StanfordLawyer FALL 1976/BICENTENNIAL ISSUEIVOLUME 11

Editor: Cheryl W. Ritchie Graphic Designer: Carol Hilk

2 A Message from the Dean

4-19 Three Essays for the Bicentennial

5 Toward "A More Perfect Union": Framing and Implementing the Distinctive Nation­ Building Elements of the Constitution by Gerald Gunther, William Nelson Cromwell Professor of Law

9 Certain Unalienable Rights: The Declara­ tion of Independence in Constitutional Law by Thomas Grey, Associate Professor of Law

13 Some Thoughts on the History of American Law by Lawrence M. Friedman, Marion Rice Kirkwood Professor of Law

20 Moffatt Hancock Bids Farewell to Stanford Law School by Thomas Boothe 78

24 Stanford Law School, 1893-1907: From Toulumne's Peer to Respectability

32 School News

37 Faculty News

40 Class Notes

54 In Memoriam

Stanford Lawyer is published semi-annually for alumni and friends of Stanford Law School. Materials for publication and correspondence are welcome and should be sent to the Editor. notably in the curriculum, in the increased number of applications for admission and (a Dean is obliged to say) in the cost of doing business. But these changes have occurred, have been accomplished is a word that better describes the process, with conscious con­ cern for continuity with the past and with specific attention to the continuing and central goal of the School: The education and training of men and women to excel A Message in the practice of law. That has always been the aim of the School and I trust that it will always continue to be. To attain the goal requires constant attention to the fromtheDean three basic elements that make for excel­ lence in a law school. The first is a faculty Change and continuity seems an ap­ with the energy, interest and intellect to be propriate topic for my first essay in this both good classroom teachers and inquir­ space. In addition to being the new dean, ing scholars. Every graduate appreciates I have just returned with my family from the value of animated, engaged classroom four months in- the Languedoc in south­ teaching. We should also recognize that western France, where scenes of change scholarship contributes not only to gen­ and continuity are everyday experiences. eral knowledge but also to teaching, for In our town of Nizas (population 600) we through scholarship teachers remain men­ lived around the corner from a 13th Cen­ tally alert and active in their areas of tury tower and a 16th Century chateau, specialty. on the walls of which were posters for A good law school must also have a such modern nostrums as DDT and the good library; this repository of accumu­ Communist Party. We did our shopping in lated knowledge should be a working tool nearby Pezenas (population 8,000-we for students, in constant use like pen and called it "Big P"), where Moliere lived and paper, so that it is instinctive when con­ produced his plays for several years; today fronted with a problem to go to the books. it has a porno theatre. Every roof-top in And to produce lawyers who excel in Nizas has red tile-and a TV antenna. the practice, a law school must have stu­ (Except ours; my daughter said, "You dents with intelligence and industry who would have to rent from another profes­ can and do benefit from the education of­ sor.") Every field within our view was fered them. The reputation of the Stanford planted to grapes, and has been for 2,000 Law School, and all other law schools, years; and every one was cultivated by a finds its ultimate foundation mainly in the powerful, modern tractor. achievements of its alumni, for therein lies At Stanford we lack the antiquity of the proof of whether the aim to produce France and hence the contrasts are less excellent lawyers has been fulfilled. striking. Yet in physical appearance and Everyone associated with the Stanford intellectual interests, the University at Law School can be proud of its ac­ large and the Law School in particular complishments and of the high quality have changed from our beginnings some that characterizes every aspect of its oper­ eighty years ago. In only fourteen years, ation. Such pride ought to be accom­ the time I've been here, major changes panied, however, by an awareness that have occurred in the faculty, the library quality is a product of unflagging atten­ and the physical plant. Only six members tion to the essential elements of legal edu­ of the current law faculty were present in cation and of constant efforts to make im­ 1962 to meet the Eastern Invasion provements. Complacency is the enemy of (Franklin, Gunther, Sneed and myself). quality. But if you read the students' The library that year had 115,000 volumes answers to the recent questionnaire, or in it; it now has 230,000. The difference talk to the alumni, or listen to the faculty, between our quarters then and now does I think you will conclude that compla­ not bear description. Some of these cency is not our chief problem. changes were of our own making, the re­ I wrote earlier of education and train­ sult of prodigious effort; others were in­ ing for excellence. Separating education voluntary, as in the case of faculty losses from training may be a false dichotomy, from retirement, death and defection. for a well-trained lawyer presupposes a There have been other changes as well, well-educated person. But I make the dis-

2 tinction here to draw attention to the dif­ positively to the need for greater knowl­ ference between information and skills. edge that lawyers will feel in the last I do not perceive that any great change quarter of this century. The faculty is is taking place in the skills needed by cognizant of the need and has already lawyers to succeed in practice: reading, begun some modernization of the curricu­ writing, analysis, synthesis, advocacy, lum, though much remains to be done. conciliation and compromise, to name The University is endowed with intellec­ some of the more important. The law tual riches in a great variety of disciplines schools have offered pretty good training related to law; we are involved with some in the first four, and with the emergence and growing sophistication of our clinical programs, Stanford is doing much better with the last three. Success in skills train­ ing is directly related to student-faculty contact, which in turn is a function of fac­ ulty resources and ultimately of finances. But if there is continuity in the skills required of lawyers, there is change in the knowledge they must have. Perhaps I will be forgiven a personal reference by way of illustrating the point. I began law teaching in 1949 and very soon thereafter made oil and gas law my specialty. In 1959 How­ ard Williams and I published the first two volumes of what became a six-volume treatise. While I played hooky on the Col­ orado River (serving as law clerk to the Special Master in Arizona v. California), Howard published two more volumes, and our final two volumes appeared in 1964. I think it is a fine book for what it sets out to do (and I can say that without undue immodesty because Howard did most of the work), but it is not the book we would do today-just twelve years after the book was finished and about twenty from the time it was started. Today the book would deal with the economics of the industry, international politics, foreign concession agreements, environ­ mental protection-peripheral topics for lawyers twenty years ago, central today and requiring a different, and broader, in­ Dean Charles]. Meyers formation base. The communication skills of them now, and I hope we become more needed these days to write a good book, involved soon. Lastly, the Law School or contract, or brief haven't changed, but benefits from active participation in in­ the knowledge requirements have. struction by members of the Bar who I do not think mine is an isolated ex­ have unique sources of knowledge gained perience. Most of the lawyers I talk to feel from a specialized practice. At a consider­ and respond to the need to broaden their able sacrifice of leisure time, they make education, to increase their information their expertise available to our students in base. Today, and it will be increasingly special courses and seminars. true in the future, lawyers need a better This is the first of a number of papers grasp of economics, a greater familiarity and talks I will be giving to friends and with the quantitative methods of busi­ alumni of the School. I have deliberately nessmen and government officials, and a chosen to deal with the educational mis­ fuller appreciation of empirical research sion of the School for that is our reason that can help us predict which laws will for being. We, of course, have other con­ work and which will not. cerns, and they will be addressed from Change is not a choice, it is a condition. time to time. But initially, welcome is the It is how we respond to change that de­ opportunity to restate our primary goals termines our fortune. Stanford Law and our determination to continue to School is in a strong position to respond fulfill them.

3

My major concern today is to identify fatal flaw was the absence of machinery to lbward ~~ More the Constitution's most distinctive con­ enforce national measures at the grass tributions to nation-building. I want to roots, against individuals. Perfect Union": ask what was most original, most signific­ The critical breakthrough at the Con­ Framingand ant, most lasting about the framework for vention, then,was the adoption of a sys­ Implementingthe government that emerged from those re­ tem in which the national government DistinctiveNation­ markable debates during that memorable would have that capacity. And the remedy Philadelphia summer of 1787. I want also that was truly a novel product of Conven­ Building Elements to trace some critical steps in the im­ tion debates rather than a mere elabora­ oftheConstitution plementation of the key features of that tion of prior ideas is reflected in the framework. And I want to note that, in a Supremacy Clause. The Constitution and real sense, the arguments of nearly two federal laws and treaties were made the by Gerald Gunther centuries ago speak in important ways to supreme law of the land; state judges­ us today. and, implicitly, federal judges-were The critical, novel breakthrough at the "bound" to enforce the supreme federal Constitutional Convention was not the law, "any Thing in the Constitution or emergence of the idea of Union or the Laws of any States to the Contrary drafting of a written constitution or the notwithstanding." establishment of a national government or The central phrase in that central clause the specification of congressional powers of the Constitution is "the supreme Law of or the effort to solve the problems of the Land"; and the critical word is not democratic government through republi­ "supreme" but "Law." The ordinary pro­ can means. In my view, the most distinc­ cesses of law, of litigation, of judicial tive contributions lie not in those features decision-making, were to be the prime de­ commonly associated with the Conven­ vices to enable the federal government to tion, but rather in the institutions and act directly upon each individual. Reliance remedies the Convention sketched for the on routine judicial processes, instead of the system we have come to know as use of military or political force by nation federalism. against state, was the Convention's truly The Framers were engaged in the never­ innovative contribution to national au­ ending search for a proper accommoda­ tonomy and effectiveness. tion between adequate national authority The significance of that choice is not a and adequate local autonomy. Their novel startling perception for any reader of the theoretical solution was to conceive of a Federalist Papers. The central and fre­ system in which both nation and state quently reiterated themes of Hamilton's could operate directly on the same indi­ early essays are that government under viduals. But I want especially to em­ the Articles failed because it sought to act phasize the central features of their practi­ against states "as contradistinguished cal solution. To me, the critical innovation from the INDIVIDUALS of whom they was the Supremacy Clause, Article VI of consist," because the theoretically binding the Constitution, the Clause that declared congressional acts were "in practice" the Constitution to be the supreme law of "mere recommendations"; that effective the land, enforceable in courts. There, to government required sanctions, remedies me, lies the most creative contribution: for disobedience of law; that the choice of the Convention's decision, emanating remedies was between "the COERTION from surprising sources and not wholly of the magistracy" and "the COERTION understood in the summer of 1787, to as­ of arms" j that the Constitution chose to sure the effectiveness of the national gov­ rely on "law," not "violence"; that critical ernment, not through resort to military to the extension of national authority "to and political confrontations, but rather the individual citizens of the several through invocation of routine judicial States" was the decision to "enable the processes. government to employ the ordinary It is easy to miss the innovative features magistracy" in the execution of laws; and of the Supremacy Clause, for the natural that this theme, still in Hamilton's words, inclination is to focus on the notion of would assure "a regular and peaceable supremacy. But that was not a new idea: execution of the laws of the Union." It even under the Articles, authorized acts of was themes such as those that Madison Congress were theoretically supreme. The summarized in Number 39 of The trouble lay in the practice, not the theory. Federalist. Madison's description of the It lay in the absence of an effective na­ new government emphasized, in the ter­ tional enforcement mechanism. The na­ minology of that day, a mixture of "na­ tional government could make requests of tional" and "federal" elements: "na­ the states, but could not command. The tional, not federal" in the execution of

5 powers; "federal, not national" in the ex­ states. When the nationalists' Ran­ delicate political system" to work "by tent of powers. dolph-Madison-Virginia Plan was submit­ peaceful and judicial processes." Those If those themes had been clearly articu­ ted soon after, the thinking had not moved are the words of Andrew C. McLaughlin, lated throughout our history, it would significantly beyond that point: its solu­ the great constitutional historian of the hardly be worthwhile to reiterate them tion for the crucial problem of enforce­ early decades of this century who, above here. But, in fact, they sound only faintly ment was coercion of states, political as all others, emphasized the theme that I am in the records of the Convention debates well as military. It provided for a congres­ trying to revive here: the critical opera­ themselves. The Convention records en­ sional veto of state legislation, and for the tional significance of making the Con­ courage preoccupation with such issues as use of armed force. Primary reliance in­ stitution "enforceable like any other law the problem resolved by the Great Com­ stead on the "magistracy," on ordinary in courts." McLaughlin saw that the promise. And those debates encourage judicial processes, was a much later de­ Supremacy Clause was "the central speculation about the conflicts between velopment in the Convention's thinking. clause" of the Constitution, "because large states and small states, and between By the time William Paterson offered without it the whole system would be un­ extreme nationalists and those more con­ the New Jersey Plan in mid-June, the wieldy, if not impracticable. Draw out this cerned about preservation of state au­ Convention had already rejected the rem­ particular bolt, and the machinery falls to tonomy. edy of military coercion. But Madison's pieces." But those typical generalizations about favorite remedy, the congressional veto, The central coercive mechanism adopt­ divisions at the Convention have little to was still at center stage. At that point, ed at the Convention, then, was a device do with the evolution of the critical re­ Paterson's plan revived the notion of mili­ acceptable to the lowest common de­ liance on routine legal proceedings as the tary force. But that remedy, so incon­ nominator among the delegates. To the central enforcement mechanism. That en­ sistent with orderly government, was strongest nationalists, reliance on judicial forcement scheme, it turns out, was itself a joined with a far more significant provi­ processes seemed a minimal and probably product of perhaps the greatest com­ sion in Paterson's scheme: his New Jersey inadequate scheme. The Supremacy promise of all. Ironically, its features were Plan contained the first antecedent of Clause of Article VI-introduced by not elaborately debated on the floor of the what ultimately became the Supremacy Paterson, revived by Martin-lay at the Convention; its significance was not fully Clause. heart of the device. Article II[ of the Con­ appreciated until after the Convention National effectiveness through ordinaty stitution, on the judiciary, reinforced it. had adjourned; and, despite its overriding law enforcement, not through waging war Article [I [ mandated the establishment importance to the growth of national against states, emerged as the ultimate of a Supreme Court, as Paterson's plan power, it derived from proposals submit­ solution. On the Convention floor, it had contemplated. It did not mandate ted not by well-known nationalist dele­ reemerged after the New Jersey Plan itself lower federal courts, as the Virginia plan gates from large states, but rather by had been rejected. It reemerged on the had provided: supporters of Paterson's small-state delegates and even Anti­ motion of a delegate from Maryland, plan argued that Supreme Court review of Federalists. Not James Madison of Vir­ Luther Martin, who refused to sign the state court decisions on federal issues ginia or Alexander Hamilton of New finished product and became one of the would be adequate to assure national York, but William Paterson of New Jersey most vociferous Anti-Federalists in the supremacy and uniformity, that lower and Oliver Ellsworth of Connecticut and ratification debates. Martin's motion was federal courts would be too intrusive. [n even George Mason of Virginia and Lu­ adopted without dissent-indeed, with­ an important compromise on that issue, ther Martin of Maryland deserve most of out discussion. Later, during the ratifica­ creation of lower federal courts was left to the credit for the greatest nation-building tion controversy, Luther Martin would the discretion of Congress. And Article devices developed at the Convention. claim that his proposal had been ham­ [[ I also extended the federal judicial Reliance on routine judicial processes mered into an objectionable shape on the power to questions arising under the Con­ as the central enforcement device, unlike Convention floor and in the Committees stitution, reemphasizing that constitu­ most other features of the Constitution, of Detail and of Style. It is true that some tional norms would become operative law was not part of the arsenal of remedies significant changes were made in Martin's in ordinary litigation. A "middle way" be­ that the strongest advocates of insti­ language. Yet Martin did not revive the tween excessive consolidation and exces­ tutional reform brought to Philadelphia. "supreme Law" proposal until mid-July; sive states' rights had been found, though When the delegates convened, many be­ and he did not revive it until just after it was not the way Madison would have lieved that disunion was imminent. There Madison's favorite device, the congres­ preferred. was widespread recognition too that a sional veto, had been rejected. Martin's By a narrow vote in the critical states, stronger national government was neces­ act of reviving the "supreme Law" feature the Constitution was ratified. In the ratifi­ sary. And nationalists such as Madison of the discarded Paterson proposal, and cation debates, much more than at the came to the Convention in search of a especially his timing, strongly suggest, Convention, the fears of excessive na­ "middle ground" between "a due su­ then, that even he saw some need for a tional authority surfaced. The defenders premacy of the national authority" and national coercive authority, and that re­ of the Constitution slowly came to ap­ some state autonomy. The critical prob­ liance on normal judicial processes preciate the significance of the chosen lem of remedies was perceived to be the seemed to him the least abrasive device. coercive mechanism, as the Federalist establishment of adequate coercive au­ I suspect that neither Paterson nor Papers illustrate. Yet the Supremacy· thority in the national government. Martin-nor, indeed, most of the Clause and the prospect of Supreme Court When the delegates gathered in May delegates-appreciated the full signifi­ review of state court decisions still were 1787, most nationalists considered the cance of what they had wrought. What not major targets of the Anti-Federalists. most obvious coercive weapon to be the they had in fact contributed was the cen­ The most frequently voiced fears about use of armed force against recalcitrant tral device to enable "a complicated and Supreme Court review concerned the risks

