Stanford Lawyer Spring/Summer 1981 Volume 16, NO.1

Editor: Cheryl W. Ritchie Associate Editor: Sara Wood Designer: Jim M'Guinness

Dean's Page 2

Charles J. Meyers: A Leader in the Stanford Tradition 4 An Interview with the School's Eighth Dean

Mediation-An Alternative to Adversary Divorce 10 by George H. Norton '57

Child Custody Disputes: Are We Abandoning the Child's 16 Best Interests? by Michael S. Wald, Professor of Law

Home v. Public Education: Should Parents Have the Right 20 To Choose? by Thomas J. Owen '81 and Marjorie Horton

Thinking About Children's Rights-Moving Beyond Kiddie Libbers 24 and Child Savers by Robert H. Mnookin, Visiting Professor of Law

Stanford's Clinical Course in Juvenile Law: Combining Simulated 31 with Actual Courtroom Experience

And When They're Not Practicing Law. .. 33 How Seven Alumni Spend Their uLeisure" Time

Faculty Opinion: Putting the Crisis in EI Salvador in Perspective 39 by William B. Gould, Professor of Law

Kudos for Stanford Supreme Court Advocate 40

Nation's First Professorship in Law and Business Established 41 at the School

School and Faculty News 42

Class Notes 51

In Memoriam 71

Stanford Lawyer is published semi-annually for alumni/ae and friends of Stanford Law School. Materials for publication and correspondence are welcome and should be sent to the Editor, Stanford Lawyer, Stanford Law School, Crown Quadrangle, Stanford, CA 94305. ©1981 by the,Board of Trustees of the Leland Stanford Junior University. Reproduction in whole or in part without permission of the publisher is prohibited.

Cover: Portrait of Dean Charles J. Meyers by Barbara Mendelsohn

I ean~8Page

his is my last appearance on this page, as my resignation takes effect on August 3I, 1981. De­ T spite the challenge of a new life in practice, Pam and I leave Stanford with regret for the separation from our many friends on the cam'pus and among the alumni. We cherish our years here and will always re­ member the many kindnesses extended to us. This being in the nature of a valediction, a brief ac­ count of my stewardship during the past five years would seem to be in order. The School is in-good health. We have a youthful and vigorous faculty con­ cerned with effective classroom teaching and innovative scholarship. The curriculum, which in most law schools stoutly resists change, has been modernized with the addition of a number of new courses in business law, law and economics, and clinical education. The most striking curricular innovation has occurred in the first year, which has been made more realistic with the in­ troduction of trial advocacy in Civil Procedure and with the addition of perspective courses (such as legal history) which enable law students to take a broader view of the law and legal institutions. While the new first-year curriculum has been limited so far to one­ third of the class, I have every confidence that the plan to extend it to all entering students will be fulfilled. The student body continues to be outstanding, with an increasing number of students having had work ex­ perience between college and law school. Financing a legal education has become for the students (and there­ fore for us) a growing problem, for inflation has driven up costs far faster than we have been able to obtain offsetting scholarship and loan funds. This problem must be solved soon if we are to preserve a diverse stu­ dent body. As for finances, which have been among my chief con­ cerns, the School is in "comfortable circumstances," as my grandmother used to say - which means, not rich but not poor either. In the last five years, generous donors have endowed six new chairs in the School for an increase in endowment of nearly five million dollars. One of those professorships is for work in Law and Economics, a new field I regard as very important to the future of the practice, and another is for Law and

2 Business, the first of its kind at any major law school attracted large numbers of exceedingly able students to in this country. our halls. Upon graduation these students become Twenty-nine new named scholarship funds have been movers and doers in society. That exercise of power in­ established in the capital amount of about two million vites attempts to influence the education of the stu­ dollars, with a good bit more pledged for the future. dents, to channel their thinking in one direction or Over all, with these and other gifts and through re­ another. These attempts must be resisted, to preserve capitalization of income endowment, the book value of plurality among law schools and to encourage in­ the endowment has risen from eight to twenty million tellectual diversity within each law school. If the time dollars, and the annual fund has increased from ever comes when an accreditation agency can prescribe $471,000 to $781,000 in the period 1976-81. curriculum, law schools will slide from their present as­ These gains in the intellectual and financial life of the cendancy into the mire of mediocrity. School could not have been achieved without the un­ A concluding note. When I came to Stanford, nearly stinting efforts of the faculty, the administrative staff, twenty years ago, a capital campaign called PACE was the volunteers, and the friends and alumni of the underway, operating under the slogan, "A University School. To all, lowe an enormous debt which I can on the brink of greatness." One Eastern cynic added, only confess but never repay. "and always will be." That gibe proved false. This is a But looking backward, satisfying as it may be, is not great University and a great Law School. The School enough. The future holds much promise and some enjoys a superbly qualified student body, a faculty ded­ risks. icated to stimulating teaching and imaginative scholar­ First. Legal education has not yet caught up with the ship, a splendid physical plant housing a research li­ sophisticated knowledge of the last thirty years. Stan­ brary of high quality, and a sound financial foundation ford is doing better, perhaps, then most other law that makes possible the pursuit of excellence. But our schools, but many of our students still graduate with­ success is fragile. Continued double-digit inflation, ab­ out an elementary understanding of economics and sence of loan and scholarship funds to finance students' statistics, two powerful analytical tools indispensible in education, faculty dissention or student disaffection dealing with issues of public policy. This point is not could collapse the structure in short order. By recogniz­ confined to those specific disciplines; the broader sug­ ing that our success is precarious we can avoid compla­ gestion is that law schools must be alert to the oppor­ cency and work together to consolidate past gains for a tunities to apply the learning of other disciplines, espe­ solid future. cially emerging disciplines like computer science, to legal problems. Second. The law school in a university setting is a hybrid: It is a professional school training lawyers for the practice, but it is also an academic institution educating the mind. Those two responsibilities are not in conflict, but keeping them in balance requires con-" stant attention. Undue emphasis on the current con­ cerns of the practice may depriye the student of the means for dealing with the future. But preoccupation with theory may leave the student unable to cope with the demands of practice either now or later. Third. Law schools may become victims of their own success. The power of law to effect social change has

3 CharlesJ. Meyers:A Leaderinthe Stanford1radition AnInterviewwith the School's Eighth Dean

everal histories of the Stanford practItIoners and as policy makers schools across the country. That same Law School have been written charged with the responsibility of regu­ year he chaired the School's Curriculum over the years, and while each lating business practices. Committee and led a special study of Saccount may differ in perspective or em­ Equally revolutionary during the possible curricular changes. phasis a unifying theme emerges: the di­ Manning years was the introduction of Shortly after his appointment, Dean rection the School took at any point in its clinical teaching at the School. As early Meyers told a reporter for the Stanford history can be attributed to the man as 1970 the first experimental steps were Daily, "I really see myself as building the charged with its governance at the time taken to close the gap between law study School internally." With that mandate - the Dean. and law practice by exposing students to Dean Meyers set about the task of The modern history of Stanford Law procedures and problems as they would strengthening the curriculum in certain School begins with Marion Rice occur in actual practice. key areas, including business, tax, law Kirkwood, dean of the School from 1922 In 1971, with students, faculty and and economics, and international law. A to 1945. During those twenty-odd years books overflowing the law building, random sampling of the courses offered Dean Kirkwood laid the foundations of Thomas Ehrlich assumed the leadership during academic year 1980-81 attests to excellence upon which the School square­ and set as his primary objective the con­ Dean Meyers' success in these areas: ly rests today. struction of new buildings for the Stan­ Business Planning, Financial Accounting At the end of World War II, Carl B. ford Law School. In 1975 that goal was as a Disclosure Process, International Spaeth assumed the deanship and during realized with the completion of Crown Business Transactions, International his tenure introduced into the curriculum Quadrangle, the first facilities specifical­ Taxation, Legal Economics, Practice of innovative ideas and programs that ly designed for the Law School. Also Securities Law, Tax Policy and the Taxa­ changed the direction of legal education under his stewardship, the School saw tion of the Family, Transnational Law. at Stanford and ultinlately across the na­ significant expansion of the clinical Another major concern of the Meyers tion. Among the areas developed during program as well as advancement in inter­ administration has been the expansion of the Spaeth years were interdisciplinary disciplinary studies. the clinical program. This expansion has programs, law for undergraduates, and In 1976 the leadership passed to been accomplished not only by the con­ law and international affairs. Moreover, Charles J. Meyers. A member of the fac­ version of formally traditional second­ recognizing that the alumni body had ulty since 1962, Dean Meyers brought to and third-year courses into clinical burgeoned in the post-War years and the deanship an extensive background in courses but also by the introduction of a would continue to grow rapidly, Dean legal education, both as a teacher and as clinical course into the first-year curricu­ Spaeth sought to establish a more formal an administrator. During 1975-76 he lum through Curriculum B, an exper­ line of communication between the served as president of the Association of imental alternative to the traditional School and the alumni. In 1958 he estab­ American Law Schools and in this ca­ first-year program. Curriculum B is lished the Board of Visitors. Since that pacity observed firsthand law training at currently offered to one-third of the time hundreds of alumni have served on the Board, providing the School with the benefit of their counsel on a wide range of matters affecting the development and improvement of the School's educational program. Bayless Manning, successor to Carl Spaeth, once described his years as dean (1962-7°) as a period "of consolidation, of implementation ... of institutionaliz­ ing those things begun by Carl Spaeth." During the Sixties Dean Manning con­ centrated on building the faculty by re­ cruiting nationally recognized scholars and teachers from many of the nation's top law schools. In addition, he devel­ oped with the Graduate School of Busi­ ness the first joint-degree program in the country. The establishment of the JD/MBA program signaled the growing awareness at Stanford of the interrela­ tionship of law to business and the need to train law students to deal effectively with the business community both as

4 first-year class, and it is anticipated that it ferent to say by way of scholarship. So, will be extended to include the entire when Gibson, Dunn & Crutcher called "Stanfordlaw alumnihave a first-year class within the next few years. me, I was ready to talk to them. To ensure that these programs are not At this stage of my life, practice is a very strong sense ofcontinued subject to changes in the economic cli­ very attractive alternative, and particu­ attachment to the School.... mate or passing opinions, Dean Meyers larly this arrangement because it allows Theyare, ofcourse, extremely has sought to make them a permanent me to put to work all of my expertise in importantto the Schoolbe­ part of the curriculum. That objective has water law and oil and gas law with a very cause they give us financial been met with the establishment of six fine law firm in a new office in the center support, theyhire our students, new endowed professorships, including of the natural resources business. It really and they tnunpet ourpraises chairs in law and economics, law and is an extraordinary opportunity. andbuild ourreputation all business and clinical legal education, each Editor: Exactly what will you be doing over the United States." being the first of its kind in the nation. in Denver? As Charles Meyers prepares to leave the Dean: We will be opening an office of deanship to undertake the challenge of between eight and ten attorneys. There private practice, he does so secure in the will be four partners, including myself. teachers in the classroom and as active knowledge that, like his predecessors, he The other three partners will be coming scholars exploring new ways of thinking has continued the tradition of excellence out of the Los Angeles office - a is critical to any first-class educational established with Marion Kirkwood. He litigator, a tax lawyer and a corporate institution. Equally critical is having a has brought to fruition many of the pro­ lawyer. Then, there will be four to six group of students who stimulate each jects he inherited as a new dean, while associates. We will be a full-service firm. other and stimulate the faculty. And, of sowing> the seeds for future deans to culti­ I will be concentrating on energy and course, the quality of the work that is vate. natural resources law and will be devel­ produced by both the faculty and stu­ In a recent interview with the Editor, oping that aspect of the practice. dents can only be as good as the re­ Dean Meyers talked about his five years Editor: What has been the reaction of sources at their disposal - and these in­ as the School's chief administrator and your colleagues? clude not only the law library but also his personal and institutional expecta­ Dean: It has been very flattering be­ the total university library facilities. So, tions for the future. cause many of them have told me that in the narrow sense of what makes a they were very pleased with my deanship first-rate intellectual institution, those An Interview with and that they were sorry I am leaving. I three elements are fundamental. think they don't relish choosing the next In the broader sense, however, looking Charles J. Meyers dean; it is generally more comfortable at the responsibility of the School to soci­ Editor: You've been a law professor for ma~ntaining the status quo than ventur­ ety and the profession, I would want to virtually your whole professional life. ing into the unknown. I don~t think I include some·other elements that after What made you decide now to enter pri­ flatter myself by saying that they will five years in this office I have come to vate practice? miss me. And I will miss them. appreciate as critical to the well-being of Dean: It has been thirty-two years that Editor: What about alumni reaction? I have been teaching law, although in the Dean: I've had a lot of reaction from very early part of my career in Austin I the alumni. I have a stack of letters, four took a leave to work for a law firm. As inches thick, in what I call "The Farewell my teaching career progressed and I File." Most of them express regret that I began to specialize in oil and gas, I had am leaving but offer congratulations and. many opportunities to consult. In fact, in best wishes in the new endeavor. I have recent years there have been many more my ups and downs. Sometimes I'm ex­ requests than I could possibly accept for tremely excited about the change, but consultation. when these letters come in they add to But to answer your question, the tim­ the pangs I have about saying goodbye. ing was right. I accepted the deanship Editor: In your first Dean's Message for five years ago at a point when I was this publication you noted that there are burned out on full-time teaching and re­ three basic elements that make for excel­ search. I continued to teach first-year lence in a law school: faculty, students and Property while dean, except for this year library. After five years as dean, do you when I taught the new edition of my feel that is still an accurate statement? water book. But I knew that when my Dean: I think if you are measuring a term as dean ended I would not want to law school as a component of a univer­ return to full-time teaching, and I also sity that is a statement I would continue felt that I did not have much new or dif- to make. The quality of the faculty as

5 Charles J. Meyers

an institution of national prestige and in­ very wise in the way it runs itself. The let the dean decide what those programs fluence. Specifically I would single out faculty determines matters of curriculum, should be and simply to pitch in where the Placement Office as an invaluable re­ admissions policy, etc. It governs the they are needed. source in providing students with the ful­ academic enterprise and it delegates to The concerns I had as a full-time lest range of career choices as well as the dean all of the outside concerns ­ professor were my classes and the inter­ providing employers with an adequate from fundraising to representation of the nal governance of the School as it related means of selecting employees. School's views to the ABA and the Associ­ to the academic enterprise and to my I would also want to add the Dean of ation of American Law Schools to par­ scholarship. My concerns as dean are far Students Office, particularly for its role ticipation on various Bar and judicial more wide-ranging - seeing that admis­ in the recruitment of minority students committees. That is, in my opinion, a very sions and placement run smoothly, that and its efforts to solve the problem of sound division of labor. student complaints are handled, that fac­ proper representation of minorities in the On an individual basis faculty members ulty concerns are met, that we get enough profession. are quite willing to help with such things And finally, the alumni. Stanford law as fundraising and participating in alumni have a very strong sense of con­ programs for the alumni and the Board of tinued attachment to the School, which is Visitors, but they are also quite willing to evidenced in their participation in the Board of Visitors, Alumni Weekend and the wide range of other activities that in­ volve alumni throughout the year. They are, of course, extremely important to the School because they give us financial support, they hire our students, and they trumpet our praises and build our repu­ tation all over the United States. Editor: Have you found, then, that while dean your perspective has changed from when you were a member of the faculty? Dean: Absolutely. But rather than per­ spective, I would say my concerns have changed from the time I was a full-time faculty member. I think this law school is

Dean Meyers performing some of the myriad duties ofthe office:

inspecting the newly-installed Calder stabile, Le Faucon...

presenting the School's first Ralston Prize in International Law to OlafJ. Palme, former Prime Minister ofSweden.

6 money to run this really excellent educa­ clinical seminar in the Trial of the Men­ tional vehicle. ''There is a distinction that tally Disordered Criminal Defendant and I also think it is very important for the teaching a traditional course in Criminal dean to have a deep sense of responsibil­ needs to be made between law Procedure. Mike Wald was developing ity for when he speaks and when he andbusiness and law and his clinical course in Juvenile Law, but doesn't. I have avoided, for example, economics with regard to the beyond these there was really nothing. So speaking out as dean of the Law School curriculum. Law and business at best we were able to offer clinical ex­ on the questions of nuclear power or the was a deficiencyin an existing perience to 40 or 50 students. draft, because I don't think they are mat­ area.... The lack ofcourses Since that time we have added two fac­ ters that concern the School. I fell free" as in law and economics, on the ulty members, Chuck Marson and a citizen to talk about them, but not as otherhand, reflected the Miguel Mendez to teach primarily clini­ the dean. On the other hand, with regard School's failure to look ahead cal courses. In addition several other fac­ to national and regulatory matters of and to prepare students for ulty members, including Paul Brest, legal education, I think it is essential for the kinds ofproblems that Barbara Babcock and Paul Goldstein, are deans to represent their schools and legal developing clinical courses. education to outside groups - the legisla­ lawyers more and more have But what "is even more exciting is that ture, the ABA, the state bar. I was very to deal with." the clinical program has been extended to active in opposing the Clare and Devitt a part of the first-year class through Committees in their attempts to dictate Curriculum B. Though still in an exper­ curriculum in law schools because I per­ Roberta Romano will be joining us. A imental stage, Curriculum B exposes one ceive that to be a major responsibility as graduate of Yale, she is described by third of the first-year class to clinical in­ dean: to defend the School from this mis­ Professor Marvin Chirelstein, nationally struction in civil procedure, so students guided regulation of legal education. known corporate legal scholar, as the best are learning how the courts work, as well Editor: Getting back to your first mes­ student he ever had. So we have made as developing skills in drafting, pleading, sage in the Lawyer, you said, "Change is tremendous inroads and have really interviewing, etc. Curriculum B has been not a choice; it is a condition. It is how w~ turned that part of the curriculum a tremendous success and I have every respond to change that determines our around. confidence that it will soon be extended to fortune." In your opinion, how has the The second major deficiency, as I saw include the entire first-year class. school responded over the last five years? it, was a lack of central and guiding work Editor: I suppose one change you can Dean: I think it has responded quite in law and economics. There is a distinc­ never plan for is losing faculty, whether it well. When I came into the deanship I tion that needs to be made between law be to other law schools, government ser­ thought there were three serious de­ and business and law and economics vice, private practice, whatever. ficiencies in our curriculum that needed with regard to the curriculum. Law and Dean: That's right. Actually we have immediate attention. The first was business was a deficiency in an existing lost very few people since 1976. This year inadequate coverage of business law. By area; we were simply not doing a good has been the worst because we are losing that I mean insufficient courses in tax, job in an existing discipline. The lack of Tony Amsterdam, who has been here corporations, advanced corporate work courses in law and economics, on the since 1966 and has been the mainstay of (such as business planning, corporate fi­ other hand, reflected the School's failure the clinical program, and Victor Li who nance, international business, and inter­ to look ahead and to prepare students for is a unique and irreplaceable resource. national tax). the kinds of problems that lawyers more But at a recent faculty meeting I pointed I thought that whole area was under­ and more have to deal with. You can't out that this kind of change is inevitable staffed and undervalued, and I put a lot of think about environmental law or corpo­ and that we have thirty-six full-time fac­ effort into recruiting faculty and sensitiz­ rate law or antitrust or health and safety ulty members who are tenured or on the ing the existing faculty and alumni to the law without understanding some eco­ tenure track and of those thirty-six only deficiencies and into deciding how we nomics. Fortunately, through the gen­ six were members of this faculty when I could best remedy them. The result has erosity of a family who has always been came here in 1962. That's a remarkable been extremely gratifying. We now have very close to the School we were able to statistic. the Ralph M. Parsons Professorship, the fund the first·chair in law and economics Editor: It is a relatively young faculty first chair in law and business in the coun­ in the country, which means we can now then. try. In terms of faculty strength, we were be sure this area will get the attention Dean: Yes. The median age is about able to attract Ron Gilson, an experienced within the curriculum it deserves. forty. corporate attorney with the firm of The third area that needed immediate Editor: Is that by design? Steinhart, Goldberg, Feigenbaum & attention was the clinical program. When Dean: No. I haven't gone back to figure Ladar in San Francisco, and Tom Heller, I became dean in 1976, the clinical out historically what happened, but I former associate professor of law at the program was in an embryonic stage. At think the faculty was quite stable in the University of Wisconsin and an expert in that time Tony Amsterdam was still di­ '30S and'40S and many retired in the' 50S. international and domestic tax. Next fall viding his time between developing his The faculty grew quite a lot in the'50S but

7 Charles J. Meyers

many of them, who were rather young, tion explains why tenures are shorter. Of left for various reasons. Then, four of us "Ihave felt for a long time course, you also have to look at the age came from Columbia in 1962-63. We were of the individual when he becomes dean. young then and have now been at the that sevenyears would be the I was 50 when I became dean and I sus­ School twenty years. I suppose we haven't optimallength oftime to pect my energy level wasn't what Bayless got quite the number of senior faculty that be dean." Manning's was when he became dean at most law schools have, but I think that's 41. So obviously age has some bearing on just a quirk of fate. the length of tenure. Editor: You have often said that not Editor: How about the curriculum ten When Stanford University President every law school needs to teach every­ years from now? Donald Kennedy was Provost he sug­ thing, that every law school should offer Dean: I think there remains a defi­ gested at a meeting of the Council of a basic legal education and then spe­ ciency that needs to be remedied, and Stanford Deans that he thought five years cialize in two or three areas. that is in the area of quantitative meth­ should be institutionalized as a standard Dean: I still believe that. odology - risk analysis, decision sci­ term of office. In fact at Yale they have Editor: What do you think Stanford ences, computer science. We have made institutionalized 5-year terms which are should specialize in? some headway in the computer science renewable. Dean: One area should be law and area, thanks to the efforts of Associate But in terms of my own reasons for business and all that is related to it, in­ Dean Joseph Leininger, but we certainly resigning, I have felt for a long time that cluding law and economics, because 80 need more statistics and decision sci­ seven years would be the optimal length to 85 percent of our students go into the ences. I would like to see that deficiency of time to be dean. It just happened that private sector and practice some form of corrected over the.next few years and this special opportunity came along so I business law. certainly within ten. had to leave a bit ahead of schedule. The Another area is litigation. That is an Editor: If one looks over the succession reason I set seven years as the deadline is area that has grown tremendously in im­ of deans since Marion Kirkwood, it ap­ because the job simply takes too much portance in the last few decades. I would pears that the tenures have grown con­ out of you. There are so many con­ guess that today in major firms forty to siderably shorter. Marion Kirkwood was stituencies to deal with. There are the fifty percent of the partners are litigators. dean for twenty-three years, Carl Spaeth students, both as individuals with their So, students who are interested in litiga­ for 16, Bayless Manning for eight, personal and financial problems and as tionshould have the opportunity to do Thomas Ehrlich for 4-1/2 and yourself groups who need support for their vari­ clinical work at the School. for five. Does this say something about ous organizations. There is the faculty Given our location, an emerging area the function of the dean today? Is ita with their individual views on how the that I think we are in a particularly good position one does not expect to hold for School ought to be run and where it position to develop is the law of business more than a few years? ought to go. These concerns, of course, transactions in the Pacific Basin. We cer­ Dean: I think the growing complexity affect faculty appointments, which are tainly have the resources right here on of law school and law school administra- critical to the complexion of the School. campus, including experts on Northeast Asia and Japan, and we should get tb­ gether to develop a program for the Law School. Editor: Where would you like to see this school ten years from now in terms of the size of the faculty and the student body? Dean: I have a clear, definite answer for that question. Since I joined the faculty in 1962 there. has always been a consensus on the faculty, in fact a unanimous view, that the student body should not exceed 500 full-time students. That view still holds. Therefore, it follows that the fac­ ulty size should be somewhere around 40 to maintain a student/faculty ratio of about 12 to 1. That number is not cast in bronze. Obviously, if we had the oppor­ tunity to hire a specialist in East-West trade, for example, we would. But we would want to preserve that ratio at any cost. Dean Meyers· with his wife, Pamela.

