be your that the Constitution allows extensive logue. Ofcourse, one never knows; as friend." government regulation of the I said earlier, service on the Court has economy was no temporary political changed the thinking of many a Jus tice. Owen Roberts came to the Court as a well known, laissez-faire capitalist and yetchanged his mind. You shootan arrow into a far distant future when you appoint a Justice. • When we get a new Justice, it is more than gaining a new Justice. In a very real sense, it creates a new Court. Each newJustice who joins us changes the working dynamics in ways subtle and sometimes not so subtle. • I think all of us as judges try to set aside any personal concerns we have and approach the issues that we have to decide as objectively as we can. But we're all human, and no doubt each of us is influenced in very subtle ways sometimes ways which we ourselves don't recognize-in how we analyze problems, how we approach them, the weight that we give some arguments to the exclusion of others. Try as we will we are still the product of our backgrounds. The honoree and her student introducer - Jamie Grodsky (3l) - following the Justice's September 21 meeting with students. Continued on page 41 Fall 1991 STANFORD LAWYER 23 New Faces of 1991 School Makes Three Notable Additions to the Faculty undergraduate record, spring when the Harvard written with John Braith which included majors in Law Review (104:817) waite, suggests innovative both economics (with dis published "Fair Driving: methods for delegating tinction) and Russian and Race and Gender Dis regulatory authority to East European Studies crimination in Retail Car private actors. Now in (also with distinction), Negotiations." The ar press, it is called Respon election in his junior year ticle, which was based on sive Regulation: Tran to Phi Beta Kappa, and Ayres's ABF research scending the Deregulation graduation (B.A., 1981) study, showed that the Debate. summa cum laude. proffered price of an auto Much of Ayres's work In the five short years mobile can vary signifi exhibits a concern for the since law school, Ayres cantly depending on the less-privileged members of has been admitted to the race and sex of the shop society. The automobile Illinois Bar, clerked on the per. Car dealers (at least shopping study is one ex Tenth Circuit Court of in the study area of Chi ample. Another is a paper Appeals, spent a summer cago) offered the highest for the Northwestern Law as scholar in residence prices to black males and Review on retail markup at a law firm (Chicago's black females, and the disclosure. A third in IAN AYRES Sonnenschein Nath & lowest to white males, volves the price and avail Lawyer-Economist Brings Rosenthal), written 12 even though all buyer ability of insurance, with Corporate Law Expertise academic articles, co testers followed an identi Ayres serving as an eco authored a book for the cally scripted bargaining nomic expert to the attor THE LA wand Business Oxford University Press, strategy. neys general of 18 states curriculum is gaining a served as associate editor Other articles by Ayres for the case In re Insur new asset with the addi of the journal Law and explore issues where eco ance Antitrust Litigation, tion of antitrust expert Ian Social Inquiry, conducted nomics and law intersect. C88-1688 (N.D. Cal.). Ayres. Previously a pro an empirical research In a 1989 Yale LawJour He has been continu fessor at Northwestern study with the American nal piece (99:87), "Filling ously involved in pro Law School, Ayres has ac Bar Foundation, and en Gaps in Incomplete Con bono work, participating cepted the invitation of gaged in various pro bono tracts," Ayers and co in such activities as the the Stanford Law faculty activities. author Robert Gertner Harvard Prison Legal As to become a permanent This past academic discussed how lawmakers sistance Project and the professor here. year (1990-91) he was should establish legal New Haven Battered A rising star in the field both a visiting professor rules that private parties Women's Temporary Re of corporate law, Ayres at the University of Vir can contract around. straining Order Project. received a J.D. in 1986 ginia and a guest scholar Ayres has also written Just last September, he from Yale (where he was of the Brookings Institu about antitrust policy and convinced a judge to va articles editor of Yale Law tion. Now at Yale for a the increasingly subtle cate a death sentence in an Journal) and a Ph.D. in term as visiting professor, forms of collusion by Illinois case where he had economics in 1988 from he plans to take up resi which industries may de been counsel. Massachusetts Institute of dence at Stanford early in feat the purpose of anti In a lighter vein, Ayres Technology. This feat was the new year. trust laws. is remembered at Yale as foreshadowed by his Yale Ayres made news this His Oxford Press book, much for his singing as his 24 STA FORD LAWYER Fall1991 scholarship. He was a so serving as one of the first after taking up legal stud loist with the Yale Rus executive editors of the ies-often focus on femi sian Chorus and with Yale Journal ofLaw and nist concerns and sexual Wiffenpoof. Also a mara the Humanities. And in identity issues. While at thon runner (Boston two published articles, she Hamilton, she helped de 1984, in 3 hours, 12 min has examined the way in sign and implement its utes), he placed first in the which legal prohibitions Women's Studies Pro 1989 five-kilometer run of affected expression and gram. Then, as a Yale law the Law and Society Asso personal identity in Re student, she participated ciation. naissance England. "Her in the Women's Tempo Ayres's first lap as a esy, Orthodoxy and the rary Restraining Order Stanford Law professor Politics of Religious Dis Project and the Niantic will be in the Spring term course: The Case of the Women's Prison Project, of 1991, as a teacher of the English Family of Love," becoming director of foundation course in appeared in the journal training for the first and Finance Theory. 0 Representatives (15:98 coordinator of the second. [1986]). The other article, She also founded and or "Equivocation and the Le ganized a Women's Read gal Conflict over Religious ing Group on Feminist KIM ANTOINETTE TAYLOR Identity in Early Modern Theory and the Law. In Public Defender is a Pro England," was published addition, she wrote suc in Criminal Law this year in the above cessful grant proposals and Procedure mentioned Yale journal raising money for a legal (3:33). network in Connecticut KIM ANTOINETTE TAYLOR Halley spent her law for issues surrounding joins the faculty with ten school summers at the AIDS. years of experience at the Employment Law Center Her recent publications Public Defender Service of in San Francisco (1986) include "The Politics of the District of Columbia, and at Silverglate, the Closet: Towards the last three years as its Gertner, Fine & Good in Equal Protection for Gay, director. Boston (1987). During Lesbian and Bisexual The Washington, D.C. this period (1986-87), Identity," UCLA Law Re agency, which has 78 at she was also a Thomas view (36:915 [1989]) and torneys on staff, is one of Emerson Fellow with the "Constitutions of Sexual the country's leading PD Connecticut Civil Liber Orientation Identity" (in services. Its caseload in ties Union in Hartford. collaboration with Chris cludes about two-thirds of Her appeals court clerk tine A. Littleton), Journal the most serious felonies JANET E. HALLEY ship (1988-89) was with ofLaw, Gender & Sexual in the nation's capital, Attorney's Views now-ChiefJudge Gilbert Orientation (forthcoming with an increasing num Illumined by Humanities S. Merritt in Nashville, -see page 35). She is also ber ofcomplex murder Scholarship Tennessee. co-editor (with Sheila cases. Taylor, in her three As a Skadden, Arps as Fisher) of a book, Seeking years at the helm, is gener JANET E. HALLEY is enter sociate, Halley has been the Woman in Late Medi ally credited with having ing law teaching after working mainly in the eval and Renaissance improved the morale practice experience with area of litigation. She is a Literature: Essays in and effectiveness of the Skadden, Arps, Slate, member of both the Mas Feminist Contextual Criti servICe. Meagher & Flom of Bos sachusetts and New York cism (University ofTen Also recognized for her ton and, before that, a ju State bars. Other profes nessee Press, 1989). legal expertise, Taylor is dicial clerkship on the sional memberships in Halley joins the faculty on the faculty of the Na U.S. Court of Appeals clude the Law and Society this fall as an associate tional Criminal Defense for the Sixth Circuit. No Association and the Mod professor. Her principal College and is a former stranger to teaching, how ern Language Association. teaching subjects are civil Fellow in Professional ever, she has a doctorate Halley holds degrees in procedure, family law, Na Responsibility at Yale in English literature and English literature from tive American law, and law Law School (1990). She five years in the classroom Princeton (B.A., 1974, and symbolic systems. 