The cover: Gravestone, in Woodstock, Connec­ ticut. The full inscription reads: "Here lies the Body of Mrs. Abigail Paine, Relict Widow of Mr. Samuel Paine; She Died Jan. 13th 1752; in the 80th Year of Her Age." From Early New England Gravestone Rubbings, by Edmund Vincent Gillon, Jr. (Dover Publications, Inc., New York, 1966), courtesy of Stanford University Art Library. Other examples of gravestone art appear with the article, "The Elu­ sive 'Right to Die'," beginning on page 16. ~l(,tt CONY 5

STANFORD LAWYER SPRING 1985 VOL. 19, NO.2

Editor: Constance Hellyer Associate Editor:10 Ann Coupal Graphic Design: Barbara Mendelsohn, Nancy Singer, Linda Ruiz

Stanford Lawyer is published semiannually for alumnilae and friends of Stanford Law School. Cor­ respondence and materials for publi­ cation are welcome and should be sent to: Editor, Stanford Lawyer, Stanford Law School, Crown Quad­ Page 4 Page 10 Page 24 rangle, Stanford, CA 94305. Copy­ right 1985 by the Board of Trustees of the Leland Stanfordlunior Uni­ versity. Reproduction in whole or in part, without permission of the pub­ FROM THE DEAN lisher, is prohibited. The Changing Law School Classroom 2 John Hart Ely

FEATURE ARTICLES Reflections on the Burger Court 4 Gerald Gunther A Conversation with Pete McCloskey 10 The Elusive 'Right to Die' 16 Miehael Giljix

AT ISSUE The Trouble with Libel Law 22 MareA. Franklin

ALUMNI/AE WEEKEND 1984 24

SCHOOL NEWS 26 Faculty Notes 30

ALUMNI/AE NEWS Class Notes 32 In Memoriam 64 Alumnilae Gatherings 66 Coming Events Back cover

1 The first year of law school, most lawyers are not-and never, not once, was I ever though the object of endless called on by the judge to recite on a case other than the one facwty studies, is the one year I had fully prepared and was in the midst of trying. that doesn't really need atten­ What, then, has replaced Professor Kingsfield? All too tion. The students are new to often a technique I call "Socratic Solitaire," wherein the the entire subject of law, and professor (probably using his old notes) asks himself the generally they are fascinated questions he used to ask the students, answers them, and by it. It is in the second and demonstrates the problems with the answers-complete third years that keeping their with all the wild goose chases and blind alleys we all came attention gets tough, if only to know and love. You see the problems. It's inefficient because these are their nine­ teaching, and with the element of fear removed, it's boring teenth and twentieth years of teaching too. school. One of the reasons What might be better? that law school gets boring is One obvious possibility is lectures, of a sort that work that school gets boring! reasonably well in college survey courses. The problem The old model of law teach­ here-in addition to the fact that law students are older and ______ing was a Professor Kings- thus less tolerant-is that lectures also tend to get boring. field model, wherein a stu- What's more, they too are inefficient: instruction on, say, John Hart Ely dent was singled out for developments in the law of restrictive covenants could questioning and humiliation in probably proceed just as effectively by assigned reading as front of a classroom of peers. Contrary to folklore, such by lecture. Of course, in law as elsewhere, a lecture setting exhibitions did not require a master teacher (though some forth an original and creative theory can be a true thing of of those who practiced it certainly were masters). As read­ beauty. The problem is that such beautiful theories gener­ ers of this journal well know, any answer to a difficult legal ally take years to develop-even the best of us are lucky to or social question can be made to look shaky or worse; and come up with half a dozen in a lifetime-and, paradoxically, a room full of fellow students can always be counted upon to to the extent they are fully developed they too can probably giggle at the victim's plight-if only from relief that some­ be better presented in a book. So college-style lectures one else is being roasted. don't really seem to be the answer. Professor Kingsfield is largely a thing of the past, for Much legal doctrine seems custom-made for teaching by three related reasons. First, the political ferment of the late computer. In fact, computer teaching can offer many of the 1960s and early 1970s produced a generation of students advantages of the old Kingsfield method without its degrad­ who were simply unwilling to put up with such degradation ing aspects. A computer program provides the student with (and lest we forget, many of today's teachers are from that an opportunity to participate in the instruction, as well as same generation). Second (whether or not we like to face what she often says she wants-"feedback". (I grant you it), today's law students are, overall, smarter and better that feedback from a machine is not quite the same thing as educated than we were; and precisely because they get the feedback from a human being, but it's something: I know I idea so much sooner-including the idea that any answer used to discourse for hours with those Jack-in-the-Box can be made to look silly-they are especially unwilling to puppets who w-ere trying to sell me onion rings. ) undergo or witness such ordeals. Third, educational psy­ Actually I think computer teaching is a wave of the legal chologists, while agreeing on little else, do seem to agree future. The problem is that as of 1985 the programs-at that teaching by fear is not good teaching. Sweating palms least those I've seen-seem a trifle primitive; more impor­ may keep you awake, but they are not conducive to consid­ tant, there simply aren't that many available. And I am ered reflection on what is being discussed. frankly hesitant to ask our brilliant faculty to spend time Oh, I know that a lot of us romanticize those good old writing programs (which is unusually time-consuming work). sweat sessions in law school, but then I've heard people For the moment, therefore, we are "free riding" on what romanticize Army basic training too. In fact I'm tempted to good computer programs do exist, in the hope that intelli­ do so myself sometimes; but when I'm honest about it, I gent people will increasingly be drawn to the task of devel­ remember that basic training was really quite dreadful. oping themfurther, because law really does seem to be an Maybe it was justified insofar as there was a genuine possi­ area in which much of the necessary routine teaching could bility that I might one day be sent into combat. Some would be done with the help of a machine. say the "preparation for combat" argument applies to law The rage for some time, of course, has been so-called school too. But you know, I was a litigator-as, of course, "clinical teaching," though it is unclear exactly what that

2 Stanford Lawyer Spring 1985 THE CHANGING LAW SCHOOL CLASSROOM

word means in a law school context. In fact it has meant two second and third year "Socratic" classes, but in a way that quite different things. will prove more interesting to the students. Thus we are On the one hand "clinical teaching" has referred to teach­ teaching lawyering skills in passing, but centrally what we ing done in conjunction with the representation of live mean to be teaching-ina way that will hold their interest­ clients, typically poor clients, typically in a legal aid clinic. is family law, land finance, or whatever may be the content There is certainly enormous value to this sort of operation. of the clinical course in question. It keeps the students interested; it gives them real-world There is a critical problem with this kind of teaching, experience to help enrich our classroom discussions; and however: it is extremely labor-intensive and thus extremely by and large it is helpful to the community being serviced. expensive-it is no coincidence that a school like Harvard's Pedagogically, however (as Chuck Marson once pointed out tuition is a good deal lower than ours-and in human terms to me), there are at least three serious problems here. The it is fatiguing to the point where clinical teachers are likely first is that real cases are notorious nonrespecters of the to "burn out" and begin looking desperately for ways to semester system, and have a tendency to run on so long (or teach in more traditional (and less tiring) modes. My own blow up so suddenly) as to render them inferior teaching idea, as the faculty is aware, is that each of us should teach vehicles. The second is that real cases are unlikely to one of his or her courses in a "clinical" mode and the others involve more than one or two genuinely interesting legal in some more traditional way. For good reasons, however, issues: if a mix of fascinating problems is desired, one does the power of Deans is limited, and this is a utopia to which better to write one's own cases. Third, serious problems of we will be able to proceed only very slowly, if at all. legal ethics can be created by the conflict between the duty Another approach, and in fact we are making significant to one's client to settle the case in her best interest, and the progress along these lines, is to encourage the faculty to teI1;lptation to keep the case alive as a teaching vehicle. try incorporating into their "traditional" courses certain Overlaid on these problems is the consideration that legal "clinical" elements-interludes involving, say, mock judi­ aid clinics are very expensive, consuming a large percent­ cial, legislative, or bar discipline hearings, client interviews age of the budgets of law schools much like ours. That's or letters, negotiations, briefs, jury instructions ... what­ why Stanford has never started one, though as I reported ever. A cynic might suppose that the students would think in my last Dean's message, our students appear to have set all this to be "Mickey Mouse"-playing Lawyer for a Day­ up such a superior program in the East Palo Alto Commu­ and I confess that that was my own original expectation. In nity Law Project that we may soon inherit an ethical duty to fact this is almost never the reaction: the students appreci­ try to convince our friends to help keep it alive. But in any ate the variety, as well as the opportunity to taste what it event, for the reasons mentioned, this "live client" kind of will be to be a lawyer. clinical teaching cannot be the-and probably not even the Finally I'll let the other shoe drop. It seems to me we are principal-answer to the current crises in legal education. ready for a return to the Socratic method-but as practiced The other kind of "clinical" legal education involves role by Socrates, without the sadism. There are ways of leading playing-simulated situations of various sorts, in which law students along the path of righteousness without belittling students are called upon to play various lawyering* roles them. As between "Where'd you get that idea-from a bar (interviewing, negotiation, mediation, arbitration, litiga­ review outline?" and "Frankly, Mr. Smith, I don't think that's tion, and so forth) in the performance of which they are going to work, and here's why ... ," can there be any doubt videotaped and subsequently evaluated by their instructors which is the less denigrating? Direct disagreement is en­ and their fellow students. In this kind of clinical teaching, tirely consistent with respectful treatment. Stanford Law School is way out front. With infinite money and manpower, it would probably be By way ofconfrontingan obvious objection, let me quickly bestif we could teach most subjects clinically (in the second, admit that we are aware that we are less qualified than some role-playing sense), and in fact Stanford Law School is at of you to teach young lawyers skills, especially litigating the forefront here. But that mode of teaching is not suited skills. Certainly some such skills are conveyed by the sort to all teachers or all subject matters, and what's more, we of clinical teaching we do, but the principal values are simply can't afford it. We already run an expensive law elsewhere: in conditioning our students away from suppos­ school, precisely because we do so many creative things in ing that litigation is necessarily the most sensible way to the classroom, and I think we've just about hit the limit in deal with all legal problems; and more broadly, in conveying that regard. the same sort of legal doctrine that typically is taught in It is therefore time to recognize that there was a baby in the bathwater-that right as we were to get rid of the ridi­ *I'm afraid this neologism received official recognition at Stanford Law cule, that doesn't mean that we are not also right to make se­ School before I got here, when The Lawyering Process course was created. rious and sometimes public demands of our students. D

Spring 1985 Stanford Lawyer 3 Stanford Lawyer Spring 1985 4 Gerald Gunther William Nelson Cromwell Professor ofLaw

ries of alarm over the future direction of the Supreme Court were rife during the election seasonjust past. Commentators in and out of the C media pointed out that the health (variable) and ages (a majority over 75) of the presentJustices would most probably open a number of vacancies during the next four years. If President Reagan, with his conservative agenda, were reelected, the argument ran, these vacancies would be filled with sympatheticJustices who would reverse long­ standing Supreme Court doctrines going back to the activist Warren Court. Warren Courtjurisprudence would, in short, be doomed. Now President Reagan has been reelected. But does it follow that the Court will drastically change? In evaluating the predictions, some historical perspective is useful. We had similar warnings of dramatic change when Richard Nixon was elected, but Nixon's impact on the Court fell far short of the initial alarms. There is real basis for beliefs that Ronald Reagan's impact will be greater; but it is also wise to recall that the Court is remarkably resistant to change through appointment. In short, I am concerned, but Reflections on not panicky. But I am clearly alarmed about a real and little-publicized threat to our institutions-the possibility of a convention to amend the Constitution-ofwhich more later. First, the Court.