8 Then there are alumni matters. Fundrais­ programs for the Board of Visitors and in the corporate area. ing, for example, requires an enormous Alumni Weekend are informative and Editor: Are there other sources you amount of time and energy, and yet a pri­ worthwhile and to persuade every alum­ think should be tapped? vate school of this quality simply cannot nus that the School is doing everything Dean: I would like to see more law firm operate without ever-increasing endow­ possible to produce the very best practic­ matching gift programs established. A ment and annual fund. ing lawyer we can. year ago I and the deans of five other law Then there is another concern that I Editor: Scholarships have always been schools - Chicago, Columbia, Harvard, wasn't aware of when I came into this a major concern of yours and an area to Pennsylvania and Yale - sent a joint letter job, and that is the tremendous amount which you have devoted considerable to 200 of the country's largest law firms of interaction with the University, par­ time. During your tenure you have raised asking them to establish matching gift ticularly in the area of funding. The dean an additional $2.3 million in scholarship programs. I think there is tremendous po­ of each school must be constantly look­ funds. Is the School out of the wood's tential there. ing out for the interest of his school, now? Also, I think we could do more to making sure the funds he raises stay in Dean: No. It's in worse trouble now encourage people, and particularly the school and that he gets a fair share of than ever before because of inflation. alumni, to remember the School in their unrestricted general funds from the Uni­ Costs are escalating faster than the money wills. Often the testator doesn't have a versity. Recently I have been spending is coming in. The Carter Administration particular charity in mind but wants to do almost half of my time dealing with indi­ made a fundamental error in eliminating something. In those instances the School vidual housing problems for new faculty the need test from the student loan would benefit enormously. members and with the broader problem program. It has led to a great deal of Editor: There are undoubtedly things of what the University should be doing abuse, and now the Reagan Administra­ you set out to accomplish as dean and with regard to faculty housing and per­ tion threatens to cut the program way haven't. What are they? sonnel policies. back. Frankly, we're scared to death that Dean: I would have liked to have made And finally, there are the facilities there's not going to be enough loan money more progress with corporate giving. It themselves and the problems that occur. available. has taken longer to fill the Parsons chair One of the first problems I faced as a new You also have to keep in mind that than I had anticipated. And, I wish the dean was having to replace all of the gut­ endowed scholarship funds, because of heating and ventilation system in the ters because they didn't work. And even the need to recapitalize, only pay 5% an­ 'building worked better. now, after five years of aggravation, the nually while the inflation rate is 12 or Editor: Do you expect or hope that ventilation system is still not operating 130/0. your successor will continue where you properly, and yet I have no authority to Editor: When Tom Ehrlich left the leave off? go out and hire a crew to fix it. It's a very deanship, he noted that historically pri­ Dean: I hope. I don't know what to frustrating situation indeed. vate business has done very little for legal expect. What I'm trying to say is that there are education and that Stanford could bene­ Editor: What do you consider your so many problems that need the dean's fit enormously from this support. Has biggest accomplishment? attention that you're constantly using this situation changed very much while Dean: Perhaps the greatest thing I've your psychic energies to find solutions. you have been Dean? accomplished is keeping a faculty that The fact is that the dean has an enormous Dean: I think so. The Parsons chair, of could have drifted into factions and got­ amount of responsibility across the course, can be attributed to business, ten into conflict, a cohesive, relatively board.That is the way it has to be - and since it was funded by the Ralph M. Par­ happy group. There is a good morale in should be - but it is'exhausting. sons Foundation and the William Ran­ the student body and a positive, forward­ Editor: In terms of your fundraising ef­ dolph Hearst Foundation. Moreover, the looking, cohesive spirit in the faculty. forts, you must be very proud of the fact chair in law and economics was funded Editor: Fifty years from now when a that the endowment has jumped from 8 by a family whose interests are business­ history of the law school is written, how to 20 million in five years and that con~ related. The School is beginning to at­ would you want to be remem,bered? tributions to the annual fund have more tract ongoing corporate support. Exxon Dean: I hope I will be remembered for than doubled. To what do you attribute is helping to fund the Law and Econom­ putting law and economics, law and this success? ics program, and I have an application business and clinical legal education in Dean: To the hard work 'of all of us into Shell Oil Company to support the fixed, endowed positions at this law involved, beginning with Assistant Dean Law and Business program. ~n addition, school. These programs are not whims of Barbara Dray and her staff, including the Dean's Council on Law and Business, the moment. They are central to the Linda Feigel, director of the Annual which is composed of corporate execu­ School's educational mission, and I have Fund, and Elizabeth Lucchesi, director of tives from around the country, is working no doubt that fifty years from now they Alumni Relations. Barbara is unceasing very hard to develop contacts and to will remain central. And, because they in her efforts to lend personal attention widen our base. The ground has been are endowed, they will always be part of to every alumni concern. She and her plowed and I am hopeful that the next our permanent program. staff work very hard to make sure Dean will continue to broaden our reach It's been a good five years.

9 Mediation- AnAlternative toAdversary Divorce by George H. Norton

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10 The availability of mediation as an al­ ternative approach in family law cases has not been widely publicized among lawyers. This is probably because media­ tion is new and experimental as applied to the resolution of disputes concerning property and support, and because of some uncertainty among lawyers en­ gaged in mediation regarding their professional responsibilities. Now, after several years of successful experience and research into the ethics of the process, lawyers using mediation are beginning to encourage their colleagues in the family law field to consider it a viable alterna­ tive. method of dispute resolution. Adversary Divorce Problems The need for mediation arises out ofprob­ lems inherent in applying the adversary system to family law disputes. Dissolu­ tion of marriage is a highly emotional crisis period usually involving feelings of anger, depression, and guilt. Most states have followed the leadership of California in trying to remove fault as an issue in divorce, thus eliminating one outlet for the anger of the parties. Now the determinations to be made concerning the division of property, set­ ting of support, and establishment of rights with respect to children are the focal issues of divorce. Under the adver­ sary process, these, determinations often escalate into a battle which gives vent to the anger of the parties. Unlike most litigants in the adversary process, couples dissolving their mar­ riages often must retain a close connec­ tion after the termination of the litiga­ ediation offers an alternative non­ tion. The parties usually have children in adversary method of dispute resolu­ common, often retain co-ownership of a M tion in family law cases. In Califor­ house or other property, may have joint nia, a number of lawyer mediators are working rights in a pension, or have intercon­ nected relationships with the Internal directly with both parties involved in a dissolu­ Revenue Service and face continuing ad­ tion of marriage to help them resolve the issues justments relating to support. "Divorce" ofproperty division and support. Counselors is only partial in most cases and not are being appointed by the Superior C0l:lrt to complete. It is beneficial, and even neces­ sary, for the parties to cooperate for mediate all problems related to custody and years after the dissolution· of marriage visitation as required under recent legislation.1 has become "final." Such cooperation requires that some form of relationship be maintained by the parties. The adversary process, particularly when it results in litigated court hear­ ings, works against maintenance of a reasonable relationship between the par­ ties. Each party is encouraged to take a

II Mediation

litigation, including the areas of potential conflict and the possibil­ "Lawyers trainedinthe adversary ity and desirabil ity of seeking in­ dependent legal advice .... Failing process are taughtto attempt such disclosure, the attorney is civilly liable to the client who suf­ aggressivelyto maximize their client's fers loss caused by lack of disclo­ sure. . .. In addition, the lawyer position andto encourage the client's lays himself open to charges, in whether well founded or not, of cooperation this process." unethical and unprofessional con­ duct.... Moreover, the validity of any agreement negotiated without independent representation of each strong posItIon rather than to be con­ interest inherent in the situation which, of the parties is vulnerable to easy ciliatory, because to do otherwise is usu­ coupled with an increasing awareness of attack as having been procured by ally thought to weaken one's negotiating the potential for malpractice claims, has misrepresentation, fraud and over­ position. Highly-charged, emotional is­ prompted most attorneys to avoid this reaching.... It thus behooves sues, such as custody or the right to re­ approach. counsel to cogitate carefully and main in the family home, are sometimes In "friendly divorce" situations, proceed cautiously before placing used as leverage when support and prop­ another common approach in the past himself/herself in such a position.3 erty issues are being bargained. Each was for a lawyer representing one of the Most family lawyers recognize that a party is encouraged to marshal facts parties to deal directly with the other un­ conflict of interest is inherent in a disso­ which will allow hin1 or her to obtain represented party. This arrangement put lution case. The Rules of Professional more property and result in a favorable the lawyer in the very difficult position Conduct in California and the Canons of support determination, to the detriment of being required to be loyal only to one the American Bar Association make it of the spouse. Lawyers trained in the ad­ party, while trying to appear "fair" to the clear that a lawyer cannot represent two versary process are taught to attempt ag­ other party. A number of cases handled parties with a conflict of interest. In a gressively to maximize their client's posi­ in this manner have resulted in sub­ dissolution of marriage, almost any two tion and to encourage the client's coop­ sequent court battles to set aside the people seeking legal advice with respect eration in this process. Unfortunately, agreement on the basis of accusations of to problems involving property division most lawyers obtain little or no training overreaching against the party who was and support find they have a conflict of in observing and evaluating the emo­ represented by counsel. interest. Even couples who think they tional damage adversary litigation can Many lawyers specializing in the fam­ have settled all issues before they see a do to the client and to the necessary on­ ily law field are approached by couples lawyer may find out after consultation going relationship of the parties after the who' want to be represented by one that they have not considered the tax dissolution. lawyer and cannot understand why they ramifications of their solution, that they have to engage in an expensive adversary Early Non-Adversary have failed to consider certain property process. A 1978 California case, Mar­ items (such as the community interest in Approaches 2 riage of Klemm, suggests that it is possi­ unvested retirement rights), or that they Some .lawyers, through experience and ble for a lawyer to represent a divorcing have simply misunderstood the law. Of­ by natural inclination, have recognized couple both of whom truly have no con­ ten, in such situations, the settlement has the potentially damaging effects of ad­ flict of interest and to obtain a dissolu- . been dominated by one party. versary divorce proceedings and have at­ tion of their marriage. After all, lawyers . Some family lawyers, including the au­ tempted to find alternative solutions. routinely put together partnerships and thor, have on occasion tried to avoid ad­ Occasionally, a lawyer friend of a corporations for persons who have a po­ versary proceedings by offering to repre­ separating couple has tried to help the tential (and sometimes actual) conflict of sent one party and work out a settlement husband and wife avoid the destructive interest. However, the Appellate Court in with both. When this approach is taken, pattern of litigation by offering to act as the Klemm case warns: it must be made clear to the unrepre­ a lawyer-arbitrator. This approach can Attorneys who undertake to repre­ sented party that the lawyer's duty to the lead to serious problems. The lawyer sent parties with divergent interests represented party is one of undivided friend may not be an expert in the field owe the highest duty to each to loyalty. The unrepresented party is told of family law or have any training in make a full disclosure of all facts that, upon completion of a tentative psychology or counseling. The lawyer's and circumstances which are nec­ agreement, he or she should have the objectivity is often compromised by his essary to enable the parties to agreement reviewed by another attorney. friendship with the parties. A further make a fully informed decision re­ This step is intended to provide assur­ consideration is the obvious conflict of garding the subject matter of the ance that the agreement is reasonable,

12 which assurance is necessary to protect both. In California and nationwide the The. lawyer does not act as attorney for the represented client from a later at­ field of family law has become one of the either party but is strictly a consultant. tempt to set aside the agreement. This most complex, fast-developing of all Most lawyers doing mediation con­ procedure does work for some people, areas. More cases have appeared in the sider the possibility of working directly but it takes a rather secure and sophisti­ appellate reports of California relating to or indirectly with a mental health pro­ cated individual to sit down and attempt family law problems in the past five years fessional in the mediation process in par­ to work out an agreement with a spouse than in all of the preceding years since ticular cases. The author's experience is who has adverse interests and is repre­ 1850. Family law is the most recent that most people coming to mediation sented by a lawyer. branch of law certified as a specialty by have a background of prior counseling the California State Board of Specializa­ with mental health professionals. Indeed, The Mediation Alternative tion. Today, any divorce involving own­ many referrals to mediation come from Because the situation just described is ership of a residence, retirement rights, mental health professionals who do not less than satisfactory, mediation is a log­ and a marriage of medium length with­ want to deal with the property and sup­ ical solution for family lawyers who out parity of earning ability between port aspects of separation. want to help people work out their prop­ spouses involves complex problems and In cases where there are serious prob­ erty and support problems in a non­ decisions relating to valuation, taxation, lems relating to custody or visitation, I, adversary manner. In mediation, the finance, and support rights. It has been as a mediator, always recommend that lawyer can use the background, training, the author's experience in discussing the parties seek help from a mental knowledge, and skills of a family lawyer these matters with mental health profes­ health professional to resolve these is­ as a truly neutral independent mediator. sionals that they do not want to be in­ sues. Today, more and more mental The key to the process is a clear-cut volved in helping people make such deci­ health professionals are specializing in understanding by the parties that the sions and almost uniformly advise legal custody and visitation problems, and this mediator is not acting as the attorney for help. specialization can be expected to further either party. Both parties are strongly ad­ On the other hand, O.J. Coogler, the increase under the mandatory mediation vised to obtain their own independent author of the leading text on mediation provisions of California Civil Code legal counsel to review any agreement and divorce, Structured Mediation in Di­ §4607. In the county where I practice, reached with the mediator's help. Some vorce, states: the court conciliator's staff has already mediators are willing to process the nec­ Lawyers or others with legal expe­ be'en substantially increased to meet the essary paperwork to obtain a dissolution rience have much to offer (as requirements of this statute. In addition, of marriage, but most feel that the mediators) but skills in behavioral many lawyers in the adversary process as mediator crosses the line at this point and science are usually lacking. It is well as those doing mediation automati­ becomes the attorney for one party or generally easier for one trained in cally refer custody and visitation prob­ has a conflict of interest problem and is behavioral sciences to acquire legal lems to the county mediation service. thereby violating the Rules of Profes­ knowledge required for mediation What does the lawyer-mediator ac­ sional Conduct. than for the legally trained person tually do and how does one become a Is there an ethical problem for the to gain knowledge and a feel for mediator? My own interest in mediation lawyer-mediator who does not represent behavioral science and counseling developed after several years of working either party? Mediation has been an his­ skills.5 successfully with cases in which I worked torical and traditional role for lawyers in with both parties to achieve a settlement Coogler is suspect of some bias on the labor, business, and international law. It and then referred the unrepresented party subject as reflected in the dedication to is difficult to see why that role cannot to another family lawyer.for review of the his book: extend into the family law field. This proposed agreement. I had experienced question has been specifically addressed I am indebted to my former wife some frustration with this method be­ in Massachusetts by the Boston Bar As­ and the two attorneys who repre­ cause of the understandable fear some of sociation's Committee on Professional sented us in our divorce for making the unrepresented parties had in the Responsibility, which decided that a me aware of the critical need for a process. lawyer indeed can mediate family law more rational, more civilized way In 1977, I learned that two lawyers in disputes without transgressing ethical of arranging a parting of the ways. the San Francisco Bay Area had been ex­ rules.4 Rule 5 of the American Bar Asso­ However, Coogler is now working with perimenting with mediation and had oc­ ciation's proposed new ethical rules al­ the court system in Atlanta, Georgia, and casion to discuss the process in some de­ lows for a lawyer to act as an "inter­ has modified his position somewhat. tail with one of them. Shortly thereafter, mediary" when mediating a dispute be­ Coogler has organized the Family Media­ a potential client, whom I will call tween clients. tion Association to resolve divorce dis­ "Jane," was referred to me. Jane and her Mediation of the issues in a dissolution putes. The mediators are mental health husband "Bob" were both mental health of marriage raises the question of professionals, but lawyers are now used as professionals and had worked out a mar­ whether the mediators should be consultants to the non-lawyer mediators ital settlement with the help of their twp lawyers, mental health professionals or for review of any legal problems involved. lawyers. The agreement did no't get Mediation

ing any final agreement. The parties are advised that they must rely on each other's "I estimate thatthe total cost of honesty to disclose assets fully and if they have any doubts, they will need their own mediation, plus the two reviewing lawyer to conduct discovery. They are told that they can engage other profes­ attorneys, averages approximately sionals for legal advice, tax counsel, ac­ one-third ofthe costtoparties engaging counting, appraisal, etc., and that the mediator may advise them to do so inthe standard adversarymeans of specifically in certain instances. Matters relating to confidentiality and fee are dis­ handling a settled dissolution." cussed. The next step is usually one of "break­ ing the ice." Each party is encouraged to tell the mediator the general background signed because of one or two minor unre­ able to resolve all of the issues of the case. of the marriage and about himself. Ages solved issues involving personal property. I then prepared an agreement which was and number of children, length of mar­ A substantial period of time passed and ratified by the attorneys for the parties. riage, work history, and a general review during this interval California experi­ At the end of the second mediation ses­ of assets are ascertained. The parties are enced an enormous jump in real estate sion Jane and Bob both inquired where I then asked to tell the mediator if they values. Bob now wanted to re-negotiate had obtained my training for mediation. foresee any special or particular areas the agreement using the updated re­ The honest answer was that I had had no that they feel will present a problem in sidence valuation. He changed attorneys training beyond my experience as a fam­ working out a division of assets, support and retained a well known, highly re­ ily lawyer. The only other education I rights, and respective rights and duties garded family lawyer. Jane became con­ had received for counseling was a Parent relating to children. cerned and consulted with me about the Effectiveness Training course I had at­ As a mediator, I usually give the par­ possibility of taking over the case as her tended with my wife, which in retrospect ties some background about how disso­ advocate. I regard as a very good introduction to lution settlements are made. The Cali­ After reviewing the facts with Jane, I mediation techniques. fornia rule of equal division of assets is advised her to stay with the lawyer who After the experience with Jane and discussed, as is the fact that support was representing her and doing a compe­ Bob, I made an effort to find and talk with rights are generally predictable under tent job. It appeared to me that the case other lawyers doing mediation and to in­ certain objective standards (guidelines was in danger of becoming over-litigated. terested mental health professionals. I at­ used in most counties). Other factors I pointed this fact out to Jane and ad­ tended a course given by the Mental Re­ that may be pertinent in their particular vised her that litigation would be expen­ search Institute in Palo Alto and read case are also considered. If the parties sive and could do more damage than books on mediation and counseling. Op­ have a fairly simple asset and liability would ever be compensated for by mone­ portunities to do mediation came from picture or if they have brought details tary gain. I told Jane that although I contacts with certain mental health concerning their assets and liabilities to would not act as her lawyer, I would professionals and interested lawyers. In the first session, we may proceed to a pre­ consider the possibility of serving as a 1980 I and another lawyer, Claire Anton, liminary discussion relating to division mediator. After some questions, Jane ex­ began Family Mediation Service, an­ of assets. As mediator, I try to give the pressed interest and said that she would nouncing to a number of our friends in the parties some guidelines and alternatives discuss it with Bob. legal and mental health professions the in settling these matters. Two days later, Jane called me and said availability of mediation as an alternative The first session ends with a request by that Bob liked the mediation concept but to the adversary process in divorce. the mediator for the parties to do some was concerned because Jane had already homework. Most often this is a catalog­ given her viewpoint to me. I suggested ing in greater detail of assets and liabili­ that Bob and I could meet alone for an Mediation Explained ties and the collection of data relating to hour so that he would have had "equal How does the mediation process actually earnings, other income, and expenses. time" and then could decide whether or work and what have been the results? Our Unless communication between the par­ not to enter the process. I also talked with approach to mediation follows a general ties is particularly bad, the parties are both lawyers to ensure that they would format. First, the participants are ap­ encouraged to meet and talk over sug­ have no objection to my involvement as prised of the purposes, limitations, and gested methods of dividing property and Inediator. Bob and I had the preliminary rules. I advise them that the mediator is setting support. discussion, which was followed by two not the lawyer for either party and I By the second session, most partici­ fairly lengthy mediation sessions with the strongly recommend that the parties con­ pants are able to get down to the hard couple. During these sessions we were sult with their own attorneys before sign- areas of dispute resolution. Often they will have some agreement concerning a viewing attorney strongly advised against anger. The mediator's job is one of care­ division of assets with possibly one or the settlement (which was anticipated) fully listening and then sorting out areas two items being a problem because of but the client made the decision to go of agreement and disagreement. When disagreement over valuation or which ahead with the agreement. To date, I know there is disagreement, the mediator tries party is to receive a specific asset. The of no mediated settlement that has been to help each party understand the other's most repetitive problem is providing for set aside or that resulted in subsequent position. If compromise cannot then be division of the family home when one or litigation. reached, my particular technique is to both parties want the children to stay in It seems obvious that a settlement ar­ suggest what a court might do with the the home but the party leaving wants rived at through active participation of problem if required to rule on it and then some cash out of the house and protec­ the parties is more readily accepted than a to suggest alternatives that might be tion from tax problems. judgment imposed by a court or a settle­ more attractive than a court ruling. My experience has been that the suc­ ment forced on a client by a lawyer, as It has been my experience that the kinds cess rate of the mediation process is often happens at the time of trial or at a of compromises made in mediation are phenomenally high - above 90 percent. settlement conference just preceding trial. often more satisfactory than the solutions The median number of meetings required Mental health professionals have advised imposed by a court. There are many more to achieve an agreement has been three. me that many people are particularly creative alternatives available to the me­ Some cases have actually been settled in frustrated in the dissolution process be­ diator than there are to the court, which is one meeting and a marital settlement cause they feel that the decisions made are bound by appellate rulings preventing agreement drawn as a result of that single out of their control. Necessarily, this re­ certain types of compromise. A typical session. Others have extended to six or sults in increased inability to accept the example of this is agreement of the parties seven sessions because of the complexity result. to steps down in support over a period of of the problem or because one or both of Lawyers often ask me how a mediator time. Appellate courts frown on step­ the parties have difficulty making or, ac­ handles the problem of the stronger and down orders by trial courts because they cepting a decision. more articulate partner who can over­ assume certain facts in the future that What is the cost of mediation and whelm his or her spouse in argument in cannot be in evidence. what is its relative cost compared with a the mediation process. There are a num­ The public and the media are becom­ standard adversary dissolution action? I ber of techniques used by negotiators ing more and more aware of mediation. charge for mediation on the same hourly and counselors to meet this problem. My Within the past year I have seen articles basis as handling any other legal work. particular method is to suggest to the in Money and California Living maga­ Most mediators I have talked with do the more articulate partner that if his or her zines, in The Wall Street Journal, and, in same, although at least one mediator has spouse obtained an attorney, the attor­ a great number of other newspapers and indicated a flat fee is used for the service ney's answering position would almost periodicals discussing and often advocat­ with certain limitations as to the amount certainly be as follows (and then set out ing the concept of mediation. Although I of time allowed. Participants in media­ the other party's position). Almost invar­ do not suggest that mediation is a tion often question at the onset how it iably, the less verbal partner starts nod­ panacea for the easy resolution of all di­ can be less expensive to use three lawyers ing his or her head in agreement and may vorce cases, I do hope that the legal (including the mediator) than to use two further amplify on that position. Obvi­ profession keeps an open mind toward its lawyers. My evaluation has to be subjec­ ously, the mediator has to be careful not use in family law. The legal profession is tive, but the bulk of my practice is still to become the advocate for one party, but in service to the public and should be adversary divorce cases and the great the device, used carefully, can put the open to change. majority of these cases are settled. I esti­ issue in a framework that permits it to be mate that the total cost of mediation, settled by compromise. plus the two reviewing attorneys, av­ Some lawyers have expressed the 1. California Civil Code §4607 erages approximately one-third of the doubt that mediation can work unless 2.78 C.A. 3d 893. 3.Id. at 901. cost to parties engaging in the standard there is good communication between 4. Opinion 78-1, 5 EL.R. 2606. (The subject adversary means of handling a settled the parties. By good communication, is generally discussed in 7 EL.R. 4°°1-1 I in dissolution. In mediation the parties do they usually mean that the parties behave a monograph, "Professional Responsibility much of their own legal work, primarily reasonably toward each other without a Problems of Divorce Mediation," by Pro­ in the field of discovery. The actual great deal of acrimony. I have not found fessor Linda J. Silberman of the New York processing of the divorce once a settle­ this to be necessarily true. I have had University School of Law.) ment has been achieved is a fairly routine clients involved in mediation who get 5. Structured Mediation in Divorce, D.C. task requiring little attorney time. into shouting sessions in the office, cry, Heath and Co., p. 75 Do the settlements attained through bully, and use a variety of unfair tactics Mr. Norton is a partner in the Palo Alto law mediation last? All of the settlements I against each other. What I have observed firm of Lakin Spears. He is a certified spe­ have mediated have survived review by in these situations is that often many of cialist in family law and a fellow ofthe Amer­ independent attorneys, sometimes with these people were able to back down and ican Academy of Matrimonial Lawyers. Mr. minor changes. On one occasion, the re- calmly compromise after venting their Norton is a graduate of the Class of I957·