0 has also taught or lectured as an assistant professor summa cum laude), where at Yale, Georgetown, and at Hamilton College in she was elected to Phi Beta Harvard, and in a number New York. Kappa, and the University of professional education While in law school of California at Los Ange programs. In 1988, she (Yale, J.D., 1988), Halley les (Ph.D., 1980). became a barrister of the drew these diverse strands Halley's activities and American Inn of Court. together by founding and writings-both before and Taylor is active in the Fall 1991 STANFORD LAWYER 25 profession as a member of Merit finalist and a New Washington, D.C., work gram for the entering class the American Bar Associ York Regents Scholar, she ing on litigation cases. of staff attorneys, running ation's Criminal Justice proceeded to earn depart Her decade with the monthly sessions for out Council and vice chair of mental honors in English Public Defender Service, side attorneys interested its Indigent Defense Ser and American literature. which she joined in 1981, in representing indigents vices Committee. She is on Her courtroom ability and exposed Taylor to all under the Criminal Justice the board of directors of public interest concern phases of court proceed Act, and some continuing the National Legal Aid emerged at Yale, where ings in both criminal and education of staff attor and Defender Association she was a semifinalist in family courts. Starting as neys. and chair of its Defender the Barristers' Union Trial a staff attorney, she ad Taylor joins the Stan Committee. Also a mem Competition and a par vanced to the PDS direc ford faculty this fall with ber of the National Asso ticipant in the Danbury torship in 1988 after the rank of associate pro ciation of Criminal Prison Project of the Yale serving as deputy chief of fessor. She will make her Defense Lawyers, she is Legal Services Organiza its trial division (1986-87) debut in the first-year vice chair of its committee tion. and director of its attor Criminal Law course, on the Delivery of Legal Taylor was introduced ney training activities while preparing an ad Services to Indigent De to law firm practice (1987-88). vanced course for the next fendants. through two summer The latter position- term on Criminal Prosecu Taylor was educated at associate positions. She a short leap to law school tion and Defense. 0 Brown (B.A., 1977) and spent the year after gradu teaching-involved con Yale (J.D., 1980). Entering ation as an associate at ducting a six-week pro- Brown as a National Crowell & Moring of Board ofVisitors 2010 Inquiry Goes Global "SURELY the most ambi the course of two days, tious meeting in the his some 30 speakers, panel tory of the Board of ists, moderators, and Visitors," said Dean Brest commentators were of the 33rd annual convo tapped. These included cation, May 2-3, of the not only Board members, School's chief advisory alumni/a:, and professors, council. The agenda, put but also a number of non together by the Dean and lawyers and foreign na the 2010 Task Force tionals. headed by Kendyl Mon The task of these many of Stanford Law School: roe '60, was indeed im experts was to address a What will be the roles of pressive (see box). Over question vital to the future the legal profession two decades hence? AN ONGOING PROJECT This inquiry represented the second stage of a project, recommended in 1989 and launched in 1990, to assist the School in forecasting and meeting the challenges of a chang ing world. Last year, the Board surveyed a broad range of trends, both do mestic and global, and identified some of their implications for the con tent and practice of law Associate Dean Ellen Borgersen Nancy Hicks Maynard '87 Thomas Elke '52 (Stanford Lawyer, Fall 26 STANFORD LAWYER Fall 1991 Board ofVisitors AGENDA May 2-3, 1991 The Roles of Lawyers on the Domesti( S(ene How Will the Legal Profession Respond to the Challenge? Presenter: Ralph Cavanagh, Natural Re sources Defense Council, San Francisco Co-Presenters: Roderick M. Hills"" '55, Donovan Leisure, Rogovin, Huge & Moderator: Paul Goldstein, Stella W. and Schiller, Washington, D.C.; EvaJ. Andre de Baubigny '58 and Ira S. Lillick Professor, Stanford Law Paterson, Lawyers' Committee for Ur Anne Bingaman'68 School ban Affairs, San Francisco 1990, at pages 10 and 40). Panelists: Carl Anthony, Earth Island Moderator: Deborah L. Rhode, Profes The next and final meeting Institute, San Francisco; William H. sor, Stanford Law School of the series in 1992 will Armstrong '67, McCutchen, Doyle, concentrate on legal educa Brown & Enersen, Walnut Creek, Cali Panelists: Ronald J. Gilson, Professor tion and the role that Stan fornia; Frank D. Boren '58, World Wild and Helen L. Crocker Faculty Scholar, ford Law School might best life Fund, Washington, D.C.; Howard V. Stanford Law School; Ellie Goodwin, play. Golub, Pacific Gas & Electric, San Fran Natural Resources Defense Council, San In designing the current cisco; Barton H. Thompson, Jr., ]D/MBA Francisco; Peter W. Huber, Manhattan 1991 meeting, the 2010 '76, Associate Professor, Stanford Law Institute for Policy Research, Washing Task Force chose to focus School ton, D.C.; Louise A. La Mathe '71, Irell on a specific area of law & Manella, Los Angeles; Richard and policy: the environ Wrap-up: James E. Bass* '87, Gibson, Mallery"" '63, Snell & Wilmer, Phoenix ment. Environmental Dunn & Crutcher, Los Angeles issues, it was thought, Wrap-up: Ellen Borgersen"", Associate make good case studies The Roles of Lawyers in the International Dean, Academic Affairs, Stanford Law not only because of their Community School intrinsic interest and sig nificance, but also because Presenter: Ambassador Richard Summary and Plenary Dis(ussion they raise challenges illus Benedick, Senior Fellow, World Wildlife trative of new demands on Fund, Washington, D.C. Introduction: Miles L. Rubin" '52, Na the legal profession gener tional Direct Marketing Corporation, ally. Such demands in Moderator: Joseph A. Grundfest '78, ew York clude the need to relate Associate Professor, Stanford Law School to non-law disciplines Moderator: Nancy Hicks Maynard':" '87, (notably science and Panelists: David M. Barnard, Linklaters The Tribune, Oakland, California technology) and to extra & Paines, New York; John H. Barton"c territorial economic, poli '68, George E. Osborne Professor, Stan Summarizer: Edward D. Spurgeon"" '64, tical, and legal regimes. ford Law School; Thomas C. Heller, Pro University of Utah, Salt Lake City The format adopted for fessor of Law and Director of Overseas each of three structured Studies, Stanford; W. Brian Rose, Penultimate Comments and State ofthe sessions was innovative: Stikeman, Elliott, Toronto, Canada; School Address: Paul Brest':" , Richard E. an opening presentation Christoph von Teichman, Schon Nolte Lang Professor and Dean, Stanford Law by one or two expert Finkelnburg & Clemm, Hamburg, Ger School "provocateurs," followed many; Edith Brown Weiss, United States by a panel discussion in Environmental Protection Agency, Wash Closing Comments: Kendyl K. Monroe"" which a moderator would ington, D.C. '60, Sullivan & Cromwell, New York direct questions and hypo theticals to appropriate Wrap-up: William F. Kroener lIP panelists, and a "wrap-up" JD/MBA '71, Davis Polk & Wardwell, by a member of the 2010 New York ':" Member, 2010 Task Force Task Force. Questions and comments from the 100 member Board were wel- Fall 1991 STA FORD LAWYER 27 corned throughout the meeting, with the fourth and final session-the Summary and Plenary Discussion-being wholly devoted to input from the board. This last session was also informed by the Dean's annual State of the School report. Taken as a whole, the Lelt: Bruce Sattler'69 proceedings provided an and Sallie Kim '89. informative, intriguing, Below: (inco de Mayo and insightful look into celebrants the changing legal envi ronment as it will affect not only the lawyers of CHANGE OF PACE tomorrow but even those The Visitors enjoyed a now well established in number of events in addi practice. As Nancy tion to the official 2010 Maynard '87 observed proceedings. Lunch dur during the closing session: ing the first day was taken "Change is going to hap with second-year stu pen. The question is dents, in small informal whether or not we will be groups designed to pro ready for it." mote easy interaction. Credit for guiding the Dinner that evening was long-range planning hosted by the Board itself, project goes to the 2010 as a means of welcoming Task Force, which in first-year students into the cludes-in addition to fellowship, privileges, and Dean Brest and Kendyl responsibilities of mem Monroe-Prof. John bership in the extended Barton '68, James Bass Stanford legal commu '87, Associate Dean Ellen nity. Judge Pamela Ann annual meeting. One was Garden. Though the date Borgersen, Roderick Hills Rymer '64 of the Ninth the Kirkwood Moot (May 3) was a bit early, '55, William F. Kroener Circuit Court of Appeals Court final competition the food and music were III '71, Richard Mallery was the featured speaker as always an impressive sabroso. '63, Nancy Hicks (see page 29). display of mental agility The Board's two-day Maynard '87, Miles L. Two other student (see page 30). The second agenda concluded with a Rubin '52, and Edward D. events were held in con was a Cinco de Mayo dinner-dance at the Fac (Ned) Spurgeon '64. junction with the Board's celebration in Crocker ulty Club. Joining the Visitors were the moot court students and judges, most notably Supreme Court Associate Justice Byron White. Justice White, in after dinner remarks, con firmed the need for searching inquiries such as the 2010 project. "The law schools of this coun try are commanding prob ably more than their fair share of the extremely tal ented people who gradu ate from college," he Left: Gary Williams '76 observed. This boon, the and Robert Garcia '78. justice declared, confers 132 Above: Roderick Hills '55. on law schools "a respon sibility to use it wei!." 0 28 STANFORD LAWYER Fall 1991 First-year Dinner ------, Rymer Provides Food for Thought Judge Pamela Ann Rymer ofthe and proper thing to do; always to be U.S. Court ofAppeals for the Ninth helpful, courteous, and professional Circuit described the essence of to the judge and the jury, and to be "professionalism" to first-year stu considerate of opposing counsel. dents at a dinner given May 3 by Lack of civility does not win cases; it the Board ofVisitors. often loses them. To be honorable also means to put "I SUGGEST that what the pro- blinders on to matters that are, or fession needs is a renewal of ought to be, extraneous: the law is personal professionalism. The val not, and must not be allowed to be, a ues that define our profession are game of pushing buttons that have to the one sure thing in changing times. do with bias, or prejudice, inhuman Law firms come and go. Institutions ity or insensitivity. change character and composition. In court or out, integrity is the But the moral force that you bring to what you do is greatest influence on reputation; and the reputation portable and immutable. that precedes and follows a lawyer is the single most valuable asset he or she can ever have. • What do I mean by personal professionalism? • First, to do everything with integrity. Second, to let Integrity is one commodity that has no price. Yet the accumulation of wealth be a happy, but inciden the economics of practice are