6 to jury determinations, if the Court were permitted to review questions of fact. States' righters had not yet awakened to the far greater threat from review of ques­ tions of federal law. But the Convention's product provided only a sketch and a framework. Nation­ building through legal processes required continuous energy and implementation. A critical first step came in the very first Congress, with the Judiciary Act of 1789. Figures typically described as moderates or states' righters during the Convention debates once again played the leading roles. William Paterson of New Jersey and Oliver Ellsworth of Connecticut, now Federalist members of the Senate, were the chief drafters of the 1789 law. That Act exercised the congressional discretion under Article III to establish "inferior" federal courts, but gave those early lower . , courts only a small portion of the poten­ tial federal judicial power. Lower federal court jurisdiction did not include general authority over federal questions until well after the Civil War. Under the 1789 struc­ ture, state courts, bound by the Suprem­ acy Clause, were ordinarily the initial forums for the decision of federal issues. And that scheme made Section 25 of the 1789 Act critical: it provided for Supreme Court review of state court decisions re­ jecting claims under the federal Constitu­ tion, treaties and laws; and it accordingly became the central implementation of the enforcement method chosen at the Con­ vention. But constitutional phrases and statu­ tory language could not assure that that remedial scheme would work in practice. That assurance was left to the future, especially to the Marshall Court in the decade after the end of the War of 1812. In a sense, the Supreme Court during those years after the Second War for Independence served as a second constitu­ tional convention. The context was re­ markably similar to that of 1787. Once again, nationalists bewailed the ineffec­ tiveness of federal law enforcement machinery, in the face of rampant New England localism. Once again, talk of dis­ union and anarchy was in the air. And in the final years of the divisive War of 1812, the highest court of Virginia joined the states' rights challenge and aimed its at­ tack on the nationalistic weapon which the earlier generation of Anti-Federalists Engraving by Edward Savage had only dimly appreciated: the Supreme (1761-1817) ofRobert Edge Pine's CONGRESS Court's review authority over state courts VOTING INDEPENDENCE under Section 25 of the 1789 Act. Led by IN THf CONGRESS Spencer Roane-political leader, pam­ CHAMBER, STATE HOUSE, phleteer, and the most articulate state PHILADELPHIA, c. 1788.

7 judge of his day-Virginia courts found C. Calhoun publicly proclaimed the doc­ Section 25 unauthorized by the Constitu­ trines of Nullification, for example, he tion and refused to obey a Supreme Court recognized that removal of the Supreme mandate. Court's review authority would assure the And so the perennial dispute between minority veto he sought. If there were no excessive centralization and excessive Section 25, he wrote in 1827, "the practi­ localism erupted once more. In 1787, the cal consequence would be, that each gov­ battle had been couched in terms of ac­ ernment would have a negative on the ceptance or rejection of the Constitution; other, and thus possess the most effectual at the end of the War of 1812, and for later remedy that can be conceived against en­ generations, the battle was between con­ croachment." To him, Section 25 was a tending interpretations of a constitution provision "of the deepest importance, to which all swore loyalty. The terms had much more so, than any other in the stat­ changed but the underlying contentions ute books." remained the same. The Marshall Court, Section 25 and the Supremacy Clause in Martin v. Hunter's Lessee in 1816, and survived the judicial and legislative on­ once again in Cohens v. Virginia in 1821, slaughts. Yet even the Marshall Court's forcefully rejected Virginia's challenge to considerable contributions did not end the Section 25. Again, there was a parallel to battle over the underlying issues. A civil 1787: within the Court, as within the war, a rare resort to arms rather than judi­ Convention, there was a remarkably cial processes, helped build the nation­ strong nationalistic consensus; in the alizing forces. Economic and social de­ country at large, the division was close velopments contributed even more to and deep. Joseph Story's central objective, to "pre­ On the critical issue of Supreme Court vent the possibility of a division, by creat­ review authority, the Court spoke ing great national interests which shall nationalistically and unanimously. The bind us in an indissoluble chain." unanimity was not the product of some Yet despite this vast proliferation of hypnotic spell cast by John Marshall, the unifying forces and the vast increase of Federalist Chief Justice. Rather, it sprang national government activity, localism has from genuinely shared convictions. The not died. And we should be glad. The five Jeffersonian Republicans as well as Union is no longer in danger and we take the two Federalists on the Court were for granted that federal law will be en­ committed, unflinching nationalists. forced through routine judicial processes. Nationalism was expectable from John But the Anti-Federalist concerns continue Marshall and his Virginia colleague, to be heard, and they should be heard. Bushrod Washington, the General's favor­ Designing a system that would assure ite nephew. Both had supported the Con­ adequate local autonomy as well as ade­ stitution at the Virginia ratifying conven­ quate centralization was an awesome chal­ tion; both had been Federalists in politics lenge in 1787. The solutions of the Fram­ shortly before the Jeffersonian victory of ers and the contributions of the Marshall 1800. Yet nationalism came equally Court were remarkably ingenious first naturally to the five Republicans. All of steps toward meeting that challenge. Yet them, from William Johnson and Brock­ the risks of excesses in either direction holst Livingston and Thomas Todd to persist; and it is well that the Anti-Feder­ Gabriel Duvall and Joseph Story, drew alists' skepticism of national power-be­ On April 23, 1976, Gerald Gunther, Wil­ from the quite nationalistic heritage of the cause of its distance from the populace, its liam Nelson Cromwell Professor of Law, Jefferson and Madison Administra­ inefficiency, its tendency toward tyranny addressed the Annual General Meeting tions-a nationalism which Jefferson, far unless carefully controlled-surfaces so and Bicentennial Observance of The more than Madison, was at pains to dis­ frequently in the campaign speeches of American Philosophical Society in avow when he was out of power. this Bicentennial year. Philadelphia. The Observance featured a That spontaneously united Court spoke Perhaps, then, I should not speak of the series ofpapers presented by distinguished to an increasingly divided country. Martin 1787 Convention and of the Marshall lecturers on the philosophical, historical, and Cohens did not end the controversy, Court as the first and second constitu­ and political aspects of American liberty. though the Court remained unswerving. tional conventions. More accurately, we Professor Gunther's paper focused Other states emulated Virginia in chal­ are all engaged in a continuing constitu­ on the Constitution as the culmination lenging the Court in the ensuing decade. tional convention, forever struggling with of the process ofnation-building. The That judicial enforcement of the Suprem­ the problem of efficient governance of a paper will be published by the Society acy Clause, especially through Supreme continent with adequate regard to local in a volume resulting from the Court review of state court decisions, was needs and popular wishes. And rightly so: symposium. Excerpts are reprinted indeed the linchpin of national effective­ surely, we must not abandon the debate here with the Society's permission for ness became increasingly evident to those about the central problem that confronted which the Stanford Lawyer is grateful. fearful of consolidation. Well before John the Framers.

8 The event whose bicentennial we cele­ lawyers and legal scholars and so it may CertainUnalienable brated on July 4 of this year was not the bear repeating. actual legislative disavowal of the sov­ The young Jefferson was chosen as Rights:TheDeclaration ereignty of the British crown over the chief draftsman for the Declaration be­ ofIndependence in United States. That formal step was taken cause he was recognized to possess, in Constitutional Law on July 2, 1776, when the Continental John Adams' words, a "peculiar felicity of Congress adopted Richard Henry Lee's expression." Nowhere is that quality more short resolution declaring the "United apparent than in the most celebrated lines by Thomas C. Grey Colonies" to be "free and independent he was ever to write, the simple and states.'" Then on July 4, Congress voted eloquent statement of the philosophy of its approval of a longer document-the government which lay behind the colonists' Declaration of Independence-which set case for independence: forth the reasons and justification for its We hold these truths to be self­ action of two days before. Our selection evident: that all men are created of the later date as our symbolic moment equal, that they are endowed by of birth as a nation suggests that the their Creator with certain unaliena­ Declaration of Independence said some­ ble rights; that among these rights thing of fundamental importance about are life, liberty and the pursuit of America and American government that happiness; that to secure these went beyond the earlier unadorned state­ rights governments are instituted ment of our independent sovereignty. among men, deriving their just In my view, the theory of government powers from the consent of the gov­ on which Jefferson based the case for in­ erned.... dependence does have lasting significance The expression of these ideas is remark­ for American government and politics­ able for its clarity and grace, but the ideas and particularly for American constitu­ themselves were in no way peculiar to Jef­ tionallaw. The point is a simple one, and ferson. As he wrote many years later, his perhaps it is obvious, but I have found purpose in drafting the Declaration was that it is controversial among many simply: ... to place before mankind the 1. c.L. Becker, The Declaration of Indepen­ common sense of the subject, in dence 3 (1922). terms so plain and firm as to com-

British cartoon printed in reaction to the net·os of America's Declaration of Independence.

9 mand their assent.... Neither aim­ ing at originality of principles or sentiments, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind... ~ As a matter of historical fact, there can be little doubt that Jefferson did capture the dominant themes of the political thought of his day. At the center of that political thought was the concept of individual rights. These were "natural" rights, gen­ erally regarded as the gifts of an omnipo­ tent God, but in any case certainly not dependent for their existence upon their enactment into positive law or their en­ forcement through the actual machinery of government. These rights provided the reason for instituting government and at the same time constituted basic limitations on legitimate governmental authority. Fi­ nally, the content of the individual rights was "self-evident"-directly ascertainable by reason and common sense. A second theme of the political philosophy expressed in the Declaration was the separateness of government and people. Government depended for its rightful authority on popular consent, but it was not yet conceived as an extension or mere agency of a sovereign people who were to rule themselves through its machinery. Further, there was no sugges­ tion that majoritarian democracy was es­ sential to just government, though some mechanism for popular consent was re­ quired. Indeed, there is little textual sup­ port for the common view that the Decla­ ration of Independence was a radically democratic charter of government, which was later undermined by the more conser­ vative Constitution, with its counter­ majoritarian devices and restrictions. The Declaration's philosophy is that of 18th Century Whig liberalism-rational­ istic, individualistic; libertarian, not strik­ ingly democratic. The equality referred to is an equality of rights, not any supposed equality of ability or capacity to govern. This is the liberalism of Locke, Harring­ ton and Montesquieu, not the modern egalitarian and democratic liberalism that flows from the thought of Rousseau. This Whig liberalism is different in em­ phasis and in some respects quite alien to the democratic populism which has since come to dominate American political ideology. Whether that dominance dates from the presidency of Jefferson himself, or from the Age of Jackson, it seems cer­ tain that for over a century the overriding

An early version ofthe Declaration of Independence. 2. Id. at 25-26.

10 standard of legitimacy in our 'politics has The Constitution itself states the posi­ Declaration. As former President John been the correspondence of public policy tion about as concisely and clearly as it Quincy Adams said: with the popular will as expressed can be put into words, in the Ninth [T] he Declaration of Independence through institutions designed to ascertain Amendment: "The enumeration in the comprises and embodies the fun­ and implement majority sentiment. Constitution of certain rights shall not be damental elements and principles of Of course the practical reality of Ameri­ construed to deny or disparage others American constitutional law.... The can politics has never corresponded to any retained by the people." And throughout mere outward form, the minutely ideal model of plebiscitary democracy. But our constitutional history, the judiciary­ detailed provisions of the sub­ departures from that model have generally along with other actors in our political sequently written constitution, been either accepted as necessary conces­ process-has ascertained and defined "un­ these are but the instruments of sions to the demands of practicaliry, or enumerated" fundamental rights thought which those principles are the living regarded as suspect or illegitimate perver­ to be beyond the reach of legitimate spirit and substance.s sions of the American ideal. Only with re­ legislative power. These advocates often argued that the Due spect to judicial review has there been During the first generation after the Process Clause of the Fifth Amendment anything resembling forthright assertion adoption of the Constitution, these were embodied the substantive natural rights of the positive virtue of the frustration of largely rights of property or their near proclaimed in the Declaration and thus majority will in the name of independent cousins. Both state and federal courts in prohibited slavery in federal territory, a standards of law or justice. case after case asserted and enforced the position asserted in the Republican party However, even with respect to judicial power to disregard as void statutes which platforms of 1856 and 1860. review a powerful tradition in our con­ infringed upon "vested rights," very often Of course, anti-slavery constitu­ stitutional thought has sought to maintain without reference to particular constitu­ tionalism did not prevail in the courts a pure and consistent majoritarian democ­ tional prohibitions. In more than one in the years before the Civil War. Slavery racy. This is the tradition, traceable back state, for example, courts imposed the was too well entrenched in both the text to Marbury v. Madison and beyond it to prohibition against the taking of private of the Constitution and in the life of the the 78th Federalist Paper, which seeks to property without just compensation as an slave states to be rooted out by argument found judicial review solely on the judicial inherent limit upon legislative power, even alone. But after the war, when the Recon­ interpretation of the positive commands though there was no just compensation struction Congress came to write into the of the written Constitution. On this view, clause in the state constitution.3 And the Constitution the results of the anti-slavery the Constitution derives its overriding au­ United States Supreme Court, speaking revolution which had been won on the thority, not from the intrinsic force of the through Chief Justice Marshall in Fletcher battlefield, they reached back to those principles which it contains, but from its v. Peck, invalidated the Georgia legisla­ once-rejected constitutional arguments in original adoption by the people acting as a ture's attempt to revoke land grants origi­ their drafting of the Fourteenth Amend­ legislative body. On this view, statutes in nally obtained by bribery, but which sub­ ment. Historical scholarship has in the last conflict with constitutional principles are sequently had passed to innocent third few decades convincingly shown that Sec­ invalid not because they violate funda­ parties, as in violation of "general princi­ tion 1 of the Fourteenth Amendment, with mental rights, but because they represent ples which are common to our free its Equal Protection, Due Process, and instances of the people's representatives in institutions."4 Privileges and Immunities Clauses, was the legislature violating the most direct The most significant and explicit injec­ intended by its framers-chief among and highest expression of the popular tion of the principles of the Declaration of whom was John Bingham, one of the will- the written Constitution. Judicial Independence into the living body of anti-slavery constitutionalists of the pre­ review is then not an undemocratic in­ American constitutional law came between war era-to enshrine in the constitutional stitution, but rather represents the im­ 1830 and 1870 in the course of the text the principle that fundamental indi­ plementation of the popular will as ex­ struggle over slavery. The wing of the anti­ vidual rights were to be inviolate from in­ pressed directly in the Constitution itself. slavery movement best remembered in fringement by state legislation.6 For pres­ Any casual student of American con­ history-the Garrisonian abolitionists­ ent purposes, the important point is that stitutionallaw can recognize the generous accepted that slavery was valid under the those fundamental rights were left un­ portion of fiction necessary to maintain Constitution. Their recourse was to de­ enumerated and undefined, except for the this view as an actual description of the nounce the Constitution and press for almost wholly indeterminate traditional historical record of constitutional judicial disunion. But a numerically more impor­ reference to "life, liberty and property" in review. But the question is not whether tant anti-slavery element constructed the Due Process Clause. the ideal has been lived up to, but rather constitutional anti-slavery arguments In the first two generations after the whether the theory of the sovereign ma­ based on the theory that the core of the Civil War, the tradition of unenumerated jority has indeed been the sole ideal. It Constitution was made up of the unalien­ fundamental rights again became the seems to me clear that it has not. In my able principle of human equality in the property of the conservatives-as it view, quite consistently throughout our enjoyment of the rights of life, liberty and had been before 1830 in the heyday of history there has been continuous reasser­ the pursuit of happiness proclaimed in the vested property rights. During the years tion and acceptance of one variant or from 1870 to 1905, the courts first reject­ another of the dominant theme of the ed, then tentatively accepted, then en- Declaration of Independence-the ascer­ 3. For a collection of the "vested rights" cases, see Corwin, "The Basic Doctrine of American tainability and ultimate inviolability of Constitutional Law," 12 Mich. L. Rev. 247 5. Quoted in J. ten Broek, Equal Under Law fundamental individual rights, quite apart (1914). 84, n.20 (1965). from their statement in the Bill of Rights 4. Fletcher v. Peck, 10 U.S. (6 Branch) 87, 139 6. See generally, J. ten Broek, supra note 5; H. or elsewhere in the Constitution. (1810). Graham, Everyman's Constitution (1968).

