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COVER ontents R.H. Coase is the first

member of the faculty of a law school to receive the Nobel Memorial Prize in Economics. Photo © Pressens Bild FEATURES Stockholm, Sweden. Collsioo. Photographer Jan Dean's Page 2

EDITOR Jill M. Fosse The World According to Coase 4 DAVID D. FRIEDMAN

ASSISTANT DEAN FOR

ALUMNI RELATIONS

Holly C. Davis A Look Forward 10

Faculty, alumni and the President of the Law Students Association take a look at CARTOON the future of legal theory and practice David Rothman '62, pages 59-60.

ILLUSTRATIONS Commentary: An Indigent Willie Smith Words and Pictures Inc., pages 10,

in _ 11,16,21,26 Might Be Jail 27 STEPHEN J. SCHULHOFER

PHOTO CREDITS

Brian Silver '94, Staff Photographer. Other pictures by Pressens Bild AB/

Jan Collsioo, page 5. Randy Tunnell,

pages 7, 8,9, 13, 18,25,32,33,34 (top), 35, 41, 46,68. David Joel, D EPA R T 1\1 E N T S pages 12,23,24. John Booz, page 30.

David Pemstein '94, pages 37, 44

(McGovern). Paul Woo, page 38 Memoranda 28

(top). Keith Swinden, page 40. Jim

Wright, page 42. Richard Kornylak,

page 44 (O'Malley). Roberta Evans Point of View ------45 '61, page 47.

The Law School Record (ISSN 0529- Alumni Events 46

097X) is published twice a year, in spring and fall, for graduates, students, and friends of the University of Chicago Law School, 1111 East 60th Class Notes 48 Street, Chicago, Illinois 60637. Copyright © 1992 by The University of Chicago Law School. Changes of address should be sent to the Office of Alumni Relations at the Law School. Telephone 312/702- 9628. Copies of the Law School

Record are available from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209, to whom inquiries should be addressed. Current issues are also available on subscrip­ tion from William S. Hein & Co. VOLUME 38/SPRING 1992 THE DEAN'S PAGE •

Ronald Coase is, quite simply, the most important figure in the field of law and economics-ever.

Ronald's Ronald Coase's receipt of the 1991 Building upon Bigelow's and Katz's Nobel Memorial Prize in Economics legacy, Dean Edward Levi established Nobel is a great event in the history of the the Henry Simons Lectureship in Law University of Chicago Law School, and Economics, created the Journal for Ronald is the very first member of of Law and Economics, and, on the a law school faculty ever to win this enthusiastic recommendations of award. As a dean, I would like to Nobel Laureates Milton Friedman and think that institutions, and even Ted Schultz, initiated the process of deans, deserve some credit for the recruiting Ronald Coase to join the achievements of their faculty. In this faculty of the Law School. Dean Phil instance, a succesion of deans have Neal successfully completed that pro­ played an important role in building cess and appointed Ronald Coase to a tradition at our Law School within the law faculty, as well as Richard which Ronald has played so central Posner, Richard Epstein, and William a role. Landes. He also established the Jour�

Sixty years ago, Dean Harry Bigelow nal of Legal Studies, the Law School's had the foresight to invite Professor Clifton R. Musser Professorship in Henry Simons of the Department of Economics, and established the Sarah Economics to offer an informal semi­ Scaife Foundation Fund for the Study nar in economic theory to the mern­ of Law and Economics. bers of the law faculty, thus initiating Not to be out-done, Phil Neal's a movement that eventually would successor, Dean Norval Morris, trigger reconsideration of entire fields appointed Frank Easterbrook to the of the law. Dean Wilber Katz went faculty, established a joint degree pro­ even further than Bigelow and gram between the Law School and the appointed Henry Simons to the fac­ Department of Economics, created the ulty of the Law School, making him Lee and Brena Freeman Professorship, the first non-lawyer economist ever to which has since been held by Richard join a law faculty. Gathering mornen­ Posner, Frank Easterbrook, and Daniel tum, Dean Katz thereafter established Fischel, and established the John M. the Law School's Progam in Law and Olin Fellowships in Law and Econom­ Economics, the first program of its ics. Finally, Dean Gerhard Casper kind, and later appointed economist strengthened the Law School and its Aaron Director Professor of Econom­ Program in Law and Economics still ics in the Law School. further by appointing Professors

2 THE LAW SCHOOL RECORD Douglas Baird, Dennis Carlton, Daniel Fischel, Geoffrey Miller, and Ronald H. Coase Sciences and a Senior Research Alan Sykes and by establishing the Clifton R. Musser Professor Fellow at the Hoover Institution. Aaron Director Fund to support Emeritus, of Economics World War II, he served as research in Law and Economics, the During a statistician with the Central Sta­ Ronald Coase Prize in Law and Eco­ Born: 1910 tistical Office of the Offices of the nomics, and the Lynde & Harry Brad­ Education: B. Com., 1932, DSc. British War Cabinet. ley Law and Economics Fund. (Econ.), 1951, London School of In 1951, Mr. Coase migrated to It is a long and unbroken commit­ Economics. the United States and held posi­ ment to the integration of economics Honorary Degrees: Dr. Rer. Pol. tions at the Universities of Buffalo and law, and each of my predecessors h.c., 1988, University of and prior to coming to the has reason to bask in the eminence of Cologne; Virginia D So. Sc., 1989, Yale University. Law School in 1964. He has taught our Law School's unparalleled achieve­ regulated industries and economic ments in this field. No dean, however, After positions at the Dun­ analysis and Mr. can take credit for what Ronald Coase holding public policy. dee School of Economics and the Coase was the editor of the Journal has achieved. His work is fundamen­ University of Liverpool, Ronald H. of Law & Economics from 1964 to tally the product of his own extra­ Coase joined the faculty of the 1982 and Director of the Law & ordinary insight, imagination and London School of Economics in Economics Program from 1965 to brilliance. He is, quite simply, the 1935. In 1947, he was appointed 1978. Among his many publica­ most important figure in the field of Reader in Economics with tions are "The Nature of the Firm" law and economics-ever. Virtually special reference to Public Utilities. Mr. (1937), "Business Organizations and all work in the past quarter century Coase has held both a Sir Ernest the Accountant" (1938), "The Mar� in this field builds upon and, in- Cassel Travelling Scholarship and a ginal Cost Controversy" (1946), deed, must build upon, Ronald's Rockefeller He has also "The Problem of Social Cost" contributions. Fellowship. been a Fellow at the Center for (1960), and the book The Firm, This is not to say, however, that Advanced in the Behavioral The Market, and the Law (1988). institutions do not make a difference. Study

I would like to think that the Univer­ sity of Chicago Law School, as an institution, has made a difference in this regard in at least four ways. First, versity of Chicago, we have drawn a member of our Law School family, throughout the history of law and heavily on resources from the whole has played a central role in maintain­ economics and, I dare say, throughout University in our quest for under­ ing and preserving these values and in the history of the Law School, we standing, and our Program in Law and helping us to keep faith with our high­ have been very good at identifying Economics has benefitted enormously est ideals. Although we can claim no excellence at an early stage. We've over the years from the input of such credit for Ronald's achievements, we been good at identifying the excellence colleagues as Milton Friedman, Ted can, quite justly, take great pride in all of ideas before others have taken note Schultz, George Stigler, Gary Becker, that he has done. I would like to take of them, and we've been good at Sam Peltzman, Harold Demsetz, this opportunity to thank Ronald, on identifying excellence of mind, as well. Sherwin Rosen, Merton Miller, Peter behalf of all his students and col­ Second, we've created and nurtured Pashigian and other members of the leagues at the University of Chicago an environment in which scholars can faculties of the Department of Eco­ and its Law School-past, present and pursue their work in an atmosphere nomics and the Graduate School of future-for sharing with us his energy, of collegiality and challenge. Ideas are Business. creativity, enthusiasm and friendship. to we are not new an be discussed, questioned, probed, Fourth, afraid of He is, truly, inspiration. /', and withstood however or contro­ tested, then, having ideas, provocative C;; such searching examination, shared versial. Law and economics has been with the world at large. The Law attacked on every side since its incep­ /'��//a('!7._ School's infamous Workshop in Law tion but, over the years, it has won Geoffrey R. Stone '71 & Economics, which meets a dozen the field. This is due, more than to Harry Kalven Jr. Professor of Law times each academic year, is the most anything else, to the persistence, the Dean of the Law School demanding and most daunting aca­ confidence, the perserverance and the demic workshop anywhere in legal sheer intellectual power of Ronald education and perfectly exemplifies Coase and his colleagues at the Uni­ the rigors of this process. versity of Chicago Law School. Third, in the best spirit of the Uni- For three decades, Ronald Coase, as

VOLUME 38/SPRING 1992 3 he World According to Coase

David D. Friedman

When the Swedish Academy awarded situations, such as pollution, where the Alfred Nobel Memorial Prize in one person's actions impose costs (or Economics to Ronald Coase in 1991, it benefits) on another. His ideas are was a surprise for two dif- sufficiently simple to ferent groups of people. be understood by a The larger group con­ A guide to the layman, as I will try to sisted of who had demonstrate in the people Coase Theorem: either never heard of next few pages, and what it it Coase, or heard of him is, why sufficiently deep so only as the author of matters, and the that they have not yet David D. Friedman is John M. called the been absorbed something structure of ideas of entirely "Cease Theorem," gen­ by the profession; to a Olin Fellow in Law and which it forms a Visiting erallypresented as a thee­ considerable extent retical curiosity of no what is still taught in Economics. part. practical importance. the textbooks is the The second and much theory as it existed smaller group consisted of people who before Coase. were familiar with the importance of To understand the significance of Coase's work-and assumed that the Coase's contribution to the theory of Swedish Academy was not. externalities, it is useful to start with Some people get the Nobel prize for the theory as it existed before Coase complicated and technical work that published "The Problem of Social is difficult for an outsider to under­ Cost," the essay that first introduced stand. Coase is at the other extreme. the Coase Theorem to economics. His contribution to economics has The basic argument went as follows: largely consisted of thinking through certain questions more carefully and In an ideal economic system, correctly than anyone else, and in the goods worth more than they cost to process demonstrating that answers produce get produced, goods worth accepted by virtually the entire less than they cost to produce do profession were false. One side effect not; this is part of what economists of his work was a new field of eco­ mean by economic efficiency. In a nomics: economic analysis of law, the perfectly competitive private prop� attempt to use economic theory to erty system, producers pay the value understand legal systems. of the inputs they use when they While there would probably be buy them from their owners (wages something called economic analysis of to workers in exchange for their law if Coase had not existed, it would labor, rent to land owners for the be a very different field. use of their land, etc.) and receive One of Coase's important contribu­ the value of what they produce tions to economics was to rewrite the when they sell it. If a good is worth theory of externalities-the analysis of more than it costs to produce, the

4 THE LAW SCHOOL RECORD One is direct regulation-the gov� ernment tells the steel company how much it is allowed to pollute. The other is emission fees-referred to by economists as Pigouvian taxes (named after A. C. Pigou, the economist whose ideas I am de­ scribing). Under a system of Pigouvian taxes, the government charges the steel company for the damage done by its pollution-$10 per pound in this example. By doing so it con­ verts the external cost into an in­ ternal cost-internalizes the exter­ nality. In deciding how much steel to produce and what price to sell it at, the company will now include the cost of its pollution-paid as an emission fee-along wi th other costs. In deciding how much pollu­ tion control equipment to buy, the company balances the cost of con­ trol against its benefits, and buys the optimal amount. So a system of emission fees can produce both an efficient amount of steel and an efficient amount of pollution con­ trol. In order to achieve that result, Ronald Coase (left) with the other five 1991 Nobel Prize winners. Left to the government imposing the fees right: Richard Ernst (Chemistry), Switzerland; Erwin Neher (Medicine), must be able to measure the cost Germany; Pierre .. Gilles de Gennes (Physics), France; Bert Sakmann imposed by pollution. But, unlike (Medicine), Germany; seated: Nadine Gordimer (Literature), South Africa. direct regulation, the use of emis­ sion fees does not require the gov� producer receives more than he pays I t is inefficient in another respect ernment to measure the cost ofpre­ and makes a profit; if the good is as well. The steel producer may be venting pollution-whether by in­ worth less than it costs to produce able to reduce the amount of pollu­ stalling air filters or by producing he takes a loss. So goods that should tion by various control devices­ less steel. That will be done by the be produced are and goods that air filters, low sulfur coal, high steel company, acting in its own should not be produced are not. smokestacks-at a cost. Calculated interest. This only works ifproducers must in terms of the net effect on every­ pay all of the costs associated with one concerned, it is worth elimi­ production. Suppose that is not the nating pollution as long as the cost I have just described the theory of case. Suppose, for example, that a is less than the pollution damage externalities as it existed before steel producer, in addition to using prevented-in our example, as long Coase. Its conclusion is that, as long iron ore, coal, etc., also "uses" clean as it costs less than $10 to prevent as externalities exist and are not air. In the process of producing a a pound of sulfur dioxide emission. internalized via Pigouvian taxes, the ton of steel he puts ten pounds of But the steel producer, in figuring result is inefficient. The inefficiency is sulfur dioxide into the air, impos­ out how to maximize his profit, eliminated by charging the polluter ing (say) $100 worth of bad smells, includes in his calculations only an emission fee equal to the damage sore throats, and corrosion on the costs he must pay. So long as he done by his pollution. In some real people downwind. Since he does does not bear the cost of the pollu­ world cases it may be difficul t to not pay for that cost, he does not tion, he has no incentive to pre� measure the amount of the damage, include it in his profit and loss cal­ vent it. So the fact that air pollu­ but, provided that that problem can culations. As long as the price he tion is an external cost results in be sol ved, using Pigouvian taxes to sells his steel for at least covers his both an inefficiently high level of internalize externalities produces the costs, it is worth making steel. The steel production (it may be pro­ efficient outcome. resul t is inefficient. Some goods duced even when it is not worth That analysis was accepted by may be produced even though their producing) and an inefficiently low virtually the entire economics cost, including the resulting pollu­ level of pollution control. profession prior to Cease's work in the tion, is greater than their value. There are two obvious solutions. field. It is wrong-not in one way but

VOLUME 37/SPRING 1992 5 in three. The existence of externali­ situations, in many of which it is far the other party could prevent the ties does not necessarily lead to an from obvious which party can avoid problem at a lower cost. inefficient result. Pigouvian taxes, the problem at lower cost, and in One of the arguments commonly even if they can be correctly calcu­ some of which it is not even obvious offered in favor of using Pigouvian lated, do not in general lead to the which one we should call the victim. taxes instead of direct regulation is efficient result. Third, and most Consider the question of airport that the regulator does not have to important, the problem is not really noise. One solution is to reduce the' know the cost of pollution control in externalities at all-it is transaction noise. Another is to soundproof the order to produce the efficient out­ costs. houses. A third is to use the land near come-he just sets the tax equal to I like to present Coase's argument airports for noisy factories instead of damage done, and lets the polluter in three steps: Nothing works, Every­ housing. There is no particular reason decide how much pollution to buy at thing works, It all depends. to think that one of those solutions is that price. But one of the implications always best. Nor is it entirely clear of Coase's argument is that the whether the "victim" is the landowner can the Works regulator only guarantee Nothing who finds it difficult to sleep in his efficient outcome if he knows enough new house with jets going by over­ about the cost of control to decide The first is to realize that an step head or the airline forced by a court or which party should be considered the external cost is not a cost simply a regulatory agency to adopt expen­ polluter (and be taxed) and which the and borne produced by polluter by sive sound control measures in order should be considered the victim. the victim. In almost all the cases, to protect the sleep of people who cost is a result of decisions both by chose to build their new houses in I would not be if Works parties. coughing what used to be wheat fields--directly Everything steel mill were not out your pouring under the airport's flight path. sulfur dioxide. But steel mill The second in Coase's your Consider a simpler case, where the step argu­ would do no to me if I did not ment is to observe as as the damage nominal offender is clearly not the that, long to live down wind from it. It is happen lowest cost avoider. The owner of one parties involved can readily make and the joint to enforce contracts in their mutual decision-yours pollute of two adjoining tracts of land has a and mine to live where are you factory, which he has been running interest, neither direct regulation nor the cost. taxes are in order polluting-that produces for twenty years with no complaints Pigouvian necessary Suppose that, in a particular case, from his neighbors. The purchaser of to get the efficient outcome. All you the does $100,000 a need is a clear definition of who has a pollution year the other tract builds a recording worth of and can be elimi­ to do what and the market will damage studio on the side of his property right nated at a cost of a take care of the only $80,000 year immediately adjacent to the factory. problem. (from here on, all costs are To see how that let us per year). The factory, while not especially works, go Further assume that the cost of back to the case of the steel mill and noisy, is too noisy for something all of the land down wind to a resorts. shifting located two feet from the wall of a the Suppose first that the mill new use unaffected the has a to In that by pollution­ recording studio. So the owner of the legal right pollute. timber instead of out growing renting studio demands that the factory shut case, as I originally set up the prob­ summer resorts, say- is the efficient result occurs only down, or else pay damages equal to lem, If we an emission fee cost $50,000. impose the full value of the studio. There are immediately. The lowest avoiders of a a hundred thousand dollars year, indeed "external costs" associated are the owners of the land downwind; the steel mill and the shift from resorts to stops polluting with operating a factory next to a they operating damage is eliminated-at a cost of recording studio-but the efficient growing timber. $80,000. If we no emission fee What the rule is impose solution is building the studio at the if, instead, legal the mill the owners of that the downwind have a keeps polluting, other end of the lot, not building the people the land for tenants not to have their air stop advertising studio next to the factory and then right polluted? and trees and the plant instead, closing down the factory. The result will be exactly the same. is solved-at a cost of problem again So Coase's first point is that The mill could eliminate the pollu­ $50,000. In this case the result tion at a cost of a But it externalities are a joint product of $80,000 year. without taxes is efficient­ is to the landowners some Pigouvian "polluter" and "victim," and that a cheaper pay the is eliminated at the problem legal rule that arbitrarily assigns blame amount, say $60,000 a year, for lowest cost-and the result to The landowners possible to one of the parties only gives the permission pollute. with taxes is inefficient. will be better since that is more Pigouvian right result if that party happens to be off, the victims not be a than the cost to them of the Moving may the one who can avoid the problem at changing solution in the case of use of the and the steel mill will very plausible the lower cost. Pigou's solution is land, air it seems certain be better since it is less than the pollution; fairly correct only if the agency making the off, that even the most draconian limita­ cost of the So it rules already knows which party is the eliminating pollution. tions on emissions in southern lower cost avoider. In the more will pay both parties to make some California would be less such expensive general case, nothing works­ agreement. than that end of the state. Now we the evacuating whichever party the blame is assigned suppose change But the of externalities numbers in the to make problem to, by government regulators or by the example, to a wide range of different control the more efficient applies courts, the result may be inefficient if pollution

6 THE LAW SCHOOL RECORD option-say lower its cost to $20,000. In that case, whether or not the mill has the right to pollute, it will find that it is better off not polluting. If it has the right to pollute, the landown­ ers will pay more than the $20,000 cost of pollution control in exchange for a guarantee that it will not exercise its right. If it does not have the right to pollute, the most the steel mill will be willing to offer the landowners for permission to pollute is $20,000, and the landowners will tum down that offer. The generalization of this example is straightforward: If transaction costs are zero-if, in other words, any agreement that is in the mutual benefit of the parties concerned gets made-then any initial definition of property rights leads to an efficient outcome. It is this result that is sometimes referred to as the "Cease Theorem." It Ronald Coase explains the Coase Theorem--or not-to students at a leads immediately to the final stage of reception in his honor given by the Law School, November 26, 1991 the argument. has an incentive to refuse to pay, incentive to be a holdout-to refuse figuring that his payment is unlikely his permission in the hope of getting It All Depends (On to make the difference between paid off with a large fraction of the success and failure in the to the mill will save from not Transaction Costs) attempt money bribe the steel mill to eliminate its having to control its pollution. If too pollution. If the attempt is going to many landowners try that approach, is it, if Coase is correct, that Why fail even with him, then it makes no the negotiations will break down, and we still have in Los pollution Ange­ difference whether or not he contrib­ the parties will never get to the les? One answer is that the possible utes. If it is going to succeed even efficient outcome. is efficient-that the pollution without him, then refusing to contrib­ Seen from this perspective, one way it does is less than the cost of damage ute gives him a free ride. Only if his of stating Coase's insight is that the it. A more preventing plausible contribution makes the difference problem is not really a question of answer is that much of the is pollution does he gain by agreeing to contrib­ externalities at all, but of transaction but that the transactions inefficient, ute. costs. If there were externalities but to eliminate it are necessary prevented There are a variety of ways in which no transaction costs, there would be transaction by prohibitively high such problems may sometimes be no problem, since the parties would costs. solved, but none that can always be always bargain to the efficient Let us return to the steel mill. expected to work. The problem solution. When we observe external, the mill has the to Suppose right becomes harder the larger the number ity problems (or other forms of market but that so is ineffi­ pollute, doing of people involved. With many failure) in the real world, we should control is cient-pollution cheaper millions of people living in southern ask not merely where the problem than either with the putting up California, it is hard to imagine any comes from, but what the transaction pollution or the use of the changing plausible way in which they could costs are that prevent it from being land downwind. Further that suppose voluntarily raise the money to pay all bargained out of existence. there are a hundred landowners polluters to reduce their pollution. downwind. This is one example of the sort of With one there Coase, Meade, and Bees only landowner, problem referred to under the general would no be problem-he would offer label of "transaction costs." Another to the mill for the cost of the since pay would occur if we reversed the Ever Coase published "The control a pollution equipment, plus assumptions, making pollution (and Problem of Social Cost," economists little extra to sweeten the deal. But a unconvinced his have timber) the efficient outcome but by analysis hundred landowners face what giving the landowners the right to be argued that the Coase Theorem is economists call a public good prob­ pollution free. If there were one merely a theoretical curiosity, of little lem. If ninety of them put up the landowner, the steel mill could buy or no practical importance in a world and ten do the ten a where transaction costs are zero. money not, get from him the right to pollute. With a rarely free ride-no and no cost pollution hundred, the mill must buy permission One famous example was in an article for control. Each landowner Meade later received a pollution from all of them. Anyone has an by James (who