15 Child CustodyDisputes: Are We Abandoning the Child's BestInterests? byMichael S. Wald

n 1979 the parents of over a million children divorced. Under the best of circumstances divorce usually constitutes a traumatic event for chil­ dren. In general, the best of circum­ stances means that parents agree on cus­ tody, maintain good relations with each other, maximize both parents' contact with the child, and do not engage in liti­ gation involving the children. When par­ ents cannot agree on custody, problems are created for the legal system as well as the children. In this article, I do not address, let alone try to resolve, most of the hard questions concerning custody adjudica­ tion. I focus only on two aspects of the current legal response: the recent adop­ tion by some legislatures of a presump­ tion for joint custody in contested cus­ tody cases and the length of time the decision-making process takes in resolv­ ing disputed cases. While one of these in­ volves a substantive issue, i.e., the stan­ dard for decision, and the other proce­ dural issues, they have a common ele­ ment. I believe that under current laws and procedures, there is a substantial danger that the real interests of children parent's desire to continue his or her re­ mother's custody, although the father can are being ignored to accommodate the lationship with the child in a society try to persuade the court that he better needs of adults and adult institutions. where divorced parents may end up liv­ meets the child's interests. ing hundreds or thousands of miles Under all these tests, it is generally as­ The Custody Standard - The apart? These questions present perplex­ sumed that one parent will get custody ing value choices on issues about which and the other w:ill have visitation rights. Move Towards Joint Custody we have limited knowledge. Moreover, In recent years, however, a nu.mber of The question of which parent should re­ the intense emotional ties make the state legislatures have abandoned the ceive custody in disputed situations has decision-making process extremely pain­ maternal preference or tender years pre­ plagued decision-makers since at least ful for everyone involved. sumption. In its place a new presumption the time of Solomon. Determining the The legal system has never developed is being substituted - for joint custody. appropriate legal response to custody an "ideal" way of resolving contested In California, for example, a new cus­ disputes requires solving a number of cases. In the 19th century, fathers had an tody law enacted in 1979 provides for extraordinarily difficult questions. For absolute right to custody. Beginning joint legal and physical custody as the example, in establishing custody rules around 1900, most state legislatures first preference in custody determina­ should the focus be only on the child's adopted the "best interest" test, which tions. While there is some confusion as to needs or should we weigh the interests of directs the judge to focus solely on the the meaning of the term "joint custody" all family members? By what standards child's interests and place the child with - parents can have joint legal custody should we determine who is a "better" that par~nt who will best promote the and decision-making authority without parent? How .do we go about assessing child's well-being. In addition, many equal amounts of physical custody - in the parenting capabilities of each parent, legislatures also established a maternal many situations joint custody is equated assuming we can articulate standards? preference, at least for children of "ten­ with splitting the child's time between How can we protect the child's interest in der years." Under this test, it is presumed two homes. retaining ties to each parent and each that most children are better off in the Support for joint custody has come

16 from many sources, including experts in cation, to perceive his or her cus­ JOint custody. We know nothing about child development, fathers' rights groups, todial status as in a perpetual state the impact of joint custody on the chil­ and academics from many disciplines. Al­ of precarious balance. dren in such situations. Certainly the though some proponents appear to be chances of success are diminished and the When parents live any distance motivated primarily by self-interest, there likely problems for the child, such as loy­ apart, as is often the case, pros­ certainly are good arguments that joint alty conflicts between battling parents, pects for mutual decision making custody can be beneficial to children. At are increased. may be negligible.... [Moreover], the core of the case for joint custody is My greatest concern is that, in light of shared decision making may do no­ substantial evidence that children fare the preference, judges may order joint thing but expose the child to un­ best following a divorce when they have custody, despite the opposition or reluc­ necessary confusion and trauma.l maximum contact with both parents. The tance of one or even both parents, as a evidence indicates that in "sole" custody It is extremely difficult to assess the way of avoiding hard decisions in cases arrangements most fathers (90% of all claims of the proponents and .opponents where both parents seem basically com­ custodians still are mothers) visit with the of joint custody. There has been virtually petent. Under the traditional best interest children infrequently. Thus, to the extent no sound research evaluating its impact. test most contested cases involved situa­ that a joint custody arrangement encour­ Although a few studies are widely cited tions where there were significant differ­ ages both parents to stay involved with as demonstrating the feasibility of joint ences in parenting abilities or lifestyles the children, it can be assumed that joint custody, all the studies are of families in between the two parents. While deci­ custody will be in the child's best interest. which both parents wanted joint custody. sion-making under the best interest test is It is also argued that joint custody helps At best these studies demonstrate that, each parent cope with divorce and that where both parents agree, joint custody their improved coping benefits the chil­ may be workable. Even this statement dren. In addition, joint custody may be a must be qualified, however, since very means of avoiding protracted court dis­ few studies have actually looked at the putes, which usually are extremely harm­ children in assessing the impact of joint ful to all the parties. Finally, joint custody custody arrangements. To a disappoint­ means that one of the parents doesn't ing degree, the "research" has consisted "lose" the child, a loss which is very great more of pieces of advocacy than of scien­ for many non-custodial parents. tifically sound studies. Joint custody is not without potential In any given case it may well be that drawbacks, however. As two experts re­ joint custody is likely to best promote the cently wrote: child's interest. Until recently courts in most states assumed that they could not, Disruption, uncertainty, and in­ or should not, ever award joint custody. not without problems (as a result of the consistency, especially following To the extent that new laws merely re­ vagueness of the standard, judges are parental separation, are ordinarily move barriers preventing courts from able to impose their views of appropriate detrimental to a child. A custodial ever awarding joint custody, the change upbringing and lifestyle as the deter­ arrangement that involves shut­ seems clearly correct. Despite the ab­ minative factor; at lea'st in some cases, tling the child between different sence of research, it is reasonable to as­ judges have favored traditional over homes, churches, lifestyles, and so­ sume that if both parents want joint cus­ non-traditional lifestyles, ignoring a cioeconomic situations and sub­ tody, the arrangement is likely to be child's psychological or emotional ties to jects the child to inconsistent rules, workable, even beneficial, for the chil­ a caretaker merely because the judge dis­ regulations, methods of discipline, dren. In such situations, joint custody approved of the caretaker's lifestyle) ­ and styles of parenting invites con­ may help maximize the child's ties to the test does at least make the child's tinual instability. each parent. Moreover, whenever parents interest the focus of the proceeding. The probability of temporari­ agree, their decision should be followed The nature of the contested custody ness is increased by the likelihood because it is highly unlikely that a judge cases is changing, however, reflecting the of remarriage or the mother's ob­ can determine" the child's best interests changing roles of men and women. The taining employment outside the better than both parents can. new role, and potential, of fatherhood, home. Thus, an arrangement that However, the move towards joint cus­ as glorified in the movie Kramer v. appears workable at the time of the tody has not been limited to situations in Kramer, is leading to more disputes be­ divorce may be destined to crum­ which the parents agree to this arrange­ tween two "fit" parents. It seems likely ble, conceivably just as the child is ment. Under California law the court can that in future years there will be more becoming used to it. In any event, impose joint custody over one parent's contested custody cases in situations the child remains exposed to the opposition or can use the threat of where there are not significant differ­ disquieting threat of upheaval and awarding sole custody as a means of co­ ences in lifestyle or fitness of parents. is likely, with considerable justifi- ercing an unwilling parent into accepting And, as more cases between two Child CustodyDisputes

seemingly fit and competent parents are the likelihood that a joint arrangement presented to the court, it is likely that will really be in the child's, not just the judges will be reluctant to deprive either adults', best interest. In many cases joint adult of custody. custody may be the best from everyone's In such situations, it is all too easy for perspective. We should continue to seek a judge to split the difference - in this ways of keeping both parents involved case the child - without focusing suffi­ with the child. However, the fact that ciently on the child's needs. I am familiar both parents are fit is not, in and of itself, with several recent cases in which courts a reason to order joint custody. The court in California ordered joint custody under must be convinced that cooperation is circumstances which are clearly adverse adults, assuming that just because both possible, that the child-rearing styles are for children. For example, in one case parents are fit, the child will benefit from essentially similar and that the likeli­ each parent was given physical custody joint custody. hood of on-going disputes, in or out of for two weeks at a time. One parent lived The potential for ignoring the child's courts, is minimal. When a court orders best interest is even greater during the joint physical as well as joint legal cus­ pretrial negotiation process, where cus­ tody, it must take into account a child's tody issues are most frequently decided. very strong need for stability, continuity, With a statutory preference for joint cus­ and consistency in parenting. tody, there is substantial reason for lawyers to advise their clients to accept a The Decision joint custody arrangement out of con­ Process - Avoiding Delay cern that the court will impose it in any case or, even worse, award primary cus­ Developing ideal standards for contested in Southern California, the other in the tody to the "co9perative" parent. It is all custody issues may be an impossible Bay Area. The child, who was three, was too possible that joint custody will be ac­ task. Virtually any rule is going to be to be shipped back and forth every other cepted by an unwilling party in order to undesirable in some situation, and the Sunday. I believe that there would be avoid litigation, despite the fact that the alternative of no rules at all, i.e., giving unanimity among child development ex­ arrangement may be detrimental to the the judge (or other decisionmaker if we perts that such an arrangement is likely child. In addition, some parents may use decide to turn the decision over to other to be very detrimental to the child. In the threat of requesting joint custody as a professionals) total discretion also has another action an appellate court un­ negotiating tool in order to minimize many drawbacks. Perhaps the best we wisely suggested that the trial court child or spousal support. And, it must be can do is decide which standard is likely award joint custody in a situation where noted that children are unrepresented to be the least detrimental. the custodial parent had sole custody for throughout the bargaining process; only Whatever the standard, however, there virtually all of the child's life (five years) the parents have counsel. is a second problem in custody litigation and despite the fact that the child was In order to avoid this problem the which is inexcusable - the length of doing very well in the father's sole cus­ legislature ought to repeal the current time it takes the judicial system to de­ tody. law and substitute one which requires cide contested custody cases. While the Why do decisions like these occur? courts to explore joint custody but with­ problem exists at both the trial and ap­ They may just reflect the problem that out a presumption for any particular cus­ pellate levels, it is particularly acute at under the best interest test, judges have todial arrangement. The current law just the appellate level. For example, appel­ wide 'discretion in determining a child's­ goes too far on too small an informa­ late courts in California have decided best interest and a judge's view may not tional base. A law favoring joint custody six child custody cases in the past four coincide with that of child development should be adopted only after there is far years. For these six cases, it took an av­ experts. However, I think the problem more evidence about the impact of laws erage of 18 months for the appellate lies elsewhere - in the joint custody law allowing, but not favoring, joint custody. process to be completed. The shortest itself, rather than in the best interest test. It will be several years, at least, until time period was 15 months; some cases Although the joint custody preference is there is more information available on took two years to decide. Similar statis­ not supposed to alter the focus from the how these non-consensual or "semi­ tics prevail in other cases, which raise child's best interest, in fact it must. Given consensual" arrangements work out. the same concern over timeliness as do the painfulness of deciding between two Even then the evidence will probably be custody cases, such as those dealing "fit" adults, the fact that the court usu­ anecdotal, since little research is being with abused and neglected children or ally sees only the adults, not the child, done. with the validity of an adoption. In and the natural desire to have everyone If the current law is not changed, I many of these cases the pretrial process come out with something, it is all too hope that courts will approach the use of also took many months and the trial easy for courts to ignore the needs and joint custody very cautiously. The focus judge may not have rendered a decision interest of the child and focus only on the should remain on the child's needs and for weeks after the hearing.

18 Of course, there are many "good" place. Yet the child has suffered the harm possible step. A more substantial change reasons for such delays. Appellate courts of the removal and of a lengthy separa­ would be the creation of a special court are busy and have other important cases, tion. Moreover, children who have be­ of appeals to handle cases involving cus­ including those brought by criminal de­ come attached to their new family must tody of children. Depending on the work­ fendants who have been sent to prison. undergo another separation. Even if the load this court might handle only cus­ Lawyers are busy and cannot file appeals custodial arrangement is upheld, both tody cases or it could hear other cases as immediately. Transcripts take time to be the parent and the child worry about the time permits. In addition, the process prepared. Trial courts, too, are overbur­ security of the situation, which may im­ should allow for only one appeal. The dened and cannot render quick decisions. pair the parent's ability to care for the benefit in extra protection against error Yet from the child's perspective such child as well as cause emotional trauma provided by a multi-level appellate delays are extremely damaging. Child for the child. process is simply not sufficient to justify development experts of many different If we recognize that two years is a very the costs to the child that the time re­ backgrounds and persuasions agree that, long time in the life of a child, can we do quired for two or more appeals entails. while children can grow and thrive in a anything about the situation? I believe States should, either by statute or by variety of environments, most children we can. The easiest response is to estab­ Constitutional amendment, provide for a are harmed when they are subjected to lish a time limit in which these cases one-step appellate process. One possibil­ instability and uncertainty. Children, es­ must be decided. Children's cases already ity is to create a special appellate court pecially younger children, develop strong are given calendar priority at the appel­ made up, on a rotating basis, of trial psychological attachments to their care­ late level by statute, but this has had little judges who handle domestic cases. Thus takers; it is hazardous to destroy these impact. I would establish a deadline from judges with special expertise would be relationships. Equally important, chil­ trial court decision to appellate decision. reviewing discretionary decisions made dren can suffer severe emotional prob­ This deadline should be no longer than at the trial level. lems if faced with uncertainty as to who four months, in recognition. of children's Of course, good arguments can be will be their custodian or whether they time sense. In addition, the trial court made for expedited appeals in all other will "lose" their parent(s). In addition, as should be required to render its decision areas of the law. Why should children's all parents know, a child's time perspec­ within a week of the time the case is cases be singled out? First, the welfare of tive is much different from an adult's. submitted. Time limits should also be es­ innocent children is at stake. No element While the problem is especially acute for tablished to ensure that cases get to trial of our society is more deserving of our younger children, older children also are as quickly as possible. special attention and of the expenditure affected. The child's.perspective was Of course, such time limits place of scarce resources. Second, the cost is voiced by an eleven-year-old boy being enormous pressure on both the lawyers not that great. There are only a few interviewed recently by a Stanford grad­ and judges. However, we are dealing with hundred children's cases each year. Fi­ uate student who is doing a dissertation only a small number of cases a year. Even nally, a coherent program that focuses at­ on the impact of custody disputes on the if a faster appellate process would en­ tention on these problems may well re­ children. When asked about the court courage more" appeals, the number of sult ultimately in sensible standards that process the boy said, "I thought we'd all cases involved should be no more than will lower the cost of administration in all areas. Making these substantive and proce­ dural changes will not guarantee that the legal system meets the child's best inter­ ests. As stated initially, the best situation is that in which no litigation is necessary. However, the proposed changes will help minimize the damage to the child. Under go to court and that would be that. In­ one hundred. The legal system is capable the present system we keep letting adults' stead it dragged on and on. I don't know of handling this number of cases in an needs take precedence over those of the how long it really lasted but it seemed expeditious fashion without sacrificing child. The proposed changes would help endless ... It took a long time because quality. Unfortunately, it· is difficult to the legal system protect the child's best the courts have more important things to enforce such a limit, at least if delay is the interest. do like taking care of robbers and mur­ fault of the court and not the parties. derers, so we just keep falling back on Moreover, the attorneys may agree to the 1. E. Benedek and R. Benedek, "Joint Cus­ their schedule." delay in the interests of their clients, the tody: Solution or Illusion?" 136 Amer. J. A lengthy appellate process also dis­ parents. No one will be around to Psych. 12 (1979). rupts the continuity of caretaking chil­ enforce the time limits on behalf of the dren need. In some· cases a child is re­ children. However, short time limits Professor Wald joined the Stanford law fac­ turned to the care of a parent who never should result in significant improvement. ulty in I967. His principal subjects are should have lost custody in the first Establishing a time limit is only one juveniIe law and family law. HOlDe v. PnbUe Edueation: ShouldParents Have the RightTo Choose? byThomas J. Owen'81 and Matjorle Horton

orne education is a subject of illustrates the basic conflicts. The Mas­ of reasonable accommodation. Public growing controversy in the sachusetts school law establishes a pro­ schools themselves violate any strict prin­ field of education, in the gram of compulsory education for .all ciple of equal education for all pupils media, and in the courts. Unfortunately, school-age children. The plaintiffs sought through tracking (grouping students by this attention reflects the number of to educate their son on their own, pur­ ability) or the use of vocational/academic situations in which the choice by individ­ suant to a provision in the law which curricula. uals to educate their own children has exempts from public school attendance Defendant school superintendent Friz­ conflicted with state compulsory atten­ any child who is "being otherwise in­ zle gave four reasons in Perchemlides for dance laws. The last half-century has seen structed in a manner approved in advance denying equivalence and rejecting the state-mandated, state-controlled school­ by the superintendent or the school com­ plaintiffs' request: ing become so widely accepted that par­ mittee."2 ents must now justify once traditional The crux of the argument in the Per­ The program (I) did not indicate prerogatives and responsibilities of the chemlides case, as it has been in almost all that the proponents had appropri­ family in this very important area of of the disputes on home education, was ate training or background; (2) did child-rearing. the issue of "equivalency." To gain official not indicate curricular sequence For the purposes of discussion, we are approval, a home education proposal based on skill development and ca­ assuming certain characteristics of home must be suffic{ently responsive to state pacity; (3) did not indicate what and public education. The public educa­ requirements to produce a satisfactory opportunity Richard would have tion model referred to is the traditional program. In dispute generally are the de­ for group experiences which were classroom situation with one teacher pre­ gree to which the home program must be "essential to a child's personal and senting basically standardized instruc­ equivalent to the public school program, intellectual growth;" and (4) had tion to a group of approximately thirty and the particular areas in which equiva­ "not adequately prepared Richard same-age students of heterogeneous abil­ lence is required. These are questions for the second grade."3 ity. The teacher structures, paces, and disciplines the class in accordance with a comprehensive curriculum. In the typical home education program discussed here, the parent (whose compe­ tency is passed on by the school board according to more or less formal criteria) creates a basically original curriculum for the child. One-on-one instruction allows the child's interests to influence the course of the lessons. Motivation, discipline, and standards are kept in line with overall family child-rearing practices. Of course, some public schools are much more re­ sponsive to the individual child than the one pictured here; parents may also recre­ ate the traditional mistakes of public edu­ cation within the home. But we believe these models of home and public educa­ tion to represent the general rule.