11 thusiastically embraced the notion of "lib­ against legislative violation individual erty of contract" as a substantive constitu­ rights which have no explicit textual war­ tional right protected against legislative rant whatever in the Constitution. The infringement by the Due Process Clauses best known examples are the Supreme of the Fifth and Fourteenth Amendments. Court's invalidation of state laws pro­ That liberty of contract was held to scribing contraception and abortion.8 Old invalidate maximum hour and minimum "substantive due process" decisions estab­ wage laws, legal protection of unions, and lishing certain rights of family autonomy safety and consumer protection legisla­ in child-rearing have been resuscitated tion in a wholesale fashion. The outcome and approvingly cited. 9 Some lower of this unhappy chapter in our constitu­ courts have gone quite far in establishing tional history is well-known-the notion personal rights to autonomy in matters of that "liberty of contract" as the courts dress, private sexual relations between interpreted it was a fundamental individ­ consenting adults, and other related areas. ual right simply ran in the face of general I believe that few constitutional law ob­ opinion, and by 1940 the doctrine had servers would be surprised if the Supreme virtually disappeared from our constitu­ Court significantly expanded the reach of tionallaw. the unenumerated constitutional rights of In the course of the long doctrinal war privacy and personal autonomy over the against "liberty of contract," constitutional next decade or so. lawyers, scholars and dissenting judges Whether or not such a development were often led to attack not only the sub­ takes place, and indeed whether or not it Anonymous rendering ofa public reading stance of the doctrine, but also the is desirable, it would fit quite securely ofthe Declaration of Independence. background presupposition that funda­ within the important tradition in our con­ mental rights not given explicit protection stitutional history which I have outlined in the text of the Constitution had constitu­ above. That tradition is not the invention tional status. In particular, the concept of of activist liberal judges of the Warren "substantive due process"-a concept Court era. It was not the invention of ac­ familiar to the old anti-slavery con­ tivist conservative judges of the late stitutionalists who drafted the Fourteenth Nineteenth Century. It runs in an unbro­ Amendment-was sometimes said to be ken line, back through the Civil War without legitimacy as a general matter. Amendments and the constitutional However, this general assault on the old theories of the anti-slavery movement, tradition of unenumerated fundamental back through the property-respecting rights has not prevailed. It is true that for federalist judges of the Jeffersonian era, some years after the debacle of "liberty of back to the founding document of our na­ contract," many judges would not use the tion and its central assertion: that Ameri­ term "substantive due process" except as cans are possessed of certain unalienable a pejorative. But they continued to enforce rights which take precedence over the de­ the doctrine. For example, the Constitu­ crees of sovereigns and officials. tion nowhere forbids the states to infringe Much of the Eighteenth Century vo­ freedom of speech or religion. But the cabulary and metaphysics surrounding years since 1920 have seen a great flower­ that assertion in the Declaration of Inde­ ing of federal court decisions enforcing pendence rings strange to contemporary these substantive freedoms against viola­ ears. We do not so readily describe our tion by state governments under the due rights as "natural." Perhaps many of us process clause of the Fourteenth Amend­ lack confidence that they have a divine ment. Conversely, the written Constitu­ Author; perhaps we are not quite as sure tion nowhere prohibits the federal gov­ that they are universal and immutable ernment from engaging in racial discrimi­ and readily.accessible to the clear light of nation. Yet without any controversy or reason as were Jefferson's contemporaries. even much discussion, the courts have But as our continuing constitutional prac­ uniformly enforced against the federal tice shows, we have stuck to the central government the same law of anti-discrim­ idea of individual rights superior even to ination applicable to the states under the the will of the majority, and we have given Equal Protection Clause-again in the it remarkable and persistent institutional name of the Due Process Clause of the vi tality in our courts of law. Associate Professor Thomas C. Grey Fifth Amendment.7 ;oined the Stanford law faculty in 1971. Finally, in the last decade the courts 8. Griswold v. Connecticut, 381 U.S. 479 He teaches constitutional law, and has have again begun to assert and protect (1965); Roe v. Wade, 410 U.S. 113 (1973). been doing research on the tradition of 9. E.g., Pierce v. Society o(Sisters, 268 U.S. 510 natural rights in American constitutional (1925), cited in Griswold v. Connecticut, supra history. 7. Bolling v Sharpe, 347 U.S. 497 (1954). note 8.

12 There is much of great interest in the mous taxes needed to pay for its activities. SomeThoughts rich and diverse body of material that What is left for the states? First, virtu­ on theHistory comprises the American legal system, par­ ally all of what one might call "private ticularly from a historical perspective. In law" remains largely within their control: ofAnlerican Law this essay I will sketch out, very briefly, a marriage and divorce, contracts, commer­ few themes in this history. ciallaw, and torts. Rules of procedure are local (although the federal rules have be­ by Lawrence M. Friedman Centralization and Diffusion come very influential). Criminal law is One theme is the dramatic dialectic be­ also local; and state and local taxes have tween centralization and decentralization, been rising in recent years even faster than the push and pull of both centrifugal and federal taxes. The practice of law is in­ centripetal forces. A key formal sign of tensely local. Each state admits and con­ decentralization is the federal system it­ trols its own bar. A California lawyer can­ self. The national law is fragmented into not practice law in New York, unless he fifty smaller pieces. Federalism is not is admitted to the New York bar too. Few unique to the United States; but we take it practice in more than one state; prob­ more seriously than other countries that ably there is no lawyer in the country en­ are nominally "federal," with the possible titled to practice in more than three or four. exception of Switzerland. Federalism has Technically, each state is sovereign in its deep roots in the American past. The col­ own domain. But how sovereign is a single onies were in many regards virtually inde­ state in fact? The laws of the states are like pendent. After the Revolutionary War, the dialects of a single language. Some dialects states continued to be quite independent resemble each other closely. Some states of each other. In 1787, they agreed on a are satellites of large states. Nevada, for constitution; it embodied a federal plan, example, a state with a small population, and this frame of government has lasted to has tended to borrow law from its this day, with certain amendments. To be neighbor, California. There are important sure, the Constitution had a centralizing differences in legal tradition. The case of tendency, compared to the Articles of Louisiana is of course well known. Confederation which it replaced. But the Spanish and French tradition are still states governed themselves in almost every strong in Louisiana, which adheres, at important regard except foreign policy, least in part, to civil law practices. Spanish until the time of the Civil War. Population or Mexican traditions also color the law grew, and the country prospered, but of California, Texas, New Mexico and Washington, D.C., the national capital, other western states. The outstanding leg­ was little better than a miserable village in acy of the Spanish-Mexican period is the a pestilent swamp. Even the senators and community property system, unknown to congressmen tended to live in boarding such states as New York or Illinois. The houses, tarrying in Washington only as strongest influence of all may be the so­ long as Congress was in session, and leav­ cial, geographic, and economic conditions ing as soon as they could for their homes. in the states-whether the state is urban Commerce and intellectual life focused on and industrial, or rural and agricultural; the states and the growing cities: Boston, whether largely white, or racially mixed; New York, New Orleans, Philadelphia, whether conservative or heir to a progress­ Cincinnati. The federal establishment was ive or populist tradition. pitifully small. Taxation was minimal. Formal legal structures can be very dif­ Control of the economy was a matter, by ferent state by state. The living law is hard­ and large, for the states. er to compare. Even when formal struc­ This was the situation until about 1850. tures are the same, two communities may In the late 19th century, federal or na­ have very different laws. Studies of local tional policy became more important­ courts, even within a state, reveal great incomparably so in the 20th century. For differences. Procedures and norms are one thing, the United States became a supposed to be identical; but local cus­ world power; for another, the concept of toms bend or ignore these. Localism seems the welfare state defeated 19th century far greater than, for example, in the coun­ theories of government. Today, Wash­ tries of continental Europe. ington has the look and size of a cap­ What perpetuates these disparities in ital at last; and the federal government behavior? Traditions and habits develop has encroached on the power and author­ within a community, and there seems to ity of the states. National government be no easy way to break them down. is a gigantic enterprise, controlling vast Lawyers practice locally, and do not carry areas of life, spending more than knowledge of local ways to other com­ An early nineteenth-century picture of $300 billion a year, and levying the enor- munities. Judges do not associate with the Capitol.

13 judges in other states; local judges mostly legal in some Nevada counties, as perhaps fraternize with other judges in town. nowhere else in the country. It is easier Judgeship is not a profession, not part of and quicker to get married in Nevada the civil service, as it is on the continent. than in California; hence young Califor­ The judge is most likely a local lawyer nia couples who want to elope head for who has been politically active. The gov­ the border.2 ernor has appointed him to the bench, or Nevada provides only one set of exam­ he has been elected in a partisan election. ples out of many, showing the jurispru­ There is no specific training for judges, dential market at work. Another is Dela­ DIE. and their social world, by and large, is the ware, where many of the great corpora­

b little world of lawyers, litigants, and tions are chartered. The reason is simple: politicians. Moreover, the tradition of Delaware enacted liberal corporation laws Ben;amin Franklin's famous cartoon first local rule is intense. It is so pronounced around 1900, specifically to attract these appeared in 1754 in his Pennsylvania Gazette. that it amounts almost to a kind of war­ companies. The situation reminds one of lord system, a "national instinct to break the fleets of ships flying the flags of up government into many small parts.,,1 Panama or Liberia; but it is unusual for Federalism itself is part of the tradition flags of convenience to be flown within a of local, limited rule. There are many country. states, and they compete in what we might The legal "free market" has had both call the ;urisprudential free market. This advantages and disadvantages. On the one comes about because of the ironic fact hand, a state could forge ahead of its that the United States is an economic neighbors-it could act, in Justice Bran­ union, but not a legal union; it is a com­ deis' phrase, as a "laboratory" of social mon economic market, but not a common reform. But reform could also be retarded legal market. Goods and people freely by a bloc of conservative states. As an cross boundaries; indeed, the states, under example, the northern industrial states the Constitution, cannot keep out unwant­ demanded uniform-and federal-child ed immigrants and unwanted goods. Yet labor laws. The conservative South had no the laws on one side of a border may be child labor laws. The fear was that fac­ entirely different from those on the other. tories would run to the South, to take ad­ The borders themselves are largely artifi­ vantage of low wages and child labor. The cial. They do not necessarily follow nat­ first successful workmen's compensation ural features, rarely follow cultural or law was enacted by Wisconsin, a liberal social lines, and are almost never eco­ midwestern state, in 1911. Mississippi, the nomic boundaries. Yet they are legal bor­ poorest state in per capita income, and the ders, and must be taken seriously as such. most oligarchic, did not join in this The ;urisprudential free market means movement until 1948. that one state can frustrate the policy of It is easy, of course, to overestimate the others, by offering for "sale" a cheaper, amount of local variation in American better, or simply different brand of law. law. From the very outset important The state of Nevada can be looked on as a forces tended to drive apart the law of the kind of horrible case. Nevada was admit­ states; but equally powerful forces were ted to the union in 1864. Basically the pulling them together. One such force was state has no economic base, yet this vast the massive movement of people. In the empty expanse, covered with sage brush 19th century, an epic migration took place and creosote bushes, possesses one great from East to West. Laws and ideas moved natural resource: its sovereignty, its legis­ as well as people. Young attorneys, who lative power. It can offer laws to compete packed their bags and trekked to Oregon with its neighbors, especially California. or Idaho, brought with them habits they Hence, Nevada, by design or happy ac­ had learned in the East. Moreover, they cident, stumbled into its present role. often carried the very statutes of their Since the 1920s, Nevada has been the state home states. Some older states-New par excellence for easy divorces. Gam­ York and Massachusetts, for example­ bling is legal in Nevada, and gam­ had special legal prestige. Even more im­ bling is the largest industry in the state. portant was the unity and interdepen­ Californians by the hundreds of thousands dence of the economy. The United States fly or drive across the Mojave Desert to was, of course, the original common mar­ reach Nevada; thousands more fly in to ket. To work, a common market needs Las Vegas and other towns from every­ some minimal uniformity of law. Ameri­ where in the country. Prostitution is also can jurists were aware that local idiosyn-

1. Andrew Shonfield, Modern Capitalism 2. See, in general, Gilman M. Ostrander, (1965), p. 318. Nevada, The Great Rotten Borough (1966).