VOLUME 37/SPRING 1992 7 Nobel prize for his work on the their hives in the farmers' fields. and interesting approach to the economics of international trade). When the crops were producing little problem of defining property rights. Meade offered, as an example of the nectar but needed pollenization A court, in settling disputes sort of externality problem for which (which increases yields), farmers paid involving property, or a legislature, in not a to be to Coase's approach offered no practical beekeepers. Bees may respect writing law code applied solution, the externalities associated property rights but they are, like such disputes, must decide just which and to as of the associated with land are with honey bees. Bees graze on the people, lazy, prefer forage rights flowers of various crops, so a farmer close to the hive as possible. included in the bundle we call The fact that a Coasian Does the owner have the who grows crops that produce nectar approach "ownership." benefits the beekeepers in the area. solves that particular externality right to prohibit airplanes from The farmer receives none of the problem does not imply that it will crossing his land a mile up? How benefit himself, so he has an ineffi­ solve all such problems. But the about a hundred feet? How about ciently low incentive to grow such observation that an economist as people extracting oil from a mile as he crops. Since bees cannot be con­ distinguished Meade assumed under the land? What rights does vinced to respect property rights or Coase's approach was of no practical have against neighbors whose use of keep contracts, there is, Meade significance in a context where it was their land interferes with his use of his? If he builds his studio argued, no practical way to apply actually standard practice suggests recording Coase's approach. We must either that the range of problems to which next to his neighbor's factory, who is a to in subsidize farmers who grow nectar rich the Coasian solution is relevant may at fault? If he has right silence at does that mean crops (a negative Pigouvian tax) or be much greater than many would his recording studio, accept inefficiency in the joint first guess. that he can forbid the factory from or that he can sue to production of crops and honey. operating, only It turned out that Meade was Coase, Property, and be reimbursed for his losses? It seems to that we should have wrong. In two later articles, supporters the Economic simple say of Coase demonstrated that contracts Analysis private property in land, but owner­ between beekeepers and farmers had of Law ship of land is not a simple thing. been common practice in the industry The Coasian answer to this set of is that the law should define since early in this century. When the "The Problem of Social Cost" problems were nectar and did property in such a way as to minimize crops producing provides more than merely a revolu­ not need the costs associated with the sorts of pollenization, beekeepers tionary rethinking of the question of farmers for to uses we have been paid permission put externalities. It also suggests a new incompatible discussing-factories and recording studios, or steel mills and resorts. The first step in doing so is to try to define Student Scholarship rights in such a way that, if right A is Recognized of most value to someone who also holds right B, they come in the same In 1951, Leo Herzel, then a bundle. The right to decide what second-year student at the Law happens two feet above a piece of land School, published a comment is of most value to the person who entitled '''Public Interest' and the also holds the right to use the land Market in Color Television itself, so it is sensible to include both Regulation," in volume 18 of The of them in the bundle of rights we call University of Chicago Law Review. "ownership of land." On the other The comment discussed regulation Leo Herzel '52 and Ronald Coase hand, the right to decide who flies a versus market solutions to the mile above a of land is of no chat before a dinner given in piece problem of broadcast channel Coase's honor by the University, special value to the owner of the land, allocations. January 22, 1992 hence there is no good reason to Ronald H. Coase referred include it in that bundle. extensively to Herzel's comment in Herzel, who is now a partner with If, when general legal rules were his 1959 article "The Federal Mayer, Brown & Platt in Chicago, being established, we somehow knew, Communications Commission," became colleagues and friends for all cases, what rights belonged which proposed that the govern­ when Herzel started teaching a together, the argument of the previous ment should sell air frequencies to course in corporate and securities paragraph would be sufficient to tell the highest bidder. The underlying law at the Law School in 1983. us how property rights ought to be ideas of transactions costs ex­ A recent editorial in the Wall defined. But that is very unlikely to be pressed in Coase's article formed Street Journal recalled the early the case. In many situations a right, the basis of his pathbreaking article articles and reminded its readers of such as the right not to have noises of "The Problem of Social Cost," the dangers of regulating broad­ more than X decibels made over a published in the Journal of Law and casting channels now the govern­ particular piece of property, may be of Economics in 1960. Coase and ment is considering re-regulation. substantial value to two or more parties-the owner of the property

8 THE LAW SCHOOL RECORD the problem. Part of what Coase showed was that, for some problems, there is no legal rule, no form of regulation, that will generate a fully efficient solution. He thus anticipated public choice economists, such as James Buchanan (another Nobel winner), in arguing that the real choice was not between an inefficient market and an efficient government solution but rather among a variety of inefficient alternatives, private and governmental. In Coase's words: "All solutions have costs and there is no reason to suppose that government regulation is called for simply because the problem is not well handled by the market or the firm." a

References Professor Norval Morris, with Mrs. Morris, congratulates Mr. Coase before Steven N. S. The Fable of the January 22 dinner in Mr. Coase's honor Cheung, the Bees: An Economic Investigation, 16 Journal of Law & Economics 11,33 owner of the the mill would face the case where and the adjacent factory (in (1973 ). in my earlier example, for instance. pollution is efficient) in buying There is no rule that will from all of the landowners. general legal permission R.H. Coase, The Problem of Social it to the one. A full of how Coase's always assign right explanation Cost, 3 Journal of Law & Economics In this the can be to case, argument underly­ argument applied figuring 1A4 (1960). ing the Coase Theorem comes into out what the law ought to be (more If we the to what rules lead to the play. assign right initially precisely, legal D. Friedman, The Machinery of the the best outcome from the of wrong person, right person, standpoint Freedom, Chapters 41,43 (2nd edn., the one to whom it is of most economic would a value, efficiency) require Open Court: La Salle 1989). can still buy it. So one of the consid­ much longer article-perhaps a book. erations in the initial definition of I I have said to make hope enough David B. Johnson, Meade, Bees, and is it in such a clear the basic and to property rights doing idea, enough Externalities, 16 Journal of Law & as to minimize the transaction show the and way unique extraordinary Economics 35,52 (1973). costs associated with fixing, via nature of one of Ronald Coase's contributions to economics. private contracts, any initially principal J. E. Meade, External Economies and inefficient definition. He started with a based simple insight, Diseconomies in a Competitive An make this clearer. in on read cases in the example may part having Situation, 52 Economic Journal 54 in the case common law of nuisance-the branch Suppose that, pollution (1952). discussed earlier, damages from of law that deals with problems such are to measure and the as factories next door to pollution easy noisy x.c, Pigou, Wealth and Welfare number of downwind is studios. He ended people large. recording by ( 1912) and The Economics of Welfare In that the efficient rule is that what case, demonstrating everyone (1920). probably to give downwind landown­ else in the profession thought was the ers a to collect from the correct of the of right damages analysis problem Richard A. Posner, Economic but not a to forbid him externalities was in the polluter, right wrong, and, Analysis of Law (3rd edn., Little from the to the a whole new polluting. Giving right process, opening up Brown & Co., Boston, 1986). landowners avoids the public good approach to the use of economics to problem that we would face if the analyze law. landowners (in the case where There is at least one more thing pollution is inefficient) had to raise worth saying about "The Problem of the money to pay the steel mill not to Social Cost." Economists, then and This article first appeared in Liberty pollute. Giving them a right to (to some degree) now, tend to jump Magazine, volume 4 (no. 3), in damages rather than giving each from the observation that the market January, 1992, under the title "The landowner the right to an injunction produces an inefficient result in some Swedes Get It Right." It is reproduced forbidding the steel mill from pollut­ situation to the conclusion that the with permission. ing avoids the holdout problem that government ought to intervene to fix

VOLUME 37/SPRING 1992 9 Loo

• Forwar •

The Next 100 Years

The fall issue of the Law School Record celebrated the University of Chicago Centennial through a look back to events in the early life of the Law School. But a Centennial is about more than nostalgia-it looks forward to the next century. In this spirit of the Centennial celebration, we asked our faculty, alumni, and the president of the Law Students Association to offer predictions about the future direction of law practice, the courts, legal education, and legal doctrine. We begin with three articles about the court system. Albert Alschuler discusses the criminal justice system, Larry Lessig looks at the Supreme Court, and Terry Hatter examines the federal judicial system. The next four articles consider particular fields within law practice. After Don Samuelson discusses professional responsibility, Cass Sunstein addresses environmental law, Leo Herzel discusses corporate practice, and Lillian Kraemer examines the future of bankruptcy law. The final four articles turn to areas of legal thought within the academy. Tia Cudahy sets out her ideas for the law school of the future, Gary Palm lays out a blueprint for clinical education, Douglas Baird writes about law and economics and Mary Becker discusses feminist theory.

10 THE LAW SCHOOL RECORD to statement of this in the The Future of appeal to and contribute the pub­ penalty 1987, lie's fear of crime seem never to have nation's Conservative Prime Minister Criminal Justice had the field so fully to themselves. led a decisive majority in opposition. Political scientists that we America alone continues to enact Albert W. Alschuler suggest live in the -time of the "plebiscite Presi­ new death penalty legislation and to dency." Public officials can no longer impose capital punishment more Winston Churchill once observed count on the backing of stable coali­ frequently. that the quality of a nation's civiliza­ tions organized along party lines. Similarly, America has embarked on tion can be largely measured by the Their goal is often short-term a $1,0 billion-per-year war on drugs. methods that it uses in the enforce­ approval, and they seek issues that Presidents and "czars" speak of a drug ment of its criminal law. In the final promise immediate payoffs and that epidemic. As best anyone can judge, decade of the twentieth century, already have strong public support. however, the rate of drug offenses has Americans can hope that there are Partly for this reason, they fear enders­ declined more substantially than the other yardsticks. ing any position that an opponent can rate of other crimes. Only the number Recent years have marked some characterize as "soft on crime" in a of drug cases in the courts has soared. milestones in our nation's penal his­ 30�second television commercial. The drug war itself probably is not tory. Over one million Americans are currently behind bars, and the United States now imprisons a substantially higher portion of its population than any other nation whose incarceration rates we can approximate. A decade ago, South Africa and the Soviet Union imprisoned more people per capita than we did, but we have now overtaken them by a substantial margin. As the number of Americans behind bars has burgeoned, so has the number under other forms of correc­ tional restraint. The Bureau of Justice Statistics offered the following compar­ ison: "At the end of 1980, approxi­ mately 1.8 million persons were under the care, custody, or control of a cor­ rectional agency or facility. At the end of 1989, total correctional populations numbered nearly 4.1 million adults." The BJS reported that at the end of 1989 "[ojne in every 25 men and As America's prison population the major cause of the decline in drug 1 in every 173 women were being doubled and more during the 1980s, use. Law enforcement efforts have supervised." the proportion of Americans who said focused primarily on limiting the sup­ Some demographic groups are obvi­ that criminal sentences were "not ply of drugs, yet cocaine and heroin ously more vulnerable to participation harsh enough" increased from 79 have been among the few commodities in crime and to punishment than percent to 85 percent. A former in America whose prices have moved others. Today nearly one out of four Chairman of the Illinois House judici­ in the opposite direction from infla­ black men in their 20s is under some ary Committee, John Cullerton, told tion. The combination of declining form of criminal restraint-prison, jail, a conference of judges that he had use and declining price suggests that probation, or parole. struck a bargain with the other mern­ diminished drug use is the product of The doubling in the rate of criminal bers of his committee. No one would reduced demand rather than reduced punishment during the past decade is seek to increase the sentence for a supply. People "just say no," and the not attributable to any increase in the crime by more than one "level" during use of legal drugs-alcohol and rate of crime. Indeed, crime rates are a single session of the legislature. tobacco-has declined along with the lower today than they were a decade "That way," Cullerton explained, "we use of illegal substances. ago in almost every offense category. could leave room to do it again." American criminal procedure has Americans appear to know more The politics of resentment are more become an almost schizophrenic sys­ about occasional upward blips in the marked in America than elsewhere. tem of feast and famine. In 1990, the crime rate (the city's "bloodiest week­ Our treatment of capital punishment longest criminal trial in American end in a decade") than about the illustrates the contrast. Every Western history came to an end two years and generally downward slope. Because democracy other than the United nine months after it had begun. This crime is news, some tilt in media States has effectively abolished the trial did not involve financial machi­ reporting seems inevitable. In the death penalty, and when members of nations of great complexity or an army electoral arena, moreover, figures who Canada's Parliament proposed rein- of white collar defendants; the defen-

VOLUME JS/SPRING 1992 11 dants were members of a preschool more than 500 cases that she handled ers been sentenced under the current staff charged with sexually abusing during the year. Robert followed her statute, the correctional cost to the children at their schooL Of the two advice. taxpayers would have gone from $1.5 defendants whose cases reached the The authorities later realized that million to $30 million, not including jury, one had spent five years in pre, Robert H. was not guilty of the charge prison construction costs. Similarly, trial detention, the other two. The to which he pleaded guilty; through a under recent Illinois legislation, the preliminary hearing in the case itself bureaucratic error, they had confused sale of one gram of cocaine near a had lasted 18 months and had cost $4 him with someone else. Despite school, a public housing facility, or a million. The trial jury heard 124 wit, Robert's innocence, however, the pub, park is a Class X felony. This crime nesses, and after paring down the lic defender may not have given him carries a mandatory prison sentence charges, the judge permitted 65 allega­ bad advice. She told him that, if he of six years. tions of molestation and conspiracy to pleaded guilty, he could go home that Sentencing guidelines designed to go to the jury. The jury acquitted one day; and if he wanted a trial, he could promote equality have scattered years defendant but failed to reach agree, have one-after waiting in jail for of imprisonment almost by lottery. ment on the other. When a retrial perhaps another year. Because describing the appropriate later the same year produced a second influence of situational and offender hung jury, the prosecutor dismissed all characteristics on sentencing is diffi­ remaining charges. The McMartin cult, sentencing commissions have Preschool case had ruined several lives emphasized rough indicators of social and also had cost the taxpayers $15 harm instead. These commissions million. have counted the dollars, weighed the This case was the product of drugs, and forgotten about more unusual blunders, but overprocedurali­ important things. zation has infected the American Indeed, the Supreme Court held criminal triaL Prolonged, privacy, last year that the Federal Guidelines invading jury selection procedures, require a court to weigh blotter paper, cumbersome rules of evidence, the gelatin cubes, and sugar cubes con, repetitive cross-examination of wit, taining LSD along with the drug itself nesses, courtroom battles of experts, in determining an LSD dealer's sen, jury instructions that all the studies tence. Although the sentence for a tell us jurors do not understand, and first,offender who sold 100 doses of more have made trials inaccessible LSD in sugar cubes would be 188 to for all but a small minority of 235 months, the dealer's sentence defendants. would have dropped by two-thirds if Lawyers extol our trial procedures she had sold the same 100 doses in Albert Alschuler on Law Day. They tell us later that blotter paper. The dealer's sentence the courts would be swamped if we would have been cut more than in used them. "Practical necessity" Sentencing guidelines and manda­ half again if she had used gelatin cap, requires pressing the overwhelming tory minimum sentences have done sules, and the sentence would have majority of defendants to abandon for sentencing what plea bargaining been cut in half once more (to 10 to 16 their day in court. Ninety-one percent has done for adjudication. Judges and months) if she had sold the LSD in of the defendants convicted of felonies other officials need no longer pause to pure form. The First Circuit recently in the state courts now plead guilty consider the facts of their cases. We held in fact that the weight of a drug rather than exercise the right to triaL allocate punishment wholesale. courier's suitcase should determine his We allocate limited resources about as One recent Federal Drug'Control sentence; the cocaine that this courier sensibly as a nation that decided to Act, for example, imposes a ruanda­ had carried was chemically bonded to solve its transportation problem by tory minimum sentence of five years the suitcase. (The court did agree to giving Cadillacs to 10 percent of the for the possession of five grams of omit the weight of the suitcase's metal population while requiring everyone crack cocaine. Five grams is the weight fittings.) Results like these would have else to travel by foot. of two pennies or five paperclips. A been inconceivable in the old regime Less publicized than the McMartin gram of crack contains three to five of discretionary sentencing. Some Preschool case was the case of Robert "hits," and five grams seems roughly to judges are odd, but determining how H., a defendant who recently spent six mark the borderline between posses, many years to imprison someone by months in an Atlanta jail without any sion for personal use and possession weighing blotter paper and suitcases formal charges filed against him and for small-scale dealing. During the is madness. As Richard Posner has without ever appearing in court or fiscal year that ended in the summer remarked, we might just as well base seeing a lawyer. On the day that of 1989, federal judges sentenced about punishment on the weight of the Robert H. met the public defender 400 first offenders for the possession of defendant. Sentencing guidelines and who represented him, the public five grams of crack. These judges­ mandatory minimum sentences plainly defender advised him to plead guilty. mostly Reagan, Carter, Ford and have marked a changed attitude Robert's was one of 30 felony cases in Nixon appointees to the bench­ toward punishment-one that looks to which this public defender made court placed 300 of the 400 offenders on collections of cases and to crude mea, appearances that day-and one of probation. Had the same 400 offend, sures of social harm rather than to

12 THE LA\V SCHOOL RECORD individual offenders and the one but not on and

. punish,. ground, another, ments they deserve. it is impossible to tell which ground As to the future, I offer two predic­ the jury selected." tions. First, the prophesy that Abra­ In Griffin v. United States, decided ham Lincoln called true and this Term, the Court considered appropriate in all situations: "This too the types of insupportable grounds shall pass away." (Alas, I see little sign that are within the rule of Yates­ that it will happen any time soon.) specifically, whether the Yates rule And second, a still older prediction: covers a ground that is insupportable "Whatsoever a man soweth, that shall because the evidence it relied upon is he also reap." As Winston Churchill insufficient as a matter of law. In an recognized, we cannot diminish the opinion written by Justice Scalia, the least favored members of our society Court (without dissent) said that it did without at the same time diminishing not. The Yates rule, the Court held, ourselves. applied to "legal errors" only, and for these purposes, insufficiency of evi­ dence is not "legal error." True, the Albert Alschuler is Wilson'Dickinson Court said, in some cases the Court Professor of Law. has held that insufficiency of evidence is legal error; indeed, it is constitutional error. But even if sometimes insuffi­ Larry Lessig The Supreme Court and ciency of evidence is "legal error," Our Future sometimes it is not. In this case, not. political attempt by yet another presi­ As the Court viewed it, the difference dent to "amend" the Constitution Larry Lessig was mere "semantics." through judicial appointment? Will For what was important was that the result of this restoration be a pub, If a century ago one had predicted the "what the petitioner seeks is an exren­ lic reawakened to the possibility of

Supreme Court's next hundred years, sion of Yates' holding ... to a context constitutional law, or a public increas­ one would no doubt have gotten it in which we have never applied it ingly cynical about constitutional wrong. Within five years of such a before." Griffin is a criminal (or at politics? The Court calls itself conser­ forecast, the Court would have held least may be); with respect to crimi­ vative, but we have known conserva­ that segregation was consistent with nals, the Constitution now protects tives. Justices Harlan and Frankfurter the equal protection of the law; sixty, only what it now protects; its protec­ were conservatives. These justices are three years later, that it was not. tions will not be extended to some, not. This Court, like the Court before Within six years, the Court would thing more. it, like the Court before it, and like have begun the transformation of the Which is not to say that they will the Courts before it, has its own con, 14th Amendment from a guarantee of not be contracted to something less. ception of a properly activist role, and equality to a guarantor of economic The recent past is littered with exam, with a certain unseemliness, is quite liberty; forty-six years later, on that ples of the Court's willingness to eagerly pursuing it. front at least, it would have beaten a change constitutional law when The result will be a relatively more full retreat. Within some sixty years, it change means less protection for the statist society, though statist in an would have launched a different activ­ currently disfavored, and more protec­ oddly skewed sense. Government will ist campaign, this time to protect the tion for the currently favored: Less have more power as individual rights rights of some of the weakest in soci­ protection for criminals, for the poor; are curtailed; but less power as major' ety; but as the century closes, that more protection for states, for racial ity rights (resisting affirmative action) battle too has come to an end. At majorities, and for the police. For this and states' rights (resisting regulation best, it was a century of cycles; at is no less an activist Court than courts by Congress) are expanded. (The one worst, it was confused. before-activist both in the sense that exception may be economic and prop' Of a prediction of the next hundred it constructs constitutional barriers to erty rights. There, individual rights years, there is little reason to expect the decisions of democratic majorities may increase-a gain for some of those anything more. At most we can speak (by resisting affirmative action and already possessed of the most power in about the very near future, a clue to creating "states' rights"), and in the society.) And barring calamity, this which may be found in the very sense that it pursues its reconstructive will be the pattern for at least the next recent past. Consider just one case. It task at an ever increasing rate. two decades, for the conservatives is the law that a criminal conviction Conservatives argue that such have succeeded in lacing the court obtained by general verdict cannot change is conservative because testora­ with youth-the average age of the last stand if one of the grounds upon tioe, but restorative to what end? Even five appointees is fiftv-three, the aver, which the conviction could have rested if the Constitution has been illicitly age retirement age over the century is is unconstitutional or in some other "amended" by past activist Courts, seventy-two; the most recent addition, way illegal. As the Supreme Court does anyone really believe that the Justice Thomas, will just speed the held in Yates v. United States in 1957, public views this current restoration as reform. "a verdict [must] be set aside in cases a reaffirmation of original principles Beyond substance, however, there is where the verdict is supportable on rather than as yet another illicit and something particularly arresting about