Looking Back Since with the Supreme Court, past is prologue, let me begin with a look backward. Richard Nixon named Warren Burger Chief Justice in 1969. Within the next three years, Nixon put three additional Justices on the Court: Harry Blackrnun, William Rehnquist, and Lewis Powell (but not Clement Haynsworth, and-happily-not Harrold Carswell, nor Herschel Friday, nor Mildred Lillie). Since Nixon, we have had three Presidents: Jimmy Carter, Gerald Ford, and the present incumbent. Carter had no appointments to the Court. Each of the Republicans has and on the perils chosen one Justice: Ford named John Paul Stevens; and Reagan has so far named Sandra Day O'Connor. ofnowcalling a That makes six Justices selected by recent Republican presidents; plus one Eisenhower appointee, William Bren­ Constitutional convention nan. Only Byron White and Thurgood Marshall were the nominees of Democratic Presidents Gohn F. Kennedy and to enact a balanced Lyndon B. Johnson, respectively). In short, seven of the nine presentmembers of the Court budget (or any other) are Republican selections. And all of the recent Republican amendment Presidents, starting with Nixon, have been strong critics of Warren Court directions; only Kennedy and Johnson were clear supporters of the Warren Court.

False Alarms The recent outcry about the Court is not new. The political orientation of the nominators-beginning with Nixon-had pundits predictinga dramatic turnaroundfrom Warren Court

Spring 1985 Stanford Lawyer 5 The BurgerCourt

jurisprudence almost from the day he apt- The Burger Court: The Counter­ dent oppostion by the Reagan Admin­ appointed Burger. And what the pun­ Revolution that Wasn't. 2 istration, almost all affirmative action dits expected, they soon claimed to Quite so. The most controversial, remedies that have reached the Court see. By the early 1970s, the New York innovative decisions of the Warren have in effect been sustained, from Times and other newspapers were Court still stand: Brown v. Board of Bakke, involving preferential admis­ running think-pieces and editorials, Education (the school segregation sions in higher education, to Webet; buttressed with statistical analyses, case); Reynolds v. Sims (the reappor­ involving preferences by private em­ under headlines such as "Conservative tionment decision) ; even Miranda v. ployers, and Fullilove, upholding Profile of a Nixon Court Discernible," Arizona (requiring detailed warnings congressional "set-asides" for minor­ "Supreme Court Begins Swing to the when criminal suspects are arrested). ity businesses. And other than some Right That was Sought by Nixon," "The Continuity, not counter-revolution, has nibbling away at the edges of Warren Nixon Radicals," and so forth. been, to many people's surprise, the Court doctrine, especially in criminal I argued then, in the Times and else­ dominant theme. procedure cases, the Court so far con­ where, that such assessments were And, quite apart from the leading tinues to reject the major Administra­ vastly overstated. The Nixon appoint­ cases, the major trends of the Warren tion pleas to change direction, as with ees, I pointed out, were not peas out Court persist. Judicial activism was the the most recent group of abortion cases of the same pod, would not be a solid hallmark of the Warren Court; greater and the denial of tax exemptions to bloc, and were mostly disinclined to judicial self-restraint was one of the racially discriminatory private schools. engage in a radical discarding of refrains of Richard Nixon in his cam­ Warren Court achievements. paigns and, allegedly, in his selection Going Their Own Way "There was no drastic rush to the process. Yet, if anything can be said of right," I wrote. "The changes were the Burger Court, it is that activism is What has happened, then, to confound marginal, not cataclysmic. [So-called] still very much a dominant strand in so many expectations about the Re­ 'retreats' were more typically refusals the Court's institutional performance. publican appointees of the last decade to extend Warren Court tendencies and It is a more "rootless" activism-a more and a half? narrow readings of Warren Court centrist, ad hoc activism-than that of First of all, most of the newJustices precedents. Not firm strides to the the Warren Court. But it is activism have obviously taken their robes, their rear but side-steps and refusals to step nonetheless. judicial independence, quite seriously. forward were characteristic. And in a After all, a Court-the Burger They have gone their own ways, often considerable number of cases, Warren Court-that hands down Roe v. Wade to the disappointment of those who Court principles were embraced and and the later cases removing most le­ named them to the bench. applied." I concluded that "portrayals gal barriers to abortions can hardly be One does not have to stop with the of a dramatic turnabout do not ring called a shrinking violet. Oohn Ely, for Nixon appointees' rejection a decade true. Rather, I see a Court divided, example, has called Roe as unjustified ago of the President's claims in the uncertain and adrift. ,, 1 a judicial performance as Lochner v. Watergate tapes case to repudiate the I have never written anything that New York, the 1905 case-widelycon­ excessively deterministic analyses of produced so much hooting from col­ demned as instituting three decades of those who expect direct quid pro quos leagues around the country and from economic policy-making by the Court­ by political nominees and who exag­ some of my friends injournalism. I was striking down a state limit on the hours gerate the impact of politics on the "whistling in the dark" or currying fa­ bakery employees may work. ) Court. vor or had, so the charges went, leapt Moreover, in a rough sketch such as In 1972, a lot of commentators ex­ from the ivory tower into the wild blue this, it is fair to say that the Burger pected Harry Blackmun to be Warren yonder. Some people evenbetme that, Court by and large has not retreated Burger's Minnesota Twin. I thought if I gave the Nixon appointees another drastically from Warren Court First that prediction wrong; but -it was sim­ two or three years, I would surely con­ Amendment decisions; indeed, much ply a guess then, unsupported by data. cede that there had indeed been a of First Amendment law was put on Now, the outcome is clear: Blackmun radical turnabout. more solid footing in the Seventies­ has proved to be quite independent, Well, here it is, twelve years later­ though that footing has gotten more lining up on the liberal side with Bren­ fifteen years after Warren Burgertook slippery in the Eighties. nan and Marshall a surprising and in­ his seat-and I still have not had to pay In the school segregation area, the deed growing number of times. up. Indeed, I think that my 1972 as­ Burger Court has not only repudiated Lewis Powell, I argued in 1972, was sessment can still serve as a valid ret­ Administration efforts to curb busing independent and impressive from the rospective evaluation of the Burger remedies but has indeed been remark­ start; and he has continued to be that Court. Some of my sharpest 1972 crit­ ably willing to endorse new ways of in many areas. John Paul Stevens­ ics have in fact done a volte-face in a curbing intradistrict segregation. selected by Ford, the least ideological 1983 book whose subtitle is especially Similarly, despite increasingly stri- ofrecent Republican Presidents (more

6 Stanford Lawyer Spring 1985 accurately, perhaps, selected tion to the Court tend to worry by the best Attorney General about the Court only with re­ in many years, Edward spect to a narrow cluster of Levi)-has been quite inde­ Issues. pendent from the beginning. Recall, for example, the Even Sandra O'Connor-ex­ case of Franklin D. Roose­ pected by some to be merely velt. The major changes in the Rehnquist's Arizona and economy that the Roosevelt Stanford twin-not long ago Administration enacted in its spoke for the Court in reject­ first term ran into repeated ing Rehnquist's efforts to un­ vetoes from the Court. FDR dermine the semi-suspect, was frustrated because the intermediate scrutiny level for Nine Old Men stood in his way; gender classifications devel­ and he did not have an oppor­ oped during the mid-Seven­ tunity to replace even one of ties. Of the six sitting ap­ them during his first term. pointees of recent Republican Shortly after, his Court-pack­ Presidents, only one-Wil­ ing plan of 1937 failed in the liam Rehnquist-has shown Senate. But the dam soon real eagerness to reexamine broke, and before FDR left and repudiate some major for­ office, he had nine opportuni­ mulations ofthe Warren Court. ties to send Supreme Court What went wrong? Why nominations up to the Hill. haven't recent Republican All of his appointees proved Presidents been more suc­ to be loyal New Dealers in the cessful in their efforts to sense-the only sense-that change the Court's direction? he hoped: all joined in dramat­ I do not, of course, mean to ically changing the constitu­ say that they have had no im­ tional ground rules by elimi­ pact: most of the appointees nating many of the barriers to are more conservative, with governmental regulation of the respect to states' rights and economy. But Roosevelt had social justice and criminal no special interest in the ide- procedure, for example. They The Burger Court and its ological direction of the Court lack the overarching value beyond that. His nominees, commitment to equality of the Republican appointees have at least unanimous about regulatory Warren majority, and they are so far left a remarkable part ofthe power, soon spread all over more receptive to competing Warren Court legacy quite intact. .. the lot on individual rights. claims of individuality and au- Again and again, for example, tonomy; and these values have one found Felix Frankfurter from time to time had impacts and Robert Jackson on one on statutory interpretation and consti­ cause both had strong ideological disa­ side, Hugo Black and William O. Doug­ tutionallaw. greements with the Court, that expec­ las on the other. But I deliberately emphasize the tations of dramatic changes in So it proved to be for Nixon. To him, really quite remarkable continuity, the constitutional law arose. In the face of the critical issue-virtually the only institutional unwillingness to engage in that, what explains the continuity? Let Court-related one he expressed inter­ any radical turning back of the clock­ me suggest several factors. est in-was law and order. Even there, the phenomenon, in short, of the he proved only marginally successful: "counter-revolution that wasn't." And Some Reasons for the as I have said, despite some significant that continuity has taken place not be­ Continuity whittling away, there has beenno over­ cause most of the recent Republican turning of major Warren Court crimi­ Presidents, like most Presidents in our First of all, there is the inherent short­ nalprocedurelandnnarks-atleastnot history, have been uninterested in and sightedness' the inherent limited at­ yet. As to most constitutional issues, inattentive to the Court. It is precisely tention span, of most Presidents. By the Nixon appointees have gone their because at least Nixon and Reagan made and large, even those Presidents who own different ways. the Court 'a campaign issue, and be- have reason to pay very serious atten- For Reagan, the social issues-