staggering. Make no tal consequence of the practice of law, never the prin mistake: I am all for lawyers-even judges-making cipal objective. Third, to foster collegiality and to money. But the profession will ultimately bottom out take seriously the role of officer of the court. Fourth, if the bottom line is the bottom line. Neither person to maintain a sense of public duty. And fifth, to prac ally nor professionally should we allow the paper tice so as always to have pride, tomorrow. chase to become a "pecuniary chase." • • Without integrity, nothing else matters. Our entire Equally important is our obligation to contribute. system of justice is a search for truth-and truth de As John Gardner put it: "Freedom and obligation, pends on the integrity of every participant. Integrity liberty and duty-that'S the deal. ... [I]t isn't in the means honesty to the court, your clients, and your grand design that we can have freedom without obli conscience. That entails responsibility: the choice to gation. Not for long." Law is inextricably affected take on a cause with merit, no matter what the with a public interest; to be a part of the profession is money involved-and the courage not to take on a a privilege which comes from the state, and it is right cause which has no merit, no matter what the money that some measure of ourselves, our education and involved; to counsel this way, or that, having regard experience be returned to the common good. only for what the law is or ought to be; and to bal ance benefits against burdens-to litigate, to arbi trate; to disclose, to conceal; to confront, to • compromise. Finally, it is necessary for tomorrow, to ask the It requires perseverance and commitment, so that tough questions today: Are we doing enough to make among competing priorities, devotion to the interests the legal process less of a maze, less of a morass, less of a client is paramount along with the public inter of a maddening experience for those who entrust to est. And it requires perspective: to bring to each the bench and bar their most serious problems? Are problem a broad-gauge understanding of the social, courts too pricey for people of ordinary means? Are economic, political and philosophical context in lawsuits too readily filed? Are the courts doing their which decisions are made. best? Are other fora better? Do we-lawyers and Integrity means honor and civility as well: never to judges-serve the interests of the public in the fair, cut a corner or mis-cite a case, fudge a material fact, efficient and impartial administration of justice? go back on your word, or take a position because you Whether you put professionalism into your pro can get away with it instead of because it is the right fession-that, ladies and gentlemen, is up to you." 0 Fall 1991 STANFORD LAWYER 29 Law Library The Underwriters SOMETIME during this right law. The greatest school year, the Robert emphasis in recent years Crown Law Library ex has been in comparative pects to acquire its law, particularly Euro 350,000th book. The pean legal materials. identity of that book is "There is a growing inter still unknown. But one est in the law of the Euro Justices Nelson, White and Broussard, with competitors Levine and thing is certain, says Law pean Communities and Justman {left} and Eaton and Meisel (right). Librarian Lance Dickson: the new economic order "It will have been pur of 1992," Dickson notes. Moot Court chased with funds con "Our library is well tributed by a remarkable placed to satisfy this inter association called The est, thanks to the support Kirkwood Finalists "Superb" Friends of the Stanford and prescience of the Law Library." Friends." The Friends is a quiet The Friends organiza FOR THE THREE seasoned very challenging and in group of behind-the tion was founded in 1959 jurists, it was, perhaps, teresting problem." And, scenes library supporters. when the Honorable just another moot court. one might add, current. The organization has very Louis E. Goodman, But for the four Stanford The issues: random drug little formal business. All United States District finalists, it was an unfor testing of amateur athletes members pay dues (in one Judge for Northern Cali gettable first: an appear and prohibition of racist of four categories of mem fornia, invited a small ance before a bench speech on a campus. bership), which are do group of interested per headed by a member of The competitors ac nated to the Law Library sons to join him in a ven the Supreme Court of the quitted themselves well, to develop its collections. ture to strengthen and United States of America. leading Justice Nelson to Each added volume bears improve the then-small The High Court justice say: "Stanford students a bookplate identifying Stanford Law Library. In was Hon. Byron R. White, continue to be among the it as "Given by Friends terestingly, the founding whose 29 years of service most outstanding in the of the Stanford Law Li members of the Friends make him a veteran of nation. You all deserve brary." In the past six included a number of both the Warren and credit for a truly superb years alone, reports As persons who were not Burger eras. Joining him job." sociate Law Librarian Stanford Law School on the panel were two Honors went to both Rosalee Long, more than graduates-a characteris other appeals court jus teams, with Anthony 5,000 new books were tic the group retains. tices: Hon. Allen E. Justman and Raleigh purchased with contribu Judge Goodman was Broussard of the Supreme Levine getting the award tions from the Friends. chosen to act as the first Court of California, and for best brief, while Rob Friends funds have Chairman of the Friends, Hon. Dorothy W. Nelson Eaton and Ted Meisel helped build collections in of the U.S. Court of were declared the best various fields, including Appeals for the Ninth team overall. Eaton was maritime law and copy- Circuit. also the top oralist. Their reason for en (Asked later about his ex couraging moot court ac ceptional composure and tivity was explained in ability to cite chapter and part by Justice White: verse, Rob revealed that "Oral argument makes he had spent eighteen just enough difference just months abroad as a Mor often enough that we mon missionary.) All four can't afford to give it up." were in their final year of Noting that briefs often law school. leave him with doubts to Pronouncing the per resolve, he said, "We use formance of the partici oral argument to help us pants "very good, very firm up our decision." close," Justice White con The Stanford hypo cluded: "I'm just happy to thetical was, in Justice be here." 0 Broussard's words, "a 30 STANFORD LAWYER Fall 1991 assisted by an executive Commencement 1991 committee of Allan E. Charles '27, Herman Phleger, John A. Sutro, and Professor John Henry Merryman (as Secretary). Thirty years later, the Friends still include many of the original founders. Sutro is the current Chair, while Charles and Merry man currrently serve on the executive committee, together with Richard J. Guggenhime, J. Sterling Hutcheson '49, Stuart L. Kadison '48, and David Vaughn (who recently re placed Robert P. Hastings). One of the treasures of the Law Library is a truly magnificent folio edition Barbara Fried, Hurlbut teaching of the Code de Napoleon. Words to the Wise award winner. Printed on blue paper, it is one of only three such A RECORD 187 academic from Class President lenge, she concluded, is copies produced in Flo degrees were granted in Timothy Fox. "to take this life-eobbled rence by Molini, Landi in 1990-91. Another record Fried counseled the together out of choice and 1809. The book-previ was set in commencement graduates: "Life is short necessity-and make of it ously part of the late attendance, with 1,350 and dear. Don't throw it a life that matters." Judge Goodman's per well-wishers thronging away on things that don't Tim Fox, in a brief but sonallibrary-was pre the lawn in front of matter to you." She moving speech, told of sented in 1962 by Mrs. Crown Quad onJune 16 shared some wisdom that how legal activism had Goodman. The generosity to honor the degree recipi had helped her at a signifi helped improve the of the Goodman family ents and hear what the cant decision point in her schooling available to his has continued to the speakers had to say. own life (when she left mentally disabled brother. present day with the par Of the degrees con "Law is an incredibly ticipation of the founder's ferred this past year, 179 powerful tool to touch daughter, Mrs. Dudley were the ].D. professional people's lives," Fox de Bennett. degree, 2 the advanced "You have great clared. "We have a tre The Friends are not, of ].S.M.,3 the doctoral mendous opportunity to course, the only benefac ].S.D., and 1 the M.L.S. (a talents. Try to match make a difference. Let us tors of the Law Library, master's degree for accept the responsibility but their record of sup nonlawyers). Nothing if them with desire." to use this opportunity." port is impressive and sus not high achievers, the In the final address of tained. "This is a group J.D. graduates also took -Chinese cookie fortune the ceremony, Dean Brest which has had a vision of with them large numbers urged the departing library excellence for of honors, awards, and graduates to understand more than thirty years," prizes (see pages 32-33). and support the commit says Lance Dickson. "The The keynote speaker private practice for law ment of Stanford and results are real and tan and winner of this year's teaching). The source was other institutions of gible. The Friends are liter John Bingham Hurlbut somewhat unorthodox higher learning to "creat ally in our good books." 