VOLUME 38/SPRING 1992 13 the form of the Court's most recent and in interest, we may well have been turn, a change that should lead some right endlessly to engage questions of of us to ask whether we give the constitutional theory or theories of Court more attention than is due. Few interpretation. These are, after all, doubt that the legal work-product of questions about a certain kind of the Court has declined, as less is done interpretive practice, and make sense by Frankfurters, or Jacksons, or as questions so long as they remain Stones, or Holmeses, and more by questions of that practice. But do clerks-our students, good students, they make sense when at most their but students just two years out of law answers play to an audience of none? school. Similarly, few doubt that the Do they make sense in a world where political product of the Court has most of what law routinely does it does increased, due again to who the Jus­ quite poorly, and where they address tices are not, and to what they have not at all issues about what law rou­ let their clerks become. Both trends tinely does? Is it possible that our should suggest the intellectually barren greatest contribution is no longer to terrain that is the Court. constitutional theory, but to ordinary And yet the largest category of legal practice? To the questions raised and scholarship continues to be directed to yet unanswered by Zeisel and Kessler, the Court, reflecting on its work, its rather than Dworkin and Rawls? method, and its mission. Why? For Whatever the Court will become a what is most striking about this Court century from now, we know what it is its complete disengagement from will not be for the next generation. Terry Hatter anything like a reflective perspective It will not be the institution that on its work. While the academy con­ advances this nation's, or law's, ideals. tinues to grind out essay upon essay At best, it will wait for democrats to anyone else who will listen) that it is struggling with the substance and do that; at worst it will lend aid to the our independent judiciary, established theory of much of the Supreme resistance. We should accept this and by Article III of the United States Court's job (over the past decade, for move on to more fertile ground. Constitution, that sets our nation example, there were some 1600 apart from the other nations of the published articles discussing theories world, even the so-called "free" ones. of constitutional interpretation), there Larry Lessig is Assistant Professor of While it is the Constitution and its is an inescapable sense that this is not Law. He is currently writing (yet Bill of Rights that afford us great pro­ a perspective that the Court finds another) article on interpretation. tections, it is through the interpreta­ either interesting or important, let tions of this "principled" document by alone comprehensible. Instead of the courts that we actually realize the advancing a theoretical debate to Future of the Judiciary rights as applied in today's society and, advance the practice for which it is a we hope, in tomorrow's rapidly chang­ debate, we have engendered a theoreti­ Terry J. Hatter Jr. ing world. cal debate for theory's sake alone. The It is uncertain, at best, that our rod has disengaged from the piston. Our University is celebrating its Third Branch will continue to evolve No doubt this is in part due to a Centennial, and the nation is still and remain a co-equal branch of fed­ change in our own work-product as commemorating the two hundredth eral government. There are danger much as to a change in the Court, as anniversary of the Bill of Rights of the signals all around us that give pause to academics flee the law for economics, Constitution. Most of us understand an assurance that the court system as or philosophy, or literature, and as and appreciate what this great Univer­ we have come to know it will continue more and more of our work appears sity has given us as we look back at to exist. For some, it is not necessarily political, if only because it reveals the our educational experience, and, of a bad thing that the courts may be premises that we no longer share. But course, we exalt in the codification of weakened in the future. However, for in part too it is due to an attitude of rights that we share as Americans the majority, including minorities and the current judiciary that abjures through the first ten amendments. As women, a diminution of shared pow­ theory for approaches more pedes­ important as this reflection on the ers by the judiciary augers disaster. trian, that scorns the reflective to past is, it is no less important that we Indeed, without a constantly strong embrace the reactive, that has given attempt an assessment of what the and independent judiciary, there is the up any sense that there is sense to be future portends-particularly for the true danger of tyranny by majority made of the practice as a whole, or at federal judiciary. sway without the protection of minor­ least that part which is the Court's As a member of that judiciary, I ity rights otherwise safeguarded by the practice. have a great concern for its direction Constitution-no real chance for all of My point is not about blame. It is and as a citizen, I have an even greater us to play on a level playing field. instead to ask how we should respond need to believe that a strong and What danger signals? First, and to this current separation, whatever its independent Judicial Branch will be a foremost, how many people (even cause. When the academy and the part of this nation's future. Indeed, I University of Chicago educated) real­ Court were closer, both in attitude am quite fond of telling my jurors (and ize that we spend less than one-tenth

14 THE LAW SCHOOL RECORD of one percent of the national budget Reform Act mandates actually mirror patent, copyright, environmental, and on the entire Third Branch of govern­ the Local Rules that our court has had space law. ment? Every time a B-1 prototype goes in place for many years in this, the Some champion ADR (alternate down in a test flight in the California largest district in the nation, which dispute resolution) as a cure for many desert it represents an amount equal serves some fifteen million people. of the present and perceived future ills to at least a half-year's funding of the They also agree that this Act is a of the judicial system. We see more federal judiciary. For the first time in thinly-veiled encroachment on the arbitration, mediation, summary jury history, we have reached just two federal judicial prerogative to establish trials, and other experimental projects billion dollars of annual funding. We and maintain procedural-not sub­ being tried in place of the traditional are the only courts of record without stantive-rules for the functioning of courts. In California, we even have assigned bailiffs-a district judge must the courts. something called "Rent-A-Judge." This give up a law clerk in order to secure a "private judging" is another ADR tool bailiff to staff the courtroom. We are that has proven effective in certain the last branch to obtain full computer • situations, but it also presents prob­ capability, even while our caseloads lems of its own. First, there is the sky-rocket. Every time a B-1 prototype appearance-indeed, the actuality-of Together with an increasing case­ a two-tiered justice system. One tier is there are more and more com­ swift and efficient and is available load, goes down in a test flight in only plex cases, both civil and criminal. to those few who can afford it. The What was once a court of limited the California desert it other is the same crowded, under­ jurisdiction has become essentially a funded system that less privileged general forum. This is in great part represents an amount equal litigants must continue to use. Second, the result of ill-thought congressional many fine, experienced judicial officers legislation that has grown out of to at least a half-year's are being siphoned into the more "tough-on-crime" politics. Such attractive (better pay, better hours) strange political bedfellows as Senators funding of the federal private system at further risk to the Ted Kennedy and Strom Thurmond public courts. Especially worrisome in have co-authored the Sentencing judiciary. the long run is the fact that less atten­ Guidelines, which are not guidelines tion will be given to improving the at all but, instead, mandates that have • traditional court system as more of the effectively taken discretion in sentenc­ "big players" leave it for the world of ing from life-time Article III judges private judging. and transferred it to young prosecu­ Another area of concern is the Overlying the foregoing is what I tors. This "reform," along with man­ preservation of the jury system. I was a perceive as a failure of confidence by datory minimum sentences, also student at the Law School when Pro­ the general public in the process of legislated by the Congress, has added fessors Kalven and Zeisel were doing selecting federal judges, particularly at greatly to the number and length of their formative work that led to their the highest level-the United States criminal hearings. groundbreaking study, The American Supreme Court. The recent Senate The civil bar initially did not feel Jury. Many of the insights, problems, confirmation hearings for Justice threatened by the "tough-on-crime" and proposed solutions in that 1966 Clarence Thomas, while at times bills. As it becomes more difficult to work are no longer timely, but they dramatic, were disquieting in result. find firm trial dates, however, the still give focus for the future. While As in the confirmation hearings of the ABA and state and local bar groups many practitioners and law professors two justices preceding Thomas, there are beginning to express their concern lament such jury changes as less than was the constant undertone expressed directly to the Congress. Even with twelve-person juries, judge conducted by Senators of both parties that the this welcome intervention, it will take voir dire, and limited use of pre­ President is owed deference in the decades to undo the harm already emptory challenges, my concern is nominating process. I submit that done to a balanced civil and criminal more with the increasing length and nowhere in the Constitution is "defer­ caseload. complexity of jury trials. I can envi­ ence" to be found. Nor can it be The most recent Congressional foray sion our federal jury system emulating argued that it was the original intent into the operations of the Third England in that jury trials will be seen of the Founding Fathers to give defer­ Branch comes under the guise of case only on the criminal side, and even ence to a President's Supreme Court management legislation, entitled the there it will be difficult to obtain juries nomination. Indeed, the Senate has Civil Justice Reform Act. Written that are "legally" representative of a done violence to the separation of principally by Senator Joseph Biden, cross-section of the community. How powers which is, together with the Bill this bill "authorizes" district courts to can we expect ordinary citizens to take of Rights, the keystone of our Consti­ set timetables and discovery limits, many months-and, indeed, years­ tution. The repeated failure of the among other things, but, in actuality, away from work and family to sit on Congress to exercise vigorously its represents little more than an attempt juries resolving other people's disputes? mandate to ensure a constitutionally at Congressional oversight of the Moreover, the complexity of issues selected Supreme Court"... by and judicial process. Many of my col­ that jurors are asked to resolve is with the Advice and Consent of the leagues in the Central District of Cali­ increasing as litigation itself increases, Senate" spells political disaster. It is the fornia agree that the Civil Justice particularly in such fields as antitrust, Court, not the nominee, to whom

VOLUiv1E 38/SPRING I9l)2 IS deference is owed, and it is owed on behalf of the People. Until the Congress and the Execu­ tive change direction, there remains a troubled future facing the federal judi­ ciary and our nation, of which an independent court is such an integral part.

Terry]. Hatter Jr. '60 is a Judge of the US. District Court for the Central District of California.

The Need for a Renewed Professionalism

Don Samuelson

The law industry has just completed two decades of unprecedented pros­ perity and growth. Lawyers have increased in number from 300,000 in to 1970, 600,000 in 1980, to 900,000 in .� .,;,.' . 1990. Law is presently a $90 billion industry which has grown at a lO percent rate during the last decade compared to a 3 percent growth in the American economy. It has been com­ 4. Associate salaries and costs bear through stages in a common evolu­ mon for partners in big firms in big little relation to the value of their tionary process. The first stage cities to make between $300,000 and empha­ work. This is good for associates, sizes production. The product or $900,000 per year. The law industry for for senior service is new. The demand is clearly prospered in the 80s. good leverage, good high. partners, but bad for clients. There are few The What are the prospects for the 90s? suppliers. problem is in the service and In the in there is manufacturing economy general, S. Law firms appear to have made getting it out the door. This was the emphasis on quality, on value, on little "investment" in their practices in the 70s and cost effective solutions to legal industry 80s, providing -developing products and systems, responding to the regulatory require­ the needs of consumers. These are the substituting technology for labor­ ments of the Great that will be to the Society. principles applied to provide superior services at lower The second stage involves "selling." legal industry in the 90s. Are clients costs. Demand is not sufficient to "clear" all satisfied with the legal services they 6. There is a in the of the available product. Sometimes have been receiving? From a recent paradox significant values that can be clients customers need to be to survey of owners of mid-sized provided persuaded senior in the Law firms added businesses in Chicago, apparently not. by lawyers early diag­ buy. "marketing" nostic and of a staff to assist in this function in The conclusions are: design phases legal selling matter and the great costs-rather the late 80s. 1. Clients are dissatisifed with lawyer than values-generated by younger The third stage requires "market­ narrow and on the customer. attitudes, perspectives lawyers in manufacturing the ser­ ing." The focus is costs. vice. As much as 90 percent of the What do they need? What value is the value can occur in the first lO per­ service to them? The basic elements 2. Clients do not feel they are getting cent of the time. The 90 are: a) the client has a problem; b) the good value. The incentives in the remaining percent of the time-and cost­ lawyer has a solution; c) the client current billable hour system appear the final lO of the receives a benefit; d) the benefit is of to favor inefficiency, delay, and produces percent value. value; and e) there is a reasonable lawyer interests. relationship between the value and the 3. Lawyers do not adequately under­ Law is a profession, but it is subject price. These principles make up the stand their clients' businesses. As to business principles. The legal indus­ "business" of law. By this I mean the a result, they don't appreciate the try today is a mature and competitive client centered and efficient delivery of ways in which their experience, marketplace. It is a marketplace that is an appropriate and needed level of knowledge, and connections could undergoing rapid and perhaps struc­ service. create value for their clients. tural change. All industries proceed When an industry enters the mar-

16 THE LA\x' SCHOOL RECORD keting stage of its evolution, the pro' Fourth, lawyers need to reduce their Environmental ducer's challenge is to develop a manufacturing costs. They can Protection in the system which can produce services at a "design" solutions with minimal man, .. First cost less than their value to the client. ufacturing needs. They can substitute Twenty Century The is VALUE 1D eLI, for labor in the manufac­ key point technology Cass R. Sunstein ENTS. The practice of law in the 90s turing process. They can reduce labor will not be "interesting cases" for law, (associate) costs. At the moment, In the United States, environmental yers. It will be recommending and lawyers produce high value diagnostic law has come in two stages. The first executing a course of action-among a and design services. Their rnanufactur­ stage-from the creation of the Repub­ variety of alternatives-that is appro, ing processes result in low value prod, lic to about 1970-involved the use of priate to the client's needs and objec­ ucts and services. A great deal of the the common law. The second stage­ tives. For too long now lawyers have current manufacturing process is from about 1970 to about 1980- been looking through the wrong end unnecessary. involved an extraordinary explosion of of the telescope. Fifth, both lawyers and law firms federal statutes. We are now entering What must lawyers do to produce need to take longer term perspectives an exciting third stage, whose con, values for their clients in the 90s? of their careers and law practices. tours are just beginning to emerge, First, they need to understand the They need to invest time, capital and and which might well simultaneously principles, language, values, and moti­ creativity so that the costs of legal promote economic, environmental, vations of the business community services can be reduced, resulting in and democratic goals. To understand they seek to serve. A law firm does increased value to clients. Lawyers that third stage, it is necessary to not need to become a business. It does cannot continue to sell hourly rate explore its predecessors. need to understand business. services, at ever increasing hourly As a regulatory system for protecting Second, lawyers need to be able to rates, independent of the value of the environment, the common law array a spectrum of legal solutions to those services to clients. had many advantages. It was highly client problems-not simply a single, Sixth, lawyers need to communicate flexible; it was decentralized; it allowed zero defect conclusion. The art of their skills and capacities to clients in different accommodations to be lawyering will be to assist clients in a persuasive and efficient manner, reached in different areas. For many selecting appropriate, co-effective solu­ demonstrating how their services can years, the common law worked rea' tions among a variety of options. be cost effective in advancing the sonably well, at least insofar as it Third, the legal industry needs to interests of the clients. could control the worst abuses with, develop systems and procedures-and The basic problem? There are not out imposing unnecessary obstacles to the technology-so that the needed sufficient ownership interests in a law economic development. services can be produced cost, practice today to induce lawyers to As a complete solution, however, effectively, with the requisite degree of take long term perspectives or to make the common law is hopelessly inade­ service and quality control, and at a investments in their firms or practices quate. Judges are not experts in the price which is perceived to be a value at the expense of current income. As a complex issues of environmental pro' to the client. result, the prices for legal services rise tection. Equally important, they are -to reflect the increased costs of labor not democratically accountable. The or the desire of partners for increased common law depends on the assump­ profits-with no offsetting increase in tion that causation is clear; in the productivity. Markets shrink or are environmental context, causation is lost to more efficient industries. Reve­ typically ambiguous. Finally, the com, nues drop. Practices deteriorate. And mon law depends on private initiative, law firms go out of business. when environmental protection affects There is a message in this for the so many people (including future gen­ law industry. The practice of law needs erations) as to require a public role. to rediscover its professional premises. But what should replace the com, In a profession-or in any competitive mon law? The first generation of marketplace-the interests of clients national environmental law was built come first, not profit, not leverage, not on the understanding that the govern, the conversion of normal expenses ment should enact clear requirements, and overhead items into cost-plus often to protect a "right" to a clean profit centers. Paradoxically, the mar' environment and usually to be ketplace pressures currently facing imposed on all firms in order to bring lawyers today are likely to result in about immediate compliance with new renewed attention to the "profes­ national principles. Some of these sional" aspects of law practice. requirements were unrealistic, in the sense that they attempted to eliminate Don Samuelson '67 is a consultant to pollution entirely. Some of the require, lawyers and law firms in areas of career ments were based on sensationalistic Don Samuelson management and marketing. anecdotes rather than a thorough

VOLUME 38/SPRING 1992 17 levels of reduction are appropriate, but be put squarely before the electorate. instead on the largely incidental and Moreover, a system of financial penal­ nearly impenetrable question of what ties allows far less room for interest­ technologies are now available. The group maneuvering. Special favors focus on the question of "means" also cannot readily be provided through a tends to increase the power of well­ system of economic incentives. organized private groups, by allowing 2. Regulators wlll increasingly avoid them to press environmental law in specification of the technology "at the the service of their own parochial end of the Instead will ends. pipe." they create incentives to ensure that pollu­ BAT strategies are simply one exam­ tion and other harms are addressed at ple of what is wrong with our current their source by, for example, eliminat­ system: insufficient attention to incen­ ing lead from gasoline. Pollution pre­ tives, excessive interest-group power, vention, rather than and too little information about the technological fixes, is an increasingly prominent real-world of pollution control. In principle for environmental law. This thinking about the next hundred means that regulators should reduce years of environmental law, we are the levels of dangerous substances that likely to focus on four emerging possi­ are actually introduced rather than bilities: (1) economic incentives, under control those substances that have the basic principle of "polluters pay"; Cass Sunstein already been introduced. (2) pollution prevention; (3) informa­ tion and disclosure; and (4) the inter­ 3. In the future, environmental law law. analysis of the facts. The result has nationalization of environmental will rely increasingly on education, been a system that has accomplished disclosure, and the provision of infor­ enormous good, but that is much less 1. By far the most important step mation. An inexpensive way to pre­ effective and efficient than it should be. involves the creation of economic vent pollution is to promote awareness A pervasive strategy, in this second incentives to engage in environmen­ generation, is the use of rigid, highly tally desirable conduct. An increas­ • bureaucratized "command and con­ ingly popular approach is to impose a trol" regulation, which dictates, at the tax on environmentally harmful People who reduce their national level, control strategies for behavior, and to let market forces hundreds or thousands of companies determine the response to the pollution below a specified in an exceptionally diverse nation. increased cost. Such regulation often takes the form Most generally, government might level could trade their "pol­ of requirements of the "best available adopt a simple, two-step reform policy. technology" (BAT). First, those who impose environmen­ lution rights" for cash. In We have encountered numerous tal harm must pay for it by purchasing problems with BAT strategies. An permission to do so, perhaps through one bold stroke, such a initial difficulty is that they ignore the a licensing procedure. Second, those enormous differences among plants who obtain the resulting permission system would create market­ and industries and among geographi­ should be able to trade their "licenses" cal areas. It does not seem sensible to with other people. This would mean based disincentives to pollute impose the same technology on indus­ that people who reduce their pollution tries in diverse areas-regardless of below a specified level could trade and market-based incentives whether they are polluted or clean, their "pollution rights" for cash. In populated or empty, or expensive or one bold stroke, such a system would for pollution control. cheap to clean up. BAT strategies also create market-based disincentives to penalize new products, thus discourag­ pollute and market-based incentives • ing investment and perpetuating old, for pollution control. Such a system dirty technology. Such strategies fail to would also reward rather than punish of the resulting risks, and to encourage encourage new pollution control tech­ technological innovation in pollution people voluntarily to reduce pollution nology and indeed serve to discourage control and do so with the aid of levels. Education of this sort has it by requiring its adoption for no private markets. An idea of this kind helped to reduce littering and to pro­ financial gain. BAT strategies are might be part and parcel of a system mote recycling. In addition, there will extremely expensive to enforce. of "green taxes." be a strong movement away from Equally fundamental, the BAT A large advantage of this shift would government dictation of particular approach is deficient from the stand­ be democratic: it would ensure that outcomes and toward provision of point of a well-functioning democratic citizens and representatives would be information about the environmental process. That approach ensures that focusing on how much pollution risks that people face in their day-to­ citizens and representatives will be reduction there should be, and at day lives. New laws increasingly focusing their attention not on what what cost. The right question would require companies to disclose environ-