Spring 1985 Stanford Lawyer 7 Courts of Appeals vacancies-not only Bob Bork but also Nino Scalia of Chi­ cago, who now sits with Bork on the D. C. Circuit, and Ralph Winter of Yale, now on the Second Circuit in New York, and Dick Posner of Chicago, now on the Seventh Circuit there. A Bork type of Supreme Court Jus­ tice might well be more of an intellec­ tualleader, even more ready to reex­ abortion, school prayer, busing-have a terribly fragmented Court, with too amine precedent, than William been central. Sandra O'Connor was many separate opinions, too many ca­ Rehnquist has been. A ~eese-type ap­ with the dissenters in the most recent sual dicta (for which one can blame the pointee can probably be counted on abortion cases, to be sure; but she has explosion in the number of law clerks more reliably in terms of short-term shown some independence. And she only in part). results. did, as noted, repudiate Rehnquist on But none of that seems to me to I suspect that the prospects-or the sex discrimination issue. undercut my basic theme-that the horrors-of basic and lasting consti­ Another source of explanation for Burger Court and its Republican tutional change are more likely to be the relatively limited impact of the Re­ appointees have at least so far left a realized from strong-minded academ­ publican Presidents lies in the nature remarkable part of the Warren Court ics than from more run-of-the-mill of conservatives and conservatism. To legacy quite intact. political appointees. For better or for some conservatives-those who are worse, academics such as Bork have conservative rather than radical reac­ Looking Ahead thought about constitutional law and tionary in outlook-precedent and the role of the Court for years, broadly continuity rank high in the scale of val­ What of the future? I am certainly not and deeply. They have a considered, ues. And for those conservatives Ous­ willing to make any bets or predictions coherent (some would say unduly rigid) tice Lewis Powell is probably the best that there will be as few dramatic constitutional philosophy. I doubt that contemporary example), well-estab­ changes from the Supreme Court in anyone would say that of the ~eese lished law is not to be readily over­ the next few years as there have been type of nominee. turned, even if the Justice would not for the last fifteen. Ronald Reagan, like Even now the exclusionary rule is have supported its creation had he sat Franklin Roosevelt, may well have undergoing re-examination. Soon, with on the Warren Court. several opportunities to leave his im­ the strong prospect of changed per­ ~oreove~ the mood of the coun­ print on the Court. And President Rea­ sonnel, a good many more well-estab­ try-despite all of the annoyances with gan's commitment to his social agenda lished parts of Warren Court doctrine particular Supreme Court decisions­ shows no signs of lessening. may well be up for reconsideration. has to a very large extentabsorbed the The kind of impact future Reagan However, a Reagan Court of the fu­ major, initially quite startling develop­ appointments have will in my view turn ture will not necessarily be a catastro­ ments that came from the Warren on the nature of those appointments. phe, though the risks are greater than Court, from legislative reapportion­ Will he name people of the ilk of Ed proved to be the case with the shrill ment to race discrimination. The ideo­ ~eese-a trusted political ally but not prophecies of the early Seventies about logical clock has moved forward over a person with a long-developed, well­ the Nixon-Burger Court. the years, and that makes it harder for formed constitutional philosophy? Or anyone to engage in persistent efforts will he name people such as Bob Bork, The Constitutional to turn it back. the former law professor at Chicago Convention Threat Don't misunderstand me: I am not and Yale and Solicitor General in the trying to paint an admiring portrait of Nixon Administration, who now sits on But I ought not to stop without saying the Burger Court. I can-and often the federal Court of Appeals for the a word about a fear I have that may do-go on at great length criticizing District of Columbia? more closely resemble a nightmare. particular opinions and trends. And I I suspect that those who fear or ~y fear goes less to what the Court have repeatedly criticized the institu­ desire dramatic long-term change in may do than to what the country may tional processes of the present Court. Court direction had better look to the do. ~y fear stems from the ongoing When I said in 1972 that this was a Bork rather than the ~eese type of campaign to resort to a hitherto un­ Court divided and adrift, I expected appointee. The Reagan administration used method of amending the U.S. the Justices to get their footing and has been quite sophisticated, in my Constitution. develop greater coherence before long. view, in naming some of the nation's The 26 amendments to our Consti­ I by and large still await that. It is often outstanding conservative scholars to tution have all been added by only one.

8 Stanford Lawyer Spring 1985 The BurgerCourt

of the two amendment routes delin­ ecutive power, or what have you. And, eated in Article V: two-thirds of Con­ though this campaign has not yet hit gress has proposed amendments; the headlines, there is a growing un­ three-fourths of the states have then dercurrent of noise claiming, as Cutler ratified. The untried alternative route does, that the Framers would be is to have amendments proposed not shocked if they knew there had been by Congress but by a constitutional only 26 amendments to the document convention-a convention that Con­ wrought nearly two centuries ago. gress must call iftwo-thirds of the states Why does a constitutional conven­ demand one. Two-thirds of the states tion give me nightmares? I am not de­ today means 34 states. nying the legitimacy of the convention Today, 32 of the necessary 34 state route. Nor do I have strong feelings legislatures have applied to Congress about the merits of the balanced budget to demand a convention to consider a amendment (although I think it mighty balanced budget amendment to the ironical that some of its strongest sup­ Constitution. If two more states follow porters are also among the strongest suit, and if Congress hasn't in the critics of the Court, and yet tell us that meanwhile proposed an amendment of the uncertainties in the budget amend­ its own, Congress will have to call a ment's language would be resolved by­ convention. And no one really knows who else?-the Supreme Court, which how that convention will be organized, would thus gain a major role in fiscal and, most important, how broad its policies as well as the present range of Professor Gunther, a noted scope will be. political and social ones). Constitutional Law scholar, is a long­ In my view, convention delegates No, myconcern comes from thepro­ time observer ofthe Supreme Court, may consider any issue perceived by cess by which we have come so very where he served in 1954-55 as clerk to those who elected them as important close to reaching the necessary num­ ChiefJustice Earl Warren. A Harvard to the country; thus, a convention would ber of states to trigger a convention- Law graduate (LL.B., 1953), he not be limited to the single, balanced , a process which has in most state leg­ practiced law in New York City and budget issue. We simply have had no islatures been one of perfunctory de­ was aprofessor at Columbia University experience with that convention bate simply on the pros and cons of Law School before coming to Stanford route-unless you consider the argu­ fiscal responsibility, with virtually total in 1962. He was named to the William ably relevant one of the Philadelphia inattention to the risks of the conven­ Nelson Cromwell Professorship Convention of 1787, which was called tion route (at least no discussion be­ in 1972. for narrow purposes and itself became yond unfounded reassurances about the Professor Gunther is author ofseveral a "runaway" one. risk-free nature of calling a limited books, including the definitive textbook Convention applications are now convention). (now going into an 11 th edition), pending in a number of states. Re­ I think that is an extraordinarily Constitutional Law (Foundation cently, California very nearly became irresponsible invocation of constitu­ Press). He is presently preparing the the critical state. We were about to tional processes. And, given the polit­ first full biography ofJudge Learned confront an initiative on the November ical dynamics and possible scenarios, Hand, for whom he clerked in 1953-54. ballot to press our legislature to apply the convention that confronts us could This article is based on a speech by for a balanced budget convention-or well produce as much substantial con­ Professor Gunther to the San Mateo else lose all salaries and otherbenefits. stitutional change as anything we have County BarAssociation, on December A California Supreme Court decision seen or indeed can anticipate from the 6, 1984, one month after the removed that issue from the ballot. But Reagan-Burger Court. D national election. the issue continues very live indeed in other states. And this is not the only movement afoot for constitutional change. A scat­ Footnotes tered number of moderate and liberal leaders-with Lloyd Cutler, President 1 Gunther, "Law and the 'Burger-Nixon' Court," New York Times, Aug. 9, 1972, 37:2. See also Carter's White House Counsel, in the Gunther, "Foreword: The Supreme Court, 1971 lead-are also holding meetings to Term," 86 Harvard Law Review 1 (1972).

consider allegedly necessary constitu­ 2 Blasi, V., ed., The Burger Court: The Counter­ tional changes, such as moving toward Revolution that Wasn't, Yale University Press, a parliamentary system, increasingex- 1983.

Spring 1985 Stanford Lawyer 9 Two years ago, on january 3, 1983, How do you like being back in private advice, and do real estate transactions. PaulN. McCloskey,jr. (AB'50,jD'53) practice? I can't do any of that anymore. They resumed the private practice oflaw, as a I'm enjoying it tremendously. It's a are all specialties now, and I'm trying resident partner in the Palo Alto office pleasure to be in the clean combat of to sharpen my skills as a trial lawyer. ofBrobeck, Phleger& Harrison ofSan trial law and dealing with local prob­ Most people come to me because Francisco. He lastpracticed in 1967, as lems of real people, instead of in the they want representation in a cause. founder and seniorpartner ofMcCloskey, Washington rat race. I haven't missed The old black citizens of East Palo Alto Wilson, Mosher & Martin (the Palo Congress at all. Occasionally there are wanted me to contest the incorpora­ Alto firm now known as Wilson, Son­ issues that I'd like to speak out on­ tion election over there. We've done sini, Goodrich & Rosati). Congress provided a chance to do that, that-a historic, landmark decision. It's The interveningfifteen years, during which I no longer have. But the chal­ going to the state supreme court. It which McCloskey represented Stanford lenge of learning to be a lawyer again may go to the United States Supreme and environs in the U.S. Congress, were is much more exciting than the day-to­ Court. fraught with change and controversy­ day life of a Congressman. We just won another case. I had a for McCloskey, the Republican Party five-day trial for a local black church (where he gave the term "maverick" new Was it difficult to get back in gear after that had deeded its property to the meaning), and the nation, as well as for fifteen years in Congress? national church under rules entitling the troubled lands ofSoutheastAsia. the national church to hold all of the McCloskey, a decorated Marine and No. The problem with the Congress is property. Then thirteenyears later the teacher of legal ethics, did not shrink that you have only one or two times a local church wants to break out. We from battle, up to and including chal­ year when you can affect the national were successful in getting the judge to decision-making process-and that's lenging his party's sitting President in allow them to take their property with an exhilarating thing. But 98 percent the 1972 primaries. His congressional them. People broke into tears in the of the work of an individual Congress­ career ended in 1982following a blunt­ courtroom. Itwas a marvelous victory. spoken and unsuccessful campaign for man is really not work at all. You're just going through a process, not hammer­ the Republican nomination to the Senate. Didn't you get quite a bit offlack over "Pete" (as he is commonly called) now ing out a hard answer or a brief or a contract. That's one reason I think any that EastPalo A lto incorporation case? lives in Woodside with his wife of two good lawyer or productive individual is The flack didn't bother me. It's less years, the former Helen Hooper. He has than I got when I said Richard Nixon four grown children from his first going to be rapidly frustrated in the Congress. was a crook, or that we ought to get marriage. out of Vietnam, or that the Jewish lobby The following conversation-in which What kind ofpractice do you have now? was too active in regard to Israel. It McCloskey discusses his experiences in sort of blows off your back after a while. law, politics, and public service-took Well, I think the firm hoped thatI would place on December 18, 1984, in his sun­ bring in all kinds of large corporations So you weren't arguing a side that you lit corner office at Brobeck, Phleger's because of my experience in dealing didn't personally agree with? new east-of-Bayshore offices. Editor with Washington; and indeed I have Constance Hellyer (whose remarks done maybe one or two cases a month I have nevertaken a case where I didn't appear in italics) served as interlocuter. that involve untangling some red tape feel the client was either right or was Opinions expressed herein are not or trying to affect the legislative or entitled to a better shot than he was necessarily shared by the editors or executive administrative process in getting from whatever authority was Stanford Law School. someway. attacking him. But essentially I've come back to In this case, the senior citizens of Palo Alto and started taking every kind East Palo Alto-people that have owned of case that comes by, primarily in the their homes, run their churches, and trial field or in business negotiations­ battled to get their kids equal educa­ the same specialties that I handled tion-those people essentially oppose before. I was then, I suppose, a civil incorporation. trial lawyer, but I could also do criminal The people for incorporation say, defense, write wills, give people tax "Regardless of what else, we want to