14 cracy was out of place in commercial law. Judicial Review Controlling Local variation was, however, At the same time, Americans exhibit an no easy matter. extraordinary interest in the law. This In the late 19th century, a serious habit is associated of course with that movement arose among jurists, with the amazing American phenomenon, judicial aim of making more uniform the laws of review-the power of judges to assess the the states. The technique was simple: validity of acts of other branches of gov­ scholars drafted texts of "uniform" laws, ernment. More particularly, judicial re­ then tried to induce the states, one by one, view is the power to decide whether state to enact them into law. The movement and federal statutes meet the demands of was most successful with commercial the Constitution. If they do not, the court statutes-the Uniform Sales Act, for can declare them void. Judicial review in example, proposed in 1906, and the this latter sense has grown fairly slowly. Negotiable Instruments Law (late 19th Marbury v. Madison (1803) was the first century). These original "uniform" laws case in which the United States Supreme were ultimately replaced in the 1950s and Court declared void a solemn act of Con­ 1960s by the Uniform Commercial Code. gress. The Court did not exercise this This too, was independently adopted by power again until 1857, in Dred Scott v. some states, one by one. It has, however, Sandford (1857), a judicial cause celebre brought about at least formal unification without parallel in the history of Ameri­ of some parts of commercial law. can law. The case turned on the poisonous The national element in law has grown issue of slavery, and especially the spread very rapidly as well. In the 19th century, of slavery into the western territories. The the states led in controlling the economy; Supreme Court had, however, declared a they also took the lead in building roads number of state statutes unconstitutional, and canals, and stimulating enterprise. before 1857, and with much less diffi­ The Interstate Commerce Act of 1887 was dence. And many state courts had exer­ a landmark: it created an important fed­ cised the power of review in their home eral agency, to regulate the railroads. The states, using their own constitutions as the drama of regulation began to move to­ measuring rod. ward the national stage. In the late 19th century, judicial review Federal control has become more and expanded to the point where it was in fre­ more pervasive, less and less encumbered quent (and controversial) use. In Pollock by traditional ideas of states' rights. v. Farmers' Loan and Trust Company Primarily, national control is economic, but (1895), the United States Supreme Court a federal law helped put an end to lotteries declared void the federal income tax. (1895); and the so-called white slave law There was no federal income tax until (the Mann Act), in the early 20th century twenty years later, when the Constitution (1910), made it illegal to move people was amended to permit it. The Supreme across state lines for "immoral" purposes. Court continued to review many state An amendment to the Constitution com­ statutes as well. Sometimes it struck down mitted the country in 1919 to Prohibition; legislation which favored the program of after a disastrous decade, liquor regained organized labor. We can select, as one its legitimacy in 1933. Technically, .the fed­ example, the New York bakers' case, eral government may only regulate those Lochner v. New York (1905). A state stat­ events and transactions that move across ute fixed maximum hours of work for state borders; but this has become less and bakers. The majority of the Supreme Court less a real restraint. In the 1960s, the (fed­ felt that the statute was unconstitutional. It eral) civil rights act outlawed discrimina­ infringed on the "liberty" of masters and tion by race, in restaurants, stores and workmen to make their own contracts. hotels. These are hardly "interstate" in a Some state courts used judicial review sense the 19th century could have under­ in an even more flamboyant way. Each stood. The act used as an excuse the fact state, of course, had its own constitution. that most cans of food on store shelves, for State constitutions have not been, on the example, have crossed state lines. The Su­ whole, as stable as the federal constitu­ preme Court upheld this argument, logic­ tion. The federal constitution has been ally flimsy even if ethically strong, in Katz­ amended from time to time; but basically enbach v. McClung (1964). The great taxing it retains its 18th century form. It is, in power of the federal government, its posi­ fact, the oldest living constitution. tion in world politics, its huge army and Louisiana, on the other hand, has had at nuclear strength, all feed federal power, least nine constitutions, and a few other and reduce the relative importance of the states almost as many. Some state con­ Typical scene in a New England book states. stitutions are very long, and inflated with bindery at the turn ofthe century.

15 clauses, general and specific, on which a government, on any level: cities and coun­ hungry court can feed, for purposes of ties, administrative agencies, public 1"he ·Tll\-I£S :are judicial review. Some state courts were schools, even private power-holders, in unusually vigorous in trying to stamp out the appropriate case. It is literally true nrtaO(ulJ what they considered to be socialist legis­ that a major highway or airport cannot, at lation. Perhaps the highwater mark was the present time, be built without reckon­ biftttal Godcharles v. Wigeman, decided in ing with litigation. Opponents can delay Pennsylvania in 1886. A state law re­ and obfuscate for years, on this technical­ 100ltful quired workers to be paid at regular inter­ ity or that, and the courts will at least lis­ vals. The Supreme Court of Pennsylvania ten. Obviously, people who try to block ·J!)O)Ofons-, ~nd threw out the statute, which was, in its "progress" do not usually win; and on the words, "utterly unconstitutional and whole, judicial review is both fearfully ex­ .DOLLAR- tESS. void." Not a single clause of any constitu­ pensive and usually ineffective. But it has tion, state or federal, was cited. more than mere nuisance value. If an or­ The Pennsylvania Journal's bitter com­ Naturally, the more high-handed ex­ ganized group has the money and the de­ ment on the colonists' plight. amples of judicial review did not go un­ sire, it can "buy" judicial review in almost criticized. The left, in particular, was out­ unlimited quantities. This is the negative raged. Reforms won at great cost, and side of judicial review. after long struggle in the legislature, died The positive side is well-known. The in the courts. Yet the Supreme Court did courts have done heroic work in defend­ not mend its ways until the 1930s. In the ing the weak and the powerless, and they early years of the Roosevelt Administra­ have done nobly, where they could, as tion, the Supreme Court voided statutes general watchdogs over government. So­ which were the very keystone of Roo­ ciety, to be sure, pays a price. And, ironi­ sevelt's New Deal. Roosevelt, however, cally, with regard to every day lawsuits, stayed in office thirteen years; as jus­ ordinary disputes between ordinary tices died or resigned, he was able to re­ people, and even ordinary business and place them with more sympathetic men. commercial transactions, the courts in the After the 1930s, the Supreme Court essen­ United States have steadily lost ground tially gave up its review of economic regu­ because of their expense, their technical­ lation. There has been hardly an instance ity, their remoteness. of a regulatory statute, since 1940, which Nevertheless, it is striking that Ameri­ failed to pass the test. On the other hand, can courts are so interventionist. This fea­ particularly after Earl Warren became ture demands some explanation. Partly, Chief Justice in 1953, the Court was bold the courts are simply another player in the in defense of civil liberties, and in extend­ American game of checks and balances, ing the rights of criminal defendants, pro­ the game of diffusion of power. Federal tecting freedom of speech and expression, and state governments, throughout much and helping the black minority gain full of our history, have stood in uneasy bal­ rights. In 1954, the Warren Court handed ance. Local governments also have ex­ down its most famous decision, Brown traordinary power vis-a-vis their state cap­ v. Board of Education. This case ordered itals; the courts, too, are yet another an end to the racial segregation of center of power. But it is tempting to look schools-a truly revolutionary step. More further, for other cultural explanations. recently, the Supreme Court swept restric­ Compared to most countries, the Unit­ tive abortion laws off the books, and, in ed States is relatively classless. Of course, United States v. Nixon, handed down a there are wide gulfs between rich and decision which helped drive a President poor, black and white, men and women; from office. Probably no court in the but, put next to European societies, the i , world has similar power, and similar pre­ United States seems unusually fluid, . , tension. The boldness and power of the mobile, lacking in ascriptive social struc­ Supreme Court is more than tradition and ture. Traditional norms and traditional style; it could not survive without support authority are weak. In most societies, from the public, or at least from the na­ such norms and authority do most of tional elites. Consider the fate of the high the work of social control. Society would court in South Africa, when it attempt­ be rootless, almost anarchic, without hier­ ed to rule on apartheid, or more recently, archy, or some substitute. One substitute consider what happened in India, when a is organized religion, which has been un­ lower court decision threatened Mrs. usually vital and tenacious in the Unit­ Ghandi's office. ed States. But there is also the law, which The political power of the courts ex­ has become a kind of secular religion. tends beyond constitutional litigation. Americans do not defer to kings, prin­ The rigors ofearly travel. Courts may and do review any action of ces, or heroes; but they tip their hat

16 to legal authority and legal norms. tions? More and more, in the United There is an extraordinary description of States, the last word is with the courts. a trial court in the Illinois country, around On the other hand, perhaps precisely 1818, written by Governor Thomas Ford. because of the range and sweep of judicial "The judges," he recounts, "held their power, there has always been a strong courts mostly in loghouses, or in the bar­ movement to bring judges under tight rooms of taverns, fitted up with a tempo­ public control. The first federal judges, rary bench for the judge.... At the First appointed by Washington and John Circuit Court in Washington County, held Adams, were adherents of the Federalist by Judge John Reynolds, the sheriff on party. When Thomas Jefferson became opening the court, went out into the court­ president, he and his followers confronted yard and said to the people: 'Boys, come a bench of conservative judges, strongly in; our John is going to hold court.',,3 biased, he felt, in favor of his political op­ What is striking is the informality. Unlike ponents. An attack on the federal the English squire, the authority of the judiciary began, with its climax in the at­ American judge rests not in his person, tempt to impeach Justice Samuel Chase not in his social position, not in his trap­ (1805). The attempt failed, but a move­ pings; he derives power and authority ment for popular election of judges had from the law, and from the physical power more permanent results. It began early in of the state. Of course, most legal process the 19th century and steadily gathered is more formal than Ford's judge. The Jus­ strength. New York swung over in 1846, tices of the Supreme Court wear robes, and the elective principle became almost they are addressed as "Your Honor," and universal in the later 19th century. Elec­ courtroom decorum prevails. Yet, in the tion of judges is still the rule in the United United States, the law is the true and States, except for federal courts, and the legitimate ruler; judges and other leaders courts of a handful of states (for example, are only representatives-human, per­ Massachusetts). In the 20th century once sonal, political. The law is all-powerful; again strong counter-trends developed. and yet it is at the same time profoundly The so-called Missouri Plan tries to elimi­ man-made, lacking traditional or trans­ nate partisanship in election of judges; it cendental character. has been adopted in a number of states. This gives it both great strength, and great fragility. The American state is Law for the Many founded on law; and law is founded on Another major theme in the history of consent-willing consent. Consent, how­ law is the development of legal institu­ ever, depends on consensus; and over the tions suitable for a broadly-based, middle course of years, as moral and other norms class society: the law of the middle class tend to weaken, consensus becomes much mass. Even before the Revolution, owner­ flabbier. This is a source of danger for the ship of land and other means of produc­ state, and for its legal order; yet one im­ tion was very widespread, compared to mediate impact is, paradoxically, to in­ older European societies. It was never the crease the trend toward funneling political case in this country that a few great and economic issues into court. If every­ families owned the bulk of the soil. There body agrees on an issue, or on the way were always large land-owners, but they people should behave, or the values they never dominated the tenure system; and should profess, there is no need for an ownership, not tenancy, was the rule in outside arbiter. But controversy seems to the United States, especially in the North. be growing in many areas of life, because After independence, the national govern­ agreement on certain basic issues has bro­ ment acquired an enormous tract of land. ken down. During the 19th century, for As the nation expanded across the conti­ example, there was no real debate over nent, the federal government became, pornography; everyone conceded that temporarily, the largest landowner in the pornography ought to be illegal, that the world. But it never was official policy to right of free speech did not cover it. This keep this land as part of the public do­ opinion is still widespread. But there are main, and exploit it. The government was also millions today who see nothing a trustee, a custodian. The land belonged wrong with pornography, and demand·the by right to the general public. Hence, the right to buy and sell it openly. Who will land was sold, usually at low prices. The decide between these two contending fac- goal of land policy was to ensure that, in the end, small farmers and townsmen 3. Thomas Ford, A History of Illinois from Its owned the land. The history of the public Satiric painting by American artist David Commencement as a State in 1818 to 1847 domain is a history of one long sale, a Blythe (1750-1784) mocking a country (1854), pp. 82-83. great withdrawal, as the soil passed from lawyer and his comatose jury.

17 public to private hands. On the whole, de­ was an informal arrangement, an impor­ spite scandal and corruption, the policy tant legal status, affecting rights to land, worked; the land passed to hundreds of was nowhere to be found in official rec­ thousands of working farmers and ords. For a similar reason, law mod­ tradesmen. The famous Homestead Act of ernized the widow's rights to her husband's 1864, which promised free land to those estate. English law gave the wife dower, who would settle in the West, symbolizes which was a life interest in part of the the goal of land policy, if not the method husband's land. A widow could claim or result. dower even as to land the husband had For the legal system, mass ownership of sold, if he sold it without her consent. land had incalculable consequences. It Dower rights, then, were potentially a meant that English land law, a maze of "cloud" or blemish on land titles. At least technicalities, designed to work (if at all) partly for this reason, many states for the world of the landed gentry, was abolished dower; instead, they simply unsuitable and had to undergo drastic gave the wife a fixed share of her hus­ change. It had to be stripped of tech­ band's estate. nicality-recast in the interests of a rapid Not everyone shared in the American and efficient land market, where tracts of cornucopia. The exceptions were glaring land changed hands almost as easily as and large: Indians and black slaves most shares on a stock exchange. Land law notably. American slave law, basically in­ never lost all its cloudy complexity, but it digenous, is an invention Americans do was refined to the level where it worked. not boast about. Some aspects of early Other fields of law underwent the same slave law are clouded in obscurity; but by sort of transformation. Commercial law 1700, the essential features of this corpus and family law were simplified. The social of law were firmly fixed. Slavery was situation required no less and old­ abolished in the 1860s, but blacks re­ Engraving depicting the evolution ofthe fashioned legal skill was in short supply. mained under severe disabilities. In the farm in America. After the land was The huge demand for legal institutions late 19th century, immigration swelled to cleared, a cabin was built, waterpower explains many quirks of American law­ enormous size. The landless urban poor, put to use, and a more pennanent house for example the rise of the so-called com­ mostly foreign born, were effectively shut finally constructed. mon law marriage, which appeared in the off from access to justice by rising costs. early 19th century. Some scholars have Welfare law was archaic and intensely tried to trace the institution to English local; the federal government did not play law. But any such explanation is essen­ a significant part in this field until the tially misleading. In the new country, Great Depression of the 1930s. Legal there were very few clergymen, the popu­ harassment and violence plagued the lation was thin, formal marriage was in­ Chinese on the West Coast in the late 19th convenient. But why legitimate common century. American toleration stopped law marriage? There are countries where short, too, when it confronted the Mor­ most people do not "marry" in the strict mons. Their clannishness, their strange legal sense; most children are technically beliefs-most dramatically, plural mar­ bastards, even though their parents live riage-enraged the majority. Harsh fed­ together for a lifetime. Such a system eral laws, persecution, raids, put some works well enough in a village; it is disas­ of the Mormon leadership in jail, while trous in a society of landowners, where others went underground. The battle wives and children inherit land, and where ended only when the church renounced people buy and sell land rapidly and often, polygamy (1890). instead of sitting on a patch of land through all eternity. Either the law American Law and Individual excludes the common law wife, and the Freedom children, from rights to the land, or it In any brief sketch of the development must recognize, somehow, the validity of of American Law it is easy to ignore (or the "marriage." This is what many states take for granted) what struck foreign vis­ chose to do. itors, in the late 18th or early 19th century Ultimately the common law marriage as a most remarkable feature of our coun­ declined, and by the end of the 19th cen­ try: the great personal freedom enjoyed by tury many states had discarded it. Its pass­ Americans, guaranteed by law and sup­ ing is as instructive as the manner of its ported by public opinion. In this Bicen­ birth. In the first place, as population tennial year, many intellectuals, disgusted grew and communication improved, it be­ and disillusioned with recent events, find came easier to marry in the regular way. it easy to forget this rare and successful Common law marriage had disadvan­ achievement. On the whole, throughout tages, as well as advantages. Because it American history, people have enjoyed great personal liberty. They might say One leading influence has been Professor what they wanted to say, write what they Willard Hurst, of the University of Wis­ wanted to write, go to the church of their consin School of Law. Hurst stresses the choice, or none at all; men could partici­ relationship of law to social forces; he pate in government by voting and by serv­ treats the legal system as a dependent var­ mg on Junes. iable, as an effect, rather than a cause; and Liberty, however, is a matter of more or he plays down the role of jurists, of con­ less. In 1800, only men who owned prop­ ceptual thinking, of the formal, doctrinal erty could vote in New York. By mid­ elements of law. Hurst has concentrated century, all adult men, even the poorest, mainly on the 19th century, most inten­ had the right to vote. Women did not vote sively on his own state of Wisconsin. The until the 20th century. The black man in first half of the 19th century, in his view, the South was technically a full citizen, was an age of "release of energy"; people after the Civil War; but when northern used law to foster economic growth, to troops withdrew, whites seized power and turn land and resources to productive use. disenfranchised the black man through a People had practical goals; they treated variety of technicalities, backed by social law as a practical tool. pressure and, at times, by terror. This Law, in Hurst's view, is not the con­ situation did not change, fundamentally, scious creation of people who think about until the 1960s. law. It is hammered out in bargains be­ Illustration depicting a political Yet at evety stage, personal freedom tween contending groups. Of course, discussion at the grass-roots level by George Caleb Bingham (1811-1879). kept growing in the United States, while, people have always had values, and they paradoxically, the network of regulation translate these values into law. But the also constantly thickened. In some sense important values are popular values, val­ the one implies the other. Take, for exam­ ues of people who act (businessmen, ple, the freedom to travel. The ancient politicians), not the values of people who peasant or serf was tied to the land. The write and who think. American moves about freely, almost rest­ A substantial body of recent work has lessly. The sheer volume of travel makes begun to explore the relationship of law, accidents inevitable. Safety becomes a business, and the economy, chiefly in the major issue. It generates an enormous 19th century. Some legal historians, how­ body of regulation. In the 19th century, ever, feel that the Wisconsin school un­ the railroad was perhaps the single great­ duly neglects the intellectual element in est maker of law; no Justinian, no jurist law. A few radical scholars feel that the ever changed the requirements of law so work underplays the dark and oppressive dramatically. The law of torts sprang up aspects of American law. almost ex nihilo; its creator was the The field is still young. Many areas are railroad accident. The automobile acci­ still almost untouched. Somewhat surpris­ dent, in the 20th century, has been scarce­ ingly, little has been done on the history of ly less fruitful. Insurance, seat belts, the criminal justice; but interest in this subject Warsaw convention, passport regulation is rapidly growing. The public looks on -one could go on and on, mentioning as­ crime as a major problem. Criminal jus­ pects of law and regulation that flow di­ tice has a rich and interesting past. If the rectly or indirectly from the freedom to history of law is, in general, a history of travel, and its supporting institutions. opportunity, a history of incentive, the history of crime and punishment is a his­ American Legal History: tory of suppression: a history of what so­ The State of the Art ciety has defined as a threat, and tried to American legal education has always control. One part of the law is the under­ been pragmatic; has always had at least side of the other. one eye cocked toward the practical needs Of course, there are difficulties in the and experiences of lawyers. Neither the study of legal history. The subject is com­ These remarks are based on an address structure of the law nor legal education plex and technical. But it is. also impor­ delivered by Professor Friedman on the encourages theory and scholarship that tant. And there are materials at hand. De­ occasion of the International Congress of does not pay in the market. Legal history spite riots, upheavals, a fair share of Historical Science in San Francisco in has shared in the general intellectual ne­ floods, earthquakes, fires and other August 1975. An expert in American legal glect. Until recently, too, for a variety of natural disasters, the great American land history and law and social science, Pro­ reasons, "legal history" in the United mass has known unusual tranquility. essor Friedman received the 1976 John States meant history of the common law, Many legal records survive. Every county Bingham Hurlbut Award for Excellence that is, English legal history, and pre­ courthouse, every state capitol, is a poten­ in Teachng. On September 1, he became modern history at that. tial storehouse of records. Millions of the Marion Rice Kirkwood Professor of In the last generation, however, the documents, covered with dust, await the Law, following the retirement of Pro­ tempo of work has increased dramatically. wand of the scholar to bring them to life. fessor Moffatt Hancock.