18 THE LAW SCHOOL RECORD mental risks. These laws can trigger own approximately 50 percent of the "market" responses from affected citi­ stock of large US. public companies zens, and they can also playa role in will continue to increase their stock environmental education, which can ownership absolutely and relatively. in turn produce better-informed laws. And they will continue to try to define what they can and should do 4. It is increasingly clear that environ­ with their power. There are many legal mental problems cannot be handled and obstacles to the effective within national boundaries. With practical use of that power and these are respect to the destruction of the ozone unlikely to go away. From the stand­ layer and the danger of global climate point of the US. economy, the big change, international agreements and danger is that institutions will try to international law are necessary. These do too much, in particular, that they developments bring home with new will yield to pressures from their con­ clarity the close connections among stituents and politicians and contrib­ environmental issues, new technolo­ ute to politicizing the US. economy. gies, energy, and the distribution of As always, there will be pressure for resources among rich and poor more federal regulation of corpora­ nations. International cooperation, tions. However, concern about inter­ resulting in changes in domestic law, national competitiveness may act as will be a hallmark of environmental a moderating factor. US. law and protection in the next hundred years. enforcement policies will continue to It is fervently to be hoped, and per­ Leo be too late and too punitive with haps to be expected, that the interna­ Herzel regard to legal-ethical transgressions by tional efforts will draw on the three large companies, particularly invest­ emerging innovations-economic corporate law and corporate law prac­ ment banks and other financial corn­ incentives, pollution prevention, and tice in the 1990s. panies. The reasons for this are information and disclosure-in domes­ deeply International corporate transactions, embedded in US. society and are tic law. If so, the third stage of envi­ already very important, will become unlikely to change soon. ronmental law will be able to avoid more important. Mexico, Central and Delaware will continue to dominate the severe difficulties associated with South America, Europe (particularly state corporation law. Large states the first two. the E.e.) and Japan are likely to be appear unable to separate corporation especially significant. However, the law from politics sufficiently to become lessons for US. corporate law from effective competitors. It is probably too Cass Sunstein is Karl N. Llewellyn foreign law will continue to be difficult late for small states to duplicate the Professor of Jurisprudence. to decipher or to apply. economies of scale which Delaware There will be fewer voluntary or has with its chancery court system The Future of involuntary domestic mergers and and corporate bar. Corporate Law acquisitions. Most domestic mergers As the takeover market declines in and acquisitions are likely to be in the importance, more attention will be by Leo Herzel same or closely related industries. In paid to making boards of directors the US., conglomerate acquisitions more effective. Boards perform quite Predictions about corporation law are have in general been failures. Financial well during crisis but their dav-to-day hazardous. They are entangled with markets and boards of directors in the performance is generally considered predictions about business, finance, US. are likely to remember this for as mediocre. There is no widely agreed politics and developments in other long as five to ten years. Antitrust law upon solution to this important countries. Adding to the complica­ enforcement in the US. with regard to problem. tions, in this article I do not separate mergers and acquisitions in the same Derivative and class stockholder corporate law from the practice of or closely related industries is likely to litigation will continue without much corporate law. Very large portions of remain relaxed because of the concern change. Arguments about conflict of corporate law never appear in statutes of politicians about very large, success­ interest and effectiveness will remain or court opinions. Practicing corporate ful competitors in Japan and Europe. unresolved and legislative and judicial lawyers create and recreate them every The number of foreign acquisitions in reforms will be minor. Litigation day using experience, intuitive ideas of the US. will increase. Most of these among large corporations will con­ fairness, and guesswork about what will be voluntary, not hostile tinue at high levels despite organized judges, administrators and the market­ takeovers. Many of them will be by efforts for reduction by using alterna­ place are likely to accept. Moreover, I foreign conglomerates. Surprising as tive dispute resolution techniques. The expect that many of my readers will be it may appear, Europe and Japan do high propensity to litigate reflects the more interested in predictions about not seem to have learned the lessons combativeness and divisions in Arneri­ the practice of corporate law. Without of failed conglomeration from the can society. any more preface, here are my predic­ US. yet. Corporate law practice will continue tions of the main developments in Institutional stockholders who now to become more specialized but very

VOLUME 38/SPRING 1992 19 often specialization will be a race to (two-thirds in amount and more than stay ahead, not a static condition. For half in number) agree on a reorganiza­ example, financial instruments issued tion plan immediately before bank­ by companies to obtain financing and ruptcy, will probably increase in to hedge risks will become even more number and will solve some of these complex. Specialist lawyers who can problems. make important contributions to the Corporate law practice in the 1990s design of these instruments will be will be highly competitive, as it was in treasured. Once designed, however, the 1980s. One of the main reasons for even the most exotic of these instru­ this is that the old social compact ments will soon become mundane among large genteel law firms to sub­ commodities requiring only routine stitute leisure for income broke down law work by lawyers or paralegals. completely in the 1980s. It appears highly unlikely that it will be revived. Another important reason is the sharp • increase in the importance of inside general counsels during the last 25 Corporate law practice will years, which is unlikely to be reversed in the 1990s. continue to become more Happily, the immediate practical Lillian Kraemer implications for law students and specialized but very often young lawyers of these portentous pronouncements about the future are The Future of specialization will be a race quite modest. Bankruptcy Learn two foreign languages. The to stay ahead, not a static sooner the better. It is much easier Lillian E. Kraemer when you are young and have more condition. time. Spanish would be my first Can one predict the future of bank­ choice. ruptcy without forecasting the health • Specialize as soon as possible. Very of the American economy as it enters able general lawyers will still be eagerly the 21st century? It seems obvious not sought after. Mainly, however, they only that economic woes directly Federal income tax law will retain will be older lawyers who are senior correlate with numbers of bankruptcy the system of separate taxation of partners in large corporate law firms or filings, numbers of lawyers who find corporations and stockholders without general counsels of large companies. themselves practicing bankruptcy law offsetting deductions or credits, which The best way to increase the probabil­ and amount of bankruptcy law being contributes to so many inefficiencies ity of becoming a top general lawyer is made, but also that during times of in U.S. corporations and capital mar­ to begin early as a successful specialist. economic prosperity American society kets. Lower capital gain rates will Furthermore, specialists find it much and America's legislators turn their return and corporate tax law practice easier to change jobs or professions. backs on the few failures. Only when will benefit from the inevitable On the other hand, specialties fre­ failures become virtually the norm do increase in legal complexity. quently decline suddenly, for example, we become generally agitated about There will continue to be large losses antitrust litigation in the 1980s and how the legal system deals with them. of value in corporate bankruptcy reor­ mergers and acquisitions at the end of Thus if economic recovery is just ganizations caused by cooperation and the 1980s; or they may disappear com­ around the corner, won't bankruptcy agency problems among creditors, pletely when, for example, the law law return to the status of arcane equity holders, and debtor manage­ changes or a large client shrinks or specialty, while if recession lingers, ments and, to a lesser degree, the large leaves. In that case one must quickly bankruptcy will continue to hold us fees paid to investment bankers, law­ change to another specialty or change fascinated (and/or horrified) as the yers, accountants, and other expert jobs. legal profession's growth industry? participants in the process. Reorganiza­ In large corporate law firms, young Reflection suggests such presumptu­ tion outside bankruptcy will continue lawyers must be prepared to work very ous forecasting can be avoided. There to be very difficult because of coopera­ hard. The forces that have increased is good reason to believe that, irrespec­ tion and agency problems which are the competitiveness of corporate law tive of whether the U.S. economy is even more acute than those in bank­ practice in the last 25 years are up or down at given points in time, ruptcy. A bad tax rule which includes unlikely to be reversed. bankruptcy law will be an important taxable gross income gains from the Most important, stay clear of the part of our legal future. First, it is discharge or cancellation of indebted­ ethically dubious. The stakes will be probably a mistake to assume that ness will continue to contribute to the higher than ever in the 1990s. bankruptcy is irrelevant in periods of difficulties of accomplishing corporate economic prosperity, as opposed to reorganizations outside bankruptcy. periods of economic stability. The "Prepackaged" bankruptcies, where Leo Herzel '52 is a partner with Mayer, long, steady growth economy of the the debtor and sufficient creditors Brown & Platt in Chicago. United States from the end of World

20 THE LAW SCHOOL RECORD War II through the 1960s allowed ity issues being addressed in bank­ lexicon. several generations of lawyers to com­ ruptcy courts. This developing use of Thus the future of bankruptcy is, I fortably ignore bankruptcy. The much the bankruptcy law to resolve impor­ submit, all too bright. The perhaps more volatile prosperity of the roaring tant social policy issues will continue harder question is what will happen to 80s harbored at all times significant until legislatures, guided by clearer the system as we know it today over, pockets of economic distress (such as messages of society's priorities than say, the next twenty years? Here it is farming, agricultural equipment, steel, seem now to exist, provide more very hard to separate prediction from airlines) that kept a growing bank­ coherent standards or at least better wish fulfillment-it is very human to ruptcy bar well occupied. resolution mechanisms than the bank­ assume that if one perceives a serious Second, it is extremely important ruptcy process. And this will continue problem, the future will address it. that bankruptcy has acquired a plausi­ whether the economy is in boom or With this principle in mind, can it bility, even a respectability. Little more bust. be doubted that the future will resolve than a decade ago herculean efforts Finally, there is an element of hav­ the wasteful jurisdictional morass that were made to avoid bankruptcy by ing let the genie out of the bottle. remains the legacy of Northern Pipeline companies in certain industries (auto­ Lawyers and businessmen who have Construction Co. v. Marathon Pipe Line mobiles and, however hard this may been through bankruptcy will be less Co. by creating Article III bankruptcy be to believe, air travel) that, it was likely to ignore bankruptcy principles courts? It boggles the mind that with thought, could not operate under in planning business ventures. For over 1,100,000 cases pending in the court protection and by creditor example, in the 1960s and 70s, very nation's bankruptcy courts at June 30, groups who found the problems too few corporate lawyers had ever used 1991, with each of the 291 then sitting big for resolution through cumber­ the words, much less understood the bankruptcy judges receiving on aver­ some court processes. During the elements of, fraudulent conveyance. In age 3,025 new cases during the twelve 1980s, however, a combination of the post-LBO world, lawyers will, I months then ended, and with the factors brought huge, household name submit, study proposed transactions largest of these cases raising issues of enterprises into and (in most cases) very carefully for signs of this dread fundamental socio-economic policy, through bankruptcy and so demysti­ injustice to creditors. Similarly, rating we can continue to consider bank­ fied the process. In part, bankruptcy agencies who once looked at individ­ ruptcy judges as not "deserving" of became more inevitable as the constit­ ual company balance sheets have Article III status, not to mention that uencies affected by an enterprise's learned about the risks of a weak link it is downright lunacy to continue to financial distress became more diverse. in an affiliate chain and the formerly plague a wildly overburdened system Today a bankrupt enterprise's parties little known doctrine of substantive with jurisdictional gamesmanship. in interest consist of many different consolidation has crept, if not gal­ Similarly, given the widespread types of lenders where once only loped, into the corporate lawyer's recognition that bankruptcy remains banks and insurance companies were an inefficient, overly long and overly found. Other players include "bottom expensive process, can it be doubted fishers," who bring claims acquired for that the future will produce develop­ large discounts from par to the table, ments both to diminish the need for and government agencies such as the recourse to bankruptcy and to stream­ Pension Benefits Guaranty Corpora­ line the process? We might anticipate a tion and Environmental Protection resurgence in the appetite to resolve Agency advocating their own complex financial distress through consensual agendas. Such disparate players are workouts, this time not because bank­ much less likely to reach the requisite ruptcy is a feared unknown but pre­ unanimous consensus on the princi­ cisely because it is a known, far from ples of an acceptable out-of-court perfect system. For this prediction reorganization. Perhaps even more (wish) to eventuate would, however, important, in a society less sure of likely entail at least a significant itself and its priorities, more and more change in tax law which now strongly fundamental social issues tend to get favors in-court reorganization and played out in the court of last resort­ perhaps some changes in bankruptcy bankruptcy. Witness, for example, law, such as to undo the effects of the Manville's use of Chapter 11 to resolve LTV decision limiting the allowability its mass tort exposure, Continental of claims of bondholders who have and Eastern Airlines' resort to bank­ accepted pre-bankruptcy exchange ruptcy to address labor problems, offers. We might expect to see ernbroi­ Texaco's filing for bankruptcy to derings on the pre-packaged bank­ resolve an otherwise unappealable ruptcy concept with a view to making (because unbondable) massive judg­ its major benefit-combining out-of­ ment in favor of Pennzoil, LTV's court majority consensus on the ongoing attempts to resolve its pen­ acceptable elements of a restructuring sion and retirement benefit liabilities with bankruptcy law's ability to bind in irs six-year Chapter 11, and the the dissenting minority-more broadly currcut flurry of environmental liabil- available.

VOLUME 38/SPRING 1992 21 Surely in the absence of such devel­ cants, recognizing that an applicant is opments, there will be increasing and more than a sheaf of papers in a file. not necessarily salutary pressures to From a classmate's perspective, a stu­ deal with perceived inefficiencies and dent's interesting background and excessive costs. Addressing these prob­ genuine desire to study law more than lems is necessary and laudable but not balance out a few missed questions on without risk. Too often the knee-jerk the LSAT. reaction to perceived inefficiencies or Last, law schools will actively injustices is ill-advised special interest encourage a sense of responsibility for legislation. Well-intended cost control the profession and for society among initiatives can result in measures that students. The practice of law often drive qualified professionals from the means. advising individuals in the field generally or in certain geographic most difficult moments of their lives, areas. This practitioner, at least, but law schools overlook the human believes that the generalism and flexi­ element of a career in the law. Lawyers bility of the Bankruptcy Code that confront conflicts of interest and has been in effect since 1979 has breaches of professional responsibility allowed the system to deal with issues among colleagues far more regularly unprecedented in number, size, and than they encounter most of the legal complexity more effectively than any­ doctrines taught in law school, but one would have predicted twenty years classroom discussion is almost inevita­ ago. If we are, as I have suggested, bly focused on the reasoning of the looking at a legal future in which highest court to hear a case. Naturally law and are students need to learn how bankruptcy practice Tia Cudahy judges important elements, we should reach decisions, but greater emphasis remember that the statutory and Revitalizing the intellectual inquiry in on legal ethics and professional administrative framework with which the classroom will improve the quality responsibility will convey equally we commence the future has served us of discussion while also generating important skills and knowledge. Pro­ well during the recent extraordinary greater respect for legal education. fessional responsibility will be incorpo­ past. The purpose of such an extension in rated into every course, rather than admissions criteriais not merely packed neatly into one required but affirmative action, but to reinvigorate uninspired class. Students will gain Lillian Kraemer '64 is a partner at legal scholarship by expanding the respect for that aspect of practice and Simpson Thacher & Bartlett in New class of people equipped to think conduct themselves accordingly, and York City. about legal issues. Some will argue the resulting benefit to clients will that the quality of scholarship will enhance respect for the profession. deteriorate without rigid adherence to Law schools will also remind their Law School of the Future traditional performance indicators, captive audience that lawyers occupy a but, from a student's perspective, at special place in society; we formulate Tia Cudahy the very least diversity will enrich public policy in disproportionate num­ classroom discussion. Ideally, diversity bers and act as conduits between the T he law school of the future will in the classroom will reflect the diver­ public and justice. Although litigants reflect the composition and needs of sity of society so that everyone will realistically need lawyers to navigate the entire community. Law schools receive representation in the exchange the legal system for them, most Amer­ will attempt to attract students from of ideas. icans cannot afford to hire a lawyer. all backgrounds in order to ensure The admissions office will also con­ Given the importance of legal training that important discussions about sider carefully each applicant's reasons in our society and the shortage of intractable social problems will include for applying to law school. Law school lawyers for the poor, lawyers have an a broader range of viewpoints. Recog­ too often serves as a default for intelli­ affirmative moral obligation to return nizing their unique relationship with gent but unfocused liberal arts majors some service to the system that bene­ law students, law schools will actively who lack the imagination and inclina­ fits us so much. Mandatory pro bono foster a sense of responsibility to the tion to figure out what they enjoy policies may be moot if each lawyer, profession and society. doing. These students are unhappy at encouraged by her law school, feels a Law schools adhere to traditional law school and detract from the expe­ personal obligation to pay this debt to performance indicators such as under­ rience for everyone. The University of society. graduate grade point averages and Chicago is one of the few schools that Therenewed emphasis on the needs LSAT scores in an effort to produce devotes the energy to conducting of those who cannot afford legal ser­ smart lawyers. Placing more emphasis interviews of some applicants, and vices will inevitably reshape law school on diversity of experience will create a these interviews present at least one curricula. Students will require more less homogeneous community: per­ opportunity to investigate an appli­ clinical education and public interest haps one that is better equipped to cant's motivations. The model law classes, as well as instruction on such think creatively about old problems. school will interview all eligible appli- far-reaching statutes as the Social

22 THE LAW SCHOOL RECORD Security Act. In a litigious society, and the size of the Clinic. lawyers are in a unique position to The role of clinical legal education help those who would otherwise lack a at a leading research-oriented Univer­ fair chance in the legal system, and sity should include the use of law to law schools have a unique opportunity eliminate poverty or alleviate the sur to reach aspiring lawyers with that fering caused by it. It is appropriate for message. the Clinic to help individuals who are seeking to escape poverty and use the legal system to secure entitlements Tia Cudahy '92 is President of the Law from government and the private Students Association. sector. But clinical teachers and stu­ dents should also be expected to develop new legal strategies to meet Clinical Legal Education the needs of the poor and even to eliminate poverty. Law reform and Gary H. Palm systemic change have always been at the heart of the research mission of A s I look to the future, I imagine a the non-clinical law faculty. Therefore, law school Clinic that adopts some of it is also appropriate that the Clinic the best features of a teaching hospital continue to represent clients in admin­ operated by a great research-oriented istrative rulemaking proceedings, legis­ University. The primary goals, as lative advocacy, test cases and class there, should be to provide excellent actions. service to clients, practical instruction The Clinic should also continue to to students and applied research. At propose improvements in methods of the teaching hospital, state-of-the-art advocacy used on behalf of the poor equipment is purchased. First rate and work with other legal service Gary Palm physical facilities are provided. Staffing organizations, the private bar, pro bono volunteer and arrangements are consistent with groups governmental help our students to become more excellent services. The newest tech­ agencies to assure that poor clients imaginative and productive at using receive and effective niques and innovations are used or prompt represen­ the legal system to solve the underlv­ tation. as we train more stu- tested. Funding is from a combination Indeed, ing problems of poor persons through of payments for patient services, gov­ systemic legal methods. ernment research and training grants, The very idea of locating a law office • private philanthropy, foundation gifts serving the poor in the Law School and tuition. Low student/teacher was startlingly innovative in the 1950s ratios are maintained and all students The role of clinical legal when our new law school building was are required to receive some clinical planned. Through the years, all the instruction. The legal clinic of the education at a leading deans have tried to meet the Clinic's future should feature similar standards space needs but without long-term to assure that it too can fulfill its goals research-oriented University success. To provide effective instruc­ with excellence. tion now we need more space and, as In a typical year, over 100 second­ should include the use of law important, better designed space. year students apply for the Clinic. In Furthermore, today we have equip­ order to maintain a low student/ to eliminate poverty or ment and a sizeable support staff for teacher ratio of ten to one, fifty stu­ our extensive litigation practice that dents cannot be accepted, resulting in alleviate the suffering caused were not contemplated in the original a waiting list. Although many stu­ design for a legal aid office. If we are to dents on the waiting list eventually by it. meet the student demand, we need do get to work in the Clinic, others much more space. The only long-term • become discouraged or pursue other solution is a new building or addition activities. It is my hope that, in the for the Clinic. The Clinic of the future, all students interested in the dents and introduce them to their future will have adequate space for Clinic will be admitted. The Clinic obligations to serve the poor, I expect each student to share an office with will need at least fourteen clinical we will continue to see increasing one or two others; rooms for inter­ teachers, double the current number, numbers of our graduates providing viewing and counseling clients; areas to meet the on-going demand during pro bono work, leading legal service for preparing for trials and practicing the next twenty years. Different credit agencies, serving on bar committees oral arguments; and small classrooms allocations and some changes in the relating to rights of the poor and gen­ designed to teach lawyering skills and program will be necessary too, but the erally working in their careers to strategies. The offices, meeting rooms most important change is a significant improve the conditions confronting and secretarial space will be a part of increase in the number of clinicians the poor. Our Clinic will continue to a central computer network. Video