0 Award for excellence in two Chinese fortune ing a nurturing environ teaching was Barbara H. cookies-but the advice ment for a diverse student Readers interested in Fried, an assistant profes good: "Make up your body and for the vigorous joining the Friends ofthe sor who has been teaching mind what you want to exploration of diverse Stanford Law Library tax law since 1987. She do, and do it"; and "You ideas." should call or write to was chosen for the honor have great talents. Try to His parting words: "I Ann Vogel, (415) 725 by a vote of the graduat match them with desire." wish you-and us-good 0198; Robert Crown Law ing class. "No reward for Fried went on to say: luck." 0 Library, Stanford Law this job could be sweeter "Some parts of our lives School, Stanford, CA than this," said Fried, as we choose; most parts 94305-8610. she accepted the award choose us." The chal- Fall 1991 STANFORD LAWYER 31 Commencement 1991 laurels to Graduating Students MEMBERS of the Class of The 18 new Coif mem Top Lelt: The proces 1991 earned these honors bers also graduated "with sional, lead by standard and awards: distinction," an honor bearer Rhonda Reaves. earned by a total of 47 Above: Julie Matlof, Nathan Abbott Scholar graduates for high aca William McCullough, for the highest cumulative demic achievement during Alexandra McKay and grade point average in the their three years of law Thomas McLean, graduating class: John school. in good order. Winston Thornburgh, Right: Dean Brest, with winner also of the First Hilmer Oehlmann, Jr. congratulations for all. and Second-Year Honors Prizes, for outstanding Lower right: Lee Meisel for the highest GPA in work in the first-year Re and admirers. each of his previous two search and Legal Writing Below: JoLani Hironaka years of law school. Program: Kallman, and Lillie Hsu, in a Levine, Popov, Silverstein, festive made. Urban A. Sontheimer Swanson, and Tarlton, Third-Year Honor, for the plus Scott Applebaum, second-highest cumula Abraham Rubalcava tive grade point average in Brown, Gerald Quinton the class: Gary Scott Brown, Philip Joseph Feinerman. Deutch,James Edwin Earle, John Alexander Order of the Coif, the na Fandel, Timothy Patrick tionaI law honor society, Fox, Peter James Hama to which were elected: saki, Anthony John Thornburgh and Feiner Justman, Robert]' Klein, man, plus Dan Levi Baga Thomas Patrick McLean, tell, Michael James Dahl, Bradley Peter Miller, Rob Eaton, Clark]. Fresh Valerie Rae Park, David man, H. Jay Kallman, Enrico Reibel, Jonathan Raleigh Hannah Levine, Henry Sherman, Ethan S. Alex Miller, Michael Kevin Steinberg, and Jerome Moyers, William J. Theodore Will. Needle, Jay Pomerantz, Olga Popov, Peter Savich, Frank Baker Belcher Amy Lynn Silverstein, Ed Award for the best aca ward W. Swanson, Rose demic work in evidence: mary Shea Tarlton, and William Glenn McCul Maria Tai Wolff. lough. 32 STANFORD LAWYER Fall 1991 Top: The happy throng, 01 fresco before Green Library. Middle: James McPhail, savoring the moment. Bottom: Tim Fox, class president and spokesman. Steven M. Block Civil Lib Moore,jr. (co-winner, Review during his second erties Award for distin 1989-90). year of law school: John guished written work on Moore. issues relating to personal Richard S. Goldsmith freedom: Clark Freshman, Award for the best re United States Law Week first place; Susan search paper concerning Award for outstanding Elizabeth Holley, dispute resolution: Ra service to the Review: second place; Paul leigh Levine (1990-91) Dixie K. Koons Hieb. Stephen Schmidtberger, and Bradley Robert third place. Mozee (1989-90). Mr. and Mrs. Duncan L. Matteson, Sr. Awards, in Carl Mason Franklin Prize Olaus and Adolph Murie the 1991 Marion Rice for the best paper in inter Award for the most Kirkwood Moot Court national law: john joseph thoughtful written work competition: Rob Eaton in environmental law: and Ted David Meisel as Bradley Miller (first place) best team. The Matteson and Bradley Mozee (sec Award for runner-up ond place). team went to Anthony Justman and Raleigh Board of Editors' Award Levine. (More on page for outstanding editorial 30.) contributions to the Stan ford Law Review: Dan Walter J. Cummings Bagatell and Martin Awards, also in the Moot Frederick Hansen (1990 Court finals. For best oral 91); and jonathan advocate: Eaton. For best Sherman (1989-90). brief: Justman and Levine. Irving Hellman,Jr. Spe R. Hunter Summers Trial cial Award for the out Practice Award, presented standing student note by officers of Sergeants-at published by the Review: Law for outstanding stu Alexander Elias dent performance: Brian Silverman. Paul Akers (1988-89).0 Jay M. Spears Award for outstanding service to the r311 1991 STANFORD LAWYER 33 Short Takes Good Tidings (and Some News You Can Use) ON THE MARK Marshall Small '51, Deane STANFORD law School Johnson'42 (speaking), was the place to be on G. Williams Rutherford '50, Monday, February 11, and Henry Wheeler 'SO were 1991-at least if your among the counselors at the business relates to the U.S. first meeting of the Law and Securities and Exchange Business Advisory Council. Commission. For on that day, just as the new SEC regulations on insider trading were released, one of its leading drafters was at Stanford to speak at a professional seminar on the subject. Organized by Associate Professor jo seph Grundfest (a former SEC commissioner), the event was the first in the BUSINESS WORLD group, says Dean Brest, is The foundation was nation at which the impli STANFORD law School, in "to provide the faculty laid at the group's first cations of the new regula a move to add depth of and Dean with systematic meeting, March 1, with tions were explained. experience to its program feedback on how the informational talks by the The School's exquisite in law and business, has School's program in law chair of the School's law timing was the result of enlisted a number of and business comports and Business Program, Grundfest's alertness to seasoned attorneys to con with the real world of law Ronald Gilson, several developments in Washing stitute a law and Business and business in which our other law professors, and ton, D.C. When the regs Advisory Council. Walter graduates will practice, the dean of the Graduate came down late the previ L. Weisman '59 of los and to help us develop School of Business. The ous week, Stanford Angeles is the chair. ideas for improving the Council plans to meet along with eleven Silicon The purpose of the new program." annually.o Valley firms recruited as co-sponsors-was ready with the full-day informa tional program. SEC Commissioner Edward H. TOP PAPER-AGAIN the category of substan an article by Krause, co Fleischman, the above FOR THE THIRD consecu tive law. Written by authored with lisa mentioned drafter, was tive year, the Stanford William Boyle '91, the Cuevas (3l), on the late the featured speaker. Rob LawJournal has been article concerned discrimi Professor john Kaplan. ert Singletary (SEC's act named in the national nation against homosexu The editors of the win ing regional administrator ABA competition as the als in the military. ning volume were Car in San Francisco) and best overall newspaper in Peter Chadwick '90 mine Broccole, David several knowledgeable its category (papers from created the first-prize edi Vogel, and Carin Duryee. attorneys from the schools of 750 or fewer torial cartoon on internal laurels also go to Matt participating firms com students). TheJournal law school affairs, as well Viola, whose sound busi pleted the program. also won three other as placing second in the ness management kept the Designed for large in 1989/90 first-place category for cartoons on student paper in good vestors, officers in pub awards: two for feature broader aspects of the financial condition. All licly traded corporations, articles and one for an edi law. (Readers may recall four graduated in june and the attorneys, accoun torial cartoon. seeing Chadwick's win 1991. 0 tants, and other profes The winning feature in ning cartoon from the pre sionals who advise and the category on internal vious year's competition, To advertise in or sub counsel them, the seminar law school affairs was in our Spring 1990 issue). scribe to the journal, call attracted some 200 regis written by joan Krause Other second- and (415) 725-2569. trants from throughout (now 3l) about the lorna third-place prizes to the the Bay Area legal and Prieta earthquake. The 1989/90 Journal were financial community. 0 other top feature won in won for editorials and for 34 STA FORD LAWYER Fall 1991 of Politics atthe John F. Kennedy School of Gov ernment. West worked after col lege in the Dukakis presi dential campaign as chief of staff to the treasurer, in the campaign's Boston of fice. Following the 1988 election, he became SEX, LAWS AND SCHOLARSHIP finance director of the Democratic Governors' NEWS is being made this fall with the publication of the Association in Washing inaugural issue of The Journal ofLaw, Gender & ton, D.C. Sexual Orientation. The journal is remarkable for at His comment, on be least two reasons. It is one ofthe first scholarly periodi Tony West (3L) coming head this spring of cals in this country jointly covering and linking legal is the law review: "I'm very sues of sex and sexual orientation. And, though it honored and excited originates at Stanford, JLGSO is edited and published LAW REVIEW PRESIDENT about the challenge. The in conjunction with students ofother law schools, par THE MEMBERS of Stanford Stanford Law Review is a ticularly Golden Gate and California Western. Also un Law Review have elected laboratory from which usual, though not unique, is the Journal's interest in Derek Anthony (Tony) some of the most provoca interdisciplinary approaches. West as president. A 1987 tive ideas in legal scholar TheJournal editors, seeking to encourage scholar honors graduate of Har ship are launched. We ship on the issues it addresses, are sponsoring a writing vard, West has experience should continually look competition for students from any school or academic in editing, publishing, and for new ways to bring discipline, with three cash awards and publication as fiscal management. He these emerging ideas to prizes. September 30, 1991, is the deadline for entries. was an editor last year of the legal community." 