19 My best moments? Well, you see, the One summer, while at USC, there were Moffatt Hancock life of a law teacher is not like being a some Stanford students in a Conflicts class movie star or a football player. It is a life that Hancock was teaching. Those stu­ Bids Farewell to of quiet satisfactions, enduring satisfac­ dents then mentioned his name to Dean tions. Best moments? Singing with Joe Carl Spaeth and various faculty members. Stanford Law (Leininger), being elected to the chair, As it was, Dean Spaeth wanted to offer a watching first-year students progress. course in Jurisprudence, a course that had School These are the enduring satisfactions. not been taught at Stanford since Joseph On August 31 Moffatt Hancock retired Bingham had retired in 1944. Also, Mar­ from Stanford Law School after 23 years ion Rice Kirkwood was retiring, so there by Thomas Boothe '78 on the faculty. Retirement for Moffatt was a need for a property professor. Hancock is not an absence from the law The chairman of the appointments but a trip to Hastings to begin his fifth committee at the time was George Os­ decade of teaching law, spanning five borne, who, while leafing through the di­ schools and two flags. Those years are rectory of law teachers, noticed that Han­ 1 rooted in Toronto where Hancock was cock was teaching Jurisprudence and born and later received his BA in law from Legal History and that he had taught the University of Toronto in 1933. Property. That teaching background, When [ was growing up in Toronto, I combined with the students' reports, led used to ride around on my bicycle and them to invite him to teach a summer look at the old houses. I always wanted to course in Property. At the end of the own such a house, but I suppose I never summer, Hancock was asked to come will. I'll try to find an old house in San back. In 1953, Moffatt Hancock joined Francisco or maybe an old apartment in the faculty at Stanford Law School. Nine Pacific Heights. And I'd like to get an old years later he was appointed to the Mar­ grandfather's clock that will chime the ion Rice Kirkwood Professorship of Law. quarter hours to me. I'm not a reformer and I don't get grand Hancock first began teaching at the ideas on how to make the law school big­ University of Toronto in 1937, where he ger and better. I feel generally good about stayed until 1945 when he joined the fac­ law schools. The Deans have to pretend ulty at Dalhousie University in Nova they are innovative because young profes­ Scotia. In 1949, Hancock married and sors are attracted by innovators. But I'm moved west to teach at the University of uncertain about those innovations just to Southern California. be innovative. After WW II we proved

When [ first remember Moffatt Han­ cock he was teaching at USC and known as the best law professor there. We offered him a bonus to come to Stanford, where he taught several years before [ became emeritus. His great ambition, he told me, was to be known as the best teacher in the law school, and he flat­ tered me by saying he was going to be my successor there and patterned his teaching after mine. He asked for my picture to hang on the wall of his office when he moved into the new law building, saying that he wanted his office to have some of the feeling of Stanford tradition. [ have recently become emeritus at Hastings, and [ regret that [ will not be on campus to welcome him as a colleague on that distinguished fac­ ulty. [ know that Hastings is looking forward to his arrival.

GEORGE E. OSBOR E, WILLIAM NELSO CROMWELL PROFESSOR OF LAW, EMERIl1JS 20 that three years of law school was good. old professor, like the one portrayed in The past 20 years have just been frosting "Paper Chase," was very much a part of on the cake. The semblance of change is the academic scene. In fact when George necessary, however, because a successful Osborne, who was one ofthe great crusty institution must look at itself as always professors of all time, retired, I had the changing lest others look at it as ambition oftaking over his role ofcrusti­ paralyzed. ness. I tried it for a few years, but I found With the greater complexity all over it took too much time and energy. now, the law schools must carryon with Hancock, however, has not bound him­ their greatest weapon, producing self with his books. In 1961 he was voted generalists. Herbert Packer was in charge Red Hot Professor. At the Washington ofall university academics. We were both State game that year, his students wore surprised at how graduate work, espe­ sweaters emblazoned with Lex and rode cially the PhDs, was so narrow. Law is for him around the track in a chariot. After­ the generalists. That has been the most wards he led a cheer. important thing and will be for the future. He has also collaborated with Associate During his career, Hancock has been a Dean Joseph Leininger of the Law School prolific scholar. Besides his Torts in the in writing and performing Gilbert and Conflict of Laws (1942), he has written Sullivan-style songs parodying the life and for the Encyclopaedia Britannica. He also times of the law student, the law profes­ received a Guggenheim Fellowship in sor, and the lawyer. A highlight of dedica­ 1963 for a series of articles dealing with tion week at the new Law School last Sep­ conflict of laws in land title litigation. tember was the Hancock-Leininger Revue, His major concern, however, has been which was performed before a capacity for his students. Sitting in his office, audience in Kresge Auditorium. They de­ amidst his photographs and etchings, his lighted the audience with such clever dit­ roll top desk and antique furniture, he can ties as The Duties ofthe Dean, Is a Raft of reflect back over the changes he has wit­ Logs a Vessel? and The Grade in Torts. nessed. Hancock's talent as a songwriter is When I started teaching law at the Uni­ matched only by his ability as a photog­ versity of Toronto I wore a long black rapher. Though now legally blind, Han­ robe and I wrote my lectures out and had cock was once an accomplished photog­ them before me in a big book. What is rapher. His photographs, mostly of the more, up until a few years ago the crusty Stanford campus, are widely used in Uni-

We cannot believe that Moffatt Hancock is retiring. He is a superb teacher and scholar, a wonderfully witty teller oftales and singer of songs, and a warm friend. Among law schools, Stanford is nationally recognized as placing par­ ticular emphasis on the classroom, and Moffatt is very much in the Stanford teaching tradition. His stu­ dents ofdecades ago still recall what he said and the special spice with which he said it. Even more, they know how much they learned from this uniquely gifted man. Over the years, Moffatt has also produced an impressive array ofscholarly prose on the law-what it is and what it should be. Fortunately, Moffatt will be close by, and all of us often will be able to see him and his talented wife, Eileen. We look forward to that pleasure for many good years.

J. KEITH MANN ACTING DEAN, JANUARY-AUGUST, 1976 Photographs by Morrall Hancock 21 versity publications and are displayed in like the over-assertive student: he l~vens several areas of the Law School. up the class. But he's relatively hard to Hancock's love of the law has spread to find. All Stanford students are too polite. his family. His daughter Catherine, at­ For many students, the basic problem of tended the University of Chicago Law law school is to make law exciting. The School and has recently completed a real world of law is very exciting: clients, clerkship with Judge James L. Oakes of the drama ofthe courtroom. But school is the U.S. Court of Appeals for the Second four barren walls and classrooms, no Circuit. She joined the law faculty of clients, no drama. It's up to us to tantalize Tulane University in September. them. That's the great test of the law His son, Graeme, a Stanford under­ teacher: his ability to go into class year graduate in religious studies, is a member after year and get all worked up about the of the Class of 1979 at the Law School. same old case he got worked up about ten, His wife, Eileen, is Regional Consultant twenty, even forty years ago. of the American Foundation for the Blind. Moffatt Hancock is a teacher in The students today have higher and the grand tradition ofStanford Law higher GPAs and LSATs, but they're not Reprinted, with minor revisions, from the Stan­ School. He has the rigor of George necessarily more excited about the law. I ford Law School Journal of April 20, 1976. Osborne, the learning of Marion Kirkwood, and the wit and some of the iconoclasm ofJoe Bingham; but, though we are reminded of them, there is, and could be, only one Moffatt Hancock. We will miss him greatly.

CHARLF J. MI-YFRS DIA

Moffatt picks up where A.P. Herbert and the Uncommon Law leave off. But Moffatt goes Herbert one better. He does it all in verse, and given a tune-any tune-he'll sing all the parts himself. Jo ~PH E. LfININGFR A OCIATf DEAN

A salute to Moffatt Hancock­ distinguished scholar, teacher, and gentleman. One who heard his generous, perceptive eulogy to Professor J. Walter Bingham in the Stanford Memorial Church last )'e<1r would need no other proof of Moffatt's own qualities.

LO\Hll TL RRI II.~. \!ARIO Rlt I I'IRJo;\\OOL> PROII~\OR OIEA\\. 1\11 R 1Tt.:~

/n all our uniuersities great minds abound. Wisdom, humor, warmth and an indefinable spark make a fell' professors outstanding. Moffatt Hancock combined them all and served us well and everlastingly.

THOMA~ A. f\XHl» '57

22 A TOAST TO THE STANFORD Remember our deans who have LAW SCHOOL Labored (and their task is never done), To attract the support that is Let us drink to the Stanford Law needed SchooL, For a schooL that is second to But before you raise your gLass, none. Remember the teachers who tried And remember each wave of new so hard students To dramatize every class. That comes and struggLes and Remember the pieces they've strives, written With their eager, inspiring With anaLysis, Learning and zest, assurance To heLp the courts decide cases That our SchooL can enrich their In the way they beLieve wouLd be lives. best. Oh remember those waves ofnew Remember our LoyaL aLumni students Who heLp us in every way, Drawn here as by a bright star, Sincerely concerned with our Who challenge us aLL to be better probLems ALways better than we are. As they change from day to day. MOFFAlT HANCOCK

23 0tanford Law 0chool 1893 1907

As a young lawyer in San Francisco By the time Stanford began offering in­ many years ago, I once asked an struction in law in 1893, the trend toward eminent city lawyer what school he modern law schools was under way. Har­ had attended. He looked at me and vard was the center of innovation, with said: "I went to Toulumne Law the publication of Langdell's casebook in School. We didn't have any ofthese 1871. Moreover, in 1878 Harvard began professors out here but whenever I requiring three years of graduate study, went into a court and a point was though only two had to be spent in resi­ raised I didn't understand, I would dence, with the third year checked by pick up my inkstand and throw it at examination. the opposing lawyer. The judge would Law school admission and graduation lock me up 24 hours for contempt and requirements reflected then, as they do while in such confinement, I would now, the standards set by the state bars study up the point and be ready for and legal community. Until 1909 there that lawyer. were virtually no California Bar admis­ W.S. BARNES sion requirements. It was very common SAN FRANCISCO DISTRICT ATTORNEY IN for students to have a pre-legal cur­ A LECTURE ATTHE STANFORD LAW riculum, take one year of law, get their SCHOOL, SEPTEMBER 28, 1894. A.B. degrees, and go into practice. Since "Toulumne" law school training for there was no committee of bar examiners, lawyers in the 19th century was the rule admission to the Bar was by action of the rather than the exception. Until the sec­ appellate courts. No written examination ond decade of the 19th century, training was given and standard procedure was to for the practice of law was almost entirely take a group of 35 to 40 aspiring lawyers restricted to apprenticeship. Since appren­ into a room, ask each one a few questions, ticeships were long, ranging up to ten and, if he answered them satisfactorily, he years, and the number of apprentices a was admitted. lawyer could handle was severely limited The following letter to Judge Samuel (usually about two), the profession grew F. Lieb, first president of the Board of slowly in numbers. As the population of Trustees of the University, from a gradu­ the U.S. increased, the demand for legal ate of the Law Department depicts a typi­ services outstripped supply. cal bar examination in the early 1900s. This increased demand for legal ser­ Dear Sir: vices fostered the growth of formal legal Thinking it may interest you to hear education in universities. Most of the law how the recent examination of the schools established during this period applicants for the admition (sic) to the were not actually "schools," but regular bar was conducted I take the liberty to university departments that offered a law give you a brief report thereof. "major." Requirements for admission There were about forty applicants, were ordinarily only those exacted for but only twenty five were successful. I admission to the freshman class of the col­ have the great pleasure to announce lege. This was true in 43 of the 61 univer­ that I am one ofthem. My examination sities offering law training in 1890. Even was exceptionally brief, presumably on when the Association of American Law account of your endorsement on my Schools was organized in 1900 it decided application blank. They asked me no that its members need require only a high more than fifteen questions on criminal In the spirit ofthe Bicentennial, school education for admission. Instruc­ law, which I promptly answered. Stanford Lawyer offers this brief tion during this period was normally The whole examination was very look back to the founding ofthe based on lectures used to supplement and rigid, covering the entire field of Stanford Law School illuminate assigned textbook reading. Jurisprudence. It took them fully two