A Question of Socialization The crucial difference between public and home education has been argued in terms of socialization. Is public education uniquely structured to provide necessary and appropriate group experiences? What are .the legitimate state interests concerning methods and results in this area? And what other interests are being implicitly furthered through the socializ­ ing experiences of public education? The case of Perchemlides v. Frizzle1

20 These objections reflect three broad supported the actual methods and results rearing. State and federal courts have al­ types of assumptions about children's they assume characterize the public most universally upheld the constitu­ education which underlie legal policy­ schools. The following excerpt is repre­ tionality of compulsory education re­ making towards home programs. sentative: quirements when challenged as violative The first class of assumptions addres­ ... I cannot conceive how a child of the parents' right to control the 6 ses the academic quality of home versus can receive in the home instruction upbringing of their children. But in two school education: Is it possible for chil­ and experiences in group activity major decisions, the Supreme Court has dren educated at home to receive academ­ and in social outlook in any man­ placed significant limitations upon per­ ic training equivalent to that provided in ner or form comparable to that missible state regulation and use of edu­ school? The second type of assumption provided in the public school. ... cation to further its socialization goals. concerns the political and cultural It does seem to me, too, quite un­ In Pierce v. Society of Sisters,7 the socialization function of education and likely, that this type of instruction Court struck down an Oregon statute, questions whether home education can could produce a child with all the sponsored by several nativist groups (in­ adequately serve this function. The third attributes that a person of educa­ cluding the Ku Klux Klan), requiring all set of assumptions focuses on a narrower tion, refinement and character children to attend public schools. And in aspect of socialization, the child's social should possess.4 Wisconsin v. Yoder,8 the plaintiff, on be­ development and adjustment. For exam­ half of his children, also successfully ple, can children who are deprived of the At best in these opinions, a judge will sought exemption from the state's com­ peer interaction provided by the refer to expert testimony predicting a pulsory attendance law, on the grounds traditional school experience be expected possible detriment to the child's learning that formal education past the eighth to develop and adjust socially in a nor­ due to the lack of classroom competition. g~ade would, in itself, violate their religi­ mal fashion, or at least in a manner com­ ous beliefs and practices as members of parable to their school-educated peers? Legal Issues and Responses the Old Order Amish. The distinctions among these three types In contrast to the judiciary, the legisla­ In both cases, the Court implicitly of assumptions are not always clear-cut; tures have been explicit in their percep­ found a valid collectivist function in intellectual and social development tions of the proper role of socialization in compulsory education, a legitimate state ~nterest clearly interact at times. the public schools. Section 44806 of the in requiring education to the Of the four reasons cited by Superin­ California Education Code, on the duty point at which an individual no longer tendent Frizzle, only the first and second of teachers concerning instruction of threatens to be a liability to society either deal with any specific degree of strict pupils in morals, manners, and citizen­ politically, economically, or socially.9 academic equivalence. At trial, the plain­ ship,~ is typical: Since both the plaintiff Catholic school tiffs produced expert witnesses who tes­ in Pierce and the Amish system in Yoder tified that the proposal was equal to or £ach teacher shall endeavor to im­ fulfilled this requirement, the Court better than the public school program, press upon the minds of the pupils found no further state interest in forcing and that the plaintiff parents were more the principles of morality, truth, all children to submit to public education than adequately qualified to teach their justice, patriotism, and a true for the purposes of "secularization" or child. comprehension of the rights, duties "modernization." These types of equivalence represent and dignities of American citizen­ Pierce was decided under the rubric of specific fact questions; they theoretically ship, including kindness toward "personal substantive due process," can be met within any home education domestic pets and the humane based on a concept of liberty drawn from program. Parents can obtain additional treatment of living creatures, to the Fourteenth Amendment. It would training in teaching. Topics and se­ teach them to avoid idleness, probably now be argued under the "right quences of study can be added where profanity, and falsehood, and to of privacy" doctrine developed in Roe v. necessary to the proposed curriculum. instruct them in manners and Wade,1O the landmark abortion decision, The requirement of school board ap­ morals and the principles of a free which specifically includes choices about proval and, in some states, of certifica­ government. child-rearing within the sphere of indi­ tion of the teaching parent, provide suit­ The training of schoolchildren in good vidual and family autonomy. The practi­ able controls. citizenship, patriotism, and loyalty to the cal result is that a compulsory attendance Superintendent Frizzle's third argu­ state and the nation as a means of protec­ statute should be subject to strict scru­ ment, that home programs lack appropri­ ting the public welfare has been upheld in tiny; it should be "narrowly and pre­ ate group experiences, is based on the the courts as a legitimate and primary cisely drawn" in furtherance of "a com­ only inherent difference between home purpose of the public educational sys­ pelling state interest." Even the recogni­ and public education at issue and the tem.5 tion of a compelling state interest in most cogent objection to home education Any compulsory education law will some minimum level of compulsory edu­ programs. But in denying equivalent eventually bring into conflict the state's cation requires that the state employ the socialization in the past, the courts have interest in a particular program of social­ least restrictive means reasonable to never fully articulated or empirically ization and pluralistic interests in child- achieve that end.

21 Hotne ~ Public Education

As the Perchemlides court stated in fi- The general findings that explicit edu­ with their peers is unwarranted, in light of nally upholding the plaintiffs' claim: cational efforts often have little impact this lack of empirical support. It follows from the very nature of on students' political attitudes and Given the paucity of comparative sci­ the right to home education that knowledge, and that what is taught is entific data and the consequent shallow the school committee or the super­ often neither objective nor accurate, in­ legal reasoning in cases involving home intendent may not reject a proposal dicate that all schools do not provide education, there is a need for substantial sli·bmitted by parents on the adequate socialization, at least in this and systematic research comparing the al~ernative grounds that the home environ­ domain. This inference casts some doubt social experiences and the ment is socially different from the on the general claims of both courts and general social adjustment oJ school­ classroom environment.... The educators that public schools are unique­ educated and home-educated children. question here is, of course, not ly situated to provide the necessary To this end we have outlined a research whether the socialization provided foundations for adult political life. project designed to provide some of this in the school is beneficial to a The impact of the second type of information. child, but rather, who should make socialization - peer interaction - is also that decision for any particular extremely difficult to measure or investi­ child. Under our system, the par­ gate empirically. We have no arguments A Proposed Research Design ents must be allowed to decide with the concerns underlying most court whether public school education, decisions regarding the importance. of In presenting this proposal, we are as­ including its socialization aspects, peer contact per- se for a child's develop­ suming that home-educated children are is desirable or undesirable for their ment. What is questioned is the assump­ not socially isolated but do in fact have children. [original emphasisJ.ll tion that sufficient and appropriate peer identifiable opportunities for regular contact can only be obtained through peer contact; for example, through' in­ school experiences. formal neighborhood play groups or Current Research on There appear to be no published re­ more structured activities such as Scout­ Socialization search findings which address such ques­ ing. Peer groups would be identified and tions as what types or amounts of peer located through interviews with the par­ Apart from the legal and political ques­ interaction are "necessary" or critical for ents and the children themselves. We tions about whether the state has the normal human social development in would draw our school-educated sample right to control the political and cultural children at any age. Of course, such ques­ from these same peer groups. Ideally, we socialization of all children through its tions hardly seem amenable to experi­ would want only those home-educated schools, we may ask whether schools ac­ mentation. Anecdotal reports both from children who have never attended public tually do successfully socialize students testimony in legal cases and from recent schools prior to their home education, by shaping their political attitudes and press coverage of the home education although in many of the publicized cases: social values. The general conclusion of controversy indicate there are several al­ the children have received public educa­ two large-scale literature reviews is that ternatives to traditional education to in­ tion for a few years. curriculum does not have much of an ef- ~ sure that children can participate in peer We propose four different assessment feet on students' political attitudes.12 group activities. procedures that will provide converging What is more, the small body of research Parents report using situations such as information about the social adjustment on the impact of textbooks typically used cooperative play groups, community rec­ of the two groups of children. These· in schools suggests that they also have reation centers, organized sports, and methods will include rating of each minimal influence on the beliefs and at­ siblings. Whether these contacts provide child's peer acceptance, assessment of his titudes children develop about their so­ sufficient peer experiences and whether or her interaction with peers, measure­ cial and political world.13 they are the appropriate kinds of interac­ ment of the child's self-esteem, and One final criticism of th~ socio­ tions required for normal socialization is evaluation of his or' her general social­ political education in schools concerns open to question. We would argue that emotional adjustment. the competence of teachers who are sup­ the burden rests with the opponents of For the peer acceptance measure, the posed to provide this education. A study home education to demonstrate any actual procedure suggested would be peer based on interviews with high school meaningful nonequivalence. ranking, a technique of obtaining peer teachers suggests they are not always in­ In general, we have found no concrete assessments through asking each group tellectually competent to discuss politi­ evidence supporting assumptions that the member to rank all of the other group cal and social issues adequately.14 For traditional school experience is necessary members from best to worst along one or example, when presented with a simple for the child's social development. Most more lines. The actual content of the statement of opinion and asked to iden­ of the existing research on peer interac­ ranking criteria would have to be chosen tify it as fact or opinion, about fifty per­ tion bears indirectly at best in this issue. with the intellectual capacities of the cent of the teachers misinterpreted it as To say that home education is not equal to chosen peer group in mind, but such fact. Even half of the social studies teach­ public education because it deprives chil­ characteristics as "f,riendliness," "agree­ ers made this error. dren of critical socialization experiences ableness," "leadership," and "maturity"

22 would indicate the spectrum of adjust­ ity), and, (3) immaturity problems (e.g., employed in the schools). Such research ment being examined. laziness, lack of interest). In form, such will be of primary importance while Direct behavioral observation of peer checklists usually contain a list of state­ socialization is seen as an exclusive ad­ interactions would also be used for ments for a parent or teacher to read and vantage of the public schools and the de­ evaluation purposes. The continued ob­ to determine whether they apply to an terminative factor in the free exercise of servation of an identified behavior by individual child. the right to home education. trained objective observers has been held One checklist particularly appropriate out as a major assessment strategy in for our use is the Louisville Behavior child behavior modification because so Checklist, modified so that all the items Footnotes few inferences have to be made from col­ would apply to home-educated as well as lected data to actual behavior. to school-educated children. This check­ I. Perchemlides v. Frizzle, No. 16641 (Super. The child's self-esteem is also an impor­ list, to be completed by the subjects' par­ Ct. Hampshire Co., Mass., filed Nov. 13, tant aspect of his or her social adjustment ents, covers the whole range of behaviors 1978). and interpersonal skills. To assess and indicative of childhood emotional prob­ 2. Mass. Gen. Laws Ann. ch. 76, sec. I compare the self-evaluations of our two lems and includes descriptions of both (West) types of subjects, we would use the Self­ deviant and prosocial behaviors, such as 3. Perchemlides, No. 16641, slip Ope at 3. Esteem Inventory developed by Stephen "cries easily," "constantly fighting," or 4. Stephens v. Bongart, 189 A. 137 (1937). Coopersmith for his extensive research "secure and confident."17 5. Gabrielli V. Knickerbocker, 12 Cal. 2d 85, 2 8 project on the self-esteem of elementary In general, we believe that these four 9 (193 ). 6. Education Project, 74 Mich. L.Rev. 1373, school aged boys.15 This inventory pro­ measures - peer assessment, direct ob­ 1390 (1976). vides useful information about four areas servation, self-evaluation, and a behav­ 7. Pierce v. Society ofSisters, 268 U.S. 510 of children's self-esteem - peers, parents, ior checklist - will converge to provide a (19 2 5). school, and general self-evaluation. meaningful profile of a child's general so­ 8. Wisconsin v. Yoder, 406 U.S. 205 (1972). In his own use of this inventory, Coo­ cial adjustment. Our assessment battery 9. Education Project, 74·Mich. L.Rev. at persmith had the children fill out the in­ has the advantage of being based on a 1394· ventories themselves, which involved series of well-known, validated measures 10. Roe v. Wade, 410 U.S. 113 (1973). reading or hearing a series of attitude of various relevant aspects of a child's 11. Perchemlides, No. 16641, slip Ope at 13. statements such as "I'm popular with personality and social development. 12. Massialas, B. Citizenship and Political Socialization. In R.L. Ebel (Ed.), Ency­ kids my own age," "I'm never unhappy," With the data collected from our pro­ clopedia of Educational Research, 4th etc., and indicating whether the state­ posed study, we will be able to draw reli­ edition. New York: Macmillan, 1969. ments applied to themselves. Questions able conclusions concerning social be­ Bereiter, C. Schools Without Educa­ about school would be modified here to havior and peer relationships, and apply tion. Harvard Educational Review, 1974, be neutral as to the alternative education those conclusions to a comparison of our 4 2 , 39Q- 410. programs. Coopersmith has compared two populations. This comparison, we 13. Massialas, B. Government: We are the the children's assessments with ratings are confident, will eliminate any serious Greatest! In C.B. Cox and B.· Massialas from their teachers on behaviors that doubts about the possible harm resulting (Eds.), Social Studies in the United presumably were related to self-esteem from the deprivation of peer-based States: A Critical Appraisal. New York: and with ratings from other psycholog­ socialization experiences.. Harcourt, 1967. Massialas, B. Citizenship and political ical tests designed to assess unconscious As an additional control on the use of socialization. Supra, n. I 3. self-evaluations, and has found substan­ these assessment procedures, we would 14. Zeigler, H. The Political World of the tial agreement among the different indi­ apply the same experimental measure­ High School Teacher. U. Oregon, 1966. ces. ments to a third group of subjects. This 15. Coopersmith, S. The Antecedents of As the final measure for our compar{­ sample population would be composed Self-Esteem. San Francisco, Ca.: W.H. son, we propose a behavior checklist to of children who had been categorized on Freeman & Co., 1967. assess the child's general social­ independent grounds as socially or inter­ 16. Evans I. and Nelson, R. Assessment of emotional adjustment. Behavior check­ personally maladjusted. The type of ob­ Child Behavior Problems. In A. Ciminero, lists are a major evaluative instrument jective, systematic criteria needed to K. Calhoun, and H. Adams (Eds.), Hand­ often used in child psychopathology re­ identify this population might be found, book ofBehavioral Assessment. New York: John Wiley & Sons, Inc., 1977. search as a quick screening device.16 Em­ after the fact, in reports already on file 17. Miller, L. Louisville Behavior Checklist ploying a wide variety of behavior by teachers or school psychologists. for Males, 6-12 Years of Age. Psycholog­ checklists to measure both male and If our assessment procedures identify ical Reports, 1967,2I, 885 - 896. female children across a wide age range, the same population as maladjusted, it researchers have consistently found three will support the proposition that this ex­ clusters of common behavior problems: perimental design is sensitive to the type

(I) conduct problems (e.g., disobedienc'e, of socialization problems home-educated Mr. Owen is a member of the Class of I98 I. fighting), (2) personality problems (e.g., children might be assumed to develop (at Ms. Horton is a doctoral candidate in psy­ social withdrawal, feelings of inferior- least on a level of disability equal to that chology at Stanford.

23 ThinkingAbout Children'sRights­ Moving BeyondKiddie Libbers and ChildSavers byRobertH. Mnookin

or the past few years, much of the adoption of "A Child's Bill of my research has concerned chil­ Kiddie Libbers and Child Rights"l that begins by proclaiming a Savers Edren's rights and family law. In child's "Right to Self-Determination." this article, my purpose is to suggest a Children have the right to decide framework for thinking about children's The law of childhood is complex, but, in the matters which affect them most rights - one that I hope will define ap­ general, children have less liberty than directly. This is the basic right upon propriate questions, if not provide easy adults and are less often held accounta­ which all others depend. Children answers. ble. Parents have legal power to impose a are now treated as the private prop­ Before setting out on this journey, I wide range of important decisions upon erty of their parents on the assump­ should supply a road map of where I am the child, though they are held responsi­ tion that it is the parents' right and going. First, I shall describe two domi­ ble by the state for the child's care and responsibility to control the life of nant varieties of child advocates: the support. Children have the special power the child. The achievement of chil­ kiddie libbers and the child savers. While to avoid contractual obligations but are dren's rights, however, would re­ both sing of children's rights, their songs not normally entitled to their own earn­ duce the need for this control and are very different. I must confess that the ings and cannot manage their own prop­ bring about an end to the double lyrics of both groups often strike me as erty. Moreover, Olil; the basis of age, per­ standard of morals and behavior garbled. Each does pose, however, im­ sons younger than ages designated by for adults and children.2 portant philosophical issues. certain statutory limits are not allowed Most individuals and organizations to vote, hold public office, work in vari­ Other reformers - the child savers - see involved in debate over children's rights ous occupations, drive a car, buy liquor, salvation not through liberation but - and especially child advocates - claim or be sold certain kinds of reading mate­ through expansion of a child's legal right to speak for the best interests of children. rial, quite apart from what either they or to government intervention into the fam­ In the next section I shall critically exam­ their parents may wish. ily. An extreme example is found in yet ine the best interest standard. My pur­ Because of such legally imposed limi­ another Bill of Rights proposing that a pose is to show that in many critical tations on the child's power to decide, child "should have a legal right" to be "a areas what is best for an individual child some reformers - the kiddie libbers ­ person within the family" and to "receive or for children in· general is usually inde­ suggest that a children's liberation parental love and affection, discipline and terminate or speculative, and is not dem­ movement should follow the trail blazed guidance, and to grow to maturity in a onstrable by scientific proof, but is in­ by the civil rights and women's 'rights home environment which enables him to stead fundamentally a matter of values. movements. The emancipators' rhetoric develop into a mature and responsible Using this notion of indeterminacy, I often compares the legal status of chil­ adult."3 shall briefly explore three critical policy dren to that of "slaves" or "property." To It is hard to transact intellectual busi­ issues facing pediatric medicine: medical modify this, one child liberator .endorses ness in the coin of either the liberators or experimentation on children; institu­ tionalization of disturbed or deserted children; and withholding treatment for severely defective newborns. If what is best is often indeterminate, then one quite naturally becomes con­ cerned with who gets to decide what is best for a child. My primary message is that we should focus more attention on how power and responsibility for children are allocated and should be allocated. Who decides now? Who should decide? These are, I believe, critical questions and I hope to show their relevance by examin­ ing the three critical policy areas. There are no value-free answers to these questions, and I should make clear at the outset that my own philosophical preference is for the family to have pri­ mary responsibility for child rearing. From this perspective, I shall offer some cautionary warnings about certain prop­ ositions often suggested in discussion about children's rights. the child savers. Kid libbers have trans­ here the difficulty is understanding how nurture, training and experience of mogrified the traditional conceptions of legal claims to "love and affection" another? Similarly, the problems to right and liberty. At the core of the civil would be monitored by government or which the child savers point - for exam­ rights movement and the women's enforced by courts. ple, the abuse and neglect of some chil­ movement has stood the idea that a per­ But one must avoid dismissing too dren - are serious ones and implicitly son's legal autonomy should not be made quickly either the liberators or the child raise an important question about the' dependent upon race or sex; it is savers. Buried in their rhetoric are impor­ roles of government and the family in straightforward and intelligible. By con­ tant questions. That an element of domi­ child-rearing. trast the broad assertion that age is also nation of children by adults is inevitable irrelevant to legal autonomy inescapably gives one no license to ignore the moral The Indeterminacy of the Best collides with biological and economic dimension implicit in the liberators' reality. Because the young are necessarily challenge: What are the justifications for Interest Standard dependent for some period after birth, giving one human being power over the the relevant question is often which adult In my view, one reason some advocates should have the power to decide on be­ for children's rights - whether child sav­ half of the child. The argot of the child ers or kiddie libbers - have failed to gen­ savers has a similar ring of unreality; erate very clear ideas is that their atten­ tion is too largely focused on the best interest of the child standard. Debates over children's rights contain frequent references to the notion that the principle that should guide the decision making is ThinkingAbout Children's Rights

the best interest of the child. In divorce tion and then choose that alternative that child has the capacity and maturity ap­ custody disputes, for example, and in "maximizes" what is good for the child. propriately to determine his own utility. some juvenile court determinations, the The judge would, for example, wish to Whether or not the judge looks to the best interest standard is the legal rule compare the expected utility for the child child for some guidance, there remains, that is supposed to guide judicial deci­ of living with his mother against that of the question whether best interests sion. In deciding what to do with the living with his father. This requires con­ should be viewed from a long-term or minor who has committed a crime, or siderable information and predictive ca­ short-term perspective. The conditions who has been neglected by his parents, or pacity as well as some source of values by that make a person happy at age seven to has run away from home, the court is which to measure utility for the child. ten may have adverse consequences at supposed to appraise the alternatives by My own hunch is that all three are typi­ age thirty. Should the judge ask what de­ the best interest principle. cally very problematic. cision will make the child happiest in the Educators often invoke the principle Assuming for the moment that the next year? Or at forty? Or at seventy? when deciding what reading group or judge has substantial information about Should the judge decide by picturing the child as an adult looking back? How is happiness at one 'age to be compared with happiness at another? "Mybasic contentionis that deciding My basic contention is that deciding what is best for a child often poses a whatisbestfor a child oftenposes a question no less ultimate than the pur­ poses and values of life itself. Should the questionnoless ultimate than the decision maker be primarily concerned purpose andvalues oflife itsel£" with the child's happiness or with his or her spiritual and religious training? Is the primary goal long-term economic pro­ ductivity when the child grows up? Or academic track or what kind of educa­ the child's past home life and present al­ are the most important values of life in tion is best for a certain child. In the ternatives, our knowledge today about warm relationships? In discipline and current public policy debates over child human behavior provides no basis for an self-sacrifice? Are stability and security care and the extent to which it should be individualized prediction required by the for a child more desirable than intellec­ licensed and subsidized by government, best interest standard. There are numer­ tual stimulation? These questions could the arguments both pro and- con are ous competing theories of human behav­ be elaborated endlessly. And yet where is premised on what is best for children. ior, based on radically different concep­ one to look for the set of values that One postulate of my own thinking tions of the nature of man, and no con­ should guide decisions concerning what about children's rights is that what is sensus exists among the experts that any is best for the child? Normally judges "best" for a particular child, or even for one is correct. No theory is considered look to statutes, but custody statutes do children in general, is often indetermi­ widely capable of generating reliable not themselves give contact or relative nate and speculative, at least in those predictions about the psychological and weights to the pertinent values. More­ areas that are of immediate policy con­ behavioral consequences of alternative over, if one looks to our society at large, cern. I would like to describe what I decisions for a particular child. one finds neither a clear consensus as to mean by indeterminacy through an Even' if pJ;.~~ictions are possible, what the best child-rearing strategies, nor an example, not drawn from medicine, but set of values should a judge use to deter­ appropriate hierarchy of ultimate values. instead from an area of the law about mine a child's best interest? Whenever In short, there is in our society no appar­ which I have been very much concerned: someone is faced with a decision based ent consensus about the good life for child custody disputes. on the best interest of the child standard, children. Suppose a mother and father are di­ he must have some way of deciding what Many of the most troubling areas of vorcing and disagree concerning who counts as good and what counts as bad. children's rights are plagued by indeter­ should have custody of the child. Sup­ In economists' terms, how is utility to be minacy. This thesis can be illustrated by pose further, as I suspect is usually the determined? For many decisions in an in­ several issues, each relating to pediatric situation, the child has some substantial dividualistic society, one asks the person medicine. Consider, for example, the psychological ties to both parents and affected what he or she wants. Applying current debates concerning when, if ever, neither would put the child in any im­ this notion to custody cases, one could life-sustaining treatment for severely mediate or substantial danger if he or she ask a child to specify those values or even handicapped newborns should be discon­ had custody. The judge's task is to decide to choose the custodial parent himself. tinued and the infant permitted to die. which parent should have the child. Deci­ But to make the child responsible for the That decision involves an implicit predic­ sion theorists would suggest that a ra­ choice may jeopardize his future re­ tion about what the future life of the in­ tional decision would specify the alterna­ lationship with the other parent. More­ fant will be like. This turns in part, of tive outcomes of various courses of ac- over, we often lack confidence that a course, on future medical advances, and