10 Stanford Lawyer Spring 1985

govern our own fates." That's a point Chuck Percylost his seat in the Sen­ this big firm and others to finance the of view, and I value it; and for fifteen ate very probably because of it. When Stanford Law students' effort to pro­ years I tried to help them create their you raise a million and a half dollars in vide legal services for the poor people own city. But it was all contingent on Los Angeles to defeat a senator in Illi­ of East Palo Alto. getting a tax base that would support a nois because that senator had sug­ But there's always·that pressure to city. They are sitting out there now gested there should be a Palestinian contribute your share of the income of with millions of dollars worth of road state-. the firm. I will be doing that, but nobody work that they can't perform. Conse­ There is no lobby in the country does it their first year, or even their quently, I think incorporation ought to more dedicated to its cause than the second year. I feel I've got to reestab­ be deferred until such time as eco­ lish my reputation as a lawyer rather nomic conditions permit a tax base that than as a politician, and the two are will support a city. entirely differe.nt. A lot of people wouldn't go to a lawyer because they What about the Jewish lobby issue­ think he's a politician and not a compe­ didn't that hurtyou in yourSenate race? tent lawyer. That's a challenge. I figure Yes, it did. A number of Jewish busi­ I'm about three years short of regain­ ness executives and community lead­ ing the competence and skill that I had ers who had supported me changed in 1967. their position in the middle of the You've been speaking very warmly about campaign. being back in private practice. Can you The debate between Wilson and summon up any warm feelings for your myself was that he advocated the fifteen years in Congress-frustrating annexation of Gaza and the West Bank, as it was? and I advocated that we cut off aid to Israel unless they gave up the West Well, when I say frustrating, it's not all Bank and Gaza. That was a bona fide negative. Frustration can be a marvel­ issue. ous part of the process, because that's There was objection. to the term when you get your best government­ "Jewish lobby," because there are when a lot of people get so frustrated apparently a number of Jews who do The freshman congressman and that they work hard to try to change not agree with what Israel is doing. theHouse majority leader something. And the objection was made that even I probably was the luckiest person use of the term was anti-Semitic. But Jewish lobby. The only two that begin in the Congress. My first seven years we were not anti-Semitic-that existed to match it are the National Rifle Asso­ there were as exciting as any in our in the minds of others. ciation and the right-to-life groups. In history. We had tremendous contro­ So it was controversial, and it is all three cases, it is a deeply held, versy: Vietnam, the environment, controversial. sincere "view that makes all other issues Watergate-all had an incredible impact pale to insignificance. For the Jewish on the nation. lobb~ the view is that the United States Do you feel that this lobby has pushed I was the first Republican elected should aid Israel at all cost. against the Vietnam War. I was the first American policy out ofshape-awayfrom But I have no regrets. My political our self-interest? real environmentalist elected to the career has essentially been trying to Congress-my firm had specialized in There's no question but that our policy say what is truthful rather than what is environmental matters. And I was the in the mid-East is distorted, because politic. cochairman of Earth Day in 1970. there is no Arab-American lobby that I made the first speech suggesting even begins to compare with the Jew­ Doyou feel at all constrained-now that the impeachment of Richard Nixon. I ish-American lobby. you're a member of a law firm-from remember calling Carl Spaeth, who was takingpolitical positions? my Dean at the Law School, and read­ Were you misunderstood on this issue? Well, the firm would probably prefer ing him the speech I was going to give. No, no. I stated what I believe very that I be a little less controversial. But He said, "You're right-it's a terrible clearly. It is not customary in America I haven't backed off an iota. thing to do politically, but you're abso­ for politicians to take on the Jewish I've also undertaken to be chairman lutely right. " community on the issue of Israel. Just of the local legal aid service-some­ My last seven years there were as basic politics-never take on the Jew­ thing that I did twenty-five years ago. an ordinary working Congressman. I ish lobby. And I'm helping to raise money from became ranking on the Merchant

12 Stanford Lawyer Spring 1985 Marine and Fisheries Committee-got Well, I don't know that I'm the best on the right wing bring in religion as a to go to the Whaling Conference, was person to speak on this. I joined the litmus testof political electability, I rise an advisor of the Law of the Sea Con­ Republican Party when I became 21 in up in anger. ference. I learned a lot about interna­ 1948, because of the view then that the Actually I held maybe five fund-rais­ tional law, traveled to forty or so Democratic Party was the party that ers in Palo Alto for senators, mostly countries, and met with Begin, Sharon, had put down blacks in the South for a Republicans like Bob Dole of Kansas, and Mubarak, and with Indira Gandhi. hundred years. We were the party of and Bill Cohen of Maine. But we raised And there was the work with the FBI Teddy Roosevelt, conservation, civil three times more money for Jim Hunt, and the CIA. rights, and women's rights. who was running againstJesse Helms, Yes, I was glad to be there. But I'm That's changed, so that the Repub­ than we had for any ofthe Republicans. even gladder to be back. If something lican Party appears to be the party of [DemocratHuntultimatelyfailed to dis­ opens up-if George Bush got to be business, and the Democrats the party lodge Helms (R.-N.C.). Incumbent President and said, "We'd like you to of labor and intellectual esoteric Cohen (R .-Maine) and challengerHar­ come back and serve in some capac­ thought. Democrats are generally kin (D.-Iowa) won their races. Dole (R.­ ity"-I'd be glad to do that. warmer and more compassionate, but Kansas) is not up for reelection until But I don't have any sense of regret a little fuzzy about how to get there. 1986.-Ed.] over losing that Senate race. For the Republicans are sort of drummed-up next year I watched Pete Wilson as a patriots-convinced that their way is So you don't subscribe to the philosophy freshman Senator, and I'll tell you­ right, and the other side wrong. of"my party right or wrong"? that job looked even more frustrating I don't fit in either political party than the House! very well, and I don't choose to make From the Courthouse to the State my efforts in either party. I think that I House-No. I would rather work for Afterfifteen years in Congress, can you have to be what I am and do what I do. the man or woman than the party. recommend any changes to improve its That infuriates some Republicans. The big problem in our political sys­ effectiveness? I campaigned for Reagan and Bush tem is getting good, solid, successful Not really. I feel that I can do as much in the last election, despite my disa­ people to run. And it's very difficult to as a private lawyer in Palo Alto as I greements with some of the Reagan raise money for them. So I've said I could in the House. policies, because I thought they were will help any person willing to enter preferable to Mondale, Hart and Fer­ politics in either party, if they're hon­ Do you think the party primary system is raro. But I went to Iowa to campaign est, work hard, and are willing to give agood way to choose candidates? for Tom Harkin, a Democratic Con­ a few years to public service. You know, I'd prefer an open primary where peo­ gressman, against Roger Jepsen."Jep­ it's hard to be a leader in the American ple could chose which primary they senhad said that the election was a test system. We built it to elect represen­ wanted to vote in. of atheistic humanism versus Judeo/ tatives, not leaders. So you can't expect The current system favors right­ Christian absolutes. When those guys courage from an elected official. You wingers getting nominated on the Republican side and left-wingers on A White House meeting with the President the Democratic side, because the zeal­ ots on both sides tend to support can­ didates who satisfy their views on abortion, gun control, Israel, or some other special issue. At the same time, more and more people in the middle of the road have beenregisteringas Inde­ pendent, refusing to vote in either party primary. So the moderate candidate is penalized in the primary process. I've worked on two occasions to get this changed, but been unsuccessful thus far. The Republican Party in general didn't do nearly as well as the President in the last election. What advice would you give them?

Spring 1985 Stanford Lawyer letter I'll never forget. It went like this: "Mr. President: With this letter I am returning your commission appointing me an Assis­ tant Secretary of the Department of Health, Education and Welfare. The accomplishments of your administra­ tion will always be a source of pride for me. But they are overwhelmed by the enormity of the wrong we are doing in bombing North Vietnam. All of us as Americans will carry to our graves responsibility for this monstrous act. In that sense returning this commis­ The candidate in New Hampshire, with fellow also-ran Muskie (1972) sion means nothing. It is merely the only way I can express privately to you ner in Stanford Law School-one of can expect him to be responsible, but my sorrow and shame. Sincerel~ Lewis the best, ablest lawyers I knew. He you can't expect him to lead. People H. Butler." who lead get beaten rather hard about said later, when I visited him in the There will always be people like that the head and ears. federal penitentiary, that it took them who may stand alone for a time but about three-and-a-half years to become who set a standard that the country Was that your experience when you ran corrupt in the 'sense of believing so looks at. against President Nixon in the 1972 strongly in what Nixon was doing that Those were dark days. I wrote a primaries? they thought it was appropriate to vio­ book in 1971 for my children to try to Well, I ran against Nixon because we late the law in order to keep Nixon in explain why the system of government couldn't get any other good Republican power. was worth supporting even though to challenge him. I tried to get Chuck I think that's an absolute truism­ everything seemed to be going bad. Percy or Mark Hatfield to do it. The that as you're in a position of power, I'm going to write another one in 1985 Vietnam War was on. If no Republican you will begin to believe so much in for the anniversary of the Annapolis challenged him, he had another eight your value that you will do whatever is Convention, saying that, "Really, the months to do as he pleased. necessary to stay in power. And the system is working very well. ", So I ran, not with any expectation of counterforce to that is the American What's missing is the involvement of winning, butjustto force him to debate constitutional system, which allows us good people in the system. Most of the war. He frustrated that completely to throw them all out. them run banks or law firms or uni­ by going to China the closing weeks of versities and do not get into politics. the New Hampshire primary, and the You once said, during the Watergate voters forgot about Vietnam. affair, that your faith in the ability of Is that whatyou'd say to your Law School Looking back, though, it was a human beings to resist the corruption of friends-HGet involved"? worthwhile effort-craz'y, but power was shaken. How does one resist Yes. I make that speech about once a worthwhile. this in Washington, D. C?How didyou? week to some group of people who are Well, I never had power. All I can say sitting here fat and sassy on the Pen­ What do you hope we as a country would is that many times, in looking at what insula and thinking politics is a dirty have learned from that whole, sad those fellows were going through, I business. That used to be my view episode? wondered whether, had I been in their when I was practicing la\v. I thought That we have the best system and the situation, I would have gone along. The only bad lawyers went into politics­ best government in the world, but basic rule of politics from the moment people who couldn't make it, and were you've got to work at it. And it probably you get there, by all your elderly col­ indulging their desire for power and proved Lord Acton's comment, "Power leagues, is "Go along and get along. " gloI)T. I had no idea whatsoever of going tends to corrupt and absolute power A great example of a person who into politics. I was 39 when I first ran corrupts absolutely," and always will. resigned rather than carryon some­ for Congress. So people better pay attention to how thing illegal was my own law partner, It was 1967 and our local congress­ people in power are operating, or they'll Lewis Butler ['51J, who had also been man suddenly died. We had this special steal us blind. in those famous Moot Court finals in election. Ronald Reagan was our Gov­ You know, these are my friends. John 1950. Lew, who quit about two years ernor, George Murphy was our Sena­ Ehrlichman ['51J was my debate part- into the Nixon Administration, wrote a tor, and Shirley Temple was the odds-