24 from Toulumne's Peer , To Qespectabilitjr

25 hours to examine a class of ten student audience in a speech before them applicants. The questions were fair, in 1898 that" In the legitimate practice of practical legal questions, such as a law, you will probably never accumulate a student is accustomed to learn in a fortune." Worried that he would quickly class recitation, or in a good textbook. lose his audience to Klondike gold fields, I write this with the deepest he hastened to add that "you can make a gratitude to you as the president ofthe good living and more, you can attain an board of trustees of our university for honorable place in the world." He did not attaching your honorable name to my warn his audience about the regional dif­ application, and secondly, as a ferences in fee "schedules," however. A Stanford student, inspired by the few months later, a Stanford law grad­ Stanford Spirit, I am endeavoring uate, Carl Smith, ruefully explained in the hereby to express my honor and Daily Palo Alto that such a difference appreciation of the noble and great existed between California and Hawaii. "STANFORD", a name that will Smith defended a man accused of selling perpetually sound in my heart with liquor. After clearing his client on a tech­ love and praise for the benefit that I nicality, he did not know what to charge received in this great institution. him, and sought the advice of a Japanese Whatever my carrier (sic) may be in interpreter. Smith suggested $10 to the the future, whether successful or not interpreter who exclaimed "holy smokes." Edwin Hamlin Woodruff successful, pleasant or gloomy, or no Smith blanched and said he would matter what condition l shall occupy, it make it only five. Only later did he dis­ will always be my earnest endeavor to cover that $100 would have been a low fee. live for the honor of the Stanford Stanford University was founded in Spirit, and as a member of the legal 1891. A year later, President David Starr profession, try to make the truth Jordan began serious planning of a law visible, as Dr. Abbott has taught me. department. He traveled to Chicago to I remain Yqurs, consult with Professors Ernest Huffcutt very respectfully, and Nathan Abbott at Northwestern, two Frederick May nationally recognized law professors. Jor­ Though bar standards were weak, prac­ dan's hope was to secure two or three ticing law was not an easy way to get rich "name" professors and build from there. quick. Justice Myrick of the California He and the Stanfords favored a shortened, Supreme Court warned his Stanford law pragmatic approach to education which

The first faculty ofStanford University. Edwin Hamlin Woodruff, the Law School's first professor and librarian, appears in the top row, fourth from the left. 26 would turn out self-supporting individuals brary. To fill the gap created by Huffcutt's in the shortest possible time. Jordan's law withdrawal, Jordan asked Abbott to come school curriculum plan was somewhat of to Stanford a year early. He also per­ a compromise between the then fashion­ suaded Benjamin Harrison, President of able undergraduate law degree, and the the U.S. at the time, to come to Stanford more rigorous Harvard Law School after his term ended in 1893, and open the graduate program. The plan called for the School with a series of lectures on Con­ distribution of courses over a five-year stitutional Law. Harrison was to be a period beginning with the sophomore year non-resident professor. and continuing for two years after gradua­ Even these plans had to be shelved after tion from college. The junior and senior financial disaster swept the University in years would contain the normal graduate 1893. Senator Stanford died in June; the law school first-year curriculum. On great financial panic struck immediately graduation, the law major would receive thereafter; and towards the end of the an A.B. in law. He would then enroll in year, the United States sued to establish a the equivalent of today's second- and claim against the Senator's estate for third-year J.D. curriculum and graduate $15,237,000, allegedly due under the Cal­ with an LL.B. ifornia stockholders liability law for Jordan's plans for recruiting faculty money loaned by the United States to were highly ambitious. He intended to Senator Stanford's Central Pacific Rail­ have Professor Huffcutt open the school, road Company to aid in the construction to be followed in successive years by Pro­ of the railway. The panic depleted the fessor Abbott, Professor Melville Bigelow value of the assets in the estate and de­ (dean of Cornell's Law School), Sir Fred­ pressed their earnings. The litigation tied erick Pollack (Regius Professor of Juris­ up assets retained by the Stanfords after prudence at Oxford), and finally, Wood­ the Founding Grant and only a generous row Wilson, then a professor at Princeton. family allowance granted to Mrs. Stan­ Jordan also expected to provide an ford by an understanding probate judge, ample law library. Unfortunately, he was which she used for university expenses, unable to dredge the necessary funds from and loyal faculty who accepted sharp the fledgling and financially starved Uni­ reductions in salary prevented bankruptcy. versity. As a result, Huffcutt rejected the Abbott heard of these developments en Stanford offer in favor of Cornell, which route to Stanford. He called Dr. Jordan had just received a gift of the Moak Li- from St. Paul, Minnesota, asking him

Opening day ceremonies at Stanford U/Jiversity, October 2, 1891. Senator and Mrs. Stanford are seated to the left of the speaker, David Starr Jordan, first president ofthe University. A portrait of Leland Stanford, Jr. dominates the scene. 27 whether he should still come. Jordan of­ earnirtg $25,000 a year in Chicago as a fered Abbott a year's leave of absence consultant to the legal department of a by return cable and Abbott accepted, large corporation, in addition to his apprehensive about the future of the academic salary. University. Student interest in the Law Depart­ In desperation, Jordan turned to his ment increased rapidly. In 1894-95, 100 University Librarian, Edward Woodruff, students were enrolled in the Depart­ who had graduated from Cornell Law ment's courses, a figure which climbed to School in 1888. Woodruff had taught En­ 171 by 1899. Abbott faced significant glish at Cornell for two years, practiced problems in meeting this demand. law only briefly, and was reluctant to ac­ To begin with, the Law Department had cept the assignment. He complained to little space. It occupied three former bed­ Jordan that he was too busy as Librarian rooms in Encina Hall, a men's dormitory. already, and that he hadn't opened a law One of these was used as a library. In book in four years. Jordan offered Wood­ 1900 the department occupied rooms in ruff extra help in the library, however, and the northeast corner of the Inner Quad­ coaxed him into accepting the job. Wood­ rangle, formerly used by the main library. ruff apparently grew to like his new job, These rooms were divided into a law li­ for he continued to teach law until his brary, reading room, three offices and two retirement from the Cornell law faculty lecture rooms. In contrast to the 1975 in 1926. move to Crown Quadrangle, which took Thus, the Stanford law department got professional movers several weeks, this off to an austere start. Woodruff taught move was completed in one day by the Elementary Law and Contracts during students themselves. the first year of its existence. Benjamin Abbott's second major problem was the Harrison had given his set of lectures the lack of an adequate library. In a letter previous spring, focusing on Constitu­ dated March 3, 1933 Professor Abbott tional Law and the development of the remembers the start of the Stanford Law constitutions of the original thirteen col­ Library; onies. Harrison left shortly afterwards. He The absence ofany law books for the did not think too much of the proposed use ofthe students also had its effect school and especially disapproved of in­ on our program .. ..I advised the cluding work for the A.B. degree in credit buying ofthe American Decisions for the LL.B. degree. He compared this because ofthe extensive notes which double service to a passage from Oliver the students could refer to in the Goldsmith's The Deserted Village: absence oftext books which Pres. Life on the "fann." The chest contrived a double debt Jordan did not feel the University to pay, A bed at night, a chest of could afford to buy. I believe I am drawers by day. correct in saying that before the By 1894, things had begun to settle Decisions were received the Bancroft down at Stanford, and Abbott agreed to Whitney Company gave us a set of assume his position. Though the govern­ books called "The Pony Law Series". ment suit was not dismissed until 1895 I remember making a little book case with United States v. Stanford, the finan­ about fifteen inches long and seven or cial panic had passed, and the University eight inches high and five inches deep had managed to achieve fiscal balance. to hold these books. At this time the Abbott was an extraordinary individu­ students had no place in the al. His academic interests were property quadrangle to study and we were and the history of property law, which he given the first room on the left hand combined with apparently limitless inter­ (ground (loor) ofthe entrance to ests in subjects outside the law and various Encina Hall. I remember hanging this hobbies. These outside interests included book shelf, like a picture, on the wall i Greek literature and art, membership in ofthis little room and it was the the Dickens Society in London (the first beginning ofyour Law Library. American to be so honored), horticulture, Abbott's third and perhaps most dif- carpentry, chamber music, and Abraham ficult task was retaining good faculty. Lincoln. He regularly played the cello in a Woodruff left for Cornell in 1896, despite chamber society, and skillfully employed President Jordan's entreaties. Jordan first his carpentry talents in building the furni­ wrote him a letter on February 18, 1896, ture for the Law School after he arrived, asking him whether he would return to be including all the desks and podia. It is librarian or law professor but indicating it likely that he took a substantial income would be best if he would do both until cut to come to Stanford, since he was the money crisis was over. Woodruff de-

28 murred and Jordan wrote a letter on Nathan Abbott, the Law March 12 pleading, "Please don't go-We School's first full-time need you. Only Abbott, Huffcutt and professor and dean from yourself know the Law School I dream of. 1894 to 1907. It will come and great will be the man who brings it." Two days later he added in a telegram, "Don't go. Needed here. We offer law professorship exclusively now." When Woodruff persisted in his refusal, Jordan wrote to Woodruff acknowledging his decision, "As soon as we are rich we shall undoubtedly wish to call some first­ class men to the Law Department such as Huffcutt, Woodruff or Woodrow Wilson. In the meantime, we shall have to be con­ tent with temporary supplies." Jordan and Abbott's "temporary sup­ plies" proved to be all too temporary. During the years 1897-1907 the Stanford Law School became a developing ground for promising young law professors who were pirated away by more established law schools. Two of them, Professors James Hall and Clarke Whittier, went to the University of Chicago in 1901. A third, Jackson Eli Reynolds, who had been an undergraduate at Stanford and a great halfback on the football team, went to Columbia in 1901. All of these men were assistant or associate professors at Stan­ ford, and were hired away as full profes­ sors. Money as well as prestige was an important factor in their decision. Whit­ tier received only $150 for his teaching in 1897 and some professors in other de­ partments were teaching gratis, because of the University's financial plight. Those who were paid took a mandatory 10% cut The Inner Quad in salary to pay for the defense of the courtyard, 1905. Government suit. When Whittier went to Chicago he was paid $5,500 a year, a con­ siderable improvement over his meager Stanford salary. He also had access to a substantial law library, which was not something Stanford could offer to its fac­ ulty before 1903. Until then, faculty had to trek to San Francisco to do their re­ search at the county courthouse library. Throughout this period, Abbott did a remarkable job keeping together a rather good faculty. His was continually able to make up his losses by hiring promising newcomers. To supplement the regular faculty, which normally numbered be­ tween three and five professors, he im­ ported practicing lawyers to teach courses on a parttime basis. Some of them, such as Judge Curtis Lindley of San Francisco, who taught Mining and Irrigation Law, had national reputations and had pub­ lished a considerable amount. In his recol­ lections Whittier noted that the Law The University's School came of age in 1900-01, in spite of first library.

29 the losses of himself and other faculty members shortly afterwards: The year 1900-01 lived up to the promise of the Register that 'this department offers such courses in law as are usually given in professional law schools.' There was a fine spirit in the Department. Mr. Abbott was in his prime and the rest ofus were young fellows trying to win a modest place in the sun and enthusiastic about the new Department and its future. The students seemed to think we were a lot of'wise guys' and that before long, Harvard Law School would have to look to its laurels. In the spring of 1901, the Law Depart­ ment conferred its first professional de­ gree, the Bachelor of Laws or LL.B., on James Burcham. This degree had been in­ troduced by Harvard in this country and was the chief law degree conferred in Views ofthe Chapel and 1901, though some schools, like Stanford, Memorial Arch after also conferred B.A.s. Since by this time the earthquake, 1906. many law schools required graduation from college as an admission requirement, it seemed odd to award a second bac­ calaureate degree. Recognizing this, Stan­ ford changed its degree to a Juris Doctor (J.D.) in 1906, making it analogous to the degrees of M.D. and Ph.D. Harvard re­ tained the LL.B., though other law schools including Chicago and Hastings, joined Stanford and replaced it with a J.D. Stanford resurrected the LL.B. in 1911, abolished it again in 1921, reinstated it in 1927, and finally abolished it again in 1969 in favor of the J.D. It is unclear why the faculty was so whimsical about this issue over the years, but the sequence is a tribute to Abbott's practice of having the faculty decide major issues by majority vote, a tradition continued to the present. Few women entered the Department of Law in its formative years, though the University was coeducational from the beginning and, according to Professor Whittier, "The few young women who joined our ranks were not in any separate category from the men. They found their individual places in class work and in rec­ ords just as so many extra men would. have done." Though women were an es­ tablished part of the University, the issue of coeducation was controversial. Presi­ dent Jordan was a firm believer in it. In a forum on the issue in the Daily Palo Alto on October 23, 1901, he suggested that "women educated with men are likely to have sounder ideas of work and a clearer perspective of things as they are than ones educated by or among women only. Men educated with women are likely to de-

30 velop better personal habits and finer of the University, it had to face a further tastes than those who are monastically period of austerity so that the plant could educated, meeting either no women at all be restored. The entire University closed or only on the inferior plane of social temporarily. The Law School suffered an functions." even more crippling blow a month later In contrast, Professor Abbott opposed when Abbott decided to leave Stanford not only coeducation, but the whole sys­ for Columbia, succumbing to the same tem of higher education for women. In the pressures that he had to fight against to same forum he stated: "The whole busi­ retain his faculty against raids from other ness is a mistake. I do not believe in the law schools. Jackson Eli Reynolds, for­ modern system of educating women. I merly a professor at Stanford and then at think they are over-educated. The ten­ Columbia, was a major influence in Ab­ dency is to spoil a good woman to make a bott's decision. Abbott was reluctant to poor man our of her." leave, but Reynolds was adamant. In a The only example of overt discrimina­ letter to Abbott on May 29, 1906, he tion against women during this era was wrote: "If you throw me down on this their exclusion from rhe Law School steps. thing I shall be thoroughly vexed. I've set The steps were at the end of the corridor my heart on this connection between you running in front of the Law School, the and Columbia and I've been working to side of the Inner Quad that now houses bring it about ever since I first broached the President's Office. Jordan srrongly the idea to you. That is all bally flubdub opposed the use of tobacco on the quad. about you not being suited to Columbia In deference to his wishes, students would and I won't listen to such nonsense." walk to the steps where they would talk Abbott eventually relented and agreed and smoke between classes. As soon as to take a year's leave of absence to they got out from under the arcade, they become a visiting professor at Columbia. figured they were no longer on the Quad. Columbia was apparently to his liking, The steps were strictly reserved for law for he never came back. Jordan made a students and fights would occasionally last ditch attempt to coax him back in erupt when non-law students attempted early 1907. In a letter to Abbott on to break the tradition. Women law stu­ january 30, 1907, jordan offered him a dents were not welcome either. They raise to $5000, as well as raises for all the would not be thrown off, but were im­ other professors and reimbursement for mediately made to feel unwelcome. The Abbott's own out-of-pocket expenses in­ tradition of the Law School steps appar­ curred in building up the new law school. Students on the Quad. ently persisted until the Second World Abbott demurred and on February 10, War. 1907, the New York Daily Tribune pub­ During Abbott's tenure as department lished news of his resignation: "Stanford A pre-quake view ofthe campus from head, several extracurricular clubs and University has suffered a serious loss in Lake Lagunita. organizations for law students got their the removal of Dr. Nathan Abbott to start. The Law Student Association was Columbia.... It has been known for some formed in 1904, with James Burcham, the time that he was dissatisfied with condi­ first Stanford LL.B., as president. Moot tions at Stanford, especially with the ar­ Court was very popular during this period bitrary action of the faculty last year on and several clubs were formed whose suspending one of the best students in Dr. principal purpose was oral advocacy and Abbott's class because, as the editor of the debating. Bench and Bar and the Coif college paper, he criticized the system of Club were the oldest and most prestigious faculty espionage in the dormitory." clubs and a rather intense rivalry existed In the thirteen years of his tenure at between them. Each year two representa­ Stanford, Nathan Abbott left an indelible tives of each club argued a case against the mark on the School. Perhaps the special other, the prestige of the clubs riding on qualities of this extraordmary teacher and the outcome. They also played in a base­ scholar were best described by Chief jus­ ball game against each other annually. tice Harlan Fiske Stone, Abbott's former Professor Abbott was always the umpire colleague at Columbia Law School, on and was noted for his ability to call all the occasion of Abbott's death in 1941: balls strikes, and all strikes balls. Withal, intimate association with a On April 18, 1906, the devastating earth­ man of such colorful personality who quake hit the Bay Area, destroying much never did anything quite as more ordi­ of San Francisco and causing heavy dam­ nary mortals do it, broadened the stu­ age to Stanford. The Law Department, dent horizon and added a piquant being in a one-story building, suffered flavor to student life... . We shall not little physical loss, but along with the rest see his like again.