26 what parental reactions to the handicap­ ficult task, and predicting how the child of medical consent simply be lowered ped child would be. These predictions will respond to institutionalization. from eighteen to fourteen or twelve? are, I suspect, often very difficult to While many are justifiably critic~l of all Should a fifteen-year-old be able to con­ make. More fundamentally, one is faced available alternatives when a child is sent to a vasectomy? What weight should with an issue of values. Some believe that about to be institutionalized, I suspect be given when a nine-year-old objects to it is morally appropriate to consider the that what is best or least detrimental for elective surgery? Is the problem today costs - emotional, social, and economic the child is in many situations indetermi­ that our age-based lines are too high? Or - for the child's family and society if the nate. is it that we should have no arbitrary age child is permitted to live. Others believe requirements at all and instead allow for that it is appropriate only to consider the The Critical Questions: Who individualized determinations of compe­ interests of the newborn himself. But tence and maturity? who is to define the newborn's interests Decides? Who Should Decide? The emancipators, while raising im­ and how are they to be measured? Fi­ Given my premise that the means and portant and profound questions, fail to nally, there are many in our society who ends of child-rearing are largely indeter­ provide any coherent theories for deter­ believe that life is sacred and that it is minate, a critical question draws quite mining when and how the law should never morally acceptable 'to permit a de­ naturally into focus. It is: Who decides? give the child primary power of decision. fective newborn to die when treatment Or, more precisely, how does law allocate Very young children are incapable of can extend life. power and responsibility for children in making decisions about many important I think a similar indeterminacy plagues our society? How should power be allo­ qu~stions affecting their lives. It is not the question of whether and how medical cated? simply unwise to emancipate them; it is research relating to children should be Whoever enjoys the power of decision impossible. A two-and-a-half-year-old permitted. It is axiomatic that children will influence not only the means, but the will be the subject of the will of either an are not small adults, and that the exten­ very objectives, of child-rearing. In my older person or the elements. If the child sion of our medical knowledge about view, the primary function of this ques­ emancipators are libertarians and simply children often requires their participation tion in law in relation to children is to want children to have the same liberty as in research. Nevertheless, the child, par­ outline a framework for the distribution adults, then they must explain what is to ticularly the very young child, is not able of decisional power among the child, the become of younger children. There is no himself to give valid consent. This poses family, various professionals, and agen­ libertarian alternative until the child is profound legal and moral dilemmas, par­ cies of the state. There is, of course, no competent to survive and function in the ticularly when research exposes healthy need that anyone person have all the manner of an adult. Obviously, for many children to some risks. But predictions are power. It can be, shared in various combi­ difficult. One characteristic of and reason nations. for research is that we often do not know The traditional answer to the question, the consequences of our action. More­ Who decides concerning medical care? is over, medical experimentation, particu­ reasonably clear: Although there are ex­ larly on healthy children, poses funda­ ceptions when a child is neglected or there mental value conflicts. There is a substan­ is an emergency, or when public health tial utilitarian argument to permit such issues are at stake, parents generally have research on healthy children when the the power to decide about a child's medi­ risks are comparatively slight and the po­ cal treatment- their consent is normally a tential benefits are very great. Neverthe­ prerequisite of medical treatment. less, a Kantian who focuses primarily on This traditional allocation - with par­ the importance of individual autonomy ents having the primary power to decide and the integrity of the individual can - is now being questioned, both from make a strong argument that it is immoral the perspective of child liberators and for a healthy child incapable of consent to from the perspective of child savers. be a subject of non-therapeutic research. Liberators want more power of decision A third example of indeterminacy re­ given to the child. At times their argu­ lates to the question of whether or not a ments rise to constitutional dimension. disturbed or handicapped child should The Supreme Court has made clear that be institutionalized. Like our custody state law cannot give parents an absolute case, this involves a prediction of the veto over the decision of a pregnant teen­ consequences of staying home and to ager and her doctor to terminate preg­ some extent living in the community as nancy by abortion.4 Many states today opposed to living in an institution. Eval­ already allow young people to consent to uating these alternatives requires predict­ treatment of venereal diseases and to se­ ing parental reactions, an extremely dif- cure birth control devices. Should the age ThinkingAbout Children's Rights

matters, therefore, the question is not whether the child should decide, but which adult should decide on behalf of ''lherealissueis: Who gets to define the child. Child savers also are critical of the pa­ the child's interests?Whenputthis waJr, rental consent requirement, but from a different perspective. Their concern arises a broadparentalrole strikes me as not from the notion that children should have a greater voice in their treatment, but altogether appropriate." rather because they fear that parents all too often inadequately provide for their children's medical treatment. Some pro­ who should decide? The parents and doc­ allocated, and who should decide. I sus­ pose national health visitors who, with tors? A hospital committee? A jury of lay pect that our society will evolve different the power of the state, use coercion to people? A juvenile court judge? And by answers in different contexts. But I can inspect the home and compel preventive what criteria and procedures is the deci­ offer some warnings. Like cigarettes, medicine. Others would simply do away sion to be made? there are some easy generalizations that with parental consent requirements con­ Similarly, in the area of medical exper­ are habit forming and that may be haz­ cerning basic inoculations. imentation on children, I believe the crit­ ardous to the health of public policy. My While the problems to which the child ical questions are: Who should decide purpose is not to prohibit their use but to savers point are real, the theoretical diffi­ whether the research should be going stamp a cautionary warning on four culties of their position are exposed by on? and What standards are essential ­ hazardous propositions. focusing on the question, Who should de­ the government? Foundations? Medical Dubious Proposition I: Legally im­ cide? Child savers often implicitly suggest schools? The hospital? The individual posed age requirements should be re­ that government should have a very broad doctor? If the research is to go forward, jected because age and maturity or com­ role in the protection of children, but they should parental consent be sufficient to petence are imperfectly correlated. do not define the limits, if any, of the allow a healthy child to participate? Or Although competence and age are not appropriate use of government coercion. should the child also have to consent? Or altogether unrelated, age requirements Delineating the scope of child protection should the state decide by "drafting" are highly arbitrary. As Norman Fost has by government poses profound questions (perhaps by lottery) the necessary chil­ written: of political and moral philosophy con­ dren? A lawsuit brought in San Francisco The designation of a single birth­ cerning the proper relationship of chil­ in 1973 alleged that neither parents nor a dren to their family and their family to the day, whether the 7th, 18th or 21st, hospital should have the power to volun­ as a definition of intellectual com­ state. One's starting point concerning the 5 teer an infant. In all events, I believe the petence is arbitrary. Although most proper distribution of power can pro­ proper allocation of decisional power is foundly affect policy' conclusions, par­ children before their teen years will the critical question. be incapable of providing mean­ ticularly in the face of factual uncertain­ The third area - involving the com­ ties and value clashes. ingful consent to a medical proce­ mitment or institutionalization of dis­ dure, many adolescents will be as To return to the three examples I of­ turbed or handicapped children - poses fered earlier from the pediatric area, competent as some adults to do a similar question. Adults can volunteer SO.6 where I asserted there was a substantial themselves for a commitment or can be degree of indeterminacy, one can see the involuntarily committed if they are a Some fifteen-year-olds would be better­ importance of the critical question, Who danger to themselves or others, or are informed voters than many forty-year­ should decide? First, let us consider the gravely disabled. How about children? olds. Similarly, I have no doubt that some decision to withhold or discontinue life­ Should parents be able to commit a child thirteen-year-olds would be better drivers sustaining procedures for a newborn in­ after consultation with the family doc­ than many nineteen-year-olds. fant. California has enacted legislation tor? Or should the child be able to ob­ But the fact that any age requirement providing that no doctor who withholds ject? Should there be a hearing before an will sometimes qualify older people who or withdraws life-sustaining procedures independent judge with the judge decid­ are quite incompetent and disqualify for a qualified patient may be subjected ing? Once again, the question is, Who is some younger people who are quite com­ to any liability or discipline. But this law to decide in a situation where what is petent does not necessarily imply that we was only for adult patients who them­ best is often indeterminate? should allow for individual determina­ selves authorize the withholding of such tions of maturity or competence rather treatment when death is imminent. The Four Warnings than have qualifications based on a min­ patient himself decides. When newborns imum age. Qualification by. individ­ are involved, is it ever acceptable for I certainly cannot offer any simple or pat ualized determinations must give some other persons to decide on behalf of the answers to the questions of how power person a great deal of discretion to de­ severely handicapped newborn? If so, and responsibility for children should be termine competence or maturity. But there are no litmus paper tests for judg­ will often be intimately involved and af­ make a long-term institutional commit­ ment or maturity, and, as a consequence, fected by the outcome. It is certainly true ment of a disturbed child), some addi­ the power to decide this question not that parents sometimes expose their chil­ tional safeguards seem essential. More­ only can be abused but can raise pro­ dren to risks and may occasionally seek over, where the child's health is seriously found questions concerning unequal or withhold medical treatment for rea­ endangered by parental action or inac­ treatment and cost. How would we feel sons of their own, apart from any bene­ tion, doctors have a legal and moral obli­ about a legal system that allowed persons fi ts to the child. A vain mother might be gation to see that the child is protected. of any age to vote but only if a state offi­ seeking plastic surgery for her daughter But apart from extreme situations where cial first determined that they were suffi­ because the daughter's nose bothers the the decision will abrogate the parent­ ciently responsible and mature? mother. Some parents may seek the child relationship entirely, or the child's That state magistrate would have enor­ commitment of their retarded or hand­ health is put in serious jeopardy, I am mous power to determine who partici­ icapped child or seek a medical prescrip­ loath to reject parental prerogatives pated in the political process. I, for one, tion for cough medicine not so much for simply because of a potential conflict of plainly prefer age-based lines for voter the benefit offered the child, but rather interest, especially when the child's inter­ qualification, even though I recognize for the relief offered the parents. ests are indeterminate or speculative. The real issue is: Who gets to define the child's interests? When put this way, a broad parental role strikes me as al­ together appropriate. Dubious Proposition 3: When a young person is competent to perform a task, the youth should be given the legal right to decide without parental interference. A sixteen-year-old may certainly be competent to drive a car, date, and en­ gage in sexual intercourse. But should a sixteen-year-old girl have the legal right to go to court to enjoin her disapproving and perhaps overprotective parents from prohibiting her from seeing her that this excludes many competent people Nevertheless, the critical question that eighteen-year-old boyfriend? Based on under the age of eighteen from the politi­ must be addressed is, If the parents are the recent Supreme Court abortion deci­ cal process and allows voter participation not to decide, then who is to decide? My sion I mentioned earlier, a credible con­ by many unsophisticated adults. own hunch is that a careful examination stitutional claim for this young woman I believe we should also be wary of of the alternative decision makers may, in might well be possible on the grounds wholesale elimination of age-based lines many contexts, suggest that the parents that the parental decision infringes up­ having to do with medical consent. Per­ are more appropriate decision makers on her privacy and associational rights. haps the lines should be lowered. Ala­ than some disinterested third party (like Nevertheless, in focusing on the young bama, for example, has lowered the age a judge) or a professional (like a doctor). person's competence in a particular area for general medical consent to fourteen. 7 A doctor must be prepared and willing to we must not ignore the young person's But elimination of age-based lines al­ offer parents his guidance. But in most broader relationships to his or her family. together will, I fear, create enormous un­ circumstances it is the parents, not the Most teenagers in our society are still certainty and, frankly, give too much per­ professional (much less a judge), who economically and socially dependent on sonal power to someone - presumably a must live with and be responsible for the their parents, and many of us ·still view doctor or a judge - charged to make the child on a day-to-day basis after the deci­ the family as a basic social unit. There is individualized determination of maturity. sion has been made. Moreover, parents no doubt that lawsuits are a very crude Dubious Proposition 2: Whenever a will often bring to the decision intimate and disruptive method of settling dis­ parent has a potential conflict ofinterest knowledge about the child and the fam­ putes. It strikes me as somehow danger­ with the child, the parent should no ily's values that"an outsider may not have. ous and inconsistent for a young person longer be permitted to decide on behalfof I am not arguing that parents should to be able to go to court to restrain her the child. always have the exclusive right to decide parents from grounding her and at the Lawyers are trained to be sensitive to everything concerning the child's medical same time to require parents to be re­ potential conflicts of interest, and if one treatment. Indeed, where the result of a sponsible for her economic support. uses as a model of neutrality a disin­ medical decision will, in effect, terminate Perhaps young persons should have terested judge, then the parent-child re­ the parents' relationship with the child greater legal power to escape parental lationship is replete with opportunities (as is the case with the "decision to let a domiJ;lation by leaving home. But I find for child exploitation because the parent severely handicapped child die or to very problematic and inconsistent the ThinkingAbout Children's Rights

liberator's notion that the law should While the risks of unfair application of Footnotes make parents economically responsible the criminal sanctions are negligible, I for their children after relinquishing all have severe doubts whether a statute can 1. Coigney, ~: Children Are People Too: How power to discipline them. In this respect, carefully define the circumstances for We Fail Our Children and How We Can euthanasia for newborn infants. We it is interesting that under California law Love Them. New York, William Morrow & when a young person gives legal consent simply lack the necessary social consen­ Co., Inc., 1975. for his or her own treatment, the parents sus concerning the circumstances when it 2.Id. at p. 197, citing R. Farson: Birthrights. are not legally liable to pay for the treat­ would be appropriate. Absent this con­ New York, Macmillan, Inc., 1974. ment.8 sensus, the legal principle that human life 3. Foster, H. Jr.: A Bill of Rights for Children. Dubious Proposition 4: Whenever the is worthy of protection should remain the Springfield, Ill., Charles C. Thomas, Pub­ law as written might be applied to crimi­ primary standard. Having a discontinui­ lisher, 1974. p. xv. nally punish behavior that many believe ty between the law on the books and con­ 4. See Planned Parenthood v. Danforth, 428 to be morally blameless, the law must be temporary practices certainly does have U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979). Compare H.L. v. Matheson, formally amended. unfortunate effects. But to argue that U.S. (March 23, 1981) (upholding a Utah euthanasia is at times morally unobjec­ This can be best illustrated by the law that requires a doctor to "notify if pos­ problems involved in deciding whether tionable is not to say that we must legal­ sible" the parents of a minor upon whom an the severely deformed newborn infant ize it. To legalize it might well allow too abortion was to be performed, at least as should be allowed to die. Existing homi­ many uses, too many mistakes. More­ applied to a teenager living at home, who cide statutes, if blindly applied, would over, to paraphrase one recent commen­ has not demonstrated to a court that she is subject doctors and parents to man­ tator, it is unlikely that we could change mature or that notification led to serious slaughter charges in situations where the legal principles concerning the treat­ harm). they choose a course of action or inac­ ment of the handicapped young without 5. Nelson v. Regents of the University ofCali­ tion directed at deliberately allowing the changing fundamental emotional at­ fornia, Civil No. 665-°49, Cal. Sup. Ct. Dec. 19, 1973. infant to die. To my knowledge, no doc­ titudes and social relations. More gen­ 6. Fost, N.: Ethical problems in pediatrics. erally, we should avoid the easy proposi­ tor or parent has ever been criminally Curro Probl. Pediatr. 6 (No. 12):1-3 1, 1976. prosecuted for intentionally permitting a tion that because something is morally 7. Ala. Code, tit. 22, §I04(15) (Cum. Supp. seriously deformed infant to die. Some justifiable it must necessarily become an 1973)· might suggest that doctors or parents order of law. 8. Three of California's medical emancipation should be prosecuted in such circum­ *** statutes state explicitly that the parerit shall stances. Others argue that because of the In conclusion, I would like to suggest not be liable for care delivered under their risks of such prosecution, a euthanasia that children's rights pose profound and provisions. Cal. Civil Code, §§25.5, 34.6, law must be drafted to tolerate such con­ fascinating intellectual questions. As a 34.7 (West 1954). In addition, the courts duct in defined circumstances. Such a general proposition, one would expect have made it clear that "the policy ... to protect minQrs against their own im­ law, it is argued, would avoid Widely con­ that law, particularly in an area so inti­ mately related to family, would largely re­ providence does not extend to depriving flicting practices, would provide guid­ others of the reasonable value of neces­ flect the dominant cultural norms and ance for decision making, and would in­ saries furnished minors having capacity to would have a rather limited capacity to sure that no parent or doctor is unfairly contract for them": Burnand V. Irigoyen, harassed for a decision that many would change those norms or shape individual 30 Cal. 2d 861, 186 ~2d 417 at 421 (1947). view as morally justified. behavior. Nevertheless, it is part of the 9. Commonwealth V. Edelin, 359 NE 2nd 4 I would oppose such a law for several well-established American tradition to (Mass. Sup. J. Ct. 1976). reasons. First, I think the risk of en­ view law as a means of producing cul­ forcement today is negligible. Most dis­ tural change and political response. As a Reprinted with the permission of the Editor trict attorneys and prosecutors have bet­ general proposition it appears that the from The Pharos, Volume 41, Number 2, ter ways to spend their time than in the legal process is used increasingly as a Copyright 1978 by Alpha Omega Alpha Honor Medical Society. enforcement of law in circumstances forum for debate over competing percep­ where there is no social consensus that tions of the world, where the protago­ the conduct is morally reprehensible. nists hope to effect on a broad scale both Professor Mnookin spent I98o-8I as a Moreover, if such a prosecution were social values and behavior. Plainly, much visiting professor at the School, while on brought, I am reasonably confident that of the debate over children's rights has leave from the law faculty of the Univer­ a jury would either refuse to convict or ramifications that are beyond the legal, sity of California at Berkeley. At Stan­ an appellate court would find some way and indeed, for many child advocates, ford he taught courses in The Child, the to reverse. In this regard, the Edelin case, these more remote consequences may be Family and the State, Tax Policy and the which involved a manslaughter prosecu­ the primary goal. In the meantime, be­ Taxation of the Family, and Family Tax tion for an abortion, confirms my point. cause our society presently lacks a social and Financial Counseling. Mr. Mnookin There, the Massachusetts Supreme Judi­ consensus in many of these areas, we wi11 be a fellow at the Center for Ad­ cial Court reversed Dr. Edelin's man­ should not expect the law to provide vanced Study in the Behavioral Sciences slaughter conviction.9 clear guidelines. in I98I-82.

3° Stanford's Cliuieal Course inJuvenile Law: Combining Simulated withActual Courtroom Experience

The Law School's clinical seminar in Ju­ venile Law is a mandatory pass/fail course for second- and third-year students concentrating in Juvenile Law. The semi­ nar, which is taught by Professor Michael Wald and Adjunct Professor William Keogh '52, is one of five clinical courses currently being offered at the School. The seminar bears a strong resemblance to the other clinical courses with one important exception: it involves students inactual as well as simulated litigation. The format of the course is designed first to acquaint students with the juvenile system and then to expose them, through simulated exercises, to the vari­ ous skills required to enter the last stage of the seminar - the handling of actual cases. In the first weeks of the course, Professor Wald uses traditional class­ room instruction to acquaint students with the philosophy of the juvenile court, the law pertaining to minors, and the various stages of a juvenile case - from the detention hearing through the inves­ tigation of the case, the actual trial, and follow-up on the case. The Juvenile Law course gives students like Susan Kupferberg '82 the opportunity The second phase of the course enables to learn about the juvenile court system through firsthand experience. students to put into practice what they have learned through a series of simu­ lated exercises. Students actually "act At Juvenile Hall Professor Keogh out" a case, step by step, as it would and Susan review fi les to choose happen in real life. The exercises are Susan's "client." videotaped and reviewed by Professor Waldo They cover such things as inter­ viewing the juvenile client, contacting the juvenile's parents, talking with the probation officer, and representing the client at the "trial." Having had the exposure to various skills through the simulated exercises and the benefit of Professor Wald's critiques, the students are then ready to undertake the third phase of the course - the han­ dling of actual juvenile cases. Under' the supervision of Professor Keogh, each student is assigned to a case. The cases, which have been chosen by Professor Keogh with the cooperation of the San Mateo County Juvenile Court, are registered with the California Committee of Bar Examiners in accordance with the "Rules for the Practical Training of Law Students." At their initial meeting, Professor Keogh interviews the detained juvenile,

31 Clinical Course in Juvenile LaW"

while the student lawyer observes. Professor Keogh then contacts the child's parents, informing them of the student's participation in the case. He also handles the preliminary hearing. Following the first hearing, the student takes charge of the case and Professor Keogh assumes the role of observer/ adviser. Subsequent interviews are video­ taped and conversations recorded, and at each stage of the process the student and Professor Keogh analyze the steps taken as well as what still needs to be done. Working with the juvenile client, and with the expert guidance of Professor Keogh, the student carefully develops a strategy for the child's defense and, si­ multaneously, acquires the litigative With Professor Keogh acting as observer/adviser, Susan meets with her client for skills necessary to represent that client in the first time. court. As is the case with all the clinical courses at the School, student evalua­ tions of the Juvenile Law course are ex­ tremely positive, with many students singling out the course as the most valu­ able of their Law School experience. In assessing the value of allowing the students to work on real cases, Professor Keogh points out that in addition to sharpening the student's judgment and practical skills - something all of the clinical courses are designed to do - the Juvenile Law course provides an invalu­ able emotional education. "Student law­ yers learn to accept the full range of suc­ cesses and disappointments peculiar to the profession. And they learn to live with the occasional abuses to which the juvenile court system subjects them."

Susan and Professor Keogh meet with the juvenile's parents on the morning of the detention hearing. Following this conversation, Susan meets again with At the hearing, Susan represents her client while Professor Keogh (left) acts as her client to prepare him for the hearing. adviser. Present also are the client and his parents.