VOLUME 38/SPRING 1992 23 taping and playback facilities will be The Future of Law and built into all the offices and attorneys' Economics the other teaching rooms. I fearlessly that those of our predict together, Douglas G. Baird alumni, students, clinical teachers and non-clinical who have so faculty given Law and economics has already much to start the Clinic and already worked a revolution in legal scholar­ will somehow find the develop it, way ship and education, but its promise to build the best clinical teaching continues to be great because it pro­ in the facility country. vides judges, lawyers, and legal schol­ for the Cinic will need to Funding ars with two valuable tools. First, increase. Our base of support will economic analysis of law offers a way continue to be the of regular budget to understand the structure of the law the Law School. The venture joint itself. Complicated legal doctrines, with United Charities of is Chicago such as remedies for breach of con­ and should continue to strong provide tract, are often neither random nor funding through its Legal Aid Bureau. arbitrary. A few basic principles may The amount of federal grants from the unite them and these principles are of Education and the Department frequently economic ones. Economics, Services will Legal Corporation likely in other words, sometimes gives us a increase modestly. Restricted alumni way to organize the law and under­ donations should continue to provide stand the connections between rules increased resources for and expansion that on their surface appear to have improvements as clinical donors nothing in common. Second, and "mature." fees will Attorneys' provide equally important, economics also a substantial amount of as the funding helps us to understand what effects Clinic obtains attorneys' fees awards legal rules have. When we subject laws for the party in representing prevailing or judicial opinions to scrutiny or ask civil Douglas Baird rights litigation. what shape incremental law reform it seems unlikely, it is not Although should take, the effects of a legal rule impossible that, the medical following are important. We want to know if a social and private costs of their the Clinic model, may someday accept law can fulfill its ambitions. We want actions. fees from at least some clients. Already to know whether it can make the In short, much of the process of some clients seek out the ineligible world a better place and at what cost. lawmaking and judicial decisionrnak­ Clinic's expertise in discrimination Law and economics addresses precisely ing requires a weighing of costs and mental health and crimi­ cases, issues, these concerns. benefits and here law and economics nal defense. the Clinic will Also, begin The earliest successes in law and is in its element. Law and economics more innovative with projects support economics were in antitrust because can take us further than intuition from foundations and government antitrust law embraces a policy that is alone. It enables us to make sense of agencies. Our strategy will be to diver­ based explicitly on economic princi­ legal rules and to understand their sify the Clinic's so that it will funding ples. Law and economics has done effects. For both reasons, law and be able to withstand cutbacks from much to aid our understanding of economics is now part of mainstream one or two of its major areas of finan­ joint ventures, predatory pricing, tie-in legal education and economic con­ cial support. sales, and vertical price restraints, but cepts such as cost-benefit analysis, I fully expect that pressures will grow it has since shed light on many other moral hazard, marginal cost, cornpara­ for all law schools to teach more about areas of the law. Copyright and patent tive advantage, public goods, and least professional responsibility and law, by constitutional design, offers cost avoider are a standard part of lawyering skills through clinical educa­ writers and inventors rights to their every law student's vocabulary. tion. The American Bar Association work for a limited time in order to Henry Simons, Edward Levi, Aaron will likely increase its requirements by give them an economic incentive to Director, Ronald Coase, and others new interpretations of Accreditation create it in the first place. Determining mapped the basic terrain. Today, the Standards since nationwide data show how much of an incentive writers and general principles of law and econom­ a great unmet need for more clinical inventors require and how to balance ics are well understood. Much work, and skills instruction. I professional this incentive against the need to however, remains to be done. The predict that the University of Chicago make new ideas accessible to others world, after all, is a complicated place Law School will lead the of expansion requires us to ask questions that eco­ and the behavior of discrete individu­ clinical education through further nomics may equip us to answer. The als cannot easily be reduced to a single development of our model of an excel­ law of torts is designed in large mea­ algorithm. Account must be taken of lent in-house Clinic serving the poor. sure to ensure that parties take imperfect information and the possi­ account of the costs their activities bility of strategic behavior to under­ impose on others. Environmental law stand how any group will respond to a Gary Palm '67 is Clinical Professor of may be similarly designed to ensure legal rule. Even in fields such as anti­ Law. that firms take account of both the trust that have been a focal point for

24 THE LAW SCHOOL RECORD scholarship for many years, there are these assumptions capture enough of been allowed to vote, it would have still new insights to be made. New the essence of our world to shed light been even more one-sided." At the advances in economics itself, especially on how it works. In the end, every end of the evening another vote was in game theory, make subjects such as contribution to law and economics taken, and there were twenty-one predatory pricing as interesting and as should lead to an empirical test. In votes in Cease's favor and none controversial as ever. many cases, such as the law and eco­ against. At Chicago, we seem well positioned nomics of corporate and securities law, to continue to advance the field. Our there is a wealth of data and the tests scholars remain productive and eager are easy. In other areas, data is less Douglas G. Baird is Harry A. Bigelow to explore new fields and re-examine accessible and the challenges are Professor of Law and Director of the old ones. Ronald Coase, Richard greater. Law and Economics Program. Posner, William Landes, and Richard A brief survey of the current pro' Epstein, who gave shape to the field, jects at the Law School gives a sense remain active scholars at the Law of the many facets of law and econom­ School. My own contemporaries, ics, its broad focus, and its commit, ment to rigorous examination of areas

• of the law that matter the most . Richard Epstein is writing on health law and the in which Many contributions to law many ways government regulation of the medical affect the of health and economics that have profession quality care in this country. Randal Picker continues his work on the basic prin­ been made at are Chicago ciples of the law of bankruptcy and corporate reorganization. Daniel now so much a part of the Shaviro is undertaking a major reex­ amination of our etablished wisdom that it is law of corporate income taxation. Alan Sykes contin­ ues using economics as a way of easy to forget the centro­ understanding the structure and the policies inherent in the laws governing versy they pio­ originally international trade regulation. We voked. These well under- remain confident that in these and other areas, careful and thoughtful economic analysis will make it possible stood contributions are not Mary Becker to understand and improve the law. Many contributions to law and as economic The Future of Feminism regarded analy� economics that have been made at Chicago are now so much a part of Mary Becker sis law, but as of simply the established wisdom that it is easy to the controversy they origi­ The contemporary feminist move, common sense. forget nally provoked. These well understood ment began with a strong emphasis contributions are not as on sameness: that women should be • regarded economic analysis of law, but simply treated like men because similarly as common sense. Of course, if the situated. This was the thrust of the including Daniel Fischel, Frank Eas­ idea had been a commonplace at its ERA, which dominated early analysis terbrook, and Geoffrey Miller, set inception, it could not have been of women's legal issues. Feminists con, much of the terms of the debate in much of a contribution. Too often, centrated throughout the seventies on law and economics in the 1980s and however, we forget that the idea was equality arguments and the need to continue to find new paths to explore. first greeted with derision, hostility eliminate laws that categorized people Young scholars, such as Alan Sykes, and disbelief. The ultimate test of on the basis of their sex. Dan Shaviro, Stephen Gilles, and good scholarship is whether it can In the eighties, many feminists writ, Randal Picker, are poised to challenge make the passage from being an idea ing in law began for the first time to the conventional wisdom, even if what that is obviously wrong to being one talk about differences and the need to is now the conventional wisdom was that is obviously right. As one might look beyond practices that treated once cutting edge law and economics. expect, one of the swiftest passages was women and men differently. The ultimate ambition of legal made by Cease's "The Problem of Catharine MacKinnon paved the scholarship is to say useful things Social Cost." When he first presented way with her criticism of the ERA about how the world works. Hence, the paper at Chicago, a vote was taken approach in her first important book, the question is not whether the at the outset on whether Coase was in Sexual Harassment of Working Women, assumptions of law and economics error and the vote was twenty to one which shattered the calm of a single capture all the nuance and ambiguity against Coase. As George Stigler shared image of the relationship that exists in the world, but whether explained later, "If Ronald had not between sexual inequality and law.

VOLUME 38/SPRING 1992 25 Since the early eighties, legal feminism tional stereotypes of women as moth­ has been filled with controversy and ers, as people whose essential conflict among feminists, with each fulfillment is in nurturing rather than year 9ringing more disagreements on self-actualization or achievement. how best to use the legal system to Such discussions are likely to improve women's status and lives. produce conflict because different Many of the new controversies and generations of women are likely to insights are related to a greater appre­ have different perceptions about the ciation of differences: how women and emotional meaning of mothering. men differ and how women differ Older women who have mothered are from each other; why they differ; how likely to realize that, no matter how to accommodate difference without important self-actualization and accepting inequality. achievement are for them, mothering There has still been little exploration is also extremely important emotion­ among academic feminists in law, ally and more important to them than however, of women's feelings and how fathering is for the fathers of their those feelings differ from the feelings children. Older women are likely to of men. One of the weaknesses of realize that equal parenting cannot be much feminist legal-academic writing achieved by an act of egalitarian will is that it tends to be abstract, obscur­ by even the most egalitarian of cou­ ing, rather than illuminating the ways ples. Younger women are more likely in which specific laws or practices to believe that equal parenting is a real contribute to women's subordination possibility, and that they and their or are inconsistent with women's partners will achieve it. Many women needs. One reason for the tendency in both groups believe that equal toward abstraction may be that for parenting is necessary for equality many issues, concrete exploration of between the sexes, and this belief the issue may reveal conflicts among silences older women, who are reluc­ women of different colors or races or tant to make equality more difficult sexual orientations or marital status or for younger women to achieve or to generations. In addition, discussing dampen young women's hopes for women's feelings is often dangerous. realizing equality in their lives. Older Let me use child custody to illustrate women rightly realize that expressing some of these points. Custody rules their feelings about the importance of should make sense on an emotional mothering will inevitably reinforce spective, not just of sexual inequality, level. Yet we tend to ignore emotions harmful stereotypes and make it more but also from the perspective of the in analyzing custody. Ignoring emo­ difficult for individual women to nego­ needs of women living today, includ­ tions is not gender neutral. Custody tiate equal parenting in their relation­ ing their emotional needs. And similar laws ignoring emotions stronger for ships with men. Any exploration of conflicts are likely to arise in analyzing women (and their children) inevitably maternal feelings in the context of many issues: rape, pornography, sexu­ tend be more consistent with men's child custody reveals a conflict ality, cosmetic surgery, religion, mili­ emotional needs than women's (and between two goals, both of which are tary service, maternal-paternal leave, children's). critically important for feminists: marriage, sexual harassment, and Although we all know that children improving the quality of women's lives, beauty standards in employment, to mean different things emotionally to including their emotional lives, and name a few. most women and most men, feminists reducing women's subordination to Feminist legal writing is still in its writing about custody standards have men. infancy. It is only within the last dec­ tended to downplay that difference. Yet silence is also dangerous. As ade that feminist legal academics have Indeed, with the notable exception of Audre Lorde eloquently puts it in an begun the difficult task of exploring, Martha Fineman ('75), feminists have essay in her book Sister Outsider: in light of the differences between not even mentioned the fact that "what is most important to me must women and men and among women, women's bonds with their children are be spoken, made verbal and shared, how legal rules and practices should important. And no one has explored even at the risk of having it bruised be adjusted both to move toward in any depth the differential quality of and misunderstood." In the context of sexual equality and to reflect and the emotional relationship of women custody, silence can mean deep emo­ protect women's needs (including and men with children. tional injury for mothers and children emotional needs). Although both This silence is easy to understand. when emotionally distant fathers goals are crucial, they often conflict. Discussions of the emotional differ­ receive custody because women's emo­ Exploring these conflicts and the ences between mothering and father­ tional labor is invisible. conflicts among women is the feminist ing are dangerous and likely to Although I have used custody rules agenda of the nineties. • produce, as well as reveal, conflicts to make my points, I think that in the among women. Such discussions are future feminists need to explore many dangerous because they reinforce tradi- legal rules and practices from the per- Mar)1 Becker '80 is Professor of Law.

26 THE LAW SCHOOL RECORD proved guilt beyond a reasonable In 1990, the court erected another doubt. hurdle. Roger Coleman, a prisoner on • • COMMENTARY death a Smith deserved the acquittal, but Virginia's row, sought hearing he was also lucky-lucky he got the on his claim of ineffective assistance. chance to in";'oke safeguards that But in prior state proceedings, his new should be available to all. In most attorney had filed the appeal papers cities, 80 percent of criminal defen­ three days late. Justice Sandra Day An Willie O'Connor wrote for that Indigent dants are poor. Until 1963, an indigent the majority Smith Be in Florida defendant in a case like this procedural technicality prevented Might Smith's would have faced trial without federal courts from inquiring into the of the who Jail the help of any defense attorney at competence lawyer repre­ all. It was only the Supreme Court's sented Coleman when he was on trial Gideon v. Wainwright decision, requir­ for his life. "This case," O'Connor at an end." Stephen J. Schulhofer ing courts to appoint counsel for indi­ wrote, "is gent felony defendants, that put a stop Rules like these remove any incen­ A recurrent theme in commentary to this travesty of justice. tive for states to provide decent repre­ on the William Kennedy Smith rape But the promise of the Gideon case sentation for the indigent. If defenders trial was that money made the differ­ was never fully implemented, and the are incompetent or make mistakes, ence. The New York Times reported current Supreme Court is busy dis­ their clients, innocent or guilty, will that the outcome-Smith's acquittal­ mantling it. Big city public defenders pay the price. hinged in large part on a disparity of often must handle fifteen to twenty Money made a big difference in the resources and talent: two civil servants felony cases in a single day. Many Smith case. It makes an even bigger for the prosecution versus four private are skillful and do their best under difference in common criminal cases practitioners, including a man many adverse conditions, but they are forced where the charge by itself does not regard as the finest criminal defense to render perfunctory service. Many elicit skepticism. Every day, defendants lawyer in southern Florida. News are not so skillful. Low salaries for without resources are convicted on reports stressed the prosecutor's strate­ public defenders force rapid turnover, shaky evidence in our urban courts. gic errors and supposed lack of polish. and court-appointed private practi­ Many of them may be guilty anyway. The skilled defense team also hired a tioners in many states receive only Some of them almost certainly are leading consultant on jury selection $10 to $30 per hour, with a cap of not. The rich will continue to get and spent tens of thousands of dollars $500 or $1,000 per case-often not special justice because our society on expert witnesses and exhibits. By even enough to cover overhead. remains unwilling to make the consti­ one account, the defense cost about In theory, the Constitution requires tutional guarantee of a fair trial a $1 million. counsel to render "effective assistance." reality for all. • A few experts, with 20-20 hindsight, But standards of acceptable perform­ assure us that the state's case was a ance are low, and doctrines defining loser all along. Some even charge that "effectiveness" are too vague to serve the prosecutor was irresponsible to as real safeguards. There are no mini­ Stephen]' Schulhofer is Frank and bring it. But the accuser showed mum requirements for investigation or Bernice]. Greenberg Professor of Law bruises consistent with a physical trial preparation and no minimum and Director of the Center for Studies assault and her demeanor in the hos­ standards of competency. Any mem­ in Criminal Justice. This article first pital emergency room strongly corro­ ber of the bar is presumed competent, appeared in the Los Angeles Times, borated her claim of having suffered a even in a capital case and even if he or December 17, 1991, in the Metra Sec­ traumatic experience. Taking date rape she has no prior trial experience or tion, Part B, page 7. seriously means that complaints of this has never before worked on a criminal sort cannot easily be disregarded. matter. If it is proper to prosecute in this There is another problem. How can kind of case, will resources make a the indigent defendant claim ineffec­ difference to the outcome? You bet. tive assistance? Usually the only viable Without the financial backing that his way is to file a complaint after convic­ family provided, Smith could today be tion. But the Supreme Court has held a convicted rapist sentenced to one of that there is no right to counsel for Florida's oppressively overcrowded such complaints, which are known as prisons. "post-conviction" proceedings. Even Does this mean that a fair system prisoners on death row have no con­ would have convicted him? Not for a stitutional right to post-conviction minute. It means only that the adver­ legal assistance in trying to show sary system worked as it should. Vig­ unfairness at their trials. So the uned­ orous cross-examination exposed ucated, often illiterate inmate who weaknesses in the prosecutor's case, wants to challenge the performance of a jury applied its common sense to his trial attorney must do so without conclude that the state had not professional help.

VOLUME 38/SPRING 1992 27 •MEMORANDAv •

ApPOINTMENTS continue to promote the things I care reply, [o Lucas, Arnold 1. Shure most about: teaching, scholarship, Professor Emeritus in Urban Law, collegiality, and good relations told several anecdotes about those Geoffrey Stone is between faculty and students in a early days, while Philip Kurland, Reappointed Dean mutually supportive environment." William R. Kenan Jr. Distinguished Service Professor Emeri tus, said that the strength of a great law school Faculty comes from within, from the quality of its faculty and students. Both men Gerhard Casper, who has served as paid tribute to former Dean Edward Provost of the University of Chicago Levi '35, who was responsible for since 1989, has announced his appointing them to the faculty. resignation effective July 1, 1992. Mr. Alumni will have the opportunity Casper, the William B. Graham to honor Professors Kurland and Distinguished Service Professor of Lucas at this year's Annual Dinner, Law and former Dean of the Law on May 7. School, has accepted appointment as President of Stanford University in California. He will take up his new Visiting Faculty appointment on September 1. "Gerhard has served the Law School Eleanor B. Alter returns to the and the University for more than a Law School as Visiting Professor of quarter of a century," said Dean Law in the Spring Quarter, 1993. Ms. Stone. "We are all deeply grateful for Alter, one of the nation's leading all he has done for us and we wish matrimonial lawyers, is a partner in President Hanna Holborn Gray him well in his new endeavor." the New York law firm of Rosenman has appointed Geoffrey R. Stone '71 Colin Freund Lewis & Cohen. She to a second term as Dean of five-vear teaches in the areas of family law, Professors Honored the Law School, effective July 1, Retiring remedies and legal ethics. Ms. Alter 1992. "Geof has wonderful provided has been a frequent visitor to the Law to the Law School and and staff of the Law School leadership Faculty School and most recently taught the has contributed to our honored Professors B. Kurland greatly Philip Remedies course in Spring 1991. university. All of us are fortunate in and Jo Desha Lucas at a reception on his colleagueship and his activity on December 4, 1992, on the occasion of behalf of the school and the Univer­ their retirement from the faculty. In a David J. Cohen, who visited the said President his time-honored sity," Gray. During tradition stretching all Law School last spring, returns as first five Dean Stone has years, the way back to 1988 (as Dean Stone Visiting Professor of Law in the extended the Law School's public put it, "short, but no less a tradition"), Autumn Quarter 1992. Mr. Cohen is service the program, expanded the facul ty presented the two profes­ Associate Professor of Rhetoric at the Mandel Aid Legal Clinic, estab­ sors with University of Chicago University of California, Berkeley. He lished the Law and Government rocking chairs. In his address to the combines interests in law and ancient Program and the Center for the Dean Stone the gathering, expressed history and is an expert in ancient of Constitutionalism in Study hope that these chairs "will not be Greek and comparative law. Mr. Eastern closer used for leisure but for Europe, encouraged piling up your Cohen has served as a visiting dialogue with students, and ex­ and fi les as work on papers you your professor at the University of Frank­ studies. At panded interdisciplinary next books." furt and at the Max Planck Institute the Fall Town Hall Quarter's Dean Stone also took the opporru­ for Comparative Legal History. Dean Stone addressed Meeting, the nity to look back to 1953, the year students' question of his agenda for both professors joined the faculty, the next five he not years, saying did when the student body totaled 250 Hideki Kanda, Professor of Law at have one. "I see the Dean's role as and tuition was $738 per year. He the University of Tokyo, will serve as a use of ties as making opportuni they found that the core curriculum was Visiting Professor for one quarter rather than to an arise, trying impose much the same as it is today, although during both the 1992�93 and 1993�94 on the institution. I will agenda there are now many more courses. In academic years. Mr. Kanda has written

28 THE LAW SCHOOL RECORD Eastern Europe. He will serve as Daniel Shaviro Appointed Visiting Professor in the Winter 1993. Mr. is of Associate Dean Quarter, Sajo professor comparative and international business law at the School of Eco­ Professor Daniel N. Shaviro has nomics, Budapest, scientific counselor accepted appointment as Associ­ to the Institute for and Political ate Dean of the Law School, Legal Sciences of the effective July 1, 1992. Mr. Shaviro Hungarian Academy of and a member of the succeeds Professor Diane P. Sciences, Constitution Wood, who has held the appoint­ Hungarian Drafting Committee. Mr. Sajo has written ment for the past three years. Mr. several books and numerous articles Shaviro sees his main task as on such as social and Associate Dean in organizing the subjects legal international and curriculum. "The Law School change, law, legal philosophy. He will be teaching a cares about offering the right mix course on human rights in Eastern of courses that the students will School building and acts as a find most useful. This requires the liaison between the faculty and the Europe. faculty's cooperation, and I look administration. Mr. Shaviro Peter G. Stein, the Regius Professor forward to guiding and overseeing already has a list of specific projects of Civil Law at the University of the plan. Tax is one area, for he would like to undertake, such as Cambridge and a Fellow of Queens' example, where I know there may promoting faculty-student lunches. College, returns to the Law School in be some restructuring." The He is looking forward to working the Autumn Quarter, 1992, as Associate Dean is also responsible closely with Dean Stone over the Visiting Professor. Mr. Stein, who is for matters concerning the Law next two years. one of the leading experts in Roman law of his generation, has visited the Law School several times in the past, several books and numerous articles, Professor at the Law School for the most recently in 1990. He will teach a including "Conflicts of Interest in Autumn Quarter, 1992. Ms. course in Roman law. Shareholder Voting," "Legal Aspects Nussbaum is the author of numerous of Foreign Exchange Transactions," scholarly articles and her books and "The Appraisal Remedy and the include The Therapy of Desire: Theory LAW SCHOOL NEWS Goals of Corporate Law." Mr. Kanda and Practice in Hellenistic Ethics has served as a Visiting Professor at (forthcoming), Love's Knowledge: Support for Eastern Europe the Law School twice in the recent Essays on Philosophy and Literature Center past and has taught in the areas of ( 1990), and The Fragility of Goodness: bankruptcy and comparative J apanese­ Luck and Ethics in Greek Tragedy and The Law School has entered into American business law. Philosophy (1986). Ms. Nussbaum will an agreement with philanthropist teach a course on law and literature. George Soros that will provide David Lieberman, professor in the substantial support for the Law School of Law at the University of Ingo Richter will serve as the Law School's Center for the Study of California, Berkeley, will serve as School's Max Rheinstein Visiting Constitutionalism in Eastern Europe. Visiting Professor of Law in the Spring Professor of Law in the Autumn Researchers at the Center are con­ Quarter 1993. Mr. Lieberman is the Quarter, 1992. Mr. Richter is a ducting a multi-year, comparative author of The Province of Legislation professor at Hamburg University study of the constitution-making Determined: Legal Theory in Eighteenth School of Law, where he teaches in processes in seven countries and five Century England (1989) and numerous the fields of constitutional law and republics of the former Soviet Union: scholarly articles, including administrative law. Before joining the Albania, Bulgaria, Czechoslovakia, "Blackstone's Science of Legislation" Hamburg faculty, Mr. Richter studied Hungary, Poland, Romania, Yugosla­ ( 1988) and "From Bentham to law in Gottingen, Munich, Hamburg via, Estonia, Latvia, Lithuania, Benthamism" (1985). Mr. Lieberman and Paris and served for ten years as Ukraine, and Russia. received his Ph.D. in 1980 from Research Director of the Max-Planck "The Soros Foundation is financing London University and his M.A. from Institute for Educational Research in activities that the Center was already Cambridge University in 1978. He Berlin. He is the editor of the Journal committed to pursuing, as well as will teach a course on law and modern of Education Law and the author of ventures we wouldn't have been able social thought and a seminar on the several books, including a recent to afford," said Dean Geoffrey Stone. history of penal practices. work on public labor law. Mr. Richter "By supporting our affiliates in Eastern will teach a course on legal problems Europe and sponsoring conferences Martha C. Nussbaum, University of the welfare state in Europe. where lawmakers, academics and Professor, Professor of Philosophy and observers can meet to exchange Classics, and Adjunct Professor of Andras Sajo is the Hungarian information and ideas, Mr. Soros has Comparative Literature at Brown Affiliate of the Law School's Center demonstrated his genuine commit­ University, will serve as Visiting for the Study of Constitutionalism in ment to democracy, pluralism and the