14 Stanford Lawyer Spring 1985 on favorite to be our Congresswoman. to serve in public service for one year, that I was getting all involved in this There seemed to be some reason to five years, ten years, fifteen years. exhilarating process of ending a war. challenge that lineup. So I ran. And That's a civic duty. through a lot of good friends and a sort Anythingyou'd like to add? of amateurish effort, I got elected. Almost the Greek ideal of the citizen­ No. You're looking at a happy man sit­ politician- ting in probably the finest community Do you think that two years is too short Exactly right. When I was a private a term? lawyer, I wanted to be a citizen-soldier. No. The beauty of it is that the people In time of war, you fight; in time of of the United States every two years peace, you stand ready can throw the entire.House of Repre­ to fight. I stayed in the sentatives out if they want to. And reserve. The reason I going through that exercise, I think, could take the position I tempers the otherwise rebellious spirit did against the Vietnam of the people. War was I'd volunteered But you mentioned one of the real to go to Vietnam in '65. difficulties with politics-time. When I'd commanded in the you get into the system of running for Marine Corps insurgency office and then serving in office and school-was an expert on thinking about the election, it's essen­ insurgency warfare. So I tially a twenty-hour day. There is so could speak out and say, much to learn, so much to see, so "Look we can't win this many issues to study, and so many war," and have some facts people to talk to. You can get so and arguments behind it. enmeshed in it that you forget about your kids and your wife. And I was. What about ElSalvador-? Those were difficult years-'67 to I think we're crazy. I don't '74. I had I think seven tough elections think we make any friends in in about five years. I'd always fight off Latin America by trying to a Republican opponent in the primar­ say who governs or who ies. And I had trouble in the '72 general doesn't govern. I opposed our election when I challenged Nixon. I intervention in Nicaragua. I would have been defeated in '74 except opposed what Nixon did in that Stanford kids all registered Chile. It's a self-serving posi­ Republican-they turned a defeat into tion we take, and I think it's a narrow victory. counterproductive. I think we Those years cost me. My family actually create communists by broke up. It's a very grueling existence trying to support autocractic if people work at it. And there are no right-wing governments against financial rewards. I earned three times people who have a history of as much the last year I practiced law as rebellion for the last 200 years. I earned as a Congressman. Looking back on youryears in pol­ What would you say ifone ofyour kids itics, has it all-the criticism, the wanted to go into politics? campaigning, the stress, and the I hope they will. But my advice to loss ofincome-been worth it? young people is: learn a career first. Sure. I'd do it again. The privilege of Get good at something, so that you participating in the shaping of events is in America, with the best weather, the never need to be in office-so you're more than enough reward for all of the best recreation, the best people, the never in a position where if you get other things you could have-with the most talented and success-oriented defeated you can't earn a living. That's possible exception of your family. The community in the world-right here. where you really get your crooked greatest error I made, in retrospect, politicians. was forgetting that I had kids and a Well, thank you very much. I think everybody ought to be willing wife, who also had needs at the time My pleasure. D

Spring 1985 Stanford Lawyer 15 of Attorney for Health:~:';Care" laws,,"al­ IpwiIl:g an individual, to,plar i,n ad~ance for .' decision making during lier' own te(;mip~l illn~ss. »' ," '*1 ","" ' It is, however, important to remem- Del! that such l~ws-+tl1otighhelpfuI't0 individual patients w~

(1\ig~tb1Jiv) _

or cardiac arrest. Under this approach, proportionate A 1981 New York court confirmed treatment is that which, in view of the the patient's right to determine his own patient, has at least a reasonable chance medical treatment. Brother Fox (a ofproviding benefits to the patwnt, whu:h monk) was comatose and dependent benefits outweigh the burdens attendant on a respirator for life. On the basis of to the treatment. Thus, even if a pro­ statements he had made to others about posed course of treatment might be ex­ Karen Ann Quinlan's situation, it was tremely painful or intrusive, it would established by clear and convincing ev­ still be proportionate treatment if the idence that, if he were able, he would prognosis was for complete cure or sig­ have refused consent for use of the nificant improvement in the patient's respirator, and such use was with­ condition. On the other hand, a treat­ drawn. BrotherFox is higWy significant ment course which is only minimally because of its reliance on both oral and painful or intrusive may nonetheless written statements previously made be considered disproportionate to the by a patient now hopelessly ill and to­ potential benefits if the prognosis is tally lacking in capacity. virtually hopeless for any significant improvement in condition. subsequently filed against them by the Citing Quinlan and Dinnerstein, a California Leading Cases: Los Angeles District Attorney. A legal very definite dichotomy was drawn by Barber and Bartling roller coaster followed, with a munici­ the court between a normal, sentient pal court judge dismissing the murder existence on the one hand, and a "bio­ The filing of criminal charges against charges, a superior court judge rein­ logical vegetative existence" on the physicians who exercise their best stating them, and a court of appeals other. Using this analysis, and because medical judgment and obtain unani­ ultimately resolving the matter by ef­ Mr. Herbert was diagnosed as irre­ mous family consent in ordering with­ fectively dismissing the charges in a trievably comatose, the court then ad­ drawal of life-sustaining treatment precedent-setting opinion, Barber v. dressed the question of who should would be viewed as an unconscionable Superior Court, 147 Cal. App. 3d 10006 make treatment decisions. It noted that and horrific development by the medi­ (1983). the physicians acted properly in rely­ cal community. It would confirm their The appellate court scolded the Cal­ ing on Mr. Herbert's wife, who was worse fears, and have a classic chilling ifornia legislature for failing to take the identified as the most appropriate sur­ effect on traditional, well-established initiative, and stressed the lack of reli­ rogate. In fact, Mrs. Herbert was joined medical care practices. Yet this is pre­ able standards and decision-making by eight of their children in deciding to cisely what happened in the aftermath methods that would eliminate or mini­ withdraw the medical treatment. This of a decision by two California physi­ mize the need for court involvement. decision was bolstered by reports that cians to let Clarence Herbert die. The Barber court took a major and Mr. Herbert had told his wife that he Mr. Herbert had suffered cardiopul­ protective step forward in finding mur­ did not want to become "another Karen monary arrest shortly after surgery der charges to be inappropriate. Going Ann Quinlan. " for closure of an ileostomy, went into a further, it outlined decision-making While Barber is lauded by medical coma, and was placed on a respirator. criteria that placed substantial reliance care providers for affording them a Mter five days, the physicians deter­ on the March 1983 Report ofthe Presi­ measure of protection from criminal mined that Mr. Herbert's condition was dent's Commission for the Study ofEth­ charges, it did not address exposure irreversible and so advised his wife and icalProblems in Medicine andBiomed­ to civil litigation and its less demanding family. With Mrs. Herbert's consent, ical and Behavioral Research. Mter standard of proof. Indeed, the same use ofthe respirator was discontinued. confirming that a patient's wishes are physicians who implemented nontreat­ Mr. Herbert continued, though still always dominant, the court addressed ment decisions in Mr. Herbert's case comatose, to live without assistance situations with a focus on whether a are currently defending a multimillion­ from the respirator. The physicians then particular procedure was "ordinary" or dollar civil action brought by Mr. Her­ obtained written spousal permissionto "extraordinary," and described a bal­ bert's spouse, despite her earlier writ­ terminate administration of nutrition ancing analysis. That analysis focused ten approval of the actions taken. and hydration; six days later, Mr. Her­ on "whether the proposed treatment While Doctors Barber and Nejdl are bert died. is proportionate or disproportionate in being sued for seemingly following a Doctors Barber and Nejdl were terms of the benefits to be gained ver­ family's decision, other physicians and shocked, as was the entire medical sus the burdens caused." a hospital in Glendale, California, were communit~ when murder charges were The court went on: recently sued for refusing to follow a

18 Stanford Lawyer Spring 1985 pati~Iif's'and hi~ f~nilty~s instructi~it,;;:;< In this case, William Bartling, now Michael Giljix (AB'69, fD'73) deceased, suffered from at least three practices in Palo Alto with Giljix terminal conditions. None of these Associates, afour-attorney legal and conditions were certain to cause his consultinggroup including his wife death in the immediate future. The From both common sense and legal andfellow Stanford Law graduate, hospital's legal counsel was apparently perspectives, it is wise to establishand Myra Gerson Giljix ('76). He also the source of advice to maintain Mr. exercise one's right to plan for incapac­ serves on the ethics committee ofE1 Bartling's treatment, indicating that to ity, and a terminal con9ition. In recent Camino Hospital in Mountain View. do Qtlierwise could be viewed as active years, this has been done by executing His interest in the Hright to die" issue ~ "liv~~g exce~le~~ eut~~~~~ia. CausY.~';ofaction i? !!~r:. will," "whicQ!S 9n grows out oflong involvement with the tli~~~i:1ude violati6~'ofehis constttn-' exp~ "'>' ·9~1 ..,.;9f de.~!r' .' .... die '" ~itqo~t:}# problems ofthe elderly. In 1973, just tionafrights (life, liberty, privacy), bat­ 'needl 'and extra0F ary medical'ih.3c:: aftergraduatingfrom the School, he tery, intentional infliction of emotional terventlons. Particularly, however,'in' founded and became first director of distress, and conspiracy. states that have explicit legislation ad­ SeniorAdults LegalAssistance, in The Bartling family's approach rep­ dressing this issue, the living will is not Santa Clara County. resents a new aggressiveness in as­ enough. Giljix has served on the California serting patients' rights to self-deter­ This discussion will focus on Califor­ State BarCommittees on Agingand mination-an approach also used in nia law, because its two legislative en­ on Legal Services for Handicapped another 1984 California case, that of actments have conceptual siblings and Persons, and was from 1976 to 1979 Eliza~eth Bouvia, ~.~erebral palsy vic­ progeny across the nati,9n. a member ofthe executive committee tim.~ho unsue.~t1,ssfun~sought a~~s7 ofthe Bar's Legal Services Section. l?i~~ ,'; ~sistaIlc~:./t .!fectively,,:st' ' ,~~.t!l~';~i;p.~atJt.~·. ." ?/.';. He and Dr. ThomasA. Raffin of death~ '. Calif()Fnia's 1976- "auralDeath At hef-self to , Saf~ty'Code 7185:~ Stanford University Medical Center On December 27;' 1984, a California Cal." Health and §§ recently coauthored an article for appellate court rendered an opinion in 94, was the first,of its kind in the na­ physicians, HWithholding or With­ Bartling, 209 Cal. Rptr. 220 (1984), tion. In limited circumstances, an ap­ drawing Extraordinary Life Support" that contributes even more clarity to propriately executed Natural Death Act (WesternJournal of Medicine, legal and medical practitioners who are (NDA) directive legally compels a phy­ September 1984), from which some grappling with this issue. While not sician to withhold or withdraw "life materialfor the present article was questioning the motives of the medical sustaining procedures." drawn. care providers in thyir refusal to with- The problem with this legislation is ra~ely nece.~~, dra~Mr. Bartling's),~~~pir~tor, the c~~ how the c9nfluence of all rUl¢,~;t:hat}Vithdr~ J~'~hou~q ~S~~ sary;fG~~ ..occurs./I 9r exa~~l~ ;,., haye ~ho ~c allowed. 'The cour." emphasized th~~~':'~P pers

either authorize x or reject' particular their course of treatment in advance, treatments. not to ~ompel a particular result. Again, this document would De uti- Critical to the'ultimafe reliability of 'ized only iI1 .. the ~v~nt of the pati~l1t's DPAHC documentsjs the fact that . incapacity. So long'as she is able, she physicians who rely on them are by retaips,the legal" alp~it som~;time~ "statute insulat~d from criminal prose­ elusive, right to make her own cution, civilliaf)ilit~ or proceedings that medica13'careJudgments~ could expose them to findings of un­ While DPAHC legislation professional conduct. To obtain these does not provide glJideline§ protectiqns, a Rhysician must believe for appropriate levels for in good faith that the attorney-in-fact terminal, care, ~it none~ has been properly authorized, and that th<;less does e~po~e; the decisions being made are consis­ decisions about u:se or non:.us'e of ex:- tent with the wishes of the patient, traordinary means. When these and either as expressed in the document