32 An e ey' HowSevenAlumni Spen

Editor's Note: For several years now we have thought about publishing an article on graduates with interesting hobbies. Through reunion questionnaires, conver­ sations with alumni, and other sources, Edward L. Butterworth '39 is one of Even while attending law school But­ we have compiled an extensive list of in­ those rare individuals who has dedicated terworth found time for scouting. He re­ dividuals whose avocations appear to be a lifetime to helping others reach their calls one summer when he was an assis­ as interesting and demanding as their vo­ fullest potential. During his fifty-four­ tant camp director on Catalina Island cations. Indeed, at times it is difficult to year association with Boy Scouts of­ and spent his free time studying law on discern which is which. America, he has served the Scouts in an old camp table. In the hope that our readers would virtually every capacity - from boy scout Following law school, he served as a enjoy such an article, we are happy to to eagle scout, camp director to scout­ Deputy Solicitor General of the United present the first of what we anticipate master, commissioner to president of the States. During that time he was a scout­ will become a continuing series on Stan­ council. master and discovered that being a ford lawyers with intriguing and unusual The Scout council of particular interest scoutmaster was virtually a full-time oc­ hobbies. Moreover, we are hopeful that to Butterworth is the San Gabriel Valley cupation in itself. At that point, he ad­ this article will encourage more alumni Council in Southern California, which he mits, he gave serious thought to pursuing to let us know about their outside inter­ helped to develop. The council serves a career in professional scouting. ests or about classmates with noteworthy some 20,000 young men and women Today Butterworth devotes a great avocations. each year. In 1979, for his service to this deal of time and energy to fundraising for The Editor would like to thank Sara the San Gabriel Council. Since the coun­ Wood for conducting the interviews and cil receives no financial support from the compiling the information that made this government, Butterworth and others article possible. must raise some $750,000 each year from large corporations and organiza­ tiohs that support the philosophy of scouting. Butterworth sees scouting as an im­ portant supplement to a child's formal education. Using the Explorer Program as an example, he explains that the program is now devoted to career train­ ing and helps to fill the void created by high schools. "The high schools," he says, "simply don't teach many of the things we teach in scouting." As a result of the emphasis on career training courses, membership in the Ex­ plorer Program has doubled in the past eight years. Moreover, Butterworth council and to scouting in general, But­ points out, these scouting programs are terworth was awarded scouting's highest now open to young women so they, too, honor, the "Distinguished Eagle," an can benefit from the same career training award shared by such well-known re­ opportunities. After a lifetime of service to the Boy cipients as film star Ozzie Nelson and Robert Finch, f~rmer Lieutenant Gov­ Scouts of America, Ed Butterworth may ernor of California. well be the organization's most ardent, as Butterworth's involvement in scouting well as its most eloquent, supporter: provides a pleasant diversion from his re­ The Boy Scouts teach a boy how to sponsibilities as chief executive officer of use a knife and an axe without cut­ FEDCO, a position he has held since ting a hand or a foot off; to help 1978. Prior to that time, he served as elderly people across the street; general counsel to the company. But But­ and to do a good turn daily. We do terworth's interest in scouting can be this without apology, but it is a traced back to his days in the boy scouts. small part of scouting. We teach a

33 And WhenThey're Not Practicing LaW"

boy love of God, love of country, Step One: Lay a ring of blocks. Mitchell developed his interest in ig­ love of mankind and all living loos after reading an Army survival creatures. These lessons come nat­ booklet that included instructions on urally and easily to a boy. how to build one. He felt it would be an What does scouting strive for? interesting family project for his wife and Perhaps it is to enable an adult six children, four of whom are Stanford man to answer, "Yes," to the in­ graduates. (His daughter, Sandy Creigh­ quiry, "Would the boy you were be ton, is a member of the Class of 1981 at proud of the man you are?" Step Two: Cut a ramp. the Law School.) The sites for Mitchell's igloo building are in the Sierra Nevada mountains William R. MiteheU '47 northeast of Modesto. Once a place with sufficient snow depth is located, the building site must be located in a shaded area, away from the sun's direct rays. The next step is to pack the snow, which is accomplished by walking with snow­ Step Three: Lay up a second course of shoes single-file in a circle marking the blocks in a spiral. building site. '. Then, a ski pole is placed in the center of the igloo site to provide a point of ref­ erence for the "arc" or exterior building line. Once the site is prepared, a close-by quarry of snow from which to carve the snow blocks must be established. The blocks should not be too heavy or icy. Step Four: Continue up to apex, slant­ The snow is then cut with a curved prun­ ing each course slightly inward. ing saw and trimmed with a carpenter's saw. It is important to use saws with " , , , wooden, rather than aluminum, handles , / \ so they don't freeze one's hands, accord­ I , ing to Mitchell. "When building the dome," he ex­ On building an igloo plains, "the snow blocks should gradu­ ally tilt inward as you build higher so that adequate height is attained. It is also How do you build an igloo? very important to make sure that each "First, you have to find snow six feet successive block doesn't leave 'cracks' in depth; otherwise, you'll be in the which would prevent the structure from bushes. And wherever you build an igloo, being airtight." you have to make a good ground covet­ Mitchell estimates that it usually takes ing of compact snow," explains William These illustrations appeared in the six people six hours to build an igloo. R. Mitchell '47 of Modesto, California. January I977 issue of Country Journal "We generally start at 10 a.m. and finish While it is unlikely that igloo building in the article, "How to Build an Igloo," before sundown." will ever replace jogging or tennis as a by Clyde H. Smith. Once an igloo has been built, a special national pastime, Mitchell, who has pur­ windshelter can be constructed to protect sued the hobby for the last fifteen years, the camp stove, since all cooking must be describes it as an enjoyable winter because of the airtight way it is con­ done outdoors. Too much heat inside will "sport" that is perfect for group partici­ structed, an inhabited igloo will always cause the snow to melt and the structure pation. be about twenty degrees warmer inside will collapse. Moreover, there are some practical than the outside temperature," Mitchell reasons why people build igloos. "In the points out. winter, when you're camping in the snow, an igloo provides shelter from bi t­ ing chill factors and heavy winds. And

34 Martin and Illie Anderson and friend. During the evening hours, votive can­ dles can be used in the igloo. Three can­ dles will provide sufficient light to read a newspaper, according to Mitchell. With the right temperatures and plenty of shade, an igloo can last as long as a month. For the Mitchells building an igloo is a satisfying way to spend a long weekend. Among the places they have pursued their hobby are Lake Tahoe, Located on the eastern border of Afri­ Anderson describes the atmosphere at Boreal Ridge, and Dodge Ridge. It's also ca's largest game preserve, Tsavo Nation­ Galana as one of everyone helping every­ a great way to avoid the crowds. "In al Park, the Galana Ranch encompasses one else - what the Kenyans call haram­ fact," admits Mitchell, "I've never met some 1. 5 million acres of land, an area hie. He explains, "One of the great prob­ another person who has built an igloo. It four times the size of the island of Oahu. lems of the world is overpopulation and would be interesting to c<;>mpare notes." Here, Galana Game and Ranching Ltd., lack of sufficient protein supplies. At When William" Mitchell is not building of which Anderson is chairman of the Galana we are making productive a sec­ igloos, he practices with his Modesto board, is attempting to prove that this tion of Kenya that had not been con­ £irIn, Mitchell & Vance, where he spe­ formerly unproductive area of Kenya can tributing to the country's protein supply. cializes in estate planning. He also be developed to yield a profitable com­ We build labs on the ranch and we teaches a University of California exten­ mercial cattle ranch operation, which can provide housing for foreign scientists sion course for legal assistants. peacefully coexist with the natural game who work with local veterinarians to population that includes elephants, understand how to make these two rhinos, buffalo, leopards, and lions. protein-producing sources - cattle and Martin Anderson'49 The land, which has been leased to game - work together. In this way, what Anderson's company for 45 years from we achieve at Galana will benefit not the Kenyan government, is currently only Kenya but many other countries Spreading the spirit of being used for several purposes, includ­ around the world." ing game control or "cropping," ranch­ At Lake Tahoe, California, where he is "harambie" ing of domestic livestock, meat process­ a major owner of Heavenly Valley Ski ing, cultivation of cattlefeed crops, and Resort, Anderson attempts to create yet The primary objectives of the environ­ tourist development. A condition of the another balance between man and na­ mentalist are first to control people and lease is that the company manage the ture. His challenge here is to show that then to build a balance between man and natural game population so that it is one can open up a wilderness area with nature. To achieve this balance people encouraged to increase. Toward this end, as little impact as possible on wildlife must be taught to work together, and this Anderson and his company are attempt­ and nature, enabling man to enjoy this is what Martin Anderson'49 attempts to ing to increase the "carrying" capacity of unique resource without destroying it. do on a worldwide scale. the land by improving the environment "You cannot just have a wilderness un­ As senior partner in the Honolulu firm for all animals, thereby reducing the less that wilderness is perceived as an of Goodsill, Anderson & Quinn, Ander­ amount of cropping necessary. To achieve enjoyable resource," says Anderson. "At son divides his time between a demand­ its goals, the company has enlisted the Heavenly Valley, we are giving people ing antitrust practice and environmental help of the Waliangulu, a local tribe who a recreational outlet to a wilderness that projects centered in Hawaii, California, helps control poaching on the ranch. they can appreciate for the years to and Kenya, East Africa. While the three The success of the Galana project, ac­ come." projects are quite different from one cording to Anderson, will prove that the In his home state of Hawaii, Anderson another, they share a common purpose: combination of game conservation and is involved in yet another pioneering ef­ to enable man to derive maximum bene­ commercial ranching, under close gov­ fort: the development of geothermal sites fit from his environment without de­ ernment supervision, is a workable one. for the production of energy to substitute stroying it. "Not only will the Galana project be for fossil fuels. In Kenya, Anderson is helping Afri­ achieving one of the world's great nature Nine years ago, Anderson assisted cans to achieve a better balance between conservation programs, but it will pro­ three Canadian brothers to begin explo­ wildlife and the environment through a vide a booming economy in an area that ration for these sites. Together with program known as The Galana Game once produced nothing." people from the University of Hawaii and Ranch Research Project. Established in the state and federal governments, they 1967, the Galana Project is the largest located steam on a producing well for the free enterprise big game management State of Hawaii. Recently, the group and conservation project ever launched on the vast continent of Africa.

35 And When They're Not Practicing Law

drilled its first geothermal hole in the The Easties were still ahead, but Puna area on the island of Hawaii and is the USA was surging, surging, lean­ now actively drilling the second one. ing on it, driving into the sprint As with his other projects, Anderson's and finally bursting across the foremost concern is conservation. He finish line ahead of East Germany points out: " Since Hawaii is dependent for the first time in history. on fossil fuels and must import all of its As we loaded boats, drank beer gas and oil, anything we can do to de­ and cheered ourselves through velop geothermal resources will be team pictures, we knew for sure Peter Lippett exchanges a few words helpful, but we must develop these sites that even if the Easties caught the with I976 Silver Medalist, Joan Lind, a in a way that will not destroy the magni­ gold in Moscow, they had been member ofthe I980 Olympic Women's ficent Hawaiian landscape." beaten once by the American eight. Rowing Team. For Martin Anderson, each of these [Ed. note: East Germany won the gold in projects presents important and interest­ American women's teams were not orga­ Moscow. This text is excerpted from ing challenges - challenges which he is nized until 1962. Then, in 1972, at the "Women's European Tour," by Anne meeting creatively, intelligently, and in Munich Olympics officials voted to in­ Warner, member of the 1980 U.S. Olym­ the spirit of "harambie." clude women's rowing in Olympic com­ pic Women's Rowing Team, in The petition. After the Munich vote, Lippett Oarsman, July/August 1980.] Peter E. Uppett'62 was named the first chairman to organize The above passage provides a sense of an American team. He managed the the excitement (and frustration) Peter teams that went to the world champion­ Lippett '62 has experienced as head ships in Lucerne, Switzerland, in' 1974, manager of the 1980 U.S. Olympic Wo­ and New Zealand in 1978, and was the men's Rowing Team. An attorney with chairman of the U.S. Olympic Women's offices in San Francisco and Oakland, Rowing Committee from 1973 to 1981. Lippett specializes in estate planning and He now serves as rowing's representative probate. He is also the author of Estate on the Executive Board of the U.S. Planning - What Anyone Who Owns Olympic Committee. Anything Must Know and a popular lec­ In Montreal, the first American Wo­ turer on the subject. But above all, Peter men's Olympic rowing team won two Lippett is a rowing enthusiast who, ac­ medals: the silver for the single scull and cording to wife Joellen, devotes 364 days the bronze for the eight-oared shell, fin­ a year to the advancement of the sport. ishing behind East Germany and Russia (He takes his birthday off.) in that event. Lippett's love affair with rowing began When preparations for the 1980 the day he registered as a freshman at Olympics got under way, Lippett was the University of California at Berkeley. chosen head manager for the team. He "Here I was standing in line when this was responsible for handling "anything huge guy (Jim Lemmon, who was later to that would detract from the concentra­ '8 become Cal's head coach) came beating tion of the athletes and coaches," namely, down on me and the first thing he said to the training camp, travel and hotel ac­ me was, 'Son, let's talk about crew and commodations, provisions of special They came off the line imperfectly: you.' foods and medicines, and such logistical a bit of a scramble, a sense of un­ "Being a runty kid of 101 pounds, I chores as the trailering of a fleet of boats certa"inty. But as in any great boat, never dreamed of being involved in one through Europe and Russia. an unsure moment only serves to of Cal's seven varsity sports." But get in­ With characteristic thoroughness, pull the athletes together in reac­ volved he did, as the all-important cox­ Lippett readied himself for Moscow by tion. Heads came up; legs began to swaIn. returning to school to learn Russian, drive. Holly, the cox, took one Since that time Lippett has devoted which he did for one and a half years. He glance out at the Easties ahead, himself to the sport and particularly to also headed the rowing delegation to the and you could see the U.S.A. begin the advancement of women's rowing. 1979 Spartakiade Games in Moscow. to race. Although European women have been When hopes were highest, news of On the shore at the finish line, competing in rowing since the 1930S, President Carter's decision to boycott the heads started to crane; peripheral Moscow Olympics came down on the conversations stopped, and one by team like a ton of bricks, as it did for all one people rose until the first voice rang out: "Go, USA!" of America's Olympic hopefuls. But un­ like many of the athletes who are young Lueinda Lee '71. enough to try again, the women rowers slated for Moscow were a mature group, mostly ranging in age from 26 to 34. Many of them had trained for eight years for Moscow, and several took a year's sabbatical from careers to train. After the eight managed to beat the East Germans in Lucerne last summer, Lippett says, "I'm convinced our eight would have won the gold in Moscow. The devastation of not being allowed to try, for what we considered shabby and obviously non-effective motives of a fail­ ing politician, will last a lifetime for thirty-six superb Americans who de­ served better." Lippett reports that the women's row­ ing team was perhaps the single most militant of the 1980 Olympic teams. They made and defiantly wore T-shirts proclaiming themselves to be "Jimmy Restoring San Franeiseo Carter's Threat to National Security." to its original beauty When "honored" for their sacrifice in Washington, several of them wore those For Lucinda Lee '71 the impetus to pur­ shirts to a reception on the White House sue her avocation - restoring San Fran­ lawn where only three of the thirty-six cisco's Victorian houses - evolved from stepped forward to shake the President's her law practice. As a tax specialist with These Hbefore and after" photos hand. In fact, they actively explored the the San Francisco firm of Flynn & Stein­ illustrate one of Lucinda Lee's possibility of defying Carter by proceed­ berg, Lee spends much of her time help­ restoration projects. ing to Moscow on their own, taking ad­ ing entrepreneurs start their own busi­ vantage of Lippett's ploy in pre-purchas­ nesses. From this experience she has de­ ing long duration airline tickets for the veloped the know-how and the confi­ search the house, tracing back through team's European racing in order to dence to make her own dream a reality. deeds and building and water permits to thwart Carter's threat of pulling pass­ Restoring Victorians is a family affair find such information as the original ar­ ports and imposing currency restrictions. for Lee and her husband, Jon Parker. chitect and plans. After they determine "I almost had to become a Constitu­ Jointly they prepare a financial evalua­ the original character of the house, they tionallawyer," Lippett quips. tion of each property to be acquired; the bring in an architect and organize a con­ What is it about this sport that has restoration uses her legal and artistic tal­ struction crew to help them with the jobs captured the heart and soul of Peter Lip­ ents, and he lends his experience in con­ they cannot (or will not) do themselves. pett? "This sport," he says, "is populated struction. "When we are looking for a house to by unique individuals ... people who Each restoration takes about six restore," says Lee, "we never pass up the subvert their own egos to compete in one months to plan and implement, according 'hopeless' cases. In fact, the more run­ of the most demanding endurance tests, to Lee. "We have a good realtor who helps down a house is, the more fun we have even though they will remain personally us find the old buildings. We negotiate the restoring it to its original state. In the unknown and will never be offered a price and terms along with a budget for 1880s these homes were beautiful, but professional contract. It's the last of the the renovation 'Costs. Everything has to be over the years tenants and landlords have true amateur sports, and that plus the done in stages, and we try to move done crazy things, like adding bathrooms people in it is the attraction for me." through these stages as quickly as possi­ and kitchens in ornate living rooms or ble." painting marble fireplaces pink." For Lee and her husband, restoration is When Lee takes on a restoration proj­ more than profitable hard work, it means ect, much of the work, like demolition of starting at the beginning. Once they have partition walls, remodeling kitchens, re­ located and purchased a house, they re- storing original light fixtures, and in­ sulating, she and her husband do them­ selves. In a condemned building, for

37 And When They're Not Practicing Law- Irwin Schwartz won "Best ofShow" award in an amateur photography contest for this shot of Mt. St. Helens.

example, they will replace entirely the '73, now counsel for regulation for Gen­ electrical, heating, and plumbing sys­ eral Electric's Nuclear Energy Group in tems. "We try to use as much of th~ orig­ San Jose, first displayed his interest in inal architectural detail as possible," says local restaurants by writing a review col­ Lee. "That way, when we rent the build­ umn. One review for the Journalled him ing, it shows pride of ownership and we dining and buffet set and a bar for the to Heinz Selig, owner of Des Alpes res­ often can afford to keep the rent low." family recreation room. taurant on California Street. Would she ever forsake her legal prac­ "The real joy," observes Schwartz, After two years of friendship, Fire­ tice for a full-time career in restoration? "comes in finishing a piece that stands stone decided that it might be interesting "Probably not," says Lee. "While restor­ without wobbling (too much), works as to find out what it was like to prepare ing Victorians could be as hicrative as intended (doors, locks, etc.), and serves food instead of consume it, so he asked practicing law, there's not the same re­ some purpose. Because the work requires Selig for a job as apprentice cook. Before warding client relationship and intel­ a good deal of concentration and is al­ long, Firestone graduated from chopping lectual challenge one gains from being a most totally non-verbal, it is great and preparing vegetables and now even lawyer, and I would not trade that. It's therapy." occasionally runs the kitchen and pre­ great to have the best of both worlds. Re­ When not in his garage sawing and pares main courses, including the Des storing Victorian houses and practicing sanding, Schwartz can usually be found Alpes specialty, poached salmon with law require a high energy level; the re­ "skulking" after the perfect photograph. hollandaise sauce. Loyal devotees of such ward is that in our own way we're mak­ Like furniture building, photography fare include such well known epicures as ing a contribution to the neighborhoods offers him another non-verbal pastime Law Professor Howard Williams and and helping to restore San Francisco to which "produces a tangible product that Mrs. Williams. its original beauty." is pleasing to the eye." So far, all of Generally, however, Firestone prefers Schwartz's works have been for personal to prepare desserts and he spends every enjoyment or for gifts. His first entry in a Tuesday or Wednesday. evening at Des Irwin H. Sehwartz '71 Seattle amateur photo contest brought Alpes creating the restaurant's specialty, him a "Best of Show" award. a Greek walnut spice tort with Grand Half the fun in both woodworking and Marnier filling and chocolate glaze. The photography, he finds, is meeting true dessert takes about three hours to pre­ craftsmen and learning how to find the pare, but for Firestone the time he spends right materials and techniques. "The at Des Alpes is akin to "being on an is­ people and the work make a fine break land in a different part of the world." from law." "For years, I never appreciated the fact that cooking is hard physical labor," ob­ EdwardA. Firestone '73 served Firestone. "However, it is cer­ tainly a welcome break from the strenu­ ous mental effort of practicing law." "In addition," he remarks, "in law, it is diffi­ cult to know whether you have succeeded or failed -until months or years later. In cooking, you know immediately how the food looks and tastes." In addition to his duties as dessert chef at Des Alpes, Firestone finds the time to· Filling a need for sing occasional leads with the Stanford non-verbal expression Savoyards and participate with other singing groups in the Bay Area. For Irwin H. Schwartz '71 photography and building furniture provide two therapeutic outlets to complement his work as Federal Public Defender in Seattle. As Schwartz explains it: "I took up furniture building in 1972, principally to have something to do with my hands rather than my mouth." Food for Thought Since that time Schwartz has com­ pleted several large projects, including a It all started in law school. As editor of the Stanford Law Journal, Ed Firestone Faculty Opinion Putting the Crisis in El Salvador in Perspective by WilUam B. Gould

The focus of today's headlines is upon An increase in union-sponsored stop­ Accordingly, the Havana-financed both strife-torn El Salvador, where the pages during the past year seems to guerrillas are able to move at will junta's lan~ reform policy constitutes the reflect the turmoil that has spread through much of Guatemala. Awareness heart of all controversy, and, as well, throughout Central America. The same of illiteracy and poverty has been raised Nicaragua's Sandinista-led government pattern has emerged even in democratic by access to the transistor radio (Radio and the extent of its involvement with and stable Costa Rica, where inflation is Moscow as well as Voice of America) Cuba. The problems that plague those approximately 20 percent (Honduras is which, along with the bicycle and the countries affect all of Central America, about the same) and the external debt lightweight plastic water jug, has trans­ i.e., declining export prices, inflated oil has made the nation's currency worthless formed the expectations of the average bills, and consequent diminished eco­ outside its borders. Again, the price of oil Indian. nomic growth, as well as increased ten­ is the principal culprit. And, as in Hon­ The Indians supported a farmworkers' sion and violence. This writer's recent duras, where United Brands and Stan­ strike last year which resulted in a 180 visit to three Central American countries dard Fruit banana workers went on percent increase in the minimum wage - Honduras, Costa Rica, and Guatemala strike last year for the first time in a dec­ (the daily minimum is now $3.20) - an - garnered ample evidence for the prop- ade, it is impossible to separate labor­ amount which many owners have refused osition that El Salvador and' Nicaragua management relations from politics. to pay. This has meant an acceleration of are just the tip of the iceberg. Costa Rican industrialists complain violence in the rural areas, i.e., guerrilla Honduras, the poontst of American that they are confronted with communist executions of plantation administrators countries in the northern hemisphere union organizational drives (they resist of the absentee plantation owners. In­ aside from Haiti, is now formulating a them fiercely) and not those of the mod­ dians who work at less than minimum new constitution with free elections to be erate Social Democratic trade union wage have also been targeted. held later this year. But the country is movement. The Costa Rican banana What is particularly remarkable about hobbled by a relative lack of arable land, workers' union's strike last summer was the newfound Indian solidarity is that it an unambitious land reform program triggered by leftist leaders reportedly in­ has been realized at the teeth of increased that has carefully avoided the seizure of spired by the Nicaraguan example. use of hit squad assassinations by the any Honduran national's property, and But Costa Rica, once a haven for the right (and the left also) against anyone an infrastructure so deficient that it has Sandinistas when they did battle with who speaks out politically. Even non­ thus far deprived the nation of its export Somoza, has seen public opinion turn political assassinations have now become potential for lumber. Moreover, the pop­ against the new Marxist-type govern­ commonplace. Lawyers and judges who ulace is increasingly aware of military ment. Although the Costa Rican Minister displease the relatives of a criminal de­ corruption and unsettled by the arbitrary of Labor stated in an interview with this fendant are the principal targets. implementation of conscription. One ob­ writer that industrial turmoil has de­ The pity is that of all the Central Amer­ server told me of army "roundups" of clined, a Social Democratic politician ican countries, Guatemala may have the younger people emerging from movie differed: "The communist-led unions are grandest opportunity for expansion and theaters - a policy made necessary by the restrained because they don't want to see reform - unlike overpopulated El Sal­ unwillingness of Hondurans to comply a backlash against Nicaragua." vador, where there is simply no more with the draft law. Despite some predictions that its rate room. But, regrettably, the lesson that As is true throughout Central Ameri­ of inflation will double in 1981, Costa Guatemala seems to draw from President ca, conversation inevitably focuses upon Rica's problems pale into insignificance Reagan's campaign speeches is that the United States. "We celebrated with compared with those of Guatemala. America will circle the wagons around its firecrackers the night Reagan won," said There is no part of that country which right wing friends when confronted with a a well-to-do Honduran businessman. But is safe from guerrilla onslaught, even left wing guerrilla threat - and perhaps his view is by no means representative. A though the rebels' numbers under arms even tacitly support an audacious inter­ leftist leader of the Liberal Party (it has a do not exceed 2,000 (the army has vention by Guatemala on the side of the narrow plurality as the result of 1980 14,000 troops). Excessive pressure on the junta over the border in El Salvador. elections) characterized American inter­ land has made for greater dependency The tragedy is that America is already vention in El Salvador as harmful and and virtual peonage for a growing Indian identified with the forces of oppression in designed to support the "big, privileged population which is forced to leave the Central America - an image which would people" and American business interes'ts temperate central highlands to work the be more firmly implanted if the conflict is which are so concentrated in that coun­ coffee and cotton plantations on' the internationalized. Defeat for the left in El try. And he spoke critically of the in­ steaming tropical southern Pacific coas­ Salvador is unlikely to make this problem' volvement of the AFL-CIO supported tal plains. The right-wing Garcia gov­ disappear. As one American diplomat American Institute for Free Labor Devel­ ernm~nt has offered land reform as an said to me in Honduras, "The left may opment (AIFLD) because of its opposi­ answer. But this means resettlement to well be stopped in El Salvador by Ameri­ tion to moderate Christian Democratic the sea-level terrain of the northern prov­ can military aid. That only means that unions in Honduras on the ground that ince of Petan - hardly an attractive pros­ they will be heading this way sooner." they have some Marxist leaders. pect for highland people.