0 Plans for future activities include a symposium on bi the Stanford Law & Po sexuality and the law. 0 licy Review, in addition to Subscriptions to the being an SLR member. Review are available at For a subscription to the forthcoming inaugural vol And at Harvard, he was $30/year (6 issues). To or ume (2 issues), call (415) 725-2569. Alumni/a: are also publisher of the Harvard der, call (415) 725-0181. invited to volunteer as editorial advisers, competition Political Review and chair judges, or symposia planners. of the Forum Projects Committee of the Institute LAW AND ECONOMICS working paper series. In STANFORD'S interdiscipli addition, it has supported nary program in law and a wide range of research economics received a two by students and faculty. year renewal grant of Last October, the Pro $513,673 from the John gram co-sponsored, with M. Olin Foundation of UC-Berkeley's law and New York. The pro economICs program, a gram-named the John major conference on con M. Olin Program in Law stitutionallaw and eco and Economics following nomics.D Hallahan: a new way to learn the foundation's initial grant in 1987-is directed Interested readers may by A. Mitchell Polinsky, call Professor Polinsky CONTINUING EDUCATION senior lecturer Timothy the School's Josephine or Barbara Adams, the BY VIDEO Hallahan (Stanford Law Scott Crocker Professor of Olin program's adminis CALIFORNIA'S Continuing yer, Spring/Summer 1989, Law and Economics. trative director, at (415) Education of the Bar pp. 20-21). Under the title Olin program activities 723-2575. (CEB) has begun to make "LawQuest," the series include frequent seminars, available, for purchase or teaches litigation skills to "free lunch" discussions lease, the series of interac individuals wherever and for students throughout tive video programs devel the University, and a oped at Stanford by Continued on next page Fall 1991 STANFORD LAWYER 35 whenever a computer, videodisc player, and Faculty &Staff Notes monitor are available. The seven programs so far released deal with the Janet Cooper Alexander discrimination clauses of ference titled "Competi following subjects: inter earned national attention the 1879 California con tion and Regulation viewing, motion skills, for a paper published stitution to the efforts of Compatible Bedfellows: A rules ofevidence (Califor in the February 1991 the Woman Suffrage Competitive Energy In nia as well as federal), Stanford Law Review movement and to Foltz's dustry," held in Washing evidentiary foundations, (43:497). Based on em suit for admission to ton, D.C., and discussed direct and cross-examina pirical research, it is titled Hastings School of Law. antitrust issues at the Stan tion, opening statements "Do the Merits Matter? A Foltz had been refused ford Conference on High and closing argument, and Study of Settlements in "on the sole ground that Technology Consortia. legal ethics. 0 Securities Class Actions." she was a woman," ex Baxter, who is a former Alexander found that plains Babcock. Although chief of the U.S. Justice Further information is contrary to either com Foltz eventually won Department's Antitrust available from CEB repre mon assumptions or her suit in the California Division (1981-83), was sentatives. For Northern economic models-settle Supreme Court after also featured in the 60th California, call Debora ment outcomes did not Hastings appealed an ini Anniversary issue of Elec Tempel, (415) 642-6642; approximate expected tial decision in her favor, tronics Magazine, where for Southern California, trial outcomes, but in the long delay of litigation he gave an interview on Dave Simala (714) 964 stead were resolved re prevented her from com the impact of the AT&T 6531. gardless of the merits at pleting the course of in and IBM antitrust cases an apparent "going rate." struction. In June 1991, on the electronics indus She gave invited lectures the Hastings faculty re try. He continues to serve on the subject in April, for dressed this historic as counsel to New York's law and economics semi wrong by awarding Foltz Shearman & Sterling, as STUDENT SCHOLAR nars at both Harvard and a posthumous LL.D. well as being an important JAMIE A. GRODSKY (3L) is Berkeley, and was also a bringing to a happy con resource pro bono to the author of an article in panelist in May for a fo clusion a student Stanford University's legal the Fall 1990 issue of rum sponsored by the campaign of rectifica- counsel office. Jurimetrics Journal, on the Stanford Law and Busi tion largely inspired by subject "The Freedom of ness Society. Babcock's research and Paul Brest received an Information Act in the Earlier in the year, writings. Babcock honorary doctorate Electronic Age: The Stat Alexander delivered "A received the degree on (LL.D.) from Swarthmore ute Is Not User Friendly." Tribute to Justice Clara Foltz's behalf at College during its com Grodsky, a former analyst Thurgood Marshall" (for the Hastings graduation mencement on June 3. with the U.S. Congress's whom she clerked in ceremony. The Pennsylvania school Office of Technology As 1979-80) at the Third An praised the Stanford Dean sessment, concludes that nual Justice and Human John Barton has been ap as "a scholar and an inno the paper-oriented FOIA ity Award ceremony of pointed to the National vative educator" who has is not well adapted to the Legal Aid Society of Institute of Health's Re throughout his career computerized data and San Diego. And in Octo combinant DNA Advisory "shown a strong commit suggests some amend ber 1990, she spoke on the Committee. In addition, ment to social service. " ments to the twenty-five topic "Women in the he is working with the Brest, in his acceptance year-old statute. 0 Law: An Assessment and Stockholm Environment speech, spoke of the need an Agenda" at a Scripps Institute to organize an in for schools and universi College presidential sym ternational biotechnology ties to be places where posIUm. advisory commission. students of diverse back Here at Stanford, he grounds feel free to dis Barbara Allen Babcock serves on the Administra cuss and reconsider their continues to speak and tive Panel for Human Sub views (the theme of sev write about the pioneering jects in Behavioral Science eral of his recent talks and woman attorney who is Research. writings, including the the subject of her historic "From the Dean" column biography in progress. In William Baxter has been beginning on page 2). a May article, "Clara participating in various Shortridge Foltz: Consti events related to govern Frank Brucato, the tution-maker" (Indiana ment controls of eco School's Associate Dean Law Review, Vol. 66), nomic activity. He for Administration, has Babcock traced the origin presented the closing been named chair of the of the unprecedented sex- analysis for an ABA con- funding subcommittee of 36 STANFORD LAWYER Fall 1991 the California State Bar volume on the legacy of for Student Affairs, is de also had the honor this Task Force on Loan For the late Supreme Court veloping a course, Crimi June of being elected to gIveness. justice, He Shall Not Pass nality and Subordinated the influential Council on This Way Again (1990), Communities, for the Foreign Relations. Tom Campbell-on leave edited by Stephen L. Spring 1992 term. The The former Dean is since his election in 1988 Wasby. Cohen's "State Irvine Foundation has focusing his current re to the U.S. Congress-was Law in Equality Clothing: given her a grant for the search and writing on war a featured speaker at the A Comment on Allegheny undertaking. A criminal and the Constitution. No September 1990 Alum Pittsburgh Coal Co. v. law teacher for some 15 table publications include ni/<£ Weekend (see page County Commission" ap years (most recently at two articles in Stanford 17). In March of this year peared in the November Golden Gate University), Law Review on the he declared his candidacy 1990 UCLA Law Review Dickson looks forward to ''American War in for the u.S. Senate seat be (38:87). Three other spending some time again Indochina." Part I ing vacated by California Cohen pieces-"Eco in the classroom. (42:877-926, April 1990) Democrat Alan Cranston. nomic Due Process," Dickson is also princi carried the subtitle "The Campbell, a Republican, "Economic Equal Protec pal investigator for the (Troubled) Constitution is running on a platform tion," and "Congressional Stanford Upward Bound ality of the War They of "New Conservatism," Enforcement of the 14th Program and a current Told Us About"-Viet which he defines as em Amendment"-were writ member of the boards of nam-while Part II bracing fiscal austerity, ten for the supplement to the East Palo Alto Com (42:1093-1148, May environmental conserva the Encyclopedia ofCon munity Law Project and 1990) dealt with "The Un tion, and women's right to stitutional Law. And a the Santa Clara Bar As constitutionality of the choose an abortion. sixth work, "Rationality sociation's Public Interest War They Didn't Tell Us Review of Tort Reform Law Foundation. About"-Laos and Cam Mauro Cappelletti deliv Legislation Under State bodia. He also spoke on ered lectures in Brazil and Constitutions: Justice Albert Elsen, the art pro the subject at the June 23 Mexico last fall that are Linde's Methodology of fessor who co-teaches the Stanford Centennial Vol being prepared for publi Judicial Review," is in School's course in Art and unteer Conference in Los cation in book form in press at the Oregon Law the Law, shared a podium Angeles. Portuguese and Spanish. Review. on April 27 with Queen With events in the Per Another book, Le Pouvoir Beatrix of the Nether sian Gulf giving new rele des Juges, was released in Lance Dickson was a lands. Elsen was there to vance to the issue, Ely late 1990 by Presses member this past year of give an address, "Rodin became a cosignator of Universitaires d'Aix the AALS and ABA joint and the Torso in Modern the amicus curi<£ brief Marseille and Economica site evaluation team to the Sculpture," at the opening filed November 26,1990, in Paris. Recent articles by University of Chicago of an exhibition, The in the case of Dellums v. the multilingual professor Law School. He also Torso, at the Dordrecht Bush, arguing that the include an Italian work served as library consult Museum. The French Constitution required translatable as "New Is ant to the Consortium for sculptor was also the sub congressional authoriza sues in Constitutional Ad Service to La tin America, ject of a May 2 speech, tion before the President judication." in a proposal to establish "Rodin's Vision: A sent armed forces into Ku Cappelletti is serving an International Institute Sculptor's Mentality and wait or Iraq; wrote an op another three-year term ofJustice. Modernity," which Elsen ed piece, "Perspective on on the International Asso A survey article by gave for the first