31 ELS Projects Gain Support

The Environmental Law of its effectiveness in reduc­ is A Guide to Noise Control of energy for the nation. Society is gaining broad rec­ ing litter and conserving at the Municipal Level in A Handbook for Bicycle ognition and support for its energy. The book also pro­ California. This handbook Activists, the Society's latest publications in various areas vides legislators and pro­ examines the effects of noise publication, analyzes the of environmental law. One of bottle bill environmental on people and property and legal status of bicycles and the Society's 1975 publica­ lobbyists with facts and sta­ the interlocking state and the possibility of encouraging tions, Disposing of Non-Re­ tistics to counter the barrage federal regulations. A stra­ their use in the national trans­ turnables: A Guide to Mini­ of arguments used in oppo­ tegic guide to solving noise portation network. mum Deposit Legislation, has sition to such legislation. pollution problems, with Projects soon to be pub­ attracted the attention of the The Society has recently special emphasis on local lished include The Fragile Environmental Protection published a sequel to Dis­ action, is included. Balance: Environmental Agency. The Agency's Office posing of Non-Returnables, Geothermal Energy: Legal Problems of the California of Solid Waste Management entitled Beverage Container problems of Resource De­ Desert; An Environmentalist's Programs has purchased 500 Laws at the Local Level. Also velopment, published in early Primer on Weather Modifica­ copies of the handbook for written by Thomas Fenner, it 1976, has elicited strong tion; and A Handbook for free distribution to anyone is a handbook for facilitating reactions from the energy Billboard Control. This sum­ interested in minimum de­ the enactment and defense industry and environmental­ mer members of the Society posit legislation. The 132­ of minimum deposit legisla­ ists alike. The book describes studied no-smoking laws, page guide, written by tion on the municipal and and evaluates geothermal commuter transit alterna­ Thomas Fenner 76, Edwin county levels. The book pre­ resources on public lands, tives, and public involvement Lowry 76, and Rosemary sents a model ordinance, a summarizes the legal prob­ in U.S. Forest Service land­ Lowry, a student at Boalt look at tactics, and an analysis lems inhibiting their develop­ use decisions. These projects Hall, evaluates the bottle of the legal issues involved. ment, and suggests statutory are supported by grants from control legislation adopted by Another recent publication and regulatory changes to the Alamo Foundation and Oregon and Vermont in terms which uses a similar format facilitate their use as a source the Ford Foundation. •

Clerkships Snowfall Stuns Stanford Announced

Seventeen members of the Stanford Law School Class of 1976, plus three former graduates, have accepted judicial clerkships for the coming year. Clerking for the United States Supreme Court will be Tyler A. Baker (75) of Cleburne, Texas, for Justice Lewis F. Powell, Jr.; Stuart Baskin (75) of Whittier for Justice William J. Bren­ nan, Jr.; and Michael Quinn Eagan (74) of New Orleans for Justice William H. Rehn­ quist, who graduated from To the amazement of all, an inch of snow fell on Stanford on February 5, ending one of Northern Stanford Law School in 1952. California's worst droughts in history. Within minutes after the storm subsided, elated students abandoned their books for snowball fights and building snowmen. The last time so much snow Four graduates will be fell on the campus was in 1962 and, prior to then, 1887 (also on February 5). Just before the clerking for the U.S. Court of snowfall the temperatures had been in the 70s; hours later the skies cleared and the sun quickly Appeals, Ninth Circuit. Bar­ made the snow a memory. bara E. Bergman, Peoria, III.,

32 will clerk for Judge Ben. C. Duniway '31; Barton H. Thompson, Jr., Los Angeles, Commencement, 1976 for Judge Josep 1. Sneed. Gregory M. Schmidt, Wash­ ington, D.C., and Frederick 1. Williams, Stanford will be clerks to the Court. Clerking in the U.S. District Courts in California are: Ste­ ven M. Block, Seattle, for Judge Robert F. Peckham '45, San Jose; Daniel L. Bren­ ner, Beverly Hills, for Judge Matthew Byrne, Los Angeles; Jonathan L. Kempner, De­ troit, for Judge David W. Wil­ liams, Los Angeles; Ronald K. Meyer, Decorah, Iowa, for Judge Stanley A. Weigel '28, San Francisco; Thomas E. Wilson, Canton, Ohio, for Judgl:! Edward J. Schwartz, San Diego; and Ralph A. Zar­ efsky, Palo Alto, for Judge Lawrence 1. Lydick '42, Los Five hundred relatives and D. Warren, now dean of Olaus and Adolph Murie Angeles. friends attended commence­ UCLA Law School, and Award in Environmental Law Laurence K. Sullivan of ment exercises for the Class Anthony Amsterdam. for best written work in the Los Alamitos will clerk for of 1976, the School's eighty­ Acting Dean J. Keith Mann field of Environmental Law: Justice Murray Draper '3D, third graduating class, on announced the following Richard Smith Mallory California Court of Appeals, June 13. honors and prizes. Rocky Mountain Mineral Law San Francisco. Thomas Ehrlich, who re­ Foundation Award for best Those winning appoint­ signed as dean in January to written work on the subject ments outside of California become the first president of Prizes of mineral resources: Ronald are: Patrick R. Cowlishaw of the Legal Services Corpora­ Nathan Abbott Prize for Keith Meyer and William Karl Dallas, who will clerk for tion in Washington, D.C., ad­ highest cumulative grade Swank Judge Irving L. Goldberg, dressed the class. The class point average: Barton Hurst response was given by U.S. Court of Appeals, Fifth Thompson, Jr. Circuit, Dallas; Steven A. Daniel Brenner, president of Reiss, Philadelphia, for Judge the Class of 1976. Urban A. Sontheimer Third­ Honors John Minor Wisdom, U.S. Emalie Ortega, president Year Honor for second high­ The following students were Court of Appeals, Fifth Cir­ of the Law Association for est cumulative grade point elected to the Order of the cuit, New Orleans; Bonnie S. 1975-76, announced that average: Steven Mark Block Coif, the national law school Brier of North Miami for Judge Professor Lawrence Fried­ Lawrence S. Fletcher Alumni honor society: Steven Mark Joseph S. Lord III, U.S. Dis­ man was voted by the class Association Prize for out- Block, Bonnie Susan Brier, trict Court, Philadelphia; to receive the 1976 John Jeremiah Andrew Collins, o standing contributions to the Daniel J. Gonzalez of Balti­ Bingham Hurlbut Award for life of the Law School: Emalie Patrick Ray Cowlishaw, more for Judge Joseph L. Excellence in Teaching. Es­ Monarrez Ortega Grady Gammage, Jr., Gary Young, U.S. District Court, tablished in 1974, the award Scott Gildin, Daniel Joseph Baltimore; Peter R. Osinoff is named in honor of Profes­ Frank Baker Belcher Evi­ Gonzalez, Robert Frank of New York City for Judge sor Emeritus Hurlbut and is dence Award for best aca­ Knox, David Anthony Lom­ Sherman F. Finesilver, U.S. intended to give special rec­ demic work in Evidence: Ron­ bardero, Ronald Keith Meyer, District Court, Denver; Bruce ognition to those faculty ald Keith Meyer Robert James Ogilvie, Jay A. Rosenfield of Minneapolis members who, in the tradition Nathan Burkan Memorial Marion Spears, David Charles for Judge Raymond J. Brod­ of Professor Hurlbut, strive Competition for best written Spielberg, Barton Hurst erick, U.S. District Court, to make teaching an art. Pre­ work in the field of Copyright Thompson, Jr., and Timothy Philadelphia. • vious recipients are William Law: Eric Peter Marcus Tomlinson. _

33 New Faculty New Scholarship Appointments Funds Honor Alumni

Three new scholarship from 1972 to 1974. funds have been established Austin Peck, a graduate of at the School to honor distin­ the Class of 1938, has prac­ guished alumni. Two are the ticed with the firm for thirty­ generous gifts of law firms. five years, serving for many In memory of its founding of those years as chairman partner, the Los Angeles firm of the tax department. He, of Beardsley, Hufstedler & too, is a former member of Kemble has established the the Board of Visitors and Charles E. Beardsley Schol­ more recently has been a arship Fund. Mr. Beardsley, volunteer and member of the who died on August 6, 1975, Law Fund's Inner Quad Pro­ Julius (Jack) Getman David Engel was a 1927 graduate of the gram. School. His career spanned In addition to the funds in­ Julius G. Getman of In­ the Industrial Relations Re­ nearly half a century and in­ stituted by law firms, the diana University School of search Association in New cluded extensive bar ac­ Eleanora and C. Fenton Law and David L. Engel, a Jersey on suggestions for tivities on the county, state, Nichols Law Scholarships Boston attorney, have been changes in Labor Board and national level. In 1974 he were recently established by appointed to the faculty, ef­ Election policies. received the Shattuck-Price a provision of the will of fective July 1. In addition to labor law, Mr. Award, the highest honor the Eleanora Nichols. Mr. Professor Getman, who Getman will offer a course in Los Angeles County Bar As­ Nichols, a 1915 graduate of spent the past year at the first-year contracts and a sociation can bestow, for the School, was an attorney School as a visiting profes­ new interdisciplinary course, outstanding contributions to for San Francisco's Board of sor, is a graduate of City Col­ Government Regulation of the legal profession and the Permit Appeals. He died in lege of New York and Har­ Industrial Relations, with Association. In addition to his 1968. vard Law School. A former Professor Robert Flanagan varied contributions to the In announcing the new attorney for the National of the Business School. profession, Mr. Beardsley funds, Dean Meyers noted, Labor Relations Board, Pro­ David L. Engel has joined remained an active friend of "I cannot imagine a more fessor Getman is one of the the faculty as an assistant the Law School, serving as a appropriate or beneficent nation's foremost specialists professor of law. Mr. Engel member of the Board of Vis­ tribute to these distinguished in labor law and has written graduated magna cum laude itors from 1958 to 1963 and alumni. While tuition has extensively on the subject. in 1973 from Harvard Law as a Benjamin Harrison Fel­ reached a staggering $4426, His latest work, Union Rep­ School, where he was presi­ low of the Law Fund. it still provides only half of resentation Elections: Law dent of the Harvard Law Re­ To honor two senior part­ the School's income. And, and Realities was pub­ view. He served as law clerk ners who have become "Of as tuition continues to rise lished in September by the to Judge Henry J. Friendly, Counsel," the Los Angeles each year, more and more Russell Sage Foundation. It U.S. Court of Appeals for the firm of Latham & Watkins students require financial is the culmination of an Second Circuit, in 1973-74. has established the Keene assistance. These new funds eight-year study. The book Following his clerkship, he Watkins and Austin H. Peck, will be a vital source of sup­ will also be the subject of a joined the Boston firm of Jr. Honorary Scholarship port for deserving students symposium to be published Goodwin, Procter & Hoar, Fund. Keene Watkins, who as well as a permanent mem­ by the Stanford Law Review. where he remained until graduated from the Law orial to prominent alumni A popular guest lecturer, coming to Stanford. School in 1934, has been a whose careers will serve as Professor Getman spoke to Mr. Engel will teach a member of the firm since models for future generations the NTL Academy of Arbitra­ course in business associa­ 1945, chairing the real es­ of Stanford Lawyers. We are tors in San Francisco in April tions, a research seminar in tate and finance department especially encouraged by the on "Arbitration, the Constitu­ the regulation of investment­ for the past several years. growing interest and support tion and Personal Freedom." advisory activities, and first­ He was a member of the of law firms in private legal In September he addressed year contracts. • School's Board of Visitors education." •

34 Assistant Dean Kirkwood Finals Held Henderson To Enter "Thank you, Mr. Kissinger." overall advocate. Kenninger U. S. Supreme Court. With that slip of the tongue, and Stephen Leach '76 also Persistent and thoughtful Private U.S. Supreme Court Justice argued persuasively in the questioning marked the Potter Stewart dissipated the final round. judges' participation. Judge Practice nervous tension in Kresge The hypothetical case they Motley frequently asked Auditorium. Steven C. Ken­ argued, United States v. counsel whether an analogy ninger '77 had just finished Chaim Jack, concerned the to the law concerning border his argument in the 24th An­ standards for searches and searches could be drawn. nual Marion Rice Kirkwood seizures conducted under Justice Richardson pressed Moot Court Competition. airport security procedures. counsel to be specific in their Justice Stewart, flanked by The defendant had been citation of facts in the record. Judge Constance Baker stopped, searched and ar­ Justice Stewart tested coun­ Motley of the U.S. District rested by a U.S. Marshal, sels' knowledge of cases in­ Court, Southern District of who uncovered drugs during volving similar facts and legal New York, and California the search. The trial court theories. Supreme Court Justice Frank refused to suppress the evi­ In announcing the decision K. Richardson '38, prepared dence, and convicted the of the judges, Justice Stewart to hear arguments from the defendant. The Court of Ap­ complimented the par­ remaining counsel. peals reversed on the ground ticipants for the quality of When all were done, the that the search uncovering their briefs and oral argu­ judges rated A. Randall Fri­ the drugs violated the Fourth ment. "Our job was difficult," day '76 the best overall ad­ Amendment. In that posture, he told the audience, "be­ vocate and author of the best the case came before Jus­ cause it turned out to be a Assistant Dean Thelton brief. Michael J. Shepard '77 tices Stewart, Motley and job of assessing degrees of Henderson will resign effec­ was chosen second-best Richardson, sitting as the excellence.... " • tive December 31 to enter private practice. A former director of the East Palo Alto Legal Aid Office and attorney in the Civil Rights Division of the United States Department of Justice, Dean Henderson will form a new firm in San Fran­ cisco with Sanford Rosen, former litigation director for the Mexican-American Legal Defense and Education Fund, and Joseph Remcho, an ACLU staff attorney in San Francisco. According to Dean Henderson, the firm will do "as much civil rights work as we can afford." Dean Henderson joined the Law School staff in 1968 and since that time has been the chief administrator of the minority admissions program and adviser to student or­ ganizations. He will continue his functions on a part-time A. Randall Friday '76 delivers his winning oral argument. basis through December. •

35 School, Alumni Pay Tribute to Ehrlich Years at Stanford Law School

The Ehrllchs admire a sliver bowl and spoon handcrafted by Tom and Ellen Ehrlich with the Honorable George W. Ball. Italian artisan Alfredo Sclarrotta, a gift from the faculty.