39 ente

This article appeared in the monthly col­ principle lead? As Justice Harry other evidence, will conclusively and in­ umn "A View from the Gallery" in the Blackmun phrased it, "My real question is disputably show the answer to the ques­ American Lawyer (March I98I). Jon whether we are getting on a slippery tion, that distinguishes it," he said. Blue, the subject of the article, is a grad­ . slope." Stephen McGovern, Connecticut's as­ uate of the Class of I973. The article is Hands in pockets, relaxed, thoroughly sistant attorney general, obviously had a reprinted here with permission. prepared, Blue calmly repeated his point long way to go when his turn came, but about the uniqueness of blood grouping he went almost nowhere. Aside from one tests. Conclusive in more than 90 percent comment (after he had been refreshed at At times (if rarely), legal talent can come of all cases, he stressed. the lunch break) about the slippery slope cheap. For the price of airfare, a hotel "Are you familiar," Chief Justice War­ that so bothered the Court, he made room and a couple of meals, the Supreme ren Burger digressed, "with the fact that pathetic attempts to save his case. Court got Jon Blue. It got more than a there have been numerous malpractice His lowest point came near the end, bargain. suits against laboratories which have when the justices began exploring the Blue, it is true, is not one of the visible done blood tests when those tests were "burden of proof" in paternity cases in giants of t1)e bar. He works for Legal As­ used and injury resulted?" Connecticut. sistance to Prisoners in Hartford, Con­ He was not familiar with that, Blue an­ Justice Brennan, forcing himself to be a necticut. He is a little man in stature, too, swered, but then he reminded Burger lot simpler than he normally is, asked, a tiny Alice-in-Wonderland figure. gently that, while "there are several types "If the woman takes the stand and says, But he took it very seriously when he of blood tests," only one kind was at 'He's the father, he's the father, he's the was.appointed by the Court (no fee, ex­ issue in his case. father' - never deviates - 'He's the penses only) to handle a penniless con­ The justices, who kept their questions father,' but then the defendant takes the vict's appeal in Little v. Streater, and he on point, were troubled mainly about stand and says, 'I am not, I am not, I am stood very tall when his argument ended. forcing states to pay for high-priced ex­ not, I am not,' she wins?" Indeed, he appeared to have won the pert witnesses. Before McGovern could affirm that, case for Walter Little, needing only to At first, Justice Potter Stewart tried to there was a chorus from the bench, sev­ offer Justice Lewis Powell, Jr., "a limit­ help Blue out on that, suggesting that eral justices nearly shouting, as if in ing principle" so that the victory would "expert testimony" always was a matter triumph, "She wins!" not force the Court to go too far. of opinion and thus probably not crucial. . Justice William Rehnquist asked of The Little case is about paternity law­ Blue graciously accepted the aid. McGovern, "where, in the case mate­ suits and whether a state must pay the After thinking about it, however, rials," that was spelled out; but the assis­ cost of a blood test when a man with no Stewart said that "the distinction may be tant attorney general only stumbled. funds is accused of being the father of a blurred" between expert testimony and Stewart interjected with yet another child on welfare. scientific evidence. With no hesitation, kudos for Blue: "The discussion of the Blue offered the Court a magnificent the attorney retorted that he "would dis­ case law begins at page 3° of the appel­ brief filled with legal and medical lore to pute that," at least as it concerns blood­ lant's brief." prove that blood tests are a unique kind grouping tests. Grinning devilishly, Rehnquist said, of evidence - conclusive and nearly un­ As is often true when a lawyer has dis­ "Thank you, counsel." assailable and thus crucial to the only played confidence at the podium, Justice Unsmiling, Stewart muttered that he question at issue in a paternity case. Byron White was ready to reward Blue. was only giving "my impression." But Cleverly, the brief offered as "the best "Every doctor, every doctor," White White, uncustomarily joining the fun, judicial expression" of the customary said, "would agree with the result of this looked at Stewart and finished the sen­ difficulties of proof of paternity a 1950 test." Blue nodded, saying, "That's cor­ tence. "Based upon a careful reading of New Jersey precedent written by now­ rect." the briefs," he said. Justice William Brennan, Jr. (A pleased Then he summed up. "The important All of that, though, was more at Brennan confessed he did not remember thing I want to leave with this Court is McGovern's expense than Stewart's. But the decision exactly.) that the fact that these tests are treated as the assistant attorney general was long The basic issue Blue posed was the one decisive is exactly the reason why they since finished by then, anyway. of "equal protection" for indigents. If should be equally available." Fortunately for McGovern, he has a blood test evidence is the key to justice in Powell, still troubled, was not ready to strong brief, devoted heavily to the basic patt:rnity cases, it must be equally avail­ let it go at that. Referring to the "abun­ proposition that the only constitutional able to all, as Little's lawyer saw it. dance of questions" from the bench right to equal justice, in a civil case at But as soon as he was on his feet in the about the slippery slope, Powell asked, least, is the "opportunity to be heard." If courtroom, Blue learned that the justices "Will you state a limiting principle?" the Court went with Blue's argument, the saw much more than simplicity in his Boldly, Blue did, going so far as to sug­ Connecticut brief argued, it would next case. Over and over he was asked: If a gest just how the Court could "craft the have to assure the availability of "any state is obliged to provide one kind of opinion" to stay off the slippery slope. other evidentiary tool an indigent might evidence to aid indigents, where does that "When the nature of the evidence, unlike desire to use in his defense." Nation's FirstProfessorshipinLaw andBusiness EsfabHshedatthe Sehool

The first endowed professorship combin­ of a fisherman, Parsons got his first taste ing law and business at any major Amer­ of the business world at age 13 when, in ican law school has been established at partnership with his I8-year-old brother, Stanford. he set up a garage in his uncle's black­ The professorship, named in memory smith shop. of the late Ralph M. Parsons, founder of The engineering, and construction the worldwide engineering and construc­ company which bears his name was es­ tion firm that bears his name, was made tablished in 1944 with seven employees. possible by a grant from The Ralph M. It now has more than 8,500 full-time Parsons Foundation of Los Angeles and employees providing design, engineering, an earlier challenge grant from the On October 27, Dean Meyers hosted a and construction services to private and William Randolph Hearst Foundation of dinner and reception in San Francisco governmental clients for a variety of San Francisco and New York City. for members ofthe boards ofthe Par­ petroleum-chemical, mining and metal­ Creation of the Ralph M. Parsons sons Foundation and Hearst Founda­ lurgical, public and civil, transportation Professorship in Law and Business was tion. Attendees included Joseph G. Hur­ and power, and nuclear projects in more announced on October 14 by Stanford ley, president ofthe Parsons Foundation, than 40 countries around the world. President Donald Kennedy following ac­ and Barbara Stokes Dewey, executive "Ralph Parsons would be delighted ceptance by the University Board of Trus­ director and secretary/treasurer ofthe with the benefits that undoubtedly will tees. Parsons Foundation (pictured above); accrue to the lawyers and business lead­ In announcing the professorship, Ken­ and John R. Miller, member of the ers of tomorrow from the establishment nedy thanked the two foundations "for board of directors of the Hearst Foun­ of a chair in law and business at Stan­ joining together to take this first step in dation (pictured below to the right of ford," Foundation President Hurley said. this new combined field." He added, "It Dean Meyers). The Ralph M. Parsons Foundation was is of great importance to Stanford and established in 1961. It currently supports will set an example that other univer­ higher education, primarily in the fields sities can be expected to follow." of engineering, business, law, science, Joseph G. Hurley, president of the and medicine; social programs, including Ralph M. Parsons Foundation, said the ass'istance to children, battered women, professorship "signals a new era of in­ and seniors; and local cultural and civic tellectual inquiry in an area of intense projects. interest" to the foundation's founder. The Foundation's officers and di­ "It is particularly fitting that this chair rectors are: Joseph G. Hurley, president; should be established at Stanford, which Everett B. Laybourne, vice-president; has not only the nation's foremost Busi­ Council, a group of corporate executives Barbara Stokes Dewey, executive director ness School, but a Law School well known who have assumed responsibility for and secretary/treasurer; Albert A. Dors­ for its innovative approach to legal educa­ helping create and fund the program. kind, Alex Haley, Leroy B. Houghton, tion," he added. Law School Dean Charles J. Meyers Edgar R. Jackson, Marvin R. McClain, The professorship is the culmination of said the Parsons professorship "will and the Honorable Donald R. Wright, intense efforts on the part of both the permit us to make a giant step forward in Chief Justice of California (retired). Law School and the Business School to this field of vast importance to the Bar, The William Randolph Hearst Foun­ develop a fully integrated joint degree the business world, and society as a dation was founded in 1948 by William program. whole." Randolph Hearst, Sr. Its principal inter­ Stanford initiated the nation's first Throughout his long business career, ests are the areas of education, health, combined law and business program 15 Parsons firmly believed a good grasp of culture, and social services. years ago, leading to a joint degree op­ the legal environment in which business David W. Hearst, one of five sons of tion of Juris Doctor/Master of Business operated was extremely important to the the founder, is president and director of Administration. business executive. the foundation. Other directors are: In addition to scholarship and teach­ Conversely, he felt that lawyers as Frank A. Bennack, Jr., Richard E. Deems, ing, the Parsons professor will be respon­ legislators, judg~s, and government offi­ George R. Hearst, Jr., John R. Hearst, sible for strengthening this J.D./M.B.A. cials should have a more thorough Jr., Randolph A. Hearst, William Ran­ program and for developing a "mini­ knowledge of the workings of modern dolph Hearst, Jr., Joseph Kingsbury­ major" in law and business within the business, so that the regulatory climate, Smith, Harvey L. Lipton, Frank Massi, School's three-year J.D. curriculum. which they create and over which they John R. Miller, Raymond J. Petersen, The Parsons professorship will be the preside, would be' favorable to the devel­ and Franklyn C. Snyder. Robert H. cornerstone of the Law and Business opment of a good system of competitive, Frehse, Jr., is executive director and head Program now being developed by the law private business enterprise. of the New York office. Charles Gould faculty in consultation with the Dean's Born in Springs, Long Island, the son manages the San Francisco office. Sehool~Faeulty

Ehrlich relinquished the deanship at Seareh ColDndttee the end of 1975. AntsterdalD Resigns for Ne.,. Dean A member of the faculty since 1952, FrOID Faeulty Appointed; AIuJUUi Associate Dean Mann is responsible for academic affairs relating to the Vie.,.s Sought School's educational and research programs. He is a graduate of Indiana On May 5, Stanford University Presi­ University and its law school, where he dent Donald Kennedy announced the was article and book review editor of formation of a committee to advise him the Indiana Law Journal. Following law in selecting a successor to Dean school he served as law clerk to Jus­ Meyers. The committee members are tices Rutledge and Minton of the Su­ Law Professors Paul Brest, Robert C. preme Court of the United States. He Ellickson, Gerald Gunther, Deborah L. then practiced law in Washington, D.C. Rhode, and Robert L. Rabin, who will chair the committee; law students Glen D. Nager '82 president of the Stanford Law Review for 1981-82; and Ronald K~ Noble '82, president of the Law Asso­ ciation for 1980-81; and University Provost Albert H. Hastorf. Alumni are invited to submit sug­ gestions as to candidates and/or Anthony G. Amsterdam, Kenneth and criteria they would like to see consid­ Harle Montgomery Professor of Clinical ered. The committee will be conduct­ Legal Education, has announced his ing a thorough search in which they will resignation, effective August 31. consider both inside and outside can­ In disclosing his intention to resign, didates for the position. Suggestions Professor Amsterdam said he and his should be sent in writing as soon as wife, Lois P Sheinfeld, also an attorney possible to Professor Rabin or any and lecturer in undergraduate studies other member of the search committee. at Stanford, wanted to return to a more During the Board of Visitors meeting urban environment. He added, "We will miss the Stanford Law School very at the end of April, Professor Rabin met for a short time and served as special much. We leave with lasting memories informally with members of the Execu­ assistant to the chairman of the Wage tive Committee to discuss the dean Stabilization Board in 1951. In 1952, and friendships that will always tie us to the School, and to all of the col­ selection process. On behalf of the after a year on the law faculty of the leagues, students and staff who have search committee, he has also written University of Wisconsin, he came to enriched our lives immeasurably." to the present and former chairs of the Stanford. The Amsterdams have accepted ap­ Board of Visitors, to present and former An expert in labor law, Associate pointments to the faculty of New York chairs of the Council of Presidents of Dean Mann has served on numerous University, he a$ director of the clinical Stanford Law Societies, and to the presidential boards and commissions and advocacy programs at the law current president of each local Law in national labor disputes. In 1980, he school and she as associate professor Society, inviting their assistance in so­ was appointed by the Supreme Court of journalism and metropolitan studies. liciting the views of alumni on the as Special Master in U.S. v. Alaska, a A member of the Stanford law faculty selection of a new dean. case involving some 500 miles of boundary between areas of state and since 1969, Professor Amsterdam Assoeiate Dean federal interest along the northern pioneered the development of clinical coast of Alaska from Icy Cape east to instruction at the School and is the Mann Appointed the Canadian border. The outcome of nation's foremost expert in the simula­ AetingDean the case will determine title to sub­ tion method of clinical teaching. merged lands containing oil reserves In 1980, in recognition of Professor While the search is under way for a amounting to as much as two billion Amsterdam's monumental contribu­ successor to Dean Meyers, Associate dollars. tions to clinical teaching, Mr. and Mrs. Dean J. Keith Mann will serve as Acting Associate Dean Mann will become Kenneth F Montgomery of Northbrook, Dean. This will be the second time As­ Acting Dean on September 1. Illinois, endowed the first chair in clini­ sociate Dean Mann has assumed the callega/ education in the country, nam­ leadership of the School, having ing Professor Amsterdam the first served as Acting Oea-n when Thomas holder. Professor Amsterdam received an Nationally recognized for his work in In an interview with Robert Riggs '82, A.B. in French Literature from Haver­ the field of antitrust and regulated in­ editor of the Stanford Law Journal, ford in 1957 and an L.L.B. in 1960 from dustries, Professor Baxter was de­ Professor Baxter said his approach as the University of Pennsylvania, where scribed by former Solicitor General. head of the Antitrust Division would be he was editor-in-chief of the University Robert Bork as one of the "five most in­ "to try to put into effect the policies I've of Pennsylvania La,w Review. In 1960­ fluential antitrust experts in the country." discussed in my Antitrust classes for 61 he served as law clerk to Justice A member of the faculty since 1960, the last twenty years." Among those Frankfurter of the Supreme Court of the Professor Baxter received his A. B., with would be de-regulation of the energy United States. The following year he great distinction, in 1951 and his LL.B. industry and the abolition of regulations was assistant U.S. attorney for the Dis­ in 1956 from Stanford. He was note and preventing banks from operating in trict of Columbia. He joined the law comment editor of the Stanford Law more than one state to promote compe­ faculty of the University of Pennsylvania Review. Following two years as an as­ tition between banks in different states. in 1962, remaining there until 1969, sistant professor at the Law School, Mr. when he came to Stanford. Baxter joined the Washington, D.C. firm Ha~aii's In 1972 Professor Amsterdam gained of Covington & Burling. He returned to Li toHead national attention when he successfully the Law School in 1960. East-West Center challenged the constitutionality of the In 1968 he was appointed to a death penalty before the Supreme program of studies established at the Victor H. Li, Lewis Talbot and Nadine Court of the United States in Furman v. Brookings Institution to produce a sys­ Hearn Shelton Professor of Inter­ Georgia. tematic evaluation of government prac­ national Legal Studies, has been His work, in both the classroom and tices and policies for regulating busi­ named the next president of the East­ the courtroom, has won him national ness activities. That same year he was West Center in Honolulu. The appoint­ acclaim, as well as numerous awards ment will become effective October 1. and honors, including the Earl Warren A world-renowned expert on China's Civil Liberties Award, bestowed in 1973 legal system and foreign trade prac­ by the ACLU of Northern California, tices, Li testified before the U.S. Senate and the 1977 Walter J. Gores Award, Foreign Relations Committee on the presented by Stanford University for legal implications of de-recognizing excellence in teaching. Taiwan, and he produced several Commenting on Professor Amster­ studies for the Committee on U.S.­ dam's resignation, Dean Charles J. China Relations. Meyers said, "Tony is a great teacher, and his pioneering work in clinical legal education will leave a permanent mark on th(s School. The Law School com­ munity offers Tony and Lois Amsterdam its best wishes for personal and professional satisfaction as they move to a new location where they will both also a member of White House Task be pursuing their respective careers in Forces on Antitrust Policy and Com­ the law." munications Policy. He was a consul­ tant to the Federal Reserve Board from 1969 to 1974, and a fellow at the Center Baxteron Leaveto for Advanced Study in the Behavioral Justiee DepartlUent Sciences in 1972-73. Professor Baxter's writings on eco­ William F Baxter, Wm. Benjamin Scott nomic regulation are enriched by an and Luna M. Scott Professor, has taken extensive background in economics In 1972 he served as host-interpreter a leave from the Law School to serve and mathematics. He is co-author of a for the visit of the Chinese ping-pong as Assistant Attorney General in the major book on Retail Banking in the team which opened American relations Antitrust Division of the Justice De­ Electronic Age: The Law and Econom­ with the People's Republic. Since that partment. His appointment became ef­ ics of Electronics Funds Transfer (1977) time, he has been to mainland China fective in April, following Senate con­ and author of People or Penguins: An five times, and on one of those visits he firmation. Optimum Level of Pollution-(1974). He met with Premier Chou En-Iai. In 1978 has also worked as a legal consultant and 1979 he lectured in Taiwan at the on antitrust affai rs to several corpo­ rations.

43 Sehool(&),Faeulty e~s

invitation of the Academica Sinica and larger nations need. If those methods to give speeches and write articles for the Institute of International Relations. fail, the "ultimate" threat, according to "building a disarmed world order." Born in China, Li came to the United Shuman, would be "outright weapons States with his parents and became a proliferation." naturalized citizen in 1957. His father "Imagine," says Shuman, "the impact Three Grads NaDled was governor of Kwangtung province of 100 nations announcing in a clear, U.S. SupreDle Court in China from 1938 to 1945, and now unified voice: 'If the nuclear nations do Clerksfor 1981-8~ lives in New York. not dismantle ninety percent of the nu­ clear weapons in the next ten years, we Li received a B.A. (1961) in mathemat­ Three graduates of the Class of 1980 all promise to go nuclear.' " ics from Columbia and a J.D. (1964) have been chosen to fill U.S. Supreme Shuman links nuclear energy with cum laude as a Harlan Fiske Stone Court clerkships for the October Term nuclear armament because the tech­ scholar there. He also holds LL.M. and 1981. They are Robert B. Bell of Arvada, nology to turn the byproducts of nu­ S.J.D. degrees from Harvard. Colo.; David F Levi of Libertyville, III.; clear energy into weapons is no longer Li joined the Stanford law faculty in and Christopher J. Wright of Berkeley. as esoteric as it once was, and most 1972, after teaching at Columbia and Mr. Bell received a B.A. summa cum nations now have the capabiIity for ac­ Michigan and the summer session of laude in Government from Dartmouth in quiring nuclear weapons if they want the University of Hawaii's Asian studies 1975. That same year he was awarded them badly enough. program. During 1974-76 he directed the Benet Prize for the best Govern­ For that reason, Shuman says, it is Stanford's Center for East Asian ment honors thesis and the Colby Prize Studies. necessary to phase out all nuclear en­ At the Law School, Li has taught ergy projects, which he believes are courses in international law, trans­ uneconomical and are not a very im­ national law, and Chinese law, in addi­ portant substitute for scarce energy tion to co-developing and teaching the supplies. He points out that if every na­ two-year-old course Law in Radically tion built all the reactors it needed to Different Cultures. produce electricity it would cut oil con­ He is the author or editor of five sumption worldwide by only ten per­ books and numerous scholarly articles. cent; most oil is used for home heating He has also been involved in the pro­ and automobiles and its use is unaf­ duction of two films on China, one of fected by nuclear power sources. which was a 30-minute dramatization Shuman sees solar energy as "the best of a trial in the People's Republic made and easiest" alternative. by the East-West Center's Culture The Rabinowitch Prize is named for Learning Institute. Eugene Rabinowitch, a nuclear scien­ tist and the first editor of the Bulletin. More than 800 essays were submitted Robert B. Bell StudentWins Prize for the competition. for DisarDlaDlent Shuman holds a B.A. in international for the outstanding Government major. Essay relations from Stanford. His interest in In 1975-77 he was a Keasby Scholar at nuclear proliferation began in his Cambridge University, where he re­ Michael H. Shuman '82 was awarded freshman year when he took a course ceived an M.A. in Economics. At law the $5,000 Rabinowitch Prize for his in Arms Control. In addition to attend­ school he was president of the Law 4,000-word essay on disarmament, ing the Law School, he teaches a Forum and articles editor of the Stan­ "The Mouse That Roared," in a contest freshman course, "Soft Energy Paths ford Journal of International Studies. sponsored by the Bulletin of Atomic and Non-Nuclear Futures." He also published articles on environ­ Scientists. When asked how he will use his prize mental economics, airport noise, and Published in the January issue of the money, Shuman said, ''Attending the supervision of charitable trusts. He re­ Bulletin, the essay calls on the Third most expensive law school in the coun­ ceived the 1980 Murie Award for the World, particularly those non-nuclear try simplifies my decision about how to most thoughtful written work in the field nations that have signed the Nuclear use the money. Happily, I am now able of Envi ronmental Law for that year. Non-Proliferation Treaty, to band to­ to relieve my parents of the financial Upon graduation he was elected to the gether and force the nuclear big pow­ burden of my law school education." Order of the Coif. Mr. Bell is currently ers to disarm completely. Among the Shuman also plans to elaborate on clerking for Judge Thomas Flannery methods Shuman suggests to ac­ his paper proposal and to send 'copies of the District Court for the District of complish this are moral persuasion or to each non-nuclear nation, as well as Columbia. His U.S. Supreme Court withholding necessary resources the clerkship will be with Justice Byron R. White.