Henry the Persian Gulf: 'War by ciation of Legal Science's Dickson on the develop Moore Lecture at the Default' Isn't the Law," board of directors, to ment of law libraries in University of Leeds in for the December 23 Los which he has been re the 1990s appeared in the England. Angeles Times; and spoke elected by the national as journal of the British and in this vein on January 18 sociations of twenty-five Irish Association of Law John Hart Ely received an to the law faculty of the member countries. He has Librarians. A longer ver honorary doctorate from University of San Diego. also been appointed "Aca sion of the report was the Illinois Institute of A related scholarly article, demic Consultant" to the originally presented at a Technology Chicago "Kuwait, the Constitution Institute of Comparative meeting of the Association Kent Law School at its and the Courts: Two Law inJapan. in Oxford, England. commencement on June 9. Cheers for Judge Greene," Dickson and co-editor The previous fall, he spent appeared in Constitu William Cohen has had a Win-Shin Chiang have four days as the school's tional Commentary number of articles pub also completed the 12th Centennial Visitor. The (8:2901) this summer. lished over the past year. annual edition of their Le Chicago-Kent LL.D. Ely has also been re The former William O. gal Bibliography Index. (hon.) is his second such ceiving considerable Douglas clerk contributed degree; the first was con attention for his past writ "Commentary: Douglas Sally Dickson, the ferred in 1988 by the Uni ings on domestic aspects as Civil Libertarian" to a School's Associate Dean versity of San Diego. Ely of the Constitution. The Fall 1991 STANFORD LAWYER 37 book for which he re Governance" at the Robert W. Gordon trav and United States Perspec ceived the 1982 Triennial Wharton Conference on eled to Moscow inJune tives, in Moscow; and'de Award of the Order of the Investment Management, 1990 to deliver a talk, "Al livered two lectures at Coif-Democracy and and "The Interaction of ternative Forms of Corpo Arizona State University Distrust-was the subject Politics and Markets" at a rate Organization in in Tempe on "The Future of a seven-paper sympo Brookings Institution Post-Socialist Societies," of Unions." sium in the May 1991 Vir Conference on Takeovers, to the USSR College of Gould's book, A ginia Law Review. (Ely LBOs, and Changing Cor Advocates. He was in Ann Primer on American La himself is the author of porate Forms. During the Arbor, Michigan, in Octo bor Law, appeared in a "Another Such Victory: 1991-92 academic year, ber to present a paper, Spanish edition this Constitutional Theory he will serve as the Henley "Legal History as Stabi spring, with a Chinese edi and Practice in a World Professor of Law and lizer and Social Critic," at tion in work for this fall. Where Courts Are No Business at Columbia Law a conference at the Uni Something of an interna Different from Legisla School and Columbia versity of Michigan on tional classic, the book tures" in that same issue.) Graduate School of Busi The Turn to History in the has already been pub Two of Ely's early ar ness. Human Sciences. April lished in German and ticles-a critique of Roe v. 1991 found him in Ithaca, Japanese. Wade and what he calls Paul Goldstein-author of New York, giving the "my tome on legislative the article beginning on Frank Irvine Lecture at Henry T. (Hank) Greely motivation"-have be page 4-recently saw the Cornell Law School. His reports giving a number of come the third and fifth publication by Little, subject: "Law Schools as talks lately, ofwhich four most frequently cited ar Brown of the first two Policy Schools." stand out: "Withdrawal ticles in the history of the supplements to his three During the Stanford and Withholding of Life Yale LawJournal. This volume treatise, Copy winter quarter, he also Support in Adults: Beyond fact was observed in the right: Principles, Law and taught-in addition to his Cruzan," at an October Journal's lOath anniver Practice. He served this regular law school teach 1990 symposium ofthe sary issue with retrospec past March as General ing-an undergraduate Stanford University Cen tive comments-in Ely's Reporter for a three-day course with third-year ter for Biomedical Ethics; case, characteristically ir symposium sponsored by law student Jonathan "Discrimination on the reverent-by authors of the World Intellectual Sherman on Freedom of Basis of Genotype," at a the leading fifteen. Property Organization Expression and the First January 1991 Stanford For good measure, Ely and held at Stanford. The Amendment. Centennial symposium; also published "Another first such symposium held "California Approval of Spin on Allegheny Pitts outside WIPO's head William B. Gould IV RU 486-State and Fed burgh," a comment on the quarters in Geneva, it fo spent the summer in South eral Legal Issues," at a constitutionality ofvari cused on the Intellectual Africa as a Fulbright Lec February conference co ous real estate taxation Property Aspects of Artifi turer at the University of sponsored by the Stanford schemes, in the October cial Intelligence. Witwatersrand Law Fac and UCSF medical school 1990 UCLA Law Review. This spring Goldstein ulty in Johannesburg. departments of obstetrics also delivered two named During the previous and gynecology; and "Is Lecturers Randee Fenner lectures: the Donald C. months he gave a speech, sues in Implementing a and Lisa Pearson taught a Brace Memorial Lecture "The Struggle Against Basic Benefit Plan course entitled Introduc at Columbia University in Discrimination in the Le Through Clinical Guide tion to Constitutional New York City; and the gal System of the United lines," at an April confer Decisionmaking and the Brendan Brown Lecture at States: The Evolution of ence sponsored by the Supreme Court, for the Catholic University Law Legislation," at a confer California Public Em Fall 1990 session of the School in Washington, ence in Seville, Spain, on ployee Retirement System. Stanford Continuing D.C. Other invited talks Industrial Relations: Studies Program. The two (all on copyright law) Trends and Priorities in Thomas C. Grey had a have been co-advisers for were presented to law Hungary, Poland, and new book, The Wallace several years of the yers, business executives, [what was then] East and Stevens Case: Law and the Kirkwood Moot Court law librarians, and West Berlin. He also Practice ofPoetry, pub Program. policymakers in Chicago, spoke at a conference on lished by Harvard Univer Los Angeles, Tokyo, Comparative Labor Law, sity Press this June. The Barbara Fried is the win Washington, D.C., New at the Japan Institute of professor continues to be nerofthe1991John York City, and New Or Labor in Tokyo; pre in demand as an analyst of Bingham Hurlbut Award leans. Goldstein has (he sented a paper, "Job Secu the issues surrounding for excellence in teaching says) "taken a vow of si rity Law and Practice in hate speech on campus. (see page 31). lence for the next several the United States," at a He participated in a tele months." conference on New Direc vised Fred Friendly sym Ronald Gilson recently tions in Worker Manage posium on the subject in lectured on "Corporate ment Relations: Soviet April, and a First Amend- 38 STANFORD LAWYER Fall1991 ment symposium at the corporate governance and has served as its director Miguel A. Mendez is back University of Virginia in the application of modern (on a pro bono basis) on campus after a stint as May. His comments at a finance theory to legal since 1982. visiting professor at the Federalist Society meeting proceedings. University of San Diego at Stanford were pub- Last but not least, a J. MyronJacobstein, the School of Law. lished under the title "Dis- teaching honor: In May, School's Librarian Emeri- criminatory Harassment the Associated Students of tus, has an article with an John Henry Merryman, and Free Speech" in the Stanford University voted intriguing title-"Con- the School's Sweitzer Pro- Winter 1991 Harvard Grundfest the best "large gressional Intent and Leg- fessor Emeritus, received a Journal ofLaw & Public class professor" in the cat- islative Histories: Analysis rare tribute last year: a Policy (14:1). egory for graduate profes- or Psychoanalysis?"-in festschrift. Titled Com- sional schools (business, the Law Library Journal parative and Private Inter- Joseph A. Grundfest deliv- medicine, and law com- (82:297). With co-author national Law: Essays in ered the keynote address bined). R. M. Mersky of the Uni- Honor ofJohn Henry entitled "Just Vote No" versity ofTexas, he has Merryman on his Seventi- to the Council of Institu- Gerald Gunther has spent also produced a fifth edi- eth Birthday, the volume tional Investors, at their much of the past year tion of their now-classic contains 26 articles by annual meeting last No- writing the twelfth edition Fundamentals ofLegal scholars, some of them vember. His message: of his cornerstone book, Research. former students, from "Stockholders can influ- Constitutional Law. He thirteen countries on four ence corporate decisions, also prepared a paper for Mark Kelman presented continents. "Professor even in the absence of a major conference at the Dunwody Lecture at Merryman is one of his takeovers and proxy con- New York Law School in the University of Florida generation's great com- tests, by casting a 'vote of April, assessing the work Law School, in March. parative law scholars," no confidence' in an of the late Supreme Court His subject: "Emerging says David S. Clark, the incumbent board of Justice John Marshall Centrist Liberalism." University ofTulsa law directors, even when it Harlan. His biggest cur- Later that month, at professor who edited the stands for reelection un- rent project is editing the George Washington Uni- volume. "For over 30 opposed." basic manuscript (com- versity, he raised the pro- years he has, through his Recent publications pleted in August 1990) of vocative question- teaching and his writings, from the former SEC com- his forthcoming biogra- "Antidiscrimination and widely influenced this field missioner include "Inter- phy ofJudge Learned Antimaterialism: Can in Europe, Latin America nationalization of the Hand. Feminists Evade the Cri- and Asia." The festschrift World's Securities Mar- Professor Gunther has tique of Socialism?"