20 Stanford Lawyer Spring 1985 itself, or in some other way. feeding tube. Her closest relative, the courts, however unavoidable in DPAHC legislation, then, is both re­ convinced that removal of the tube many instances, must be viewed as a inforcing ofthe patient's rights and pro­ would be her wish, sought court ap­ last resort. tective of the physician's interests. proval to do so. These ingredients, being inevitably in­ The NewJersey court held that life­ tertwined and interdependent, are sustaining treatment can be removed Conclusion necessary to realistic, progressive in cases where it is clear that the in­ legislation. competent patient would have refused When all the symbolic, "greater good" if she were able. The court's remaining rhetoric and constitutional theory are analysis is conceptually similar to the cleared away, the individual human Withholding Nutrition and "proportionate treatment" test ofBar­ beings-Karen Ann Quinlan, Clar­ Hydration ber. Where patient wishes are not crys­ ence Herbert, Claire Conroy, and Wil­ talline, it would use the "limited-objec­ liam Francis Bartling-remain. Af­ One special problem deserves atten­ tive test." Under this, treatment may flicted with varying medical crises and tion: instances where a person is irre­ be withdrawn where there is "some differing levels of capacity, they each versibly comatose or in a persistent trustworthy evidence that the patient suffered, and with them their families. vegetative state, survives indepen­ would have refused the treatment," and Assessing each case were teams of dently of any mechanical medical de­ that the burdens of life, such as pro­ physicians who did their best to deter­ vice, but continues to depend on arti­ longed suffering, outweigh the benefits. mine the most appropriate course of ficial administration of nutrition and In a third scenario, where there is medical treatment. hydration. no evidence of what the patient would Their cases are by no means excep­ Are such life-sustaining procedures have wanted, the court explained its tional. Every day, dying patients seek to be viewed in the same way as more "pure-objective test." Here, the court dignity, freedom from pain, and relief. obviously intrusive and/or technologi­ focused on a net benefits vs. net bur­ They seek to protect their loved ones cal treatments? Will instructions in dens of life inquiry, and discussed such from the agony of decision making and, DPAHCs to withhold such support be burdens in terms of pain-"recurring, it must be acknowledged, from eco­ followed by physicians, and will such unavoidable and severe"-such that nomically devastating medical care physicians be protected from criminal continued life would be "inhumane." costs. Physicians and families must charges and civil judgments? Interestingly; the Conroy court ruled grapple with these same, impossible This question was addressedin Bar­ that none of these three alternative questions, and find solutions that are ber, where the appellate court was ex­ criteria were satisfied in Mrs. Con­ as respectful as possible of the differ­ plicit in viewing artificial nourishment roy's case, and that there was no basis ing realities facing each party. and hydration in the same way as any for withdrawal of her tube feeding. The courts, with admitted reluct­ other life-support equipment. Most Notwithstanding some points of dis­ ance, have recently developed criteria physicians and ethicists who have ad­ agreement, then, the most appropri­ and standards that can be utilized on a dressed the issue agree, but there is a ate approach to this issue would seem case-by-case basis. Far more produc­ subjectively credible view to the con­ to be clear. It is most consistent with tively; some legislatures have taken bold trary. Some believe that there is sym­ court decisions, as well as the views of steps forward. They have provided a bolic significance in ·withholding food the Presidential Commission referred means by which individual wishes can and water-the basics of life-and that to above, and would apply the "propor­ be expressed and, ideally, respected doing so raises serious social policy tionate-disproportionate" test devel­ without involvement from the courts. issues that must be viewed differently oped in Barber and Conroy. Potential It now remains for the legal and from those of the more clearly me­ for improvement, rather than non-sali­ medical communities to educate the chanical forms of support. entmaintenance, should be paramount public about such developments as The question was also addressed in determining the appropriate level of California's Durable Power of Attor­ recently by the New Jersey Supreme intrusive treatment. Using this ap­ ney legislation, and, I would urge, to Court in In the Matter of Claire C. proach, it is probable that clear rejec­ ensure passage of similar legislation in Conroy (N.J., Jan. 17, 1985). Claire tion in a DPAHC of nourishment in the those states that have not yet done so. Conroy; now deceased, was an 84-year­ event of irreversible coma would be Nothing can be deemed more basic old nursing home resident with severe respected. than the individual's right to control his physical and mental impairments. Al­ Lacking such a document, other ev­ or her own medical treatment without though not in a vegetative or comatose idence of the patient's desires must be interference from others with a larger condition, she was severely demented given great credence, as should the agenda. 0 and unable to express any thoughts. patient's "best interests" as evaluated She was maintained by a nasogastric by the physician and family. Resort to

Spring 1985 Stanford Lawyer 21 At ISSUE

The Trouble Ylith Libel LaYi

verdicts given in recent years were We would learn less about our society Marc A. Franklin upheld on appeal. (So far, the largest and our government and be able to Frederick I. Richman award upheld on appeal has been in the make collective decisions less wisely. range of $500,000.) Ironically, plaintiffs are also mightily Professor ofLaw The more serious problem at the unhappy with current libel law, be­ moment involves small-town media and cause they win so few cases, even broadcasters. They are not used to when the media have made an undeni­ I ibel law, as presently constituted, being sued and lack the resources­ able mistake. If such an error was not L may well have a chilling effect on financial and professional-to stand up due to negligence (when plaintiff is a the willingness of the news media­ to threats of suit. Many, according to private person) or to a deliberate lie or especially small-town papers and surveys, do not have any (or adequate) recklessness (when plaintiff is a public broadcasters-to cover controversial libel insurance, and even those who person), no recovery is possible. issues and engage in investigative do, know that their insurance requires The problem, then, is that current reporting. A number of recent court them to pay the first several thousand law serves both sides and the public cases have made it clear that the media dollars of legal expenses on each claim poorly. The Supreme Court can draw are vulnerable to increasingly costly filed, before the insurance company overall lines to protectthe press in libel libel suits. takes over. cases, but it cannot provide the nec­ The Supreme Court's 1964 decision This vulnerability to lawsuits-even essaryfine-tuning. The next stepis for inNew York Times v. Sullivan-which those successfully defended-may in­ state legislatures and courts to take recognized libel to be a First Amend­ hibit smaller newspapers and broad­ the initiative in making libel law more ment as well as a tort problem-did casters from aggressive reporting of responsive to the needs of the com­ for a time make the media feel more local issues. Their fear is not so much munity, the press, and defamed secure. However, the Court's commit­ that they might lose such a case, as individuals. ment to protecting the media from that the very fact of being sued, with My first suggestion would be to re­ extensive exposure to liability for libel all the implied costs, could wipe out a duce the media's fear of crippling finan­ has become weaker over the past small-scale operation. cial exposure by requiring all plain­ decade. After all, small-town newspapers tiffs-public or private-who seek The problem is not so acute for larger don't have to cover litigious plaintiffs or damages to meet the rigorous New newspapers and television networks, report litigation-sensitive occur­ York Times standard for public figures, the targets of such recent "megasuits" rences. They are not in a competitive i. e., that the story be shown to be not as those brought by Ariel Sharon and situation and don't need to look for only false but that the falsity have been General Westmoreland. As leaders of controversial stories to boost circula­ deliberate or have resulted from reck­ the media, those defendants are moti­ tion. They can perform their social role lessness. The evidence supporting such vated by considerations other than by reporting marriages, deaths, and a showing must be clear and convinc­ possible libel charges. Their goals are county fairs, without having to go into ing, and be subject to expansive appel­ to produce award-winning features, and the question of, say, why the city coun­ late review. to attract large numbers of viewers or cil acted as it did over a certain land Secondly, punitive damages have no readers. Their stance, atleast publicly, development. place in a damage action for libel, which is, "We will not be cowed-we will do Whenever the media, whether large should provide solely for redress. what we think is right. " or small, are reluctant to engage in Judges must still exercise control over Even the big-city media might run serious reporting of controversial is­ the compensatory award, because there scared, however, if one of those huge sues,- democracy becomes the loser. is so little in the way of solid evidence

22 Stanford Lawyer Spring 1985 ~ ~ ~ ~ ~ (J)t-- --L_-:::..----..:...... o....-....:..-__"--- ..:.....;, ~ ___..:.... ____':...... :::. -----'1

to support even compensatory defendants by being more willing to compensatory damages. damages. correct errors, and plaintiffs by In the alternative action, a losing Thirdly, individuals who simply want accepting offers of space or time to defendant would likewise pay the their reputations restored after a false state their side. To help guide the par­ assessed attorney's fees. defamatory story should have an alter­ ties away from litigation, in the damage This kind of balancing adjustment in native, nonmonetary means of redress, action, the losing party would have to libel law would go far toward freeing such as a judicial declaration that his or pay the winner's fees. This would the media-large and small-to pur­ her reputation had been harmed by a encourage plaintiffs to choose the sue their vital informational role with­ false statement. Fault would be irrele­ alternative route unless they were fairly out fear of punitive libel suits. It would vant, and no damages would be confident of being able to prove delib­ also provide defamed citizens with a awarded. erate or reckless falsity. On the other chance to restore their reputations Finally, parties should be encour­ hand, successful plaintiffs would recover without having to threaten the media aged to settle their libel disputes- reasonable legal fees in addition to with large damage claims. D

Spring 1985 Stanford Lawyer 23 REHNQUIST HONORED DURING RECORD TURNOUT

Lawalumnilae set a new record last November, with more than 500 in attendance at the class reunions and other Alumnilae Weekend 1984 events. The high point of the Weekend was the presentation, to Supreme CourtJustice William H. Rehnquist ('52), of Stan­ ford Law School's first Award of Merit. The Award, which honors a graduate of the Law School who has distinguished himself or herself in public service, will, Dean Ely said, "always be more remembered because of its first recipient. " Justice Rehnquist referred in his brief remarks to "the kind of intelligence-awakening that you get from law school. My mind was being stretched in a way it hadn't been before," he said. "This is the perfect occasion for me to express my appreciation to Stanford Law School for its invaluable contribution to my success. I thank you with all my heart." Judge Joseph T. Sneed, a former faculty member now on California's 9th Circuit Court of Appeals, participated in the award ceremony:' which took place Saturday evening, November3, during the all-alumnilae banquet at the Faculty Club. Attending this and other Weekend activities were alum­ nilae from not only the continental United States, Hawaii and Alaska, but also France, the United Arab Emirates, and Zaire. The Weekend began Friday evening with reunions for the together Saturday night during the all-alumnilae banquet, Classes of 1934, 1939, 1949, 1954, 1959, 1964, 1969, 1974, as did the Class of 1944. The evening-with the award and 1979. The Class of '49, celebrating its forty-fifth year ceremony for Justice Rehnquist, a sumptuous Faculty Club since graduation, gathered again on Saturday for a barbe­ dinner, and live dance music-made a festive climax to the cue before the Stanford-USC football game. Weekend. The Saturday morning program featured a brief "State of A new finale was provided Sunday morning by a four-mile the School" report by Dean Ely, and talks by three faculty run around the campus, lead by James Madison ('59), and members: John Henry Merryman, on the "covetous neglect" including refreshments in the School's Cooley Courtyard. by many countries of indigenous objects of art; Thomas The 1985 Stanford Law Alumnilae Weekend is scheduled C. Heller, on computer technology and the law; and Robert for October 11-12, coinciding with the Stanford-UCLA W. Gordon, on historical changes in the American legal football game. Reunions for the Half-Century Club and profession. classes graduating in years ending in -5 and -0 are being Members of the venerable Half-Century Club (alumnilae planned. However, alumnilae of all classes will, as always, from classes graduating fifty or more years ago) dined find a warm welcome. D

24 Stanford Lawyer Spring 1985 (1) Honoree Bill Rehnquist '52, with banquet companions Sheila (Mrs. Carl) Spaeth and Joseph Sneed. (2) Warren Christopher'49 during the morning Law School talks. (3) Keith Mann and Mrs. Spaeth, at the Class of'49 reunion. (4) Philip Grey Smith '24 (the earliest class represented), at the pre-game lunch. (5) Sunday morning runners.