VOLUME 38jSPRING 1992 29 pursuit of knowledge," he said. As part of the agreement, Central European University, which was established by Soros in 1990 with campuses in Prague and Budapest, will serve as the exclusive European repository to house the materials gathered by the Center. Through the Soros Foundation, Central European University will support the inforrna­ tion gathering and reporting activities of the Center's affiliates in Eastern Europe. The network of collaborators continues to grow as dozens of observ­ ers witnessing each country's constitu­ tion-rnaking process, ethnic conflicts, advancement in privatization and party formation send reports and other documents to the D'Angelo Law Library. The vast selection of materials, which includes constitutional drafts and transcripts of debates about the drafts, are collected by Dwight Semler, coordinator for the Center. "The whole idea behind this archive is that in ten years somebody could come here and say 'I want to know how the constitution was written' Bulgarian Wiktor Osiatynski and Andras Sajo at the first conference, in Chicago, and all the information could be found sponsored by the Center for the Study of Constitutionalism in Eastern Europe right here," Semler said, "What's different about the Chicago collection is that no one else is studying all of the countries. Only we will know what with the Center here at the Law Vojtech Cepl, Professor of Law and goes on in Poland compared to what School. The other half comprised Vice Dean, Charles University, takes place in the Baltics." West European and American legal Prague; Gyorgy Frunda, Member of As part of the partnership between scholars. The two-day conference Parliament, Bucharest, Romania; Central European University and the covered five topics: Executive and Dieter Grimm, Justice of the Supreme Law School, each will sponsor at least Legislative Relations, Ethnic Conflict Court of Germany; Elzbieta Golik� one conference every year. and Federalism, Retribution and Morawska, Researcher, Institute of Restitution, Judicial Review, and Jurisprudence, Warsaw, Poland; Conferences on Eastern Electoral Laws. The Center's design Aanund Hylland, Professor of Eco­ for the conference was to cover the nomics, Oslo University, Norway; Europe topics so as to allow for a broad Deyan Kiuranov, Program Director, Chicago comparison of the entire region. All Center for the Study of Democracy, On October 18�20 the Law School's of the East European participants Sofia, Bulgaria; Rumyana Kolarova, Center for the Study of Constitution­ prepared papers in advance of the Professor of Sociology, Sofia Univer­ alism in Eastern Europe organized its conference for the other members to sity, Bulgaria; Peter Kresak, Professor first full-scale conference, "Constitu­ read and study. This approach of Law and Vice Dean, Comenius tional Revolutions in Eastern Europe." allowed the sessions to become an University, Bratislava, Czech and The conference opened with a exchange of questions and ideas Slovak Federal Republics; Krenar keynote address by Juan Lim, Profes­ among all of the participants. Loloci, Professor of Constitutional sor of Political and Social Science at Participants in the conference Law, University of Tirana, Albania; Yale University. A leading scholar on included: Katalin Balazs�Veredy, Claus Offe, Professor, Zentrum fur the subject of political transitions to Librarian of the Hungarian Parlia­ Sozialpolitik, University of Bremen, democracy, his address was: ment, Budapest; Victor I. Borisyuk, Germany; Wiktor Osiatynski, Pro� "Presidentialism and Parliamentism: Professor of Political Science, U.s.A. gram Director, Center for Human Does it Make a Difference?" & Canada Institute, U.S.S.R. Rights in Eastern Europe, Warsaw; Of the more than fifty participants, Academy of Sciences, Moscow; Milos Gueorgui Poshtov, Researcher, half were East European constitu­ Calda, Professor of Languages, Institute for State and Law, Sofia; tional scholars, the majority of whom Charles University, Prague, Czech Ulrich K. Preufi, Professor of Law, maintain a direct working relationship and Slovak Federal Republics; University of Bremen, Germany;

30 THE LAW SCHOOL RECORD Andras Sajo, Professor ofCompara­ Resentment has grown since the himself was punished during the tive and International Business Law, overthrow of the communist govern­ communist period, has expressed his School of Economics, Budapest; ments because former communist party discomfort with the law. Hungarian Branko Smerdel, Professor of Consti­ members were well placed to profit President Arpad Concz, also a victim tutional Law and Comparative from their positions of authority even under the communists, could reach no Political Institutions, Zagreb Law after the collapse of the party. In decision on the law and has sent it to School, Yugoslavia; Vilmos Sos, Hungary and Czechoslovakia, laws of the Constitutional Court for an Senior Fellow, Hungarian Academy broad and sweeping character have opinion. of Sciences, Budapest; Eugene already been passed to punish former Those present at the conference Tantchev, Professor and Dean, Sofia communist party members. Poland is included legal scholars, constitutional University Law School, Sofia; Michel considering legislation similar to the lawyers and judges from the U. S., Troper, Professor of Law, University Hungarian law, which would punish Western Europe, and East Central of Paris, Nanterre, France. those who collaborated with the Europe. In addition, legal scholars former Soviet Union and who partici­ from Argentina were in attendance Prague pated in the crushing of the Solidarity because that nation has faced similar On December 13�15 the Law movement. If the laws remain in place issues following the collapse of its School's Center for the Study of and are applied, hundreds of thousands military government. Constitutionalism in Eastern Europe, could be prosecuted. From a legal The entire conference was con- in conjunction with Central Euro­ standpoint the retribution laws are dueted in English and Czech. It was pean University of Prague, Czecho­ highly explosive. Except for cases of also audio-taped in both languages and slovakia and the Open Society Fund murder, nothing within the new laws video-taped in English. Copies will be of New York, sponsored the second in was illegal during the communist available in the Spring. The Center's the series of conferences planned by period. To punish now what was not next conference is tentatively sched­ the Center. The conference was previously illegal has deeply divided uled for mid-September in Prague. It entitled "Political Justice and the fledgling democracies. President too will cover the issue of retribution, Transition to the Rule of Law in East Vaclav Havel of Czechoslovakia, who as well as questions of restitution. Central Europe: Moral, Legal, and Social Problems." It was convened on the campus of Central European University. In order to allow for a The Maroonbook Gains Ground maximum of scholarly exchange, the conference maintained the same "This the sensible committee that the format as the October conference. chapter adopts faculty began approach to legal citations intro­ task of writing simplified citation Papers and commentary were duced by The University of Chicago guidelines. "I have been convinced exchanged prior to the meetings, Manual Citation, from the outset that citations should while the conference was used to of Legal popularly known as the Maroonbook." So be and said discuss widely varying opinions. The simple straightforward," Citation Marcus. "There is a tremendous central focus of the conference begins chapter four, Forms, of a new book, Judicial appetite among lawyers for needless concerned the issue of retribution, or Opinion Writing Manual, published precision. The old rules enabled how the post-communist govern­ last year the American Bar them to wrap themselves in ments will confront former comrnu­ by preci­ Association, a product of the sion and spend a great deal of time nist party members who stand Conference, to no real accused of crimes committed during Appellate Judges advantage." Judicial Administration Division. Dale '92, current the communist period. Conference Carpenter The book offers advice on Editor-in Chief of the Law Review, sessions included: "Injustices under judges and was enthusiastic about the Communism and Laws Passed and crafting opinions expressly judges' adopts the Maroonbook for citation book. "The adoption of the Pending to Remedy those Injustices"; Maroonbook in the "Retroactivity in Criminal Law"; style. opinion writing Jerome Marcus one of the manual reflects a awareness "Retribution, Restitution and '86, growing co-authors of the citations in the that citation Justice"; "The Judge's Perspective"; chapter, legal profession was the chair of the student form should not consume so much "Groups Responsible for State Crimes committee, of members It need us to the and Oppression"; "Experiences with consisting energy. only get of the University of Law source cited. We're also Punishment and Amnesty in Transi­ Chicago delighted Review and the University of that 3rd Circuit Judge Edward tion to Democracy"; and "Social Forum, that drafted Becker has decided to use the Functions of Political Justice." Chicago Legal the Maroonbook, which was first Maroonbook in his opinions. Now, if The issue of retribution is particu­ published in 1986. Their original we can only get certain 7th Circuit larly critical now because of the deep inspiration for the book came from judges to do likewise, we may yet resentment shared by the majority of Professor (now Richard break the hold of people in East Central Europe toward Judge) persnickety Posner, who headed an early citation." their former communist governments and officials of the communist party.

VOLUME 38/SPRING 1992 31 member. Randolph Stone, Clinical Professor of Law and Director of the Mandel Legal Aid Clinic, entitled his talk "From Public Defender to Clinical Professor of Law."

Committee members were invited to attend the Bill of Rights conference, which followed immediately.

Visiting Committee Members

Chair 1990�91

James C. Hormel '58, Equidex, Inc., San Francisco, California

Terms Expiring 1991�92

Dennis Archer, Dickinson, Wright, Moon et al., Detroit, Michigan. A judicial moment- federal judges Abner Mikva '51, Milton Shadur '49, and Irving I. Axelrad '39, Beverly Hills, Stephen Reinhardt confer before the Visiting Committee's first session California. Sara Bales '70, Chicago, Illinois. Visiting Committee Burley, Michael McConnell '79, Michael A. Donnella '79, American Randal Picker '85, and Cass Sunstein Telephone and Telegraph, Baskin Ridge, October 24 and 25, 1991, the Law spoke to the Committee on new New Jersey. School welcomed the Visiting Corn­ scholarly directions in the Law School. Bruce L. Engel '64, WTD Industries, Inc., mittee for its annual meeting. This Ms. Burley described the international Portland, Oregon. year, the program focused on the law curriculum. Mr. Picker described Daniel Greenberg '65, Electro Rent academic mission of the Law School. recent advances in "game theory." Mr. Corporation, Van Nuys, California. After the traditional continental McConnell discussed the Law and The Hon. Edith H. Jones, U.S. Court of breakfast and welcome from Dean Government Program and its effect on Appeals, 5th Circuit, Houston, Texas. Stone, committee members listened to the promotion of scholarship through Chester T. Kamin '65, Jenner & Block, Professors Richard Helmholz, David faculty workshops and student re� Chicago, Illinois. Strauss, and Richard Epstein discuss search, and Mr. Sunstein described the Milton Levenfeld '50, Levenfeld Eisenberg why scholarship is central to the Law Center for the Study of Constitution­ Janger et al., Chicago, Illinois. School's mission. alism in Eastern Europe. The Commit­ Nancy Lieberman '79, Skadden Arps Slate In the next session, Professors tee then met with students from Law Meagher & Flom, New York, New York. Douglas Baird and Geoffrey Miller Review, Legal Forum, Moot Court, Robert F. Lusher '59, Builders Federal, and Law Librarian Judith Wright and the Law Students Association to Hong Kong. discussed how scholarship is promoted. discuss the student contributions to The Hon. Mary K. Mochary '67, U.S. Mr. Miller concentrated on the nature scholarship. Department of State, Washington, D.C. of the institution, identifying the At 4:00 p.m., the Weymouth The Hon. Stephen Reinhardt, U.S. Court characteristics that have brought the Kirkland Courtroom was standing of Appeals, 9th Circuit, Los Angeles, Law School success. Mr. Baird room only as the Visiting Committee, California. discussed the Law School's workshops faculty, staff, and students gathered to The Hon. William Sessions, Director, and fellowships. Ms. Wright talked listen to the 1991 Wilber C. Katz Federal Bureau of Investigation, about the challenges that the library Lecture, which was delivered by Washington, D.C. faces in light of the ever diversifying Professor Mary Becker '80. Her topic The Hon. Milton Shadur '49, U.S. District interests of the faculty. was "The Politics of Women's Wrongs Court, Northern District of Illinois, During the lunchtime break, and the Bill of Rights: A Bicentennial Chicago, Illinois. members of the Committee held Perspective." A reception followed the Stephen E. Tallent '62, Gibson Dunn & concurrent seminars for faculty and lecture, after which the Committee Crutcher, Washington, D.C students. James Hormel '58 and Marc gathered in Burton-judson lounge for The Hon. Patricia Wald, U.S. Court of Wolinsky '80 discussed gays in the dinner. The following day, the Appeals, D.C. Circuit, Washington, military; Jeffrey Peck '82 spoke on the Committee met with members of the D.C. confirmation process for Supreme Law Students Association before Edward W. Warren '69, Kirkland & Ellis, Court Justices, and Judge Edith Jones entering executive session with Dean Washington, D.C. discussed Vice-President Quayle's Stone. Lunch with the faculty ended The Hon. J. Harvie Wilkinson, U.S. Court proposals for civil justice reform. the Visiting Committee's program of Appeals, 4th Circuit, Charlottesville, After lunch, Professors Anne-Marie with a talk from the faculty's newest Virginia.

32 THE LAW SCHOOL RECORD James c. Franczek '71, Vedder Price Kauf­ man & Kammholz, Chicago, Illinois. The Hon. Charles Freeman, Illinois Supreme Court, Springfield, Illinois. B. Mark Fried '56, Fried Companies, Inc., McLean, Virginia. Perry L. Fuller '49, Hinshaw & Culbertson, Chicago, Illinois. Maurice Fulton '42, Glencoe, Illinois. The Hon. Karen Henderson, U.S. Court of Appeals, D.C. Circuit, Washington, D.C. Laura B. Hoguet '67, White & Case, New York, New York. Lillian E. Kraemer '64, Simpson, Thacher & Bartlett, New York, New York. Mark C. Mamolen '77, Carl Street Partners, Chicago, Illinois. Steve Barnett '66, Terry Diamond '63, Michael Donnella '79, Mark Michael J. Marks '63, Alexander & Mamolen '77, and Allen Turner '61 prepare for the start of the annual Baldwin, Inc., Honolulu, Hawaii. meeting of the Visiting Committee The Honorable Monroe G. McKay '60, U.S. Court of Appeals, 10th Circuit, Terms Expiring 1992,93 Alfons Puelinckx '65, Puelinckx, Linden, Provo, Utah. Grolig, Uyttersprot, Brussels, Belgium. Clarence Page, The Chicago Tribune, Terry Diamond '63, Steiner Diamond The Hon. Stephanie Seymour, U.S. Court Chicago, Illinois. Asset Management Co., Chicago, of Appeals, l Oth Circuit, Tulsa, Sir Geoffrey W. Palmer '67, Wellington, Illinois. Oklahoma. New Zealand. John Friedman Jr. '70, Dewey Ballantine Marc Wolinsky '80, Wachtell Lipton Benjamin Arrington Streeter 111'79, Bushby et al., New York, New York. Rosen & Katz, New York, New York. Chicago, Illinois. David Greenbaum '76, Mendik Realty Co., Allen M. Turner '61, Pritzker and Pritzker, Inc., New York, New York. Terms Expiring in 1993,94 Chicago, Illinois. Jean Reed Haynes '81, Kirkland & Ellis, Claire A. Weiler '83, Vedder Price New York, New York. Steve M. Barnett '66, Sprague Devices, Kaufman & Kammholz, Chicago, The Hon. Thelton E. Henderson, U.S. Inc., Northbrook, Illinois. Illinois. District Court, Northern District of Stephen Stewart Bowen '72, Latham & Barry S. Wine '67, New York, New York. California, San Francisco, California. Watkins, Chicago, Illinois. The Honorable James B. Zagel, U.S. Albert F. Hofeld Jr. '64, Hofeld and Hillary Rodham Clinton, Rose Law Firm, District Court, Northern District of Schaffner, Chicago, Illinois. Little Rock, Arkansas. Illinois, Chicago, Illinois. Colette Holt '85, Park District, Chicago, Nancy G. Feldman '46, Tulsa, Oklahoma. Illinois. Elmer Johnson '57, Kirkland & Ellis, Chicago, Illinois. Karen Kaplowitz '71, Alschuler Grossman & Pines, Los Angeles, California. The Hon. Phyllis Kravitch, U.S. Court of Appeals, 11 th Circuit, Savannah, Georgia. Daniel E. Levin '53, The Habitat Com­ pany, Chicago, Illinois. William F. Lloyd '75, Sidley & Austin, Chicago, Illinois. Peter H. Merlin, Gardner Carton & Douglas, Chicago, Illinois. The Hon. Abner Mikva '51, U.S. Court of Appeals, nc. Circuit, Washington, D.C. Hugh M. Patinkin '75, Mark Bros. Jewelers, Inc., Chicago, Illinois. Jeffrey Peck '82, U.S. Senate Committee on the Judiciary, Washington, D.C. Herbert Portes '36, Horwood Marcus & Dean Stone greets Judges Karen Henderson (left) and Phyllis Kravitch. Steve Braun, Chicago, Illinois. Barnett '66 stands behind Dean Stone.