44 Mr. Levi graduated magna cum Department of City Planning. He then laude from Harvard, where he received served on the Presidential Commission an A.B. in History and Literature in on Urban Housing under President 1972. The following year he received Johnson. The next year he took a man­ an M.A. in Modern European History agerial position with Levitt & Sons. from Harvard. He was then awarded a In 1970 Professor Ellickson joined the Mark deWolfe Howe Fellowship to pur­ faculty at USC, interspersing his tenure sue research in England on the English there with visiting stints at the Univer­ law reform movement of the 1850s for sity of Chicago Law School (1974-75) his doctoral thesis, which he is cur­ and Stanford (1977-78). In 1977 he was rently completing. While in graduate awarded the USC Associates Award for school, Mr. Levi was a teaching fellow Teaching Excellence. That same year in British History and Literature. At law school he was president of the Stan­ ford Law Review for Volume 32. He Christopher ]. Wright also authored the Note, "The Equal Treatment of Aliens: Preemption or Equal Protection?" (31 Stanford L. Rev. the property of the employer of the 1069). Upon graduation he was elected picketers. In addition, he participated to the Order of the Coif. Mr. Levi is in an empirical study of the voting pat­ currently clerking for Judge Ben. C. terns of interim appointees to the Cali­ Duniway '31, U.S. Court of Appeals, fornia Supreme Court. (Mr. Wright blames the time required to write these articles for his failure to become a top squash player.) Upon graduation he was elected to the Order of the Coif. He is currently serving as law clerk to Judge Joseph T. Sneed, U.S. Court of Appeals, Ninth Circuit. He will clerk for he received the prize for distinguished the Honorable Warren Burger, Chief scholarship in law and economics, Justice of the United States. awarded by the Law and Economics Center of the University of Miami School of Law. Commenting on Professor Ellickson's Ne...Faeulty appointment, Professor Paul Goldstein, AppointDlents a property expert in his own right, de­ Aunouneed scribed Professor Ellickson as one of David F. Levi the most well-informed people on real The Board of Trustees has approved property issues in the country. the appointments of four new faculty When Professor Ellickson isn't teach­ Ninth Circuit. He will clerk for Justice members. They are Professor Robert ing or writing about property, he enjoys Lewis F Powell, Jr. on the U.S. Su­ C. Ellickson of the University of South­ the intellectual excitement of playing preme Court. ern California Law Center; Roberta word games. A tournament-class Mr. Wright was awarded an A.B. cum Romano, a 1980 graduate of Yale Law Scrabble player, he has competed in laude in General Studies from Harvard School; William H. Simon, an attorney the Western Regionals, and last year in 1974. Before enrolling in law school with Legal Services Institute in Jamaica narrowly missed qualifying for the he conducted evaluations of experi­ Plain, Massachusetts; and Robert! National Finals. mental educational programs for the Weisberg, a 1979 graduate of the Law Vice-Chancellor at the University of School. Roberta Romano Ms. Romano spent California at Berkeley, where he also 1980-81 as a law clerk to the Honorable received an M.A. in Educational Re­ Robert C. Ellickson An expert in Jon O. Newman, U.S. Court of Ap­ search and Development in 1975. At land use planning, Professor Ellickson peals, Second Circuit. She is a gradu­ law school he was senior note editor of comes to Stanford following eleven ate of the University of Rochester the Stanford Law Review for Volume years at USC. He is a graduate of (1973), where she received a B.A. with 32. He wrote a case comment concern­ Oberlin (A.B., 1963) and Yale (LL.B., highest honors and distinction in his­ ing the permissibility of picketing 1966). Following graduation from law tory and highest distinction in English. aimed at consumers at sites other than school he spent a year at MIT in the She holds an M.A. in history (1975)

45 SehoolC&),Faeultv.. ne~s

third-year curriculum focusing on pov­ Facility, a maximum security state erty law, which was taught to students prison in Comstock, N.Y. from Harvard and Northeastern for the Mr. Weisberg will teach Commercial first time last fall. He also taught part Law and a fi rst-year course in Statutory time at the two law schools during 1980. Analysis. Prior to joining the institute, Mr. Simon was an associate with the Boston fi rm of Foley, Hoag & Eliot. Seholarship Fund Mr. Simon will teach first-year Civil NalDedfor Procedure with Professor Brest in the Distinguished Curriculum B program. A1uUlUus, Justiee Robert Weisberg Since his gradua­ HOlDer R. Spenee tion from the Law School in 1979, Mr. Weisberg has served as law clerk to A scholarship fund commemorating from the University of Chicago, where Chief Judge J. Skelly Wright, U.S. the remarkable career of Justice she also was a doctoral candidate in Homer Roberts Spence, one of Stan­ Japanese history. ford's most distinguished graduates, While at Yale Law School, she was has been established by his sister, Mrs. note editor of the Yale Law Journal and Samuel Morton Smith. winner of the 1980 Nathan Burkan The first Stanford Law School gradu­ Memorial Competition for her essay, ate to be appointed to the California "The Author's Right to Credit: An Eco­ Supreme Court, Justice Spence was a nomic Analysis for Providing Copyright prominent member of the California Protection ." Ms. Romano will offer courses in Business Associations and a seminar on Regulation of the Corporate Form.

William H. Simon A graduate of Princeton (A.B., 1969) and Harvard (J.D., 1974), Mr. Simon has been a staff Court of Appeals, D.C. Circuit (1979­ attorney with Legal Services Institute 80) and to Justice Potter Stewart, U.S. since 1979. The institute is a practice Supreme Court (1980-81). While at the Law School, he was president of the Stanford Law Review for Volume 31. He was also a research assistant to Pro­ fessors Gerald Gunther and Thomas Grey. Mr. Weisberg received a B.A. magna judiciary for thirty-three years. cum laude in English from City College Justice Spence received his A.B. of New York in 1966. Following gradua­ from Stanford in 1913 and his J.D. in tion he became an associate editor for 1915. That same year he entered pri­ business publications at Prentice-Hall, vate practice in San Francisco and Inc. After leaving Prentice-Hall, he Alameda Counties. In 1917 he inter­ studied English and American Litera­ rupted his law practice to enlist in the ture at Harvard, where he received an militia. He served with the French 6th M.A. (1967) and Ph.D. (1971). While Army Corps during the Aisne-Marne working on his doctorate, he was a defensive and was discharged in 1919 training center supported by Harvard teaching fellow in literature and com­ with a commission as Captain of Field and Northeastern Law Schools and the position. In 1970 he joined the faculty Artillery. federal Legal Services Corporation. at Skidmore College as an assistant Shortly after returning to civilian life, While at the institute, Mr. Simon has professor until 1976, when he enrolled he was elected to the 35th District of engaged in a general poverty practice, in law school. the California Assembly and served supervised staff training, and partici­ During 1973-76 he also taught during the sessions of 1921, 1923, and pated in the development of a full English at Great Meadow Correctional 1925. He was elected Speaker Pro- Tempore for the 1925 session. Associates and co-founder of the Stan­ Following graduation from Law In 1927 he left private practice to ac­ ford Half Century Club. School, Mr. Wrenn moved to Hilo, cept an appointment to the Alameda In 1950, in recognition of his tireless Hawaii to begin his practice of law County Superior Court, thus beginning efforts ·on behalf of Stanford, the Uni­ prior to moving to Honolulu. Mr. Wrenn a judicial career that would span more versity electeo him a member of the became "Of Counsel" to his firm, than three decades. In 1930 he was Board of Trustees, a post he served Anderson, Wrenn & Jenks (now Good­ elevated to Associate Justice of the with distinction for ten years. He was sill, Anderson & Quinn) in 1968 after District Court of Appeal, First Appellate elected Trustee Emeritus in 1960. more than forty years of practice. District, a position he held until 1945, Upon the occasion of his death His directorships included the Bank when Governor Earl Warren named him Thomas Ehrlich, then Dean of the Stan­ of Hawaii, Hawaiian Electric Company, to the Supreme Court of California. He ford Law School, observed: "We are Dillingham Corporation, C. Brewer & retired from the Court in 1960. proud of our ties to the Justice, not only Co., and many others. His numerous During his years on the bench and because of the example he set by his other affiliations besides the Bar Asso­ up until his death in 1973, Justice distinguished career, but also because ciation, included the American Judica­ Spence remained a prominent member of his deep affection for Stanford. His ture Society and Strong Foundation (of of virtually all of the major state and impact on the School has been sub­ which he was a former secretary and national legal and judicial associations, stantial. Over the years, his counsel trustee). He also served as president of including the American Judicature was invaluable; we are fortunate to the Honolulu Symphony Society and of Society, the American Bar Association, have had the benefit of his consider­ Keys and Whistles (a Honolulu Police and the Conference of California able talents and enthusiasm. He was a Reserve Organization). Mr. Wrenn was Judges, of which he was a charter great man and a great friend. We shall active in the Police Reserve Force dur­ member and president (1938-39). He miss him." ing World War II. was also an honorary member of the The Justice Homer R. Spence Schol­ His Stanford affiliations were many Los Angeles County Bar Association, arship Fund is the second fund estab­ and far-ranging. He was a supporting the Jonathan Club of Los Angeles, and lished at the School by Mrs. Smith. In the Sutter Club of Sacramento. 1964 she established, with the help of His civic affiliations were equally far­ Justice Spence, the Samuel Morton reaching: the Commonwealth Club (of Smith Scholarship Fund, in memory of which he was a past president and her husband. member of the board of governors), American Legion, California and Alameda Historical Societies, Bay Area MeDlOriai Educational Television Association, Seholarship Fund National Register of Prominent Ameri­ cans, the Wisdom Society (from which forHeaton L. Wrenn he received the Wisdom Award of EstabHshed Honor in 1969), as well as many health and charitable organizations. The Heaton Luse and Carolene Cooke Upon retiring from the bench, Justice Wrenn Scholarship Fund has been es­ Spence was elected vice-president of tablished at the Law School. Pittock Block, Inc. and Dodge Land, A gift of Carolene Cooke Wrenn in member of the Friends of the Law Li­ two corporations owned and managed memory of her husband Heaton L. brary and Law Fund Regional Chair­ by his brother-in-law, Samuel Morton Wrenn, the fund will provide urgently man for Hawaii. He was an active sup­ Smith. In 1961, when Samuel Smith needed support to deserving law porter of the Athletic Department and died, Justice Spence became presi­ students. the Buck Club, for which he served as dent of both corporations. Mr. Wrenn was a graduate of the Law an Area Leader for Hawaii. Mr. Wrenn's Through the years, Justice Spence Class of 1924 when he received his keen interest in sports was rooted in served the University and the Law Doctor of Jurisprudence. his own exceptional abilities as an School in a number of capacities. He A former president of the Hawaii Bar athlete. While an undergraduate at was a charter m~mber of the first Stan­ Association and director of a number Stanford he excelled as a rugby player ford Law Society, organized in 1932, of business firms in Hawaii, Mr. Wrenn and competed in the 1920 Olympic and was instrumental in establishing is remembered as a pioneer in Hawaii games. a series of Practicing Law Lecture in the field of securities and public Mr. Wrenn died on January 16, 1978. programs, which were the forerunners utilities regulations. of the present Continuing Education of the Bar series. Justice Spence was also a charter member of the Stanford

47 Sehool~Faeulty ne~s

George Haberfelde, Inc. Investments, the Glee Club, serving as president in Fund Honors and a former director and secretary­ 1918. The same year he was head yell MeDlory of Judge treasurer of Bakersfield Community leader and president of Delta Chi NorDlan Main Hotel Corporation. Fraternity. Following graduation from It T. Mrs. Main was a delegate to the 1932 the Law School, he returned to Arizona, Democratic Convention in Chicago. served as assistant clerk of the State Like her husband" Mrs. Main has. Legislature and studied for the Arizona been a loyal supporter of the Univer­ bar examination with his schoolmate sity. She, too, is a lifetime member of and friend, Ernest W. McFarland '22, the Stanford Alumni Association. who later became U.S. Senator, Gov­ The Honorable Norman FT. and ernor of Arizona, and finally Chief Jus­ Clarisse Haberfelde Main Scholarship tice of the Arizona Supreme Court. Fund is a further example of the Mains' After passing the bar, Mr. Luhrs enduring commitment to educational joined the Phoenix firm of Armstrong, excellence. Lewis & Kramer. In 1924 he took a leave of absence to arrange the financ­ A1uDlUus Funds ing and construction of the Luhrs Build­ ing, and stayed on to build the Luhrs A scholarship fund in memory of the ClassrooDl Tower in 1929 and, in the 1960s a Honorable Norman FT. Main '24 has large parking center, all in downtown George H.N. Luhrs, Jr., a graduate of been established by his wife, Clarisse Phoenix. Mr. Luhrs managed these the Class of 1920, has provided funding Haberfelde Main. properties and the Luhrs Hotel, which for a large classroom in the Crown One of California's most respected his father built in 1895, until his retire­ Quadrangle to be named The Luhrs jurists, Judge Main sat on the Kern ment in 1976. Room. County Superior Court bench from In 1957 the Downtown Merchants One of Arizona's most respected 1947 until his retirement in 1965. Judge Association honored George Luhrs for families, the Luhrs have played a Main received an A.B. from the Univer­ his outstanding contribution to the de­ prominent role in the history and sity of Missouri in 1920. He attended velopment, improvement and beautifi­ growth of Arizona since 1869. George Harvard in 1920-21 and then entered cation of downtown Phoenix. In 1972 he H.N. Luhrs, Jr., born in Phoenix in 1895 Stanford Law School, receiving his J.D. was chosen "Mr. Downtown" by the when the population was 2500, con­ in 1924. Civic Plaza Association. tinues today to have an active interest Following graduation from law Since his undergraduate days, school, he served as deputy to the George Luhrs has maintained strong Superior Court in Bakersfield. From ties with the University. He has been in­ 1926 to 1933 he was in private practice strumental in developing Stanford in Taft. He was appointed deputy dis­ programs in Phoenix. He organized trict attorney for Kern County in 1933, a and was the first president of the Stan­ post he held until 1947 when he was ford Club of Phoenix in 1932. He also sworn in as Kern County Superior Court served as financial chairman of the Judge. From 1942 to 1946 he served in 1954 Stanford Phoenix Conference. the United States Navy, achieving the Among his other Stanford interests he rank of Lieutenant Commander. During counts the Law School, the Buck Club, that time he was Security O.fficer for the the Alumni Association, of which he is budding Naval Ordinance Test Station a life member, and his Delta Chi Frater­ at Inyokun. nity brothers. Earlier this year Mr. Luhrs Until his death in 1974, Judge Main was elected a member of Stanford As­ maintained strong ties to Stanf Until sociates in recognition of his faithful his ord. He was appointed to the Law interest and generosity. School Board of Visitors three times. in community affairs. In 1979 he com­ He was also a life member of the Stan­ pleted the first draft of a book on the ~Oth 1ii.....,arnIOd ford Alumni Association and actively Luhrs Family and its relation to the his­ worked to further Stanford activities in tory of Phoenix. That same year he re­ CODlpetltion "~~IU Bakersfield. ceived a special recognition award Mrs. Main received an A.B. in eco­ from the Phoenix Historical Society. The final round of the 29th annual nomics from Stanford in 1922. A Mr. Luhrs received an A.B. in 1918 Marion Rice Kirkwood Moot Court member of one of Bakersfield's most and a J.D. in 1920 from Stanford. As an Competition was held on April 10 in prominent families, she is a director of undergraduate, he was a member of Kresge Auditorium. This year marked the second straight upsurge of student interest in the Stan­ ford moot court event, with 32 teams composed of second- and third-year students participating. One major fac­ tor contributing to the increased popu­ larity of the Kirkwood Competition was the decision by the faculty in Decem­ ber to award competitors two units of academic credit as well as the satisfac­ tion of one required writing course. The hypothetical case used in the 1981 competition, Civiletti v. Archdio­ cese of San Francisco, concerned a challenge by an organ of the Roman Catholic Church to the Pregnancy Dis­ crimination Act. This recently-enacted provision of Title VII would require the Archdiocese as a covered employer to provide health benefits for certain abor­ tions, and such funding would be con­ sidered a serious si n under Catholic doctrine. As a threshold question, the court considered whether the Archdio­ cese had standing to challenge the statute in federal court in the absence of a complaint by an aggrieved em­ ployee. Kenta Duffey '82 and Robert Riggs '82 argued the government side of the case in the finals; they were pitted against the team of Richard Gray '81 and Stephen Miller '81, who repre­ sented the Archdiocese. In addition to being declared the overall team win­ ners, Ms. Duffey and Mr. Riggs were also awarded Best Brief honors. Mr. Gray was named Best Oral Advocate. Sitting as the Supreme Court were Oregon Supreme Court Justice Hans Linde and U.S. Ninth Circuit Court of Appeals Judges William A. Norris, a 1954 Stanford Law School graduate, and Betty B. Fletcher, whose husband, Robert, now a law professor at the Uni­ versity of Washington in Seattle, is a graduate of the Class of 1947 and former winner of the Kirkwood Compe­ tition, and whose son, William, is cur­ rently a visiting associate professor at the School.

Following their deliberation, Judge William A. Norris '54, Justice Hans Linde, and Judge Betty B. Fletcher return to Kresge Auditorium to announce their decision.

49 Sehool(&),Fael.1tv• ne~s

Professor Thomas C. Heller has been Charles J. Meyers, Richard E. Lang FaeultyNotes awarded a three-year partial release Professor and Dean, participated in a Professor Barbara A. Babcock was grant from the W.K. Kellogg Foundation short course in September on the one of four faculty members selected to explore certain aspects of the politi­ Windfall Profits Tax presented by the in October as University Fellows for cal and cultural consequences which Federal Judicial Center for a group of 1981-82 by President Donald Kennedy. attend increasing economic integration federal judges. In October Dean and The Fellows receive five months' salary of nations. Specifically, he will be study­ Mrs. Meyers were guests of the Faculty support to pursue projects of their own ing the movement of North American of Law of the University of Alberta in choosing. The stipend can be applied capital into Latin America and the re­ Edmonton, where Dean Meyers deliv­ toward summer employment or used verse migration of Latin American labor ered the Weir Memorial Lecture. The during the academic year to allow for into North America to determine how subject of his lecture was "National time away from normal department re­ these flows can be regulated. Profes­ Policies Governing Local Resources." sponsibilities. sor Heller sees the objectives of the The Dean later joined a faculty retreat project as twofold: to develop for the at Banff Springs. Professor John H. Barton spent the Stanford curriculum a program on month of January in Egypt collecting international investment and to formu­ A. Mitchell Polinsky, Professor of Law materials and information on the legal late policy recommendations which he and Associate Professor of Economics, system there for his course Law in Rad­ hopes will serve as governmental so­ was recently appointed to the Law and ically Different Cultures, which he co­ lutions. Social Sciences Advisory Subcommit­ teaches with Law Professors Victor Li The second edition of Fundamentals tee of the National Science Foundation. and John Henry Merryman and of Legal Research, co-authored by He attended a meeting of the Sub­ Professor of Anthropology James Professor and Law Librarian J. Myron committee in November in Washington. Gibbs. Funding for Professor Barton's Jacobstein with Professor Roy M. In December he gave a talk at the Uni­ work in Egypt was provided by the Mersky of the University of Texas versity of Michigan Law School and at­ Education Programs office of the School of Law, will be published in July. tended a law and economics confer­ National Endowment for the Humani­ The text has been adopted by more ence in New York City co-sponsored by ties. Professor Gibbs received a similar than eighty schools for use in connec­ the Liberty Fund and the Center for grant to study the legal system of tion with courses in legal bibliography Libertarian Studies. He gave talks at Botswana. and legal writing. the University of Toronto Law School Professors Barton, Merryman, and and the University of Western Ontario's Gibbs addressed a meeting of the As­ A research monograph by John Kap­ Economics Department in January. His sociation of American Law Schools in lan, Jackson Eli Reynolds Professor of article on "Contribution and Claim Re­ San Antonio in January at which they Law, entitled "The Court Martial of the duction Among Antitrust Defendants: discussed the "Rad Cult" course. In Kaohsiung Defendants," has been pub­ An Economic Analysis" (co-authored April Professor Barton addressed a lished by the University of California In­ with Professor Steven Shavell of Har­ meeting of the World Affairs Council of stitute for East Asian Studies. His arti­ vard Law School) appeared in the Feb­ the Desert in Palm Springs. The subject cle, ':The Wisdom of Gun Prohibition," ruary issue of the Stanford Law Review. of his talk was "Life with the Soviet appears in the latest Annals of the Professor Byron Sher was elected to Union on a SALT-free Diet." Professor American Academy of Political and the State Assembly in November. An Barton will spend the fall semester as a Social Sciences. environmentalist and consumer advo­ visiting professor at the University of cate, Professor Sher emphasized en­ Michigan School of Law. John Henry Merryman, Sweitzer Professor of Law, lectured in Italy at the ergy conservation and protection and Professor Paul Goldstein's second edi­ Universities of Bologna, Catania, and consumer affairs, the area in which he tion of his casebook, Copyright, Patent, Sassari in January. He was also a con­ specializes at the Law School, during Trademark and Related State Doctrines: sultant on bibliographic organization of the campaign. In 1981-82 Professor Cases and Materials on the Law of In:.. the law library at the European Univer­ Sher will offer a seminar in Legislation at the School. tellectual Property, as well as a Statutory sity Institute in Florence. Supplement and a Problem Supplement Mr. Merryman has been appointed Af­ to the casebook, were published in May filiated Professor in the Department of by Foundation Press. During the fall Art at Stanford. Professor Merryman, term, 1981, Professor Goldstein will be a with Professor Albert Elsen of the Art Visiting Scholar at the Max-Planck Insti­ Department, teaches a cou rse in Art tute for Intellectual and Industrial Prop­ and the Law at the Law School, which is erty Law, where he will pursue compara­ open to graduate students in art history. tive research and analysis in some top­ ics in copyright law.

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