During the past several of San Francisco and Marin. and soon asked him to be­ faculty, students and staff. months Thomas Ehrlich has A highlight of the alumni come his special assistant, Associate Dean J. Keith been wined, dined, toasted dinner was a speech by the thus beginning a professional Mann, speaking on behalf of (and yes, even roasted!) by Honorable George W. Ball, and personal relationship the School, observed of the the students, faculty, staff Managing Director of Lehman that has continued for more Ehrlich years: "Much was and alumni in recognition Brothers, Inc. and former than a decade. lavished upon this School of his contributions to the Under Secretary of State. As dean of the School from during Tom's tenure, but it School during his five-year Describing his longtime 1971 to January 1976, when was the care and concern tenure as dean. friendship with Dean Ehrlich, he became the first executive that Tom and Ellen gave it, Among the memorable Mr. Ball noted that he first head of the Legal Services and the people in it, this com­ evenings held in honor of the became acquainted with Tom Corporation in Washington, bined endowment of the Ehr­ Ehrlichs were the annual when, as Under Secretary, he D.C., Tom Ehrlich was the lich years is what has created Christmas banquet, a holiday received lucid and remar1

36 Professor John Barton will be on leave Materials. He will soon begin a study of during the 1976-77 academic year in Lon­ patent law and the patent system, which is Faculty don where he will be working at the In­ supported by the University's Research ternational Institute for Strategic Studies and Development Fund. He was a guest on guarantee and enforcement arrange­ speaker at a workshop on copyright for News ments for arms control under a Rockefel­ practicing lawyers presented by the New ler Foundation Conflict in International York University School of Law on Sep­ Relations Fellowship. Together with Dean tember 7-9 in New York City. Charles Meyers, Professor Barton con­ Professor William Gould travelled ex­ tributed a chapter to the Stanford Insti­ tensively this summer to meet with labor tute of Energy Studies book, The Califor­ management and government organiza­ nia Nuclear Initiative. He also co-edited tions around the world. In Australia he with Lawrence Weiler of the Political Sci­ gave talks at the University of New South ence department an arms control text Wales in Sydney and the Department of which will soon be published under the Labor in Melbourne. In Tokyo he spoke title, International Arms Control: Issues at the Japan Institute of Labor and also in and Agreements. Fukuoka, Sapporo and Nagoya. He then William Baxter, Wm. Benjamin Scott travelled to Bombay to address the Na­ and Luna M. Scott Professor of Law, is tional Institute of Labor Management and currently preparing a book with Professor the Employers' Federation of India. Fi­ Kenneth Scott and Professor Paul Coomer nally, he met with trade union employer of the Graduate School of Business on and government representatives in Ger­ costs of the electronic funds transfer sys­ many, Sweden and Norway to discuss new tems (EFTS), a new aspect of retail bank­ labor legislation in those countries. ing. Such systems would use electronic John Kaplan, Jackson Eli Reynolds Pro­ "point-of-sale" terminals to replace fessor of Law, has received a grant from checks and to allow direct bank access the Law Enforcement Assistance Ad­ from many more locations. Although ministration of the Department of Justice EFTS would not replace the use of checks to study "Regulatory Policy and Crime." and cash, it would enable more banks to The project will examine regulatory compete for a single customer's business. policies on alcohol, heroin and firearms as The study is funded by Citicorp. they relate to criminal behavior and law Associate Professor Richard Danzig was enforcement. awarded a Guggenheim fellowship for a Donald Lunde, Cooperating Clinical study of decisionmaking in the Supreme Associate Professor of Psychiatry and Be­ Court of the United States from 1938 to havioral Sciences, recently published 1961. He has also received a grant for Murder and Madness (San Francisco Book study in the humanities from the Rocke­ Co.) which explores the myths and reali­ feller Foundation. ties about mental illness. The book is also Marc A. Franklin, Frederick I. Richman part of the Portable Stanford series. Dr. Professor of Law, spoke on "The Press Lunde is currently working on an article, and the Law: Collision?" as part of a "Brainwashing as a Defense to Criminal spring quarter series of lectures on "The Liability," for the Stanford Law Review. Anatomy of the Press," sponsored by the Victor Li, Lewis Talbot and Nadine Stanford Alumni Association. Hearn Shelton Professor of International Professor Paul Goldstein recently com­ Legal Studies, spoke on "Law without pleted the 1976 Supplement to his Lawyers: The Legal System of the People's casebook, Copyright, Patent, Trademark Republic of China" in June when he par­ and Related State Doctrines: Cases and ticipated in Stanford Today, a program

Professor William Gould admires the intricate design ofa sari made at the Port and Dock Workers' Federation in Bombay, India.

37 sponsored by the Stanford Annual Fund was published in the April issue ofStanford Four Professors Named To Endowed staff to familiarize Annual Fund volun­ Law Review, provide important insights Chairs teers with research currently being done at for considering the problem of rule versus Professors William F. Baxter, Marc A. Stanford. discretion in the context of juvenile justice. Franklin, Lawrence M. Friedman, and John Henry Merryman, Sweitzer Pro­ Professor Wald is currently engaged in John Kaplan have been named to en­ fessor of Law, participated as a member of three major projects. The first is the de­ dowed chairs. the faculty of the Smithsonian Institution velopment of a set of standards, or model Professor Baxter, a specialist in antitrust and AL I-ABA conference on Legal Prob­ laws, for the legal system to deal with the law and regulated industries, will hold the lems of Museum Administration IV, problem of abused and neglected children. Wm. Benjamin Scott and Luna M. Scott which was held at the Los Angeles County This effort is part of the ABA's Project on professorship. He succeeds' former Stan­ Museum in March. In May he addressed Juvenile Justice. The second project is a ford Law Professor William Warren, now the annual meeting of the American As­ major empirical study on the impact of dean of UCLA Law School. The chair was sociation of Art Museum Directors on the different types of intervention programs established in 1970 by Josephine Scott proposed Code of Conduct for Curators. for helping neglected and abused children. Crocker in memory of her parents. He published an article, "The Refrigerator It is being conducted through the Boys A former consultant to the Federal Av­ of Bernard Buffet," in the May issue of the Town Center. Professor Wald is also iation Administration, Professor Baxter Hastings Law Review. Professor Merry­ working to develop a theoretical has published significant studies on en­ man has recently completed research and framework for analyzing the issue of chil­ vironmental pollution, including the legal begun preparation of a series of volumes dren's rights. and economic aspects of aircraft noise embodying the results of SLADE, a five­ control. year, six-nation (Chile, Columbia, Costa He received an A.B. in economics in Rica, Italy, Peru, and Spain) study of law 1951 and a J.D. in 1956 from Stanford, and development in Latin America and where he was comment editor of the Stan­ Mediterranean Europe. This fall he will ford Law Review. Following an initial offer an interdisciplinary research seminar period as an assistant professor of law at based on the SLADE data with Professor Stanford, Professor Baxter became an as­ S.M. Lipset, who currently holds joint ap­ sociate of the Washington, D.C. firm of pointments in the departments of political Covington & Burling. He returned to science and sociology and is a senior fel­ Stanford in 1960. low at the Hoover Institution. In 1968 he was appointed to a Program Professor Robert Rabin has recently of Studies established at the Brookings In­ published a book, Perspectives on Tort stitution to produce a systematic evalua­ Law, and an article on public interest law tion of government practices and policies for the Stanford Law Review. He is cur­ for regulating business activities. That rently doing research and writing on the same year he was also a member of White history of product safety legislation, as House Task Forces on Antitrust Policy well as the administrative and judicial and Communications Policy. He was a aspects of regulating product safety. Professor Wald's work has attracted the consultant to the Federal Reserve Board Professor Byron Sher has been elected attention of several groups outside the from 1969 to 1974 and a Fellow at the chairman of the Faculty Senate at Stanford University that are interested in children. Center for Advanced Study in the Be­ for 1976-77. In June he gave testimony to He has been asked by many governmental havioral Sciences in 1972-73. the Federal Trade Commission in connec­ agencies to help draft policies affecting Professor Baxter's writings on economic tion with the proposed Trade Regulation children and has presented courses to regulation are enriched by an extensive Rule on funeral industry practices. juvenile court judges, social work groups background in economics and mathema­ and other child care professionals about tics. He has published both technical Wald Granted Tenure the proper handling of cases involving works for other experts and analyses for The University Board of Trustees ap­ children. laymen, including People or Penguins: proved the faculty recommendation for In addition to his duties at Stanford, The Case for Optimal Pollution (1974). promotion to professor of law for As­ Professor Wald is a consultant to a task He is often called on to speak before lead­ sociate Professor Michael S. Wald, effec­ force on juvenile justice for the Federal ing public and private groups concerned tive July 1. Law Enforcement Administration; a di­ with national economic policies. A member of the faculty since 1967, rector of the Youth Law Center in San He is currently working with Professor Professor Wald has been a leader in Francisco, the Learning House in Palo Kenneth Scott of the Law School and Pro­ developing clinical teaching techniques at Alto and the Boys Town Center on Youth fessor Paul Coomer of the Stanford the School, particularly in the areas of Development at Stanford; and a judge pro Graduate School of Business on an ex­ family law and juvenile law. His work in tem of the Santa Clara County Juvenile tended study of the technology, juvenile law has been extremely influential Court. economics, and associated legal and regu­ in the development of legal policy towards Professor Wald was born in New York latory problems of electronic funds trans­ children. His latest articles, including in 1941. He received a B.A. in government fer systems. "State Care of Children: Proposed Stan­ from Cornell University in 1963, and in Professor Franklin is the first Frederick dards for Placement of Children, Supervi­ 1967 both an M.A. in political science and I. Richman Professor of Law. The profes­ sion of Children in Foster Care, and an LL.B. from Yale, where he was projects sorship is the gift of Mr. Richman, a Termination of Parental Rights," which and topics editor of the Yale Law Journal. prominent Southern California attorney

38 and 1928 graduate of the Law School. Marion Rice Kirkwood Professor of Law Professor John Kaplan has been named Nationally recognized as an expert in on September 1, following the retirement to the Jackson Eli Reynolds Professorship, tort law, Professor Franklin has been a of Professor Hancock. The Kirkwood pro­ formerly held by the late Professor Her­ member of the Stanford faculty since fessorship was established in 1952 by bert Packer and Emeritus Professor John 1962. He earned an A.B. in government friends of Marion Rice Kirkwood, dean Bingham Hurlbut. The chair was estab­ (1953) and an LL.B. (1956) from Cornell, of the Stanford Law School from 1922 lished in 1959 from the estate of Jackson where he was editor-in-chief of the Cornell to 1945. Eli Reynolds, who graduated from the Law Quarterly. Following a year in private A member of the Stanford Law faculty University in 1896. practice in New York, he served as law since 1967, Professor Friedman received Professor Kaplan, a leading law expert clerk to Judge Hincks of the U.S. Court an A.B. (1948), a J.D. (1951), and an in the field of drug control and author of of Appeals for the Second Circuit and LL.M. (1953) from the University of the nationally known Mari;uana: The to Chief Justice of the United States Chicago, where he was an associate editor New Prohibition (1970), received an A.B. Earl Warren. He taught at Columbia of the University ofChicago Law Review. in physics in 1951 and an LL.B. in 1954 Law School from 1959 until coming to After private practice in Chicago from from Harvard, where he was a member of Stanford. 1955 to 1957, he taught at St. Louis Uni­ the Law Review. A prolific scholar, Professor Franklin versity during 1957-60 and at the Univer­ He served as clerk to U.S. Supreme spent the spring semester of 1973 as a sity of Wisconsin from 1961 until coming Court Justice Tom Clark in 1954-55. In Fulbright research scholar at Victoria to Stanford. 1956 he attended the University of Vienna University in Wellington, New Zealand, Professor Friedman is recognized na­ to study criminology. In 1957 he was a where he studied that country's new statu­ tionally and internationally as an expert Special Attorney for the United States De­ tory approach toward compensating vic­ on the history of American law and on the partment of Justice, and between 1958 tims of most personal injury accidents. He relationships between legal systems and and 1961 he served as Assistant U.S. At­ is also the author of a major study of lia­ their societies. His several books include torney in the Northern District of Califor­ bility for diseased and faulty blood trans­ Contract Law in America, A Social and nia, concentrating primarily on civil and fusions. His casebook on tort law and his Economic Case Study (1965); Govern­ criminal fraud work. materials for law training at the under­ ment and Slum Housing, A Century of During 1962-64 he was an associate graduate level are widely used throughout Frustration (1968); and The Legal Sys­ professor of law at Northwestern Univer­ the country. tem: A Social Science Perspective (1975). sity and in 1964-65 a visiting associate In addition to his courses in the Law His A History of American Law, pub­ professor of law at the University of Cali­ School, Professor Franklin offers a course lished in 1973, was nominated for a Na­ fornia at Berkeley. He joined the Stanford in Communication Law to undergraduates tional Book Award and won the SCRIBES faculty in 1965. In 1969-70 he attended to acquaint non-law students with the award as the best book on law published the London Institute for the study of Drug issues surrounding government regulation in that year. It is the first general history Dependence. of the mass media. Most recently, he has of American law ever published. Since entering academic life, Professor focused a significant amount of his atten­ . Currently, Professor Friedman is in­ Kaplan has published widely in the fields tion on the communications field and the volved in several innovative studies in of constitutional law in the racial area, interaction between free press and media legal history and in law and society, criminal law and evidence, and he has es­ problems and the law and is now prepar­ including a major project examining the tablished himself as a leading scholar and ing a book on the subject. He is also growth of the criminal justice system in teacher in the latter two fields. He has also teaching courses about legal regulation of the United States and a path-breaking written several books for classroom use. mass media to law students and to stu­ quantitative study of sixteen state supreme Beyond his law school courses, Professor dents majoring in Communication. courts over the past century. He has also Kaplan offers an extraordinarily popular Professor Friedman, whose fields of ex­ pioneered in developing teaching materials undergraduate law course, The Criminal pertise include American legal history, law and methods for the integration of social Law and the Criminal System, and he has and society, and trusts and estates, suc­ science knowledge and techniques with also taught an undergraduate course on ceeded Professor Moffatt Hancock as the legal training. the Bill of Rights.

John Kaplan Lawrence Friedman William Baxter Marc Franklin

39

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