VOLUME 38jSPRING 1992 33 Bill of Rights Symposium

Constitutional scholars from the Law School and other leading institutions celebrated the bicentennial of the Bill of Rights at a conference "The Bill of Rights in the Welfare State" October 25�26, 1991, at the Law School. The symposium formed part of the year­ long celebration of the University of Chicago's Centennial. Mary Becker '80, Professor of Law, provided a prologue to the symposium with her delivery of the Wilber C. Katz Lecture on October 25. In her talk, "The Politics of Women's Wrongs and the Bill of Rights: A Bicentennial Perspective," Ms. Becker argued that the Bicentennial of the Bill of Rights may not be a cause for women to celebrate, since the original Bill was written by white, propertied males Former Dean Edward Levi '35, Justice John Paul Stevens, and Professor who were aiming to establish and Emeritus Bernard Meltzer '37 in light�hearted argument at the reception protect rights for their own kind. following Justice Stevens's keynote address Since then, some provisions of the Bill have even increased inequities for women rather than corrected them, freedom clauses of the first amend­ he said referred back to the Chicago while the reverence felt for the Bill ment. centennial world's fair of 1933, also has often impeded legislative reform. Justice John Paul Stevens of the optimistically titled "A Century of "The Bill of Rights incorporates a United States Supreme Court gave Progress," although it took place in an public-private split and a negative the keynote address of the symposium environment of economic depression, concept of rights. Both contribute to to a packed house in the Glen A. gangsterism, the rise of Fascism in viewing women's concerns as beyond Lloyd auditorium, while the overflow Europe, and the assassination of the the scope of government," she said. watched on video relay in the city's mayor. Justice Stevens could see Ms. Becker illustrated her argument Courtroom and Classroom I. Justice alarming parallels between 1933 and with examples from seven specific Stevens entitled his talk "The Bill of present day woes of financial misman­ clauses, especially from the religious Rights: A Century of Progress," which agement, the collapse of the Soviet Union, unrest in Europe and "an extraordinarily aggressive" Supreme Court which was curtailing constitu­ tional protection of individual liberties. He said that during the first century of its existence, the Bill of Rights was static, merely confirming that the government is obliged to obey the law of the land. "In the second century of its life, however, the Bill of Rights became a dynamic force in the development of American law. The United States Supreme Court played a major role in that development." Justice Stevens then discussed some of the major Supreme Court cases illustrating how interpretations of the Constitution and the amendments gradually changed over the century, enlarging the concepts of liberty and tolerance. Speaking of the controver­ sies over abortion rights and the right to die, he maintained that tolerance Mary Becker delivers the Katz lecture must be the guiding principle in a

34 THE LAW SCHOOL RECORD secular state. Judges have a duty to develop the law. "J udgments that apply principles that are embedded in the Constitution, that are supported by a candid attempt to explain the application of the principle and the relevance of prior decisions, represent appropriate developments of the law even when neither text nor history supplies the entire basis for the new decision." Participants in the symposium, alumni, and guests of the Law School attended a dinner later that evening in the Harold J. Green Lounge. Mary Ann Glendon '61, Professor of Law at Harvard Law School, spoke after dinner. In her talk, entitled "Rights in Twentieth Century Constitu­ tions," she contrasted the U.S. Professor Richard Epstein began the first debate of the Bill of Rights Constitution and Bill of Rights with Symposium. Carol Rose '77 moderated. the systems of other democracies. Many countries developed constitu­ J ames Parker Hall Distinguished Kathleen M. Sullivan of Harvard tions only within this century when Professor of Law, against Professor University over interpretation of the the foundations of the welfare state Frank Michelman of Harvard Univer­ religion clauses of the first amend, already existed. They built welfare sity in a discussion of property rights ment. Mr. McConnell argued that the obligations into their constitutions. In and the amount of protection they establishment clause should be used to contrast, the U.S. Bill of Rights should enjoy. Mr. Epstein called for a increase the number of religious enumerates negative rights, in keeping broad interpretation of the fifth choices and give religious voices a with traditional American distrust of amendment takings clause and advo­ chance to be heard in public life, government. Both kinds of system face cated the same degree of protection of while Ms. Sullivan maintained that difficulties. "The problem of 'the Bill property as is afforded to speech. Mr. the establishment clause permits only '" of Rights in the Welfare State, said Michelman argued that speech and minimal acknowledgment of religion. Ms. Glendon, "is nothing less than the property should not be treated equally Vincent A. Blasi '67, Corliss great dilemma of how to hold together and that government should generally Lamont Professor of Civil Liberties at the two halves of the divided soul of be trusted when it regulates property. Columbia University, served as the liberalism-our love of individual Carol M. Rose '77, Fred A. Johnson moderator of a debate between Cass liberty and our sense of a community Professor of Property at Yale Univer­ Sunstein, Karl Llewellyn Professor of for which we accept a common sity, moderated the debate. Jurisprudence, and Charles Fried, responsibility." On Saturday, October 26, Stephen Carter Professor of General [urispru­ The symposium itself took the form L. Carter, William Nelson Cromwell dence of Harvard University, on of five debates. The first, following Professor of Law at Yale, moderated a speech in the welfare state. Professor immediately after Justice Stevens's debate between Professor Michael W. Fried argued that the First Amend, speech, pitted Richard A. Epstein, McConnell '79 and Professor ment protects individual autonomy

Papers from the Symposium will be published as vol. 59, no. 1 of the Law Review and also as a book by the University of Chicago Press.

me Please send __ copies of:

o Law Review Bill of Rights issue-$13.00 ea. incl. postage o Bill of Rights Book (University of Chicago Press, 550 pp.) o Paperback $19.95 + $3 postage, 75¢ postage each additional copy o Cloth,bound library edition $50.00 + same postage

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Address: _ University of Chicago Law School 1111 East 60th Street Chicago, Illinois 60637 and criticized the fairness doctrine, agreed there are no simple shortcuts, schein Nath & Rosenthal), who the anti-pornography movement, and such as textualism, to the decision of talked about the tax effects of transfers he that hate.speech codes as inconsistent with constitutional cases, argued of indebtedness. This year marked the this freedom. Mr. Sunstein said the the abstract theorizing of Mr. first time that a whole day was First Amendment must be understood Dworkin was ultimately futile and devoted to international tax matters. through the lens of democracy. It is that the only hope for sound constitu­ The international section of the about political deliberation, and tionallaw was greater immersion by program was organized under the commercial speech, libel and pornog­ judges in the facts underlying consti­ direction of Robert Aland of Baker & raphy are not within the First tutional disputes, citing Justice McKenzie. Amendment's core. Moreover, the Holmes as an example. problem today is that insufficient Papers from the Bill of Rights Legal Forum Symposium attention is given to public issues and Symposium will be published in of Some volume 59, no. 1 of the University of diversity viewpoints. govern­ The seventh annual symposium of ment to Law Review and as a book by regulation designed promote Chicago the University of Chicago Legal public debate will promote the the University of Chicago Press. If Forum took place on January 30�31, purposes of the First Amendment, you are interested in the Law Review 1992, as part of the University's even it intrude on the or the book, send in the form though may please Centennial celebration. In the spirit free market. on the previous page. of the Centennial, the symposium Frank H. Easterbrook '73 of Judge looked forward to the next century as the U.S. Court of for the 7th Appeals Tax Conference scholars from the United States and Circuit and Bruce A. Ackerman, Europe discussed "Europe and Professor of Law and Political Sterling The Law School's 44th annual America in 1992 and Beyond: at Science Yale, argued about the a Federal Tax Conference, leader Common Problems ... Common nature of constitutional interpreta­ among the nation's tax conferences, Solutions?" Francis Jacobs, Advocate tion. Mr. Ackerman for a argued took place October 28�30 at the General of the European Court of broad approach, saying that the the Swissotel, Chicago. During three Justice, was the keynote speaker of the Constitution was transformed over days of the conference, participants symposium. He spoke on "Europe after the and that increased past century considered aspects of taxing individu­ 1992: The Legal Challenge." The and call legislative regulatory powers als, financial products, corporate and symposium took the form of three for a corresponding increase in rights. shareholder arrangements, and panel discussions on Friday, January Easterbrook rebutted this Judge international tax questions. Speakers 31. Assistant Professor Anne-Marie that the argument, saying original included Burton W. Kanter '52 Burley moderated the first discussion of the Constitution understandings (Neal Gerber & Eisenberg), who which looked at the role of the courts still have and that validity judicial analyzed estate planning concepts for in the European Community. Discus­ interpretation must be the justified by building wealth, protecting wealth sants were Koen Lenaerts of the Court constitutional text. The debate was from creditors, and reducing taxes on of First Instance of the European moderated Professor by Margaret Jane intergenerational transmission of Communities; Hjalte Rasmussen, Radin of Stanford University. wealth; Christian E. Kimball '83 Professor of E.C. Constitutional Law The concept of unenumerated (Kirkland & Ellis), who discussed the at Copenhagen Business School and rights was the theme of the final panel practical difficulties and tax questions the College of Europe, Bruges; Martin of the symposium, in which Judge arising when the purchase price of Shapiro, Professor of Law at the Richard A. Posner of the U.S. Court stock is tied to future stock value; and University of California, Berkeley; of fur the 7th Circuit Appeals Richard M. Lipton '77 (Sonnen- and Joseph H.H. Weiler, Professor of challenged the views of Professor Ronald Dworkin of New York and Oxford Universities. Thomas C. Grey, Stanford University's Sweitzer Professor of Law, moderated. Professor Dworkin said that the Constitution's text will not resolve any significant issues of constitutional law and that there is no real difference between

cases such as Roe v . Wade and cases involving difficult questions of free speech, such as whether burning the U.S. flag violates the First Amend­ ment. Applying this analysis to Roe v. Wade, Mr. Dworkin argued that the constitutional right of abortion can be derived from a number of clauses of the Constitution, including the free exercise of religion clause of the First James Rill, Diane Wood, and Claus Dieter Ehlermann spoke on the final panel Amendment. Although Judge Posner of the Legal Forum Symposium. Eleanor Fox was the moderator. Students raised more than $100,000 in support of the Law School in a four-evening phonathon in early November. Pictured left to right are first-year student Brian Fagel, Tia Cudahy '92, president of the Law Students Association, Miguel Odriozola, LL.M. candidate, and Jessica Cilluffo, Class of '94. Evelyn Becker and Nicole Caucci, both Class of '93, organized the event.

Law at the of .. University Michigan. Campaign for the Next Cen academic year, in honor of the After lunch, Richard Stewart, Assis­ tury twentieth anniversary of the publica­ tant U.S. General for the Attorney tion of Judge Richard Posner's Environment and Natural Resources ground-breaking book, Economic Division and Rolf Wagenbaur, Head The Campaign for the Next Analysis of Law. Adviser to the E.C. Legal Century is a five year, University-wide Olin Foundation Executive Commission's service team on legal effort seeking to raise $500 million in Director James Piereson, in announc­ Environment, and Con­ Transport, support of endowments, building ing the gift, said, "The Law and sumer Affairs, discussed the regulation projects and ongoing support of Economics Program at Chicago is of the environment. European programs. The Law School's portion truly outstanding, and we consider our Professor Cass Sunstein moderated the of the Campaign is $25 million. The grant there to be a wonderful invest­ The final examined panel. panel effort extends through June 30, 1996. ment in the future." The Law School law and antitrust competition develop­ has benefited from the support of the ments in the United States and the Olin Grant for Law and Economics Foundation since 1977. E.C. Discussants were Claus-Dieter In a continuation of its long history Ehlermann, head of the Directorate of support of the Law School, the Judge Prince Pledges Bequest General for of the E.C.; Competition John M. Olin Foundation has an­ Former Cook CountyCircuit Court F. Rill, Assistant U.S. James Attorney nounced a two-year grant of $ 7 31,000 Judge Kenneth C. Prince, a long­ General in the Antitrust Division; and to the Law School's Law and Econom­ time volunteer for and supporter of Diane P. Wood, Harold and Marion J. ics Program. This grant will support the Law School, has pledged a Green Professor of International Legal research of senior scholars working in bequest gift of $200,000 to establish Studies. the area of Law and Economics, Law The Kenneth C. Prince Family and Economics workshops and Faculty Fund, which will help the Kimball Receives Award working papers, The Journal of Law Law School recruit and retain and Economics, and The Journal of distinguished scholars and teachers in Spencer L. Kimball, Seymour Legal Studies. The grant will also the future. Logan Professor Emeritus of Law, was continue the Foundation's support of Judge Prince is a member of the the first recipient of the Robert B. the John M. Olin Law and Economics College Class of 1932 and the Law McKay award, established by the Fellowship, which brings promising School Class of 1934. Before his Council of the Torts and Insurance young scholars to the Law School and appointment to the bench in 1982, he Practice Section of the American Bar the John M. Olin Student Fellow­ was for 34 years associated with the Association. The award will be given ships. Chicago firm that became Prince, annually in recognition of an The grant will also establish two Schoenberg, Fisher and Newman. individual's lifetime contributions to new programs. A series of lectures, Since 1984, he has been of Counsel to tort and insurance law. Robert McKay named in honor of 1991 Nobelist in the firm-now known as Schoenberg, was a dean of NYU School of Law and Economics Ronald H. Coase, will Fisher and Newman-and is affiliated a member of the ABA Board of address issues of Law and Economics. with Endispute of Chicago, which Governors who exhorted lawyers to A conference on new developments specializes in alternative dispute strive for "fairness and justice while in economics and how they will resolution. He was President of the safeguarding the ethical standards of change the field of Law and Econom­ Chicago Bar Association, Chairman what it means to be a lawyer." ics will be held during the 1993�94 of the Chicago Bar Foundation and of

VOLUME 38/SPRING 1992 37 the Illinois Institute for Continuing The Margaret and Richard Merrell Legal Education. Judge Prince and his Fund in Taxation at the Law School, wifc.Pcarl, are residents of which supports both student and Northbrook, Illinois. faculty research. Mr. Portes is also a Dean Geoffrey R. Stone hailed supporter of the President's Fund of Judge Prince's gift as "the natural the University. extension of Ken's and Pearl's lifetime In announcing the gift, Dean Stone of devotion and generosity to the Law called Mr. Portes, "A shining example School. The Kenneth C. Prince of a University of Chicago Law School Family Faculty Fund will be a perma­ graduate. He is a distinguished nent legacy from one of our most practitioner and a leader of the alumni distinguished graduates and will help community in word and deed. The ensure the continued excellence of the Law School is delighted by Herb's and Law School well into the future." Abra's continuing and generous support." Law School Gift from Herbert Portes Herbert Portes, a member of the Gift from Stanford Miller Visiting Committee and a long-time Stanford Miller, a member of the supporter of the Law School, has made Class of 1938, has made a gift to the a five-year pledge of $150,000 in Law School of $100,000 in the form of response to the Law School's needs a charitable gift annuity, to support within the University's Campaign for research "to promote reform of the Every spring, the Healthcare Law the Next Century. Mr. Portes, a American system of civil justice." Society sponsors a Blood Drive resident of Northbrook, Illinois, Mr. Miller is the retired President graduated from the College in 1934 and Chief Executive Officer of the his professional life and that led to the and is a member of the Law School Employers Reinsurance Corporation in establishment of this important gift. Class of 1936. Kansas City, Missouri, and currently Part of the gift wi 11 be added to the works as a consultant. He has served as Bernard J. Nussbaum Pledges Gift Abra and Herbert Portes Law Library Vice Chair of the Reinsurance to the Law School Fund, which was created in 1987 by Association of America, Director and Bernard J. Nussbaum '55, a partner the Portes family in honor of Mr. and member of the Board of the Health at Chicago's Sonnenschein, Nath & Mrs. Portes' fiftieth wedding anniver­ Insurance Association of America and Rosenthal, has pledged $100,000 over sary. The remainder will be designated Trustee of both the American Institute five years to the Law School as part of by the Dean to support the central for Property and Liability Underwriters the Universirv-wide Campaign for the mission of the Law School. and for the Insurance Institute of Next Century. This gift will be added Mr. Portes is of Counsel to the firm America. to the Nussbaum Fund, which was of Horwood, Marcus & Braun in During his time as a student, Mr. established by Mr. Nussbaum in 1983 Chicago, and spent many years as Miller worked with Professor Max and endowed in 1990 in honor of his partner and President of his own firm, Rheinstein on issues relating to the brother, Michael '61, and his sons, Portes, Sharp, Herbst & Fox. In 1990, civil tort system in the United States, Peter (J.D. Yale '85), Andrew '91 and he was instrumental in establishing an interest that continued throughout Charles (M.D. Rochester '84). The Fund currently supports projects central to the mission of the Law School as designated by the Dean. Mr. Nussbaum is a long-time supporter of the Law School. He has served as Chairman of the Fund for the Law School and President of the National Law School Alumni Associa­

tion. As a member of the National Steering Committee, Mr. Nussbaum helped to guide the Law School through its highly succcssful lvdl-So Capital Campaign. On three occa­ sions, Mr. Nussbaum has chaired his Class's reunions, and he has spent two terms on the Law School Visiting Students raised $9,000 at a charity auction January 17 in aid of community Committee. services at the Blue Gargoyle in Hyde Park. Professor Richard Epstein was "Bud Nussbaum's support of the Law the auctioneer. The auction was part of a Community Services Weekend, School, in word and deed, is deeply organized by LSA, in which student volunteers painted senior citizen housing, appreciated," said Dean Stone in served meals, built a pantry, and packaged food for the needy. announcing the pledge. "He helps set a

38 THE LAW SCHOOL RECORD First years Marin Cosman and Abby Rudoff (left) were the winners of the annual Talent Show, held in January, with their Gilbert and Sullivan,style song about women's life in law school. Third year Janine Goodman played her own compositions on the guitar.

standard for alumni commitment to FACULTY NOTES National Bankruptcy Conference. higher education, and the entire Law Later that month, he spoke at the School family is deeply indebted to In July and August, Albert Alschuler, annual Workshop on Commercial and " hiun. Wilson-Dickinson Professor of Law, Consumer Law in Toronto. spent five weeks as a resident scholar Gene Dye Makes Gift to the Law at the Rockefeller Foundation's Study Mary Becker '80, Professor of Law, School Center in Bellagio, Italy. In Septern­ was a panelist at the September In celebration of the 25th Reunion ber, he gave two lectures at the Midwest Clinical Teachers' Confer­ of the Class of 1967, class member University of Pittsburgh Law School ence on Law Reform Litigation in the Gene E. Dye has committed a gift of as part of the School's Mellon Lecture Nineties. She spoke on the "Agenda $100,000 to the Law School. The gift, series. His talks were entitled "Would for Women in the Nineties." In on "Feminist which will be paid over four years, will You Have Wanted Justice Holmes as a October, she spoke support the Class of 1967 Fund and Friend?" and "Oliver Wendell Holmes Theories" at a luncheon sponsored by the annual Fund for the Law School. and the Decline of Rights." In the Law School. She participated in A native of Valparaiso, Indiana, October, Mr. Alschuler offered "A workshops at the University of Miami Mr. Dye entered the Law School in Brief History of the Criminal Jury in and Emory University in November, 1963, where he served on the Law America" at Valparaiso University's speaking on "The Politics of Women's and the Bill of A Review. After taking a year off to work Bicentennial Symposium on the Bill Wrongs Rights: for a federal judge in the U.S. Virgin of Rights. Later that month, he Bicentennial Perspective." The same Islands, Mr. Dye returned to the Law appeared on a panel conducted by month she gave a talk on feminist School and graduated with the Class Arthur Miller on "The Adversary legal theory to students at the Law of 1967. Since that time, Mr. Dye has System: Dinosaur or Phoenix?" during School. practiced in Paris where he is a Senior the annual meeting of the Litigation Partner of Salans, Hertzfeld & Section of the American Bar Associa­ In July, Anne-Marie Burley, Assis­ Heilbronn, and is a lecturer in the tion. On November 7 and 8, Mr. tant Professor of Law, attended a University of Paris law faculties. Alschuler again lectured on Justice meeting of the Executive Council of In accepting Mr. Dye's gift, Dean Holmes, this time at the University of the American Society of International Law in Stone remarked, "Gene Dye's generos­ Arkansas Law School at Fayetteville. Washington, D.C. In Novern­ ity holds special meaning for the At Arkansas, he also conducted a ber, she presented a paper entitled members of the Law School commu­ workshop for federal judges and "Liberal Internationalism and the Act nity, for it represents, in the most faculty members on the Federal of State Doctrine" at the Program on tangible way, Gene's reflections on Sentencing Guidelines. International Economics, Politics and the role the Law School has played in Security at the University of Chicago. his life and career. Weare honored by In October, Douglas G. Baird, Harry and grateful for this magnificent A. Bigelow Professor of Law, spoke at Gerhard Casper, William B. Graham support." the AALS Workshop on Bankruptcy Distinguished Service Professor of in Washington, D.C. While in Law and Provost, gave six weeks of Washington, he also attended the lectures through the end of]uly as a

VOLUME 38/SPRING 1992 39 States (1951), Religion and the Law Philip B. Kurland (1962), Of Life and Law and Other Things That Matter (1968), Felix Philip B. Kurland, William R. Frankfurter on the Supreme Court Kenan Jr. Distinguished Service (1970), Politics, the Constitution, Professor Emeritus, who retired and the Warren Court (1970), Mr. December 31,1991, has no plans Justice Frankfurter and the Constitu­ to put his feet up and relax. He is tion (1971), Watergate and the currently editing Justice Felix Constitution (1978), and Frankfurter's correspondence from Cablespeech (1984). In 1987, he 1939 to 1963, which he will and co-author Ralph Lerner edited publish as a book. He is also a five-volume set of materials on planning a further book on the origins of the Constitution constitutional law and intends to entitled The Founders' Constitution. continue as a consultant to the Dean Stone said of Mr. Kurland, Chicago law firm of Rothschild, "The University of Chicago Law Barry & Myers. School has been graced throughout Mr. Kurland's career as a teacher Stabilization Agency, consultant to its history with a remarkable and scholar of constitutional law the Department of Justice and, for the succession of constitutional law and legal history spans more than period 1967�74, chief consultant to scholars, including James Parker forty years. He joined the Law the U.S. Senate Subcommittee on Hall, William Winslow Crosskey, School faculty in 1953 after a short Separation of Powers. Harry Kalven, Gerhard Casper, period teaching at Northwestern Forty years of law students looked David Currie, Antonin Scalia, University. In 1973, he was forward eagerly to his classes. In 1954, Richard Epstein, Cass Sunstein, appointed William R. Kenan Jr. he originated the Supreme Court Michael McConnell, David Professor in the College and in seminar, which analyzes the work of Strauss, and others too numerous 1977, Distinguished Service the U.S. Supreme Court and its to mention. It's not open to Professor. His expertise as an opinions for the current term. Mr. argument, however, at this Law authority on the Constitution was Kurland's scholarly work is well School, which so loves debate, that frequently sought by public known. In 1960, he founded the preeminent among these constitu­ agencies: he has served as consult­ Supreme Court Review, an annual tional scholars is Phil Kurland. ant to the Conference of Chief volume of criticism of the work of the Indeed, Phil is truly one of the Justices, reporter for the Illinois U.S. Supreme Court, which he edited most distinguished and influential Supreme Court Committee on until 1988. He is the author of scholars in the history of American Pattern Jury Instructions, consult­ numerous books, including Jurisdiction constitutional law." ant to the the U.S. Economic of the Supreme Court of the United

Visiting Professor at the University of mandatory retirement for university and the Politics of Distrust" at the Munich. His theme was "Current professors, affirmative action in law Bicentennial Conference on the Bill of Developments in American Constitu­ schools, bargaining with Govern­ Rights at the Law School. In Novern­ tional Law." On July 4, he gave a ment, and an examination of the ber, he lectured at Dartmouth College lecture on "Separation of Powers" at employment discrimination laws. Humanities Institute on Constitu­ the University of Tubingen. Later that month, he was the first tional Interpretation on the topic, "A John M. Olin Lecturer in Law and Common Lawyer Looks at Constitu­ Economics at Fordham tional He at the David P. Currie, Edward H. Levi University, Interpretation." spoke where he lectured on Rules of of School of Social Distinguished Service Professor of "Legal University Chicago Conflicts of Interest for Lawyers." At Service Administration's Centennial Law, spent the autumn quarter as the of October, he chaired Conference on Altruism on the Visiting Professor in the European beginning a at the University of subject, "Altruism: Universal and University Institute in Florence, panel Chicago's Centennial Conference on the Selective." Also in November, he learning about the European Commu­ University of the lectured at Law School on nity and the Italian Constitution. Twenty-First Valparaiso Century, which examined the "Legal Constraints on the Use of resources required to meet the Expert Witnesses in Mass Tort Cases." In September, Richard A. Epstein, challenges of the next century. The In December, he spoke at the Confer­ James Parker Hall Distinguished same month, he spoke to the Real ence on Constitution Making for Professor of Law, was the first distin­ Estate Section of the Chicago Bar Eastern Europe, sponsored by the guished visiting Professor in Law and Association on "Some Aspects of National Taxpayers Union Foundation Economics at the University of Kansas Takings Law in Land Use Cases." On in Westfields, Virginia, on the subject Law School. Topics he lectured on October 25, he debated with Frank of "Constitutional Protection for included access to health care, Michelman on the topic of "Property Property Rights."