PHOTOS BYJOHNSHERETZ

25 5 both the National Collegiate Friedenthal's current Friedenthal Named Associate Dean Athletic Association (NCAA) scholarly work is on policy and the Pac-1 O. underlying evidentiary privi­ Jack H. Friedenthal, the worthy replacement. Thank Friedenthal earned his leges, i.e. the exemption of School's George E. Osborne heaven for both of them." A.B. in 1953 from Stanford spouses from the obligation Professor of Law, became A member of the law fac­ and an LL.B. magna cum to testify against each other, Associate Dean for Academic ulty since 1958, Friedenthal laude in 1958 from Harvard, and protected communica­ Affairs on February 20. chaired the Law School where he was developments tions between lawyer and Friedenthal's appointment Admissions Committee from editor of the Harvard Law client, patient and physician was occasioned by the 1979 to 1983 and currently Review. or psychiatrist, and confes­ planned sabbatical leave of serves as Law School mem­ An expert on civil proce­ sor and priest. Prof. J. Keith Mann. Mann ber on the University Panel dure and evidence, he has As Associate Dean for has served in the associate on Laboratory Animal Care. published extensively, Academic Affairs, Frieden­ including the widely used thai deals with Law School text, Civil Procedure: Cases faculty and students on all and Materials (with J.J. phases of curriculum and Cound and A.R. Miller), standards. and Sum and Substance of He will also continue Civil Procedure (also with teaching, with a course in Miller).Two additional books Evidence this spring. are now in press: Civil Pro­ Frtedenthal and his wife, cedure (with Miller and M.K. Jo Anne, an attorney, have Kane) and Evidence (with three children and live on M. Singer). the Stanford campus. 0

Ambassador Koh Given Ralston Prize

Tommy T.B. Koh, Singapore's ambassador to the U.S. and long-time representative to the United Nations, received the School's Jackson H. Ralston Prize in International Law dur­ ing a February 1985 visit. The Prize, which recognizes "original and distinguished contribution by a man or woman to the development of the role of law in international relations," was first awarded in 1977, to Swedish Prime Minister Olof J. Palme. Recipients are nominated by the Dean of the Law School Professor Jack H. Friedenthal and selected by a distinguished committee consisting of the University President, Chief Justice of the California Supreme dean's position since 1961, He helped found the East Court, and Secretary General of the United Nations. with two periods as acting Palo Alto Community Law President Don Kennedy, who presented the 1985 award dean of the School. Project and is vice-chairman with Dean Ely, pointed out that Koh's many and varied "If ever a leave was well­ of its board of directors. achievements entitle him to use any of several distinguished earned, this is it," said Dean Friedenthal's long record titles: Ambassador (to both the U.S. and Brazil, 1984-); Com­ Ely in his announcement of of University service missioner (Singapore's High Commissioner to Canada, the changes. "Jack's knowl­ includes ten years (1975-) 1968-71); President (of the Third U.N. Law of the Sea Confer­ edge of the School, plus his as president of the Stanford ence, 1981-82); and Professor and Dean (of the University of abilities to get a lot done in a Bookstore and fou r (1980-) Singapore law faculty, 1971-74). limited time, make him a as faculty representative to "It is," Kennedy said, "a measure of the man that of all

26 Stanford Lawyer Spring 1985 these titles he prefers simply 'Professor'." fall of South Vietnam, was the subject of his second lecture, In the first of his two Ralston lectures at the School, Feb. 7, Feb. 12, in which he expressed grave concern over commu­ Koh discussed the past accomplishments and future pros­ nist Vietnam's domination of Laos and interference in Cam­ pects of the United Nations, now forty years old. He called bodia. The much-feared "domino effect" is happening, he on the United States and the other democracies to "develop said, urging the U.S. to make recognition and trade with an agenda. Damage control is not enough," he declared. Vietnam conditional on progress in both internal and exter­ "The West should playa more active role." nal policies. The current situation in Southeast Asia, ten years after the The texts of both lectures will be published in the Stanford Journal of International Law. The Ralston Prize was endowed by Opal Ralston in mem­ ory of her husband, Jackson H. Ralston, a prominent interna­ tionallawyer. Members of the Ralston family were honored guests at the lectures and receptions surrounding Professor Koh's visit. D

Dinkelspiel '85 Wins Stanford Service Award

Third-year student Steven Dinkelspiel has been hon­ ored with a University Award for Service.The award, con­ ferred by Stanford's Dean of Student Affairs, recognizes students who make excep­ tional contri butions to the University community. Dinkelspiel received the Steve Dinkelspiel honor primarily for his fund­ raising and organizing con­ started the Project and tributions to the East Palo those who are working cur­ Alto Community Law Project rently on it," said Dinkelspiel. (EPACLP).The Project, Dinkelspiel became which opened its doors a involved as a EPACLP fund year ago, provides legal raiser during his first year of education and counsel to Law School.Today he serves largely low-income, minority as co-chair of the Project's clients.lt also provides Stan­ Steering Committee. ford law students with train­ Dinkelspiel was also cited ing in poverty law and other for his role in organizing the legal matters under the Law School's first Holiday supervision of the office's Giving Project.The 1984 three staff attorneys. drive, which focused on "I am touched and hon­ hunger relief in Ethiopia and ored to be given an award the Bay Area, succeeded in which is really a recognition collecting over $3,500 in just of the tremendous effort put six days.-Reported by in by the many students who Steve Silverman ('86) D

Spring 1985 Stanford Lawyer Z7 Gandalfo, a self-employed venture capitalist (on how, in just Computer Seminar On Line six years since graduating from Boalt Hall, she built a $2 mil­ lion investment fund that has provided critical capital for sev­ The innovative new seminar on Computers and Law, in prep­ erallocal high-tech firms); and Doug Englebard, inventor of aration last spring, became fully operational in September the "mouse" mechanism used in systems as diverse as the 1984. Xerox Star and Apple Macintosh (re innovative ways to make Created by Professors Paul Brest, Robert Mnookin, and computers more "user friendly"). Thomas Heller, the seminar now involves several practicing Seminar members are also interested in potentialapplica- lawyers, computer scientists, and computer science gradu­ ate students, in addition to twelve law students. The interdisciplinary group meets weekly in the School's new IBM-sponsored computer lab, where they enjoy access to five IBM advanced technology (AT) computers and a library of software. The seminar, operating as it does on the frontiers of tech­ nology, is intended as an open-ended exploration of various interfaces-actual and potential-between computers and the law. Experts from within and beyond the University are being tapped as guest speakers, with visitors so far including: Prof. Paul Goldstein, an expert on copyright law (re the grow­ ing problem of protecting software producers against illegal copying); Rick Giardina, general counsel for MicroPro, pub­ Seminar leaders Brest and Mnookin (center), with students Gary Kaitz '85 (left) and Mark Shull '86 (right) lisher of Wordstar software (re the exhilaration and stress of working with a fast-growing, high-risk company); Carolyn tions of computer technology (beyond routine word pro­ cessing and records keeping) for practicing lawyers, particularly the development of "expert legal systems"­ computer programs incorporating a particular body of law. Such a system could, according to Brest, not only provide Students Form Law &Tech Group quick answers to legal questions but even print out appropri­ ate forms on demand. Several Law students have Though the potential applications in law for information organized a new group­ technology are yet to be realized, the sense of expectation Stanford Law and Technol­ and excitement among seminar members is almost palpa­ ogy Association (SLATA)­ ble.Stanford is, as Brest says, "ideally situated" to pioneer in with Prof. Thomas Heller as the field, and the new seminar is an important initial step.­ advisor. Profs. Paul Brest, Reported by Brian Anderson ('86) D Paul Goldstein, and Robert Mnookin are also involved. SLATA's purpose is to promote student and faculty interest Regulating Land Use: A Handbook and scholarship in such fields as law and "The options available to communities or citizens who want computers, law and to implement planned growth policies are numerous," say medicine/biotech­ the editors of a comprehensive new Environmental Law nology, and law and Society publication: Land Use Regulation: A Handbook for techology policy the Eighties. (both international and domestic). The volume was researched and written from 1982 to Most of the participating students-including co­ 1984 by eight law students led by Project Editors Michael R. presidents Ivan Fong (an MIT graduate) and Michael Leslie and William B. Dawson (both '85), with Karen Sears (Annapolis)-are first-year students with a prior Zacharia ('84) as managing editor. interest in some aspect of law and technology. D Options described include various kinds of zoning, subdi-

28 Stanford Lawyer Spring 1985 vision regulation, annexation and incorporation, open space acquisition, comprehensive plans, and growth control pro­ grams. And for the action-oriented, there is a rundown on relevant national and local (California) agencies and a chap­ ter on such tactics as citizen pressure and lawsuits. Copies are available for $10 (plus $1.50 postage and han­ dling and, in California, $.45 tax) from the ELS, Stanford Law School, Stanford, CA 94305; telephone (415) 497-4421. D

Between Just Deserts and Tragic Irony

Students of the School trod the boards once again last December, in Tom Stoppard's 1967 hit, Rosencrantz and Guildenstern Are Dead. The play-an existential takeoff on Shakespeare's Hamlet as seen by the two feckless friends-was given fresh stag­ ing by Marc Fajer (Class of '85), whose many other directoral credits include two previous Law School productions, Mer­ chant of Venice and Hot L Baltimore, as wel,1 as the Stanford Ram's Head production this spring of Sweeney Todd. Stoppard's tongue tanglers were nimbly delivered by Paul Haigney ('86) and John Zobel ('85) in the title roles, and by Andy Powell ('85) as the Leading Player. Others in the cast of Mariposa Grove, Yosemite National Park fifteen made cameo appearances (and disappearances) in their Shakespeare roles-"every entrance," observed one character, being "an exit somewhere else." Jazz interludes for the production were composed by Loan Plan to Help New Grads Enter Public Service

Graduating Stanford Law be employed in law-related, students are freer to choose relatively low-paying, public public service jobs, thanks interest/public service jobs, to a new "Public Interest Low either in government Income Protection Plan" (excluding judicial clerk­ announced in November ships) or with nonprofit orga­ 1984 by Dean Ely. nizations qualifying as tax­ The new program is exempt under the Internal designed to help eligible Revenue code. graduates meet payments The new program has due on educational loans been established on an incurred during their many experimental, three-year Zobel '85 and Haigney '86 as Rose~krantz and Guildenstern years of schooling. basis. "Whether we will be This will be done by able to provide this sort of John Place ('85) and recorded by a combo including Place extending new, interest-free program for ensuing classes on piano and alumnus Bob Murphy ('66-see page 49) on loans, which may be partly remains to be seen," Dean soprano saxophone. forgiven, depending on how Ely said, "but we are It was, all in all, a fine intellectual romp. But then (as the long the graduate stays in pleased we can do so for the Leading Player said), "Between just deserts and tragic irony, public service. three classes currently on we're left with quite a lot of scope." D To qualify, graduates must the premises." D