-in a was presented to Profes- kets: Economic Causes once again made the Na- faculty seminar and public sor Merryman August 19, and Regulatory Conse- tional LawJournal list of address. 1990, in Montreal during quences" (journal ofFi- the 100 "most influential Also this year, Kelman the annual meeting of the nancial Services Research, lawyers in America." had an article published in American Academy of Fall 1990), "The Subordi- The citation (March 25, the Harvard Law Review Foreign Law, of which he nation of American Capi- 1991) noted, among other (104:1157), titled "Con- is president. tal" (journal ofFinancial things, that Gunther "has cepts of Discrimination in Merryman has also re- Economics, September become politically active 'General Ability' Job Test- cently traveled to Mexico 1990), "Catch-22 Time" again," specifically in re- ing." City, to lecture on cultural (Mergers and Acquisition gard to the proposed property at the University Law Reporter, February national flag-burning sta- Charles R. Lawrence III of Mexico, and to Scot- 1991), and "When Mar- tute (which he opposed) spent the past year deep in land, for an International kets Crash: The Conse- and the issue of presiden- research and writing as a Bar Association meeting quences of Information tial war powers (which Fellow of the Center for in Glasgow. Though offi- Failure in the Market for he considers to be consti- the Study of Behavioral cially emeritus since 1986, Liquidity" (chapter in Re- tutionally limited). Sciences. He is serving he has continued to co- ducing the Risk ofEco- during 1991-92 as a visit- teach Art and the Law nomic Crisis, a National Bill Ong Hing received a ing professor at the and, resuming in 1991- Bureau of Economic Re- special award last Decem- University of Southern 92, the broad subject for search volume edited by ber from the Immigrant California. which he was so impres- Martin Feldstein). Legal Resource Center, a sively celebrated by his Grundfest is one of just San Francisco-based Gerald P. Lopez, in addi- festschrift colleagues: five public policy experts group that provides train- tion to his teaching activi- Comparative Law. nationwide to receive a ing and consultation state- ties, has been serving on John M. Olin Faculty Fel- wide to community the Stanford University Robert Mnookin was lowship for the 1991-92 agencies serving immi- Provost's Special Commit- away last year as a visiting year. He plans to devote grants and refugees. Hing tee on Faculty Recruit- professor at Harvard. Be- the year to research on founded the center and ment and Retention. fore heading East, how- Fall 1991 STANFORD LAWYER 39 ever, he delivered an in Cultural Change," in the continuing in public ser month, he presented com vited lecture in Los Ange Yale Law Review; "The vice where, as a California ments on the constitu les at the June 23 Stanford Delivery of Legal Ser assemblyman for the past tional takings protections Centennial Volunteer vices by Non-Lawyers," decade, he has brought his at a conference, Constitu Conference. His topic: the in the Georgetown Jour legal expertise to bear on tional Law and Econom work of the Stanford Cen nal ofLegal Ethics; and such issues as consumer ics, sponsored by the ter on Conflict and Nego "Women's Rights and rights, prison reform, and Stanford Law and Eco tiation, which he directs. Social Wrongs," in the environmental protection. nomics program. And in Harvard Journal ofLaw March, he gave a presen A. Mitchell Polinsky lec and Public Policy. Her re William Simon has been tation-"Interstate Trans tured in April at both cent presentations include working on a variety of fers: Sporhase, Compacts, UCLA and Harvard on "Feminism in the 1990s: topics related to the legal and Free Markets"-at a the subject, "Decoup- Bridging the Gap Between situation ofworkers in the Tucson, Arizona, confer ling Liability: Optimal Theory and Practice," business enterprise. In ence on Western Water Incentives for Care and given at an event cospon June he crossed the Law in the Age of Reallo Litigation." In May he sored by the Yale Women Atlantic to give a talk on cation, sponsored by the participated in the Ameri of Color Collective and "Worker Ownership" at American Law Institute can Law and Economics the Yale Journal ofLaw the Law and Society Asso and the American Bar Association's first annual and Feminism. ciation meeting in Am Association. meeting and was elected Prof. Rhode was also sterdam, and on "Pension Thompson is currently secretary-treasurer of the the guest of honor at the Fund Socialism" at a con part of an interdiscipli organization. Also during first Deborah L. Rhode ference on Corporate nary research team at the meeting, he chaired a Annual Lecture, presented Governance at the Univer Stanford that is looking at session on the Economics May 21 by Stanford's In sity of Warwick. the economic effects of re of Enforcement and pre stitute for Research on Simon is currently de allocating water in Cali sented a paper (coau Women and Gender. The veloping a new unit on fornia. thored with Steven Shavell lectureship recognizes "workers as stakeholders of Harvard) on the ques women and men who in the firm" for the intro Robert Weisberg gave a tion, "Should Employees have made "significant ductory Business Associ lecture at Amherst College be Subject to Fines and contributions to the status ations course. Last year last December provoca Imprisonment Given the of women through their (1990-91) he introduced tively titled "Private Vio Existence of Corporate Li scholarship," with the first an advanced course de lence as Moral Action: ability?" In June, Polinsky Rhode Lecturer being voted to this theme, called The Law as Inspiration published (also with UC-Berkeley professor Labor and Capital. A re and Example." Asked Shavell) "A Note on Opti Evelyn Fox Keller. Hon lated article, "Social to explain, he replied: mal Fines When Wealth oree Rhode's own consid Republican Property," is "Much crime, rather than Varies Among Individu erable contributions scheduled to appear in the offering a moral counter als," in the American Eco include two books-Jus August UCLA Law claim to society's vision of nomic Review. tice and Gender (Harvard, Review. the good, is a directly par 1989) and Theoretical allel and purportedly Robert Rabin co-directed Perspectives on Sexual Barton H. (Buzz) Thomp supplementary form of an interdisciplinary fac Difference (editor; Yale, son is celebrating the pub moral claiming and in ulty seminar and research 1990)-and service as the lication this summer of his deed law enforcement. project during the spring immediate past director casebook, Legal Control Some of the most appar semester on tobacco liti (1986-90) of the Institute. ofWater Resources (West ently irrational and patho gation and regulation. He Publishing, 1991). Joseph logical criminals view also recently gave a talk at Kenneth E. Scott, though Sax of Boalt Hall and themselves sincerely (if the annual meeting of on sabbatical last spring, Robert Abrams ('71) of unjustifiably) as executors AFL-CIO lawyers, on cur continued to do his bit for Wayne State are the coau of the moral law and pre rent asbestos litigation. the University by chairing thors. Thompson also has servers of the social order Rabin continues his work, the Stanford Judicial an article, "Judicial Tak -as ordained assigners involving a number of Council. His article on the ings," in the November ofcollective blame and presentations to lawyers' savings and loan bailout, 1990 Virginia Law Re prophets ofcollective groups, on the American "Never Again," was re view (76:1449). meaning." Law Institute tort reform cently republished in a His recent appearances Weisberg's biggest study. revised edition by the include a lecture on nego publishing event is the ap Hoover Institution Press. tiation and court-super pearance in February of Deborah Rhode is the au vised settlements, at a the second edition of his thor of three recently pub Byron Sher has opted for conference of the Associ durable volume with John lished articles: "The emeritus status after some ation of Business Trial Kaplan, Criminal Law: No-Problem Problem: 35 years of Stanford Lawyers, in Hawaii last Cases and Materials Feminist Challenges and teaching. Happily, he is October. That same (Little, Brown, 1991). 40 STANFORD LAWYER Fall 1991 James Whitman delivered ence on Continental Influ the Law of Feudalism. preparing a new edition papers at the American ences on Anglo-American Whitman holds a doctor and supplement to Oil Society for Legal History Law in the 19th Century, ate in history in addition and Gas Law, his mag meeting in October; at held in January in to a law degree (J.D.). num opus with Charles J. Harvard Law School in Lancaster, England. He Meyers. He also continues February; and at the Sec also co-taught a seminar Howard Williams, Para to consult and testify in ond International Confer- at Boalt Hall last year on dise Professor emeritus, is the field. D FROM THE DEAN JUSTICE O'CONNOR Continued from page 3 Continued from page 23 cannot freely advance, experiment • subscription to the Monitor and found with, consider, reject, and reconsider its editorial persuasive? We will never their views about the social and po E.B. White said that democracy is know. litical issues that divide the nation. based on the recurrent suspicion that On retiring as the president of more than half ofthe people are right • Princeton University in 1972, Robert more than half of the time. In the Goheen wrote: "If an utter stranger narrow view, the Supreme Court is I am deeply appreciative of this to ourcivilization should ask, 'Where based on the suspicion that five Jus award that I have received tonight in your society can a person disagree tices are similarly correct. In the [September 22]. Stanford and Stan with impunity from accepted prac broader view, I think the Justices do ford Law School have provided me tices, dogmas, and doctrines?' the contribute, in a sense, to the wider de with the background to carve out a answer should be, 'The universities. mocracy. We struggle with national career in the legal profession. When That is part of their being.... [T]hey issues and we try to define from a