Spring 1985 Stanford Lawyer 29 congress of Latin American appointment this February Organization, on rental Faculty Notes and Spanish jurists. A vol- as Associate Dean during rights in videotapes and ume will soon be published J. Keith Mann's sabbatical audiotapes. He later (Dec. Thomas J. Campbell has from the June 1984 Con- is reported on page 26. 12) delivered the inaugural been invited to present (with gress of the International address in the 1985 series of Carter antitrust chief Sandy Association of Legal Sci- Lawrence M. Friedman and the Washington Program of Litvack) the annual Texas ence, of which he was both coauthor Robert V. Percival the Annenberg School of Law Review speech, April II, president and general won the 1984 Western His- Communications. His sub- this year entitled "Antitrust: reporter, on the topic of tory Association's Robert G. ject: "New Strateg ies for Col- The Carter Administration v. "Judicial Review of Legisla- Athearn Award for their lecting Copyright Royalties." the Reagan Administration." tion and Its Legitimacy." book, The Roots ofJustice: Crime and Punishment in He chaired a lengthy panel Cappelletti has been spend- Robert Gordon presented Alameda County, California, (March 6-7) on antitrust use ing the 1984-85 year as a the Oliver Wendell Holmes 1870-1910 (Univ. of N. Caro- of economics, at the Confer- Fellow of Stanford's Center Lectures at Harvard Law lina Press, 1981 ).The award ence Board in New York for Advanced Study in the School, Feb. 19-20, on the is given, according to the City.Since last report he has Behavioral Sciences. the subject of "Lawyers as citation, "for the outstand- also addressed the New the American Aristocracy" ing book published on the Mexico State Bar Associa- William Cohen delivered a (a title inspired by Tocque- twentieth-century American tion (in October, on antitrust paper, "Is Equal Protection ville's observations during West." Friedman's latest in the 1984 Supreme Court like Oakland? Equality as a the first half of the nineteenth book, American Law term), the American Man- Surrogate for Other Rights," century). agement Association at a November 1984 Tulane (Norton, 1984), got a rave review in the Jan. 6,1985 (November, on vertical Law School Colloquium on William B. Gould IV has Los Angeles Times. restraints in antitrust), and Comparative Constitutional been much in demand to the Hoover Conference Law, to be published this Ronald Gilson has been speak on the wrongful dis- on Antitrust (August, with spring in the Tulane Law appointed a reporter for the missal issue-the subject of William Baxter and Tom Review. The seventh edition American Law Institute's the State Bar ad hoc com- Moore), which he also of-a text by Cohen and E.L. Corporate Governance mittee he cochaired last co-hosted. Barrett, Jr., Constitutional Project, with special respon- year. Appearances include Law Cases and Materials, si bility (along with Marshall talks at the second Oxford Mauro Cappelletti was was published in March. Small of Morrison & Foers- University (England) BNA elected in 1984 to the presti- ter) for Transactions in Con- Symposium on Comparative gious Accademia Nazionale Marc Franklin spoke at the trol. Last year he also served Industrial Relations (Aug. dei Lincei ("Academy of Libel and Fiction Sympo- as a special consultant to 10), testimony before the Italy"). He also had a new sium in New York last Octo- the Project.Gilson has California state assembly's book published-Giudici ber and at conferences in recently delivered papers Labor and Employment legislatori? ("A~e Judges Toronto, at William and Mary, for law and economics work- Committee (Oct. 15), talks at Legislators?")-and two and at the University of San shops at the University of the Society of Professionals previous books published in Diego. He also participated, Chicago, Yale, and George- in Dispute Resolution Con- new languages: Access to as chairman of a session on town University. And his ference (Oct. 14-15), and a Justice and the Welfare tort reform, in the Yale tort "Value Creation by Business speech at the American State (1981, into French); law conference last Septem- Lawyers: Legal Skills and Arbitration Association's and Judicial Review in the ber. An editorial by Franklin Asset Pricing" appeared in Seventh Annual Artibration Contemporary World (1971 , appears on page 22. the December 1984 Yale Day Conference (Nov. 15). into Portuguese). He was a Law Journal. Gould also spoke at a con- guest lecturer in August at Jack Friedenthal has in ference marki ng the fiftieth the University of Puerto Rico press a treatise on Civil Pro- Paul Goldstein went to anniversary of the NLRA and law school and in November cedure (with A. Miller and Paris in November as an the NLRB (Cornell, Oct. 22- spoke at various institutions M.K. Kane, West Publishing invited expert for a week- 23) and another on the in Argentina and Brazil, Co.), as well as a new class- long meeting, jointly spon- Twentieth Anniversary of the where he gave the closing room book on Evidence sored by UNESCO and the Civil Rights Act (Rutgers, speech for an international (with M. Singer). His World Intellectual Property Nov. 16-17).

30 Stanford Lawyer Spring 1985 Gerald Gunther has com­ John Henry Merryman's products liability law. He Michael Wald has been pleted the manuscript for the 1969 book, The Civil Law chaired a session at a Hoo­ honored by the American 11th edition, to be published Tradition, has just been pub­ ver Institution conference in Psychological Association this summer, of his widely lished in a second edition by August on antitrust law and for "Distinguished Contribu­ used Constitutional Law text. Stanford University Press. economics, and another tions to Child Advocacy." An article by him on The first edition, one of the session in September (Colleague Robert "Congressional Power to Press's best se(lers, has at a Yale conference on Mnookin is the only pre­ Curtail Federal Court Juris­ been published in Italian, the economics of tort law. vious winner of the award­ diction" appears in the April Spanish, and Chinese And in November he making it two-out-of-two for 1984 Stanford Law Review. translations. attended a conference at Stanford Law School.) Wald, A grant for another work-to Columbia Law School on who was recently named be the authorized biography Robert Mnookin has a new new directions in law and director of the Stanford Cen­ of Judge Learned Hand (for book in print-In the Inter­ economics. ter for the Study of Youth whom he clerked in 1953­ ests of Children: Advocacy, Development, has a number 54)-has been awarded by Law Reform and Public Pol­ Robert Rabin led a legal of new publications: "Smith the National Endowment for icy (W.H. Freeman, 1985), theory workshop on his v. OFFER: Litigation as a the Humanities. Gunther which examines the use of research dealing with the Means of Reforming the took part in a nationally tele­ litigation to affect public poli­ evolution of the administra­ Foster Care System" (with vised debate in October on cies relating to children.He's tive state, at the University of D. Chambers, in Mnookin's the convention campaign to also given a number of lec­ Toronto in March. He also In the Interest of Children, achieve a balanced budget tures and papers, including serves on a visiting commit­ 1985), "Confidentiality Laws amendment to the U.S. Con­ the Ruth Stern Memorial tee evaluating the American and State Efforts to Protect stitution. And in January he Lecture on "Children's Bar Foundation. Abused or Neglected' participated in an AALS Rights" (for the National Children" (with Robert symposium on the forthcom­ Council of Jewish Women, Roberta Romano has two Weisberg, Family Law ing Bicentennial of the Con­ Oct. 29, in Kansas City); new publications: a Stanford Quarterly, Summer 1984), stitution. The impact of the "The Uses of Computers in Law Review article (April and "Physician Attitudes 1984 elections on the Estate Planning" (to the 1984) on "Metapolitics and Towards Confidential Care Supreme Court was the sub­ American Association of Corporate Law Reform," and of Adolescents" (with Joan ject of talks to Stanford Law School's workshop on a Law and Economics Work­ Lovett Wald, Journal of Pedi­ Law alumni/ae at the State decedants' estates and ing Paper (No. 19) on "Some atrics, March 1985). D Bar meeting in Monterey in estate planning, March 3, Pieces of the Incorporation September, and at a meet­ Houston); a paper on ethical Puzzle." ing in December of the San and legal dilemmas posed On a less happy note, Mateo County Bar (as well by medical decisions con­ Romano, who joined us in as of the article beginning cerning handicapped new­ 1981 and was promoted to on page 4.) borns (at the National Associate Professor in July Conference on the Legal of 1984, has accepted a John Kaplan, for the past Rights of Mentally Retarded position as Professor of Law year a visiting professor at Citizens, March 15, Cincin­ at Yale. An increasingly Harvard, presented the Law nati); and a keynote address valued component of the Day lecture at the University to a Columbia Law School School's law and business of Bridgeport, in Connecti­ conference on divorce cus­ program, she will be cut. He spoke on "Defend­ tody and mediation (April missed. ing the Guilty." 26, New York City). Byron Sher was reelected J. Keith Mann hopes to A. Mitchell Polinsky has in November to a third term complete his service as been appointed to a steer­ in the California State Special Master in the ing committee of the Key­ Assembly. lengthy United States v. stone Center in Colorado, to Alaska dispute during his help organize a series of sabbatical leave. meetings on reforming U.S.

Spring 1985 Stanford Lawyer 31 I GS

regonian graduates and friends en­ Ojoyed a convivial breakfast together September 21 in Portland, during the an­ nual State Bar meeting. Sacramento-area alumni/ae met with Dean Ely and Associate Dean Barbara G. Dray ('72) on November 28 at a recep­ tion hosted by Marcy and Mort Friedman ('56). The Friedmans' Carmichael home provided a handsome venue. The famed Heard Museum in Phoenix was the site of another memorable recep­ tion, this one hosted by Richard Mallery ('63). Deans Ely and Dray were among the delighted guests at the December 10 event, as well as a luncheon for Inner Quad donors held the next day, also host­ ;fJ{)f'ft /HiSs.

66 Stanford Lawyer Spring 1985 00110- 11­ 0_11 0 liD o D II 2ND ANNUAL CONFERENCE ON o DEVEIOPllli A TECHIOIOIiY-BASED BUSIIESS WITH VEITURE CAPITAL - Thursday, July 25, 1985 8:00 am to 6:00 pm At Stanford University

Ideal seminar for entrepreneurs, and legal, financial and business advisers. Some of the firms represented include: o Crosspoint Venture Partners o Institutional Venture Partners o Kleiner Perkins Caufield & Byers o Mayfield Fund o Sequoia Capital o Technology Venture Investors

For registration information contact: Margaret Talt (415) 497·4396 Co-Sponsored by Stanford University's Industrial D Engineering Department and the Venture Capital Journal. II o D 011 11_0 011011 ______A_Dv_E_RT_ls_E_ME_N_T 1I _0 67 THE GIFT THAT GOES ON LIVING

A Bequest to Stanford Law School

For information about making a bequest or other form of deferred gift, please call or write:

Barbara G. Dray, Associate Dean • Stanford Law School • Stanford, CA 94305·· (415) 497-3018

MAY 2-3 Board ofVisitors annual meeting, at Stanford.

MAY 3 Marion Rice Kirkwood Moot Court Competition, in Kresge Auditorium, Stanford.

JULY 1 Stanford Law alumni/ae reception, American Bar Association annual meeting, in Washington, D. C.

SEPTEMBER 30 Stanford Law alumni/ae luncheon, California State Bar annual meeting, in San Diego.

OCTOBER 11-12 Stanford Law Alumni/ae Weekend and reunions, at Stanford. Events include Law School program, Stanford-UCLA football game, Law alumni/ae dinner dance, and special reunions for the Half-Century Club and classes graduating in years ending in -5 and -0.

For information, call Elizabeth Lucchesi, Director ofAlumni/ae Relations (415) 497-2730.

STANFORD UNIVERSITY Nonprofit Organization Stanford Law School U.S. Postage Stanford, CA 94305 PAID Stanford University