na I enrolled in law school, I certainly are committed to freedom for the in tional perspective what it is that the had no preconceived ideas about dividual, the dignity of the human federal laws and the Constitutionsay. where that might lead. Never for a person, and tolerance toward dissent If you don't agree with all the moment did I think it would lead to within broad ... limits.'" Court'sholdings you are certainly not a seat onthe nation's highest court nor The challenge that faces us twenty alone, butIthink youcan be confident to the very wonderful award which years later is to articulate an encom that the members of the Court never you have just bestowed on me. But passing vision that honors Lisa's and stoptrying in ourwritings on eachcase the start was right here, and my heart Jeff's freedom and their personal dig to contribute appropriately to the still is; and I thank you from the nity. The challenge is to create an en fragile balances of our national re bottom of it for letting me have this vironment where they can argue with public. weekend with you. D each other and teach and learn from one another. Because the intellectual Excerpted from Justice O'Con stakes are so high, we must lower the • nor's talk with students, September personal dangers. This means thatLisa I will leave you with one final hy 21,1990, and from heraddress at the and Jeff must learn to trust one an pothetical. On March 12, 1930, just Alumni/ce Banquet, September 22. other. And that requires the school to a few days before my birth-whilethe earn their trust as an institution fight over the nomination of Charles genuinely concerned with the needs of Evans Hughes was ongoing in the both. Senate and as President Hoover con You know firsthand from the past sidered a nominee to replace Justice three years at Stanford how challeng Sanford-aneditorial appeared in the ing the task is. I truly believe it is pos Christian Science Monitor entitled, "A sible, however-and I know it is Woman on the Supreme Bench?" It essential. began with the following words of Although you are done with school wisdom: "In all the lists of eminent for now, you will continue to be in jurists thus far suggested for the vacant volved with institutions of higher place on the Supreme Court there has education as trustees, alumni, parents, been a missing element. Not once has and some of you, I hope, as faculty any newspaper or individual com members. Wherever you will spend the mentator mentioned the name of a coming years, you will face similar is woman. We suggest that the time has sues in your workplace and commu come when the presence of a woman nity. I invite you to help develop and jurist upon the supreme bench must be pursue a vision of higher education, recognized as an altogether normal and ofoursociety at large, where both and likely event." Lisa and Jeff can flourish. D What if President Hoover had a Fall 1991 STANFORD LAWYER 41 CTIVITIES for graduates of the ASchool continued in full swing these past months. On November 1, New York City alums got together for a twilight reception at the elegant Crystal Pavilion in Manhattan. Dean Paul Brest was on hand for the affair, as were Development officers John Gilliland and Elizabeth Lucchesi. Kendyl Monroe '60, who had chosen the location, provided welcoming re marks, and the Dean gave an update on the School. That ended the formal program, but not the party, which thanks to the fine setting, live piano music, and good company-lasted well into the evening. The Stanford Law Society of Top: The New York Southern California met on Novem City reception. ber 19 for a Century City lunch at Right: Moster of Jade West in the ABC Entertainment ceremonies Kendyl Center. Professor Hank Greely, the Monroe '60. featured speaker, discussed health Below: Abicoastal law and doctor-lawyer relations. group including On December 6, the San Fran Peter Cannon '82 cisco Law Society held a luncheon for and John Gilliland. Bay Area graduates. The event took place at the lofty Bankers' Cluh. As sociate Professor Joseph Grundfest '78 gave a talk-"The S&LCrisis: Are the Banks Next?"-that inspired many comments and questions from the audience. The following month, Dean Brest traveled to Washington, DC. for the annual meeting of the American Association of Law Schools. The Stanford La w reception on January 5 at the Washington Hilton was well attended. Held yearly in conjunction with the AALS meetings, the event brings together the widespread mem bers of the School's academic family, that is, Stanford Law School profes sors (present and former) and Stanford law graduates who have themselves entered teaching. The Stanford Law Society of Southern California reconvened on 94 STANFORD LAWYER Fall1991 March 8 at its traditional Los Angeles locale, The Dragon, for the annual luncheon honoringgraduates recently admitted to the California Bar. Presi dent Frank Melton '80 introduced Professor Deborah Rhode, who gave a talk entitled "The 'No Problem' Problem: Gender and Law." Alums in the Seattle area gath ered for a reception on April 9 at the Sheraton Seattle. Paul Brest flew up to report on School doings. The Dean was introduced hy the indispensahle George Willoughby '58. The inaugural luncheon ofthe San Jose Law Society was held on May 22 at the Silicon Valley Fairmont Hotel. Dean Brest was there to welcome lo cal graduates and celebrate the estab lishment of an alumni/a: group in the burgeoning high-tech community. "Stanford Law School now has a pres ence in the South Bay," the Dean de clared. Richard Wylie '58 presided over the landmark affair, which fea tured a talk by Judge James Ware '72 of the u.s. District Court in San Jose (see page 71). Ware's topic: "A New Definition of Thinking like a Law yer." Credit is due Anthony (Tony) Anastasi '40 for helping to launch Top: San Francisco the new law society and serving as luncheon with Professor its first president. Interested alums Joseph Grundfest '78 are encouraged to call him at at the podium. (408) 294-9700 or Margie Savoye Center: Angelenos of the School's Alumni/a: Relations Terry Hughes '84, office at (415) 723-2730. Debra Roth '81, Closing the season, the Washing Bill Weinberger '81, ton, D.C. Law Society met onJune 26 and Doug Post '78 at for a wine tasting on Capitol Hill. the Century City lunch. Former Associate Dean Jack Left: Prof. Hank Greely, Friedenthal, currently Dean of the the L.A. speaker. George Washington University Law Center, was on hand to talk with al ums. Many thanks to Neil Golden '73 for all his hard work as president, and a warm welcome to his successor, Anne Bingaman '68. n Fall 1991 STANFORD LAWYER 95 TORT THOUGHT PROFESSOR RABIN, in "Thinking About Tort Law" (Fall 1990), Joesn't mention punitive damages White House Fellowships awarded in tort cases. I suggest that any reform of tort litigation provide that punitive damages, like fines in The Fellowship Program What Fellows Do a criminal case, be made payable to the state and not to the plaintiff. The White House Fellowship During their one-year assign Money extracted from :m offending program is heginning its ments in Washington, Fellows defendant to teach him and others a twenty-seventh year and is serve as special assistants to lesson should benefit society in Jesigned to provide gifted and Cabinet secretaries, or senior general, rather than be the basis of highly motivated Americans members of the White House personal enrichment to an indivi firsthand experience in the staff. Additionally, Fellows dual plaintiff. process of personal involve participate in an extensive ment in the leadership of their education program induding William Knapp '39 society. seminars with top government Greenhrae, California officials, leading scholars, Who Is Eligible journalists anJ private sector leaJers. Robert Rabin replies: There is a U.S. citizens are eligihle to strong argument for having a por apply during the early anJ How to Apply tion of any punitive Jamage award formative years of their careers. set aside for public purposes. How There are no basic educational Application forms and addi ever, some portion of the award requirements and no special tional information can be probably must go to the plaintiff if career or professional catego obtained from: there is to be an incentive to seck ries. Employees of the Federal the damages in the first place. Government are not eligible, President's Commission on with the exception of career White House Fellowships military personnel of the 712 Jackson Place N.W. Armed Services. The commis Washington, D.C. 20503 Readers are encouraged to com sion seeks candidates of ment on and critique the contents demonstrated excellence in (202) 395-4522 ofthis magazine. Letters selected their professional roles as well for publication may be edited for as significant breadth of The application deadline is length. Published or not. all com interests and community December 15. munications will be read with inter involvement. est. Please direct letters to: Editur, Stunford Lawyer, Stanford Law Schuul, Stanford. CA 94.105-86 W. PUBLIC SEAVICE ANNOUNCEMENT 96 STANFORD LAWYER Fall 1990 Thank You The students, staff, and board of the East Palo Alto Community Law Project gratefully acknowledge the generous financial support':- of the following law firms and organizations Brobeck, Phleger & Harrison Cooley Godward Castro Huddleson & Tatum Heller, Ehrman, White & McAuliffe Morrison & Foerster Palo Alto Area Bar Association Townsend and Townsend Wilson, Sonsini, Goodrich & Rosati *Donations of $2,000 or more in the past year. East Palo Alto Community Law Project 1395 Bay Road East Palo Alto, CA 94303 Telephone: 415/853-1600 PUBliC SERVICE ADVERTISEMENT 1991 September 16 California State Bar annual meeting Stanford Law School luncheon 12:30 PM, Anaheim Hilton In Anaheim, California September 26-28 Alumni/x Weekend 1991 With reunions for the Half-Century Club and Classes of 1941,1951,1956,1961, 1966, 1971, 1976, 1981, and 1986 At Stanford 1992 May 7-8 Board of Visitors annual meeting At Stanford For information on these and other events, call Margery Savoye, Alumni/x Relations, 415/723-2730 STANFORD UNIVERSITY Nonprofit Organization Stanford Law School U.S. Postage Stanford, CA 94305-8610 PAID Stanford University Permit No. 28