40 THE LAW SCHOOL RECORD In October, Abner Greene, Assistant prise Institute, Washington, D.C. Portland, Maine. He also chaired a Professor of Law, appeared on Later that month, he was a guest on Rand conference, held in Bellagio, WMAQ TV discussing the Senate's the Ed Schwartz show, WGN radio. Italy, of governmental officials from confirmation of Clarence Thomas. In In November, he spoke on "The seven European countries, Canada November, he participated in a panel Plaintiff's Attorney's Role in Class and the United States, who discussed sponsored by the Democratic Circle, Action Litigation" before the Chicago drug policies and their efficacy. In discussing the Court after Thomas. Bar Association Class Action Com, December, Mr. Morris was the mittee. He participated in a confer, keynote speaker at the dinner held in Richard H. Helmholz, Ruth Wyatt ence on maxims of interpretation at Chicago to celebrate the ninetieth Rosenson Professor of Law, has been Vanderbilt University Law School anniversary of the John Howard elected President of the American and in a conference on corporate law Association. He discussed his book, Society for Legal History for a two, at Washington University Law Between Prison and Probation and year term. He has also been appointed School. The same month, he attended compared correctional systems of to serve on the Committee for a conference on structural change in other countries with that of the Documentary Preservation of the City banking at New York University. United States. On December 17, he of New York Bar Association. gave the keynote address to a confer, In early July, Norval Morris, Julius ence of Minnesota Department of In November, Spencer L. Kimball, Kreeger Professor of Law and Crimi, Corrections management personnel in Seymour Logan Professor Emeritus of nology, received an award from the St. Paul, Minnesota. The following Law, participated in an international National Parole and Probation day, he spoke on community-based insurance conference in Warsaw, Association in Atlanta for his book punishments to the Community Poland. The conference was spon­ Between Prison and Probation, as the Corrections Division of the Minne­ sored by the Polish Chapter of the best scholarly contribution of the year. sota Department of Corrections. International Association of Insur­ During August, Mr. Morris was co' ance Law, with support from the moderator, with Justice Harry A. Gary H. Palm '67, Clinical Professor Insurance Unit in the Commission of Blackmun, of the annual Aspen of Law, has been appointed to a the European Communities. Mr. Seminar on Justice and Society, in further two'year term on the Accredi­ Kimball has completed his casebook, Aspen, Colorado. In September, he tation Committee of the American Cases and Materials on Insurance Law, addressed a plenary session of the Bar Association. He serves on two which is being published in 1992. Annual Meeting of the Federalist subcommittees: on internships and on Society. His talk was entitled "Per, summer foreign programs. In July, At the end of August, Michael W. sonal Guilt or Social Responsibility?" 1991, he served as a site inspector for McConnell '79, Professor of Law, was Mr. Morris delivered a paper entitled two summer programs offered by a member of a panel discussion on "Deinstitutionalization of Correc­ American law schools in London. He "Real Meaning Theories of Constitu­ tional Measures" at the first interna­ is currently setting up a pro bono tional Interpretation" at a meeting of tional conference of the Korean program with several Mandel Clinic the American Political Science Institute of Criminology, held in alumni to bring action under 42 Association in Washington, D.C. In Seoul, Korea, in October. During U.s.C. Section 1983 to enforce October, he spoke on "Religious November, he was the keynote clients' rights to effective and prompt Participation in Public Programs" at speaker at a conference of the Maine child support services under the the Law School's Bill of Rights judiciary on sentencing, held in Family Support Act. Conference. On December 10, he took part in a WFMT radio program Randal C. Picker '85, Assistant Pro, in Chicago with Geoffrey Stone and fessor of Law, gave a paper, "Security Cass Sunstein discussing "Freedom of Interests, Misbehavior and Common Expression: A Bicentennial Perspec­ Pools," to the September Law and tive." Two days later, he appeared Economics workshop at Harvard Law with William Van Alstyne on a School. In October, he attended the WNYC radio show dicussing the fall meeetings of the National religion clauses of the First Amend, Bankruptcy Conference in Washing, ment. ton, D.C. He serves as project reporter for their continuing review of the Geoffrey P. Miller, Kirkland and Ellis Bankruptcy Code. In November, Professor of Law, participated in a Governor Jim Edgar of Illinois panel discussion on the Thomas appointed Mr. Picker to the Illinois nomination on the Mara Tapp show, delegation to the National Confer, WBEZ radio, on September 26� At ence of Commissioners on Uniform the beginning of October, he was the State Laws. The "University of speaker at the Law School's Entering Chicago" seat he filled was most Students Dinner. On October 11, he recently held by former professor John presented a monograph on federalism Langbein and has been held in the and the insurance industry to a past by Karl Llewellyn, Soia conference at the American Enter, Randal Picker Mentschikoff and others.

VOLU�lE 3P,/srRINl� 1q9� 41 In September, Stephen J. Schulhofer, Frank and Bernice J. Greenberg J 0 Desha Lucas Professor of Law, was heard on WBEZ radio in Chicago discussing the right Jo Desha Arnold 1. to jury trial, as part of the station's Lucas, series commemorating the Bill of Shure Professor Emeritus of Urban Rights. In October, Mr. Schulhofer Law, who retired December 31, intends to continue after appeared again on WBEZ to discuss 1991, retirement as before the right to counsel and the confron­ "just except for Mr. Lucas will tation clause. Also in October, he teaching." remain the editor of Moore's delivered a lecture on the privilege Federal one of the two against self-incrimination at Practice, Valparaiso University Law School's standard works on federal civil bicentennial celebration of the Bill of procedure, a position he has held Rights. In November, Mr. Schulhofer for many years. He is one of the authorities in the field of presented a report to the U .S. Sen­ leading and and tencing Commission on the results of practice procedure served as the author of all his two years of research into charging formerly and plea bargaining practices under the annual Federal Practice the federal sentencing guidelines. supplements. Mr. Lucas's career at the Law em gentleman, rationality cloaked School in 1952 when he in and charm." During the Fall quarter, Daniel N. began gentility served as a Mr. Lucas was the Shaviro, Professor of Law, served as Bigelow Teaching appointed Fellow. He was to the Arnold 1. Shure Professor of Urban Visiting Professor at Columbia appointed University Law School. On September faculty in 1953 as Assistant Law in 1982. He is an expert in Professor of Law and was simulta­ state and local 30, he presented a paper entitled "An government, Economic and Political Look at neously appointed Assistant Dean American Indian law, and mari­ Federalism in Taxation" at Columbia and Dean of Students, a position time law, and his Cases in Azinu­ Law School's Law and Economics he held until 1961, when he was ralty, now in its third edition, is a to Professor of Law. B. standard work in the field. Dean workshop. He spoke on the same topic promoted Mark Fried '56 said of Mr. Lucas: Stone said of Mr. Lucas: in October at a faculty workshop at Geoffrey to NYU and at a seminar at the Univer­ "I applied very late the Law "]o Lucas has given almost forty sity of Pennsylvania Law School. On School and I will always believe I years of dedicated service to the would not have in if it were Law as a October 12, he spoke on "The got School, teacher, scholar, Confrontation Clause of the 6th not for J 0 Lucas. I enjoyed the colleague, and administrator. He course I took with him and I has the Law School Amendment" at Valparaiso strengthened him as a in all of its facets and has enriched University's symposium on the always enjoyed person. Bicentennial of the Bill of Rights. He epitomized the perfect South- us all."

Geoffrey R. Stone '71, Harry Kalven J r. Professor of Law and Dean, McConnell and Cass Sunstein on nal Justice System," at the ABA delivered the Jerome W. Sidel Mern­ "Freedom of Expression: A Bicenten­ Annual meeting in Atlanta. In orial Lecture in September at Wash� nial Perspective," on WFMT radio in September, Mr. Stone was a lecturer ington University School of Law. His Chicago. on law and a team leader at Harvard topic was "The Bill of Rights: The Law School's Trial Advocacy Next 200 Years." The same month, he Randolph N. Stone, Clinical Profes­ Workshop. He was heard on WBEZ spoke at the University of Maine Law sor of Law, was a member of the radio in Chicago, discussing the School on "The Selection of Supreme faculty of the National College of Clarence Thomas nomination. In Court Justices" and delivered the Criminal Defense, a summer program October, Mr. Stone gave the keynote Louis Scolnik Lecture, on "Contern­ at Mercer Law School, Macon, address, "The Killing of Charles porary Challenges to the Principle of Georgia. He also served as a faculty Walker," at the Criminal Practice Free Expression," to the Maine Civil member of the New York State Institute in Washington, D.C. In Liberties Union. He also appeared on Defenders Association Trial Advo­ November, he served as a panelist at "Chicago Tonight" with host John cacy Program in Troy, New York. He the National Conference on Sub­ Callaway on WTTW � TV in Chicago, was a panelist at a July town meeting stance Abuse and the Courts, discussing the nomination of Clarence on "Police Brutality and Civilian sponsored by the National Center for Thomas. In October, he delivered a Complaint Review Boards" in St. State Courts, in Washington, D.C. lecture at Northern Illinois University Petersburg, Florida. He also took part During November, Mr. Stone also College of Law on "The 200th in two panel discussions, on "The took students from the Mandel Legal Anniversary of the Bill of Rights." In U.S. Constitution: Is It a Hostage to Aid Clinic to visit night bond court December, Mr. Stone participated in a the War on Drugs?" and "Dream at 26th and California. Mr. Stone has debate with Professors Michael Deferred? Black Males in the Crimi- been appointed to the Board of

42 THE LAW SCHOOL RECORD Directors of the Chicago Bar Founda­ Cass R. Sunstein, Karl N. Llewellyn the Environment, on the role of the tion and to the Chicago Council of Professor of Jurisprudence, currently legal issues associated with the Vice Lawyers Pro Bono Policy Committee. serves on committees providing President's Council on Competitive­ He was elected Vice Chair for Plan­ advice to the governments of Albania ness. Mr. Sunstein has been awarded a ning of the Criminal Justice Section of and Poland on the contents of their Certificate of Merit from the Ameri­ the American Bar Association and has new constitutions. In July, he can Bar Association for his book, been appointed to the American Bar participated in a conference in After the Rights Revolution (Harvard Association's Commission on Warsaw, Poland, under the title "The University Press, 1990). Homelessness and Poverty. The Public Constitutional Moment." His paper Interest Law Initiative has appointed dealt with possible approaches for In November, Alan O. Sykes, Mr. Stone to its Board of Directors. He constitution-making in Eastern Professor of Law, addressed a Harvard was appointed to the Board of Visitors Europe. In August, he participated in faculty workshop on the subject of of the University of Wisconsin Law a conference in Helsinki, Finland, on "Constructive Unilateral Threats in School and also to the Chicago the general subject of human capabili­ International Commercial Relations: Assembly 1992 Planning Committee ties and international development. In Defense of Section 301." In on Crime and Community Safety. The In October, he delivered a lecture at November, he discussed the topic Illinois Public Defender Association Harvard Law School on the subject of again at a Law, Economics and presented Mr. Stone with their 1991 legal reasoning, with special reference Organization workshop at Yale. Mr. Award of Excellence and Meritorious to abortion. In November, he partici­ Sykes spent the Fall Quarter, 1991, as Service. pated in a conference at the Univer­ visiting professor of law at Harvard sity of Chicago on the subject of Law School. David A. Strauss, Professor of Law, constitutionalism in Eastern Europe. spent two weeks in July in Beijing, The same month, he participated in From July 22 through August 9, Diane China, as part of a program sponsored the Law School's conference on the P. Wood, Harold J. and Marion F. by the Ford Foundation and the Bill of Rights. His talk dealt with free Green Professor of International Legal Committee for Legal Education speech in the welfare state. In early Studies and Associate Dean, co­ Exchange with China, teaching a class December, he gave the Donahue taught a course in the Law of the in American Administrative Law to a Lecture at Suffolk University; his talk European Community for the Univer­ group of Chinese lawyers, law protes­ was entitled "Democratizing America sity of San Diego's Institute on sors, and government officials. In through Law." The paper argues for International and Comparative Law, December, he spoke on "Alternatives large-scale changes in our regulatory at Regent's College, London. In to Affirmative Action" at a conference system, changes designed to promote August, she represented the Law in Washington, D.C., sponsored by the both democracy and efficiency. Also School at a conference on "The Rule Joint Center for Political and Eco­ in December, he testified before the of Law in Central and East Europe" nomic Studies. House Subcommittee on Health and held at the Salzburg Seminar, in Austria, which was attended by the deans or representatives from many Central and East European law schools, several West European scholars and government officials, and American law professors and deans. Twice during late August, she appeared on the CNN program "Crier & Co." to discuss the developments in the USSR during and after the attempted coup. In October, she participated in the first conference held by the Law School's Center for the Study of Constitutionalism in Eastern Europe, moderating the panel on judicial review. On October 24, she gave a paper at the 17th Annual Fordham Corporate Law Institute on U.S. and E.C. Competition Law, entitled "International Competition Policy in a Diverse World: Can One Size Fit All?" In November, she attended her first meeting as a member of the ABA Standing Professor Diane Wood and her daughter, Katy, were a star attraction at the Committee on Law and National annual Talent Show Security, held in Washington, D.C.

VOLUME 38/SPRING 1992 43

conservative opinions, I see a potential departure of Justices Brennan and OF \llEw 'group think' problem with a com­ Marshall, the Rehnquist Court may. • POINT v • pletely conservative Court. The same Able advocates of opposing viewpoints is also true of a stacked liberal Court. help to keep the process honest and We asked randomly selected members A balance of ideas and the promotion bounded."-Albert Alschuler. of the student body, as well as mem­ of meaningful debate is best on the "The Constitution gives both the bers of the faculty, the following nation's highest court." executive and legislative branches an question: "Is it appropriate for a "Because recent Presidential ex ante political check over the United States Senator to vote against nominations have become increasingly composition of the judicial branch. the confirmation of a nominee to the based on questions of judicial philoso­ Although perhaps the best system Supreme Court because the Senator phy, party affiliation, and even would be to appoint judges through (a) disagrees with the nominee's nominees' views on particular topics, blue-ribbon panels seeking the 'best' judicial philosophy or (b) is concerned including abortion, I feel that Senators legal minds, in an era of divided with imbalances in the ideological have little choice but to respond in government, if the President pushes composition of the Court?" kind with decisions on confirmation one way, the Senate should push back based on similar criteria. Although it the other way."-Abner Greene. Students would be nice to have a confirmation "No, usually, but perhaps in a) 82% yes, 18% no process without these aspects involved, extreme cases, none of which has b) 82% yes, 18% no it seems this trend has cemented itself existed in my professional lifetime.v-> Comments: in constitutional politics." Spencer Kimball. "Nomineees should be judged solely "Whether is is 'appropriate' or not, on the basis of their competence and Faculty the convention against it is better for experience. Nominees should not be a) 83% yes,17% no the Court and the nation. When the questioned about or evaluated on the b) 78% yes, 22% no Senate agrees with the President, basis of their judicial philosophies." Comments: ideology-based voting has no point. "The Senate vote is the one and "The 'politicization' of the confir­ When the Senate disagrees with the only chance (short of impeachment) mation process is regrettable. It tends President, the effect of ideology-based that the public has to have input into to give us safe, undistinguished, voting is to encourage selection of the composition of the Court." unoriginal, middle-of-the-road Justices uncontroversial nominees with a "It is interesting that this question lacking strong convictions and sparse public record, which is not a does not mention the opinions of the incapable of leadership. I'd much way to produce distinguished nomi­ Senator's constituency. Since the prefer a Court of Tribes and Borks to nees. 'Balance' will be achieved over individual voters have no direct input an all-Sourer Court, and the appoint­ time."-Michael McConnell. on the decision to confirm, clearly ments process generally works better "The view that elected representa­ their representative has the freedom to when Presidents are afforded a tives should not take into account accept or reject the nominee based on reasonably free hand. In extreme likely legal outcomes of interest to " any rationale she or he may have. situations, however (as when the their constituents, or that only the "I vote a strong yes to both ques­ Supreme Court is heavily dominated President should weigh judicial tions. A Senator's job is to confirm by a viewpoint not shared by most philosophy, is preposterous."-Daniel the best candidate, not just approve a Senators and the President is Shaviro. minimally qualified judge. A Senator's unyielding), Senators must be con­ judicial philosophy plays a necessary cerned with viewpoint and with Let us know your point of view. We role in his determination of the best balance. The Warren Court never will publish a sampling of the corn­ candidate. Although I tend to have lacked articulate dissenters. With the ments we receive in the next issue.

The Editor The Law School Record of Law School University Chicago Name __ 1111 East 60th Street Chicago, Illinois 60637 Class Year

"Is it appropriate for a United States Senator to vote against the confirmation of a nominee to the Supreme Court because the Senator (a) disagrees with the nominee's judicial philosophy or (b) is concerned with imbalances in the ideological composition of the Court?"

(a) _Yes _No (b)_Yes _No

Comments _

VOLUME 38/SPRING 1992 4� .ALUMNI EVENTS.

AALS with a talk by Newton Minow, of Counsel with Sidley & Austin, and The Law School hosted its annual former Chair of the Federal Commu­ reception for graduates and friends in nications Commission. His talk, legal education at the annual meeting "Revisiting the Wasteland," discussed of the Association of American Law the current state of television in the Schools. Dean Geoffrey Stone '71 was nation. joined by Professors Mary Becker '80, Leon M. Lederman, Frank L. Richard Helmholz, Geoffrey Miller, Sulzberger Professor in the Depart­ Gary Palm '67, Randall Schmidt '79, ment of Physics and the Enrico Fermi Randolph Stone, and Law Librarian Institute and the 1988 Nobel Prize­ Judith Wright at the Hilton Palacio winner in Physics, gave the second del Rio hotel in San Antonio on Loop Luncheon talk on November 19. Walter Blum'41 with Marjorie and January 4. His talk, entitled "Fools Rush In: A Herbert Fried '32 at the Emeritus Story of Science Education in Luncheon Chicago" traced the development of University Centennial science teaching programs in the Celebrations Stone '71 and Mortimer J. Adler, Chicago public schools, with their of of Professor Emeritus Philosophy emphasis on practical as well as at Law The University's Centennial year is Law, who taught the School theoretical teaching. the occasion for many celebrations from 1930 to 1952. Bernard Nath '21 The fall series ended on December 11 throughout the world. Law School represented the earliest class, while with remarks by Professor Philip of the class of graduates were among the guests who the thirteen members Kurland on the current United States flocked to The Rainbow Room in 1937 represented the largest single Supreme Court. His brief talk opened class Rockefeller Plaza, New York, for a contingent. the way for a lively question and gala dinner dance held on November answer session that only reluctantly 12. James Evans '48 was honorary Chicago broke up as time ran out. chairman of the evening. Hanna The Loop Luncheons are held in the Holborn Gray, President of the Alumnae Luncheon Chicago Board of Trustees room at University, was an honored guest at Women graduates of the Law School One First National Plaza. Alan this event and also at the gala dinner were invited to a luncheon on Orschel '64, Chair, and the organizing dance held on November 23 in November 22, 1991 to hear a panel committee invite you to attend future Washington, D.c., at The Ri tz­ discussion on "Harassment in the series. New graduates may attend their Carlton Hotel, Pentagon City. Workplace." The panelists were Fay first luncheon as guests of the Alumni Twenty-two graduates of the Law Clayton, of Robinson Curley & Association. For further information School attended that dinner, includ­ Clayton, whose practice focuses on on the luncheons, please call Assis­ ing Assistant Dean Holly Davis '76. sex discrimination cases, and Cynthia tant Dean Holly Davis '76 at 312/702� Bowman, Assistant Professor of Law 9628. at Northwestern University, who is Emeritus Luncheon co-author, with Professor Mary Becker '80 and Morrison Torrey, of a Denver The Law School kicked off its case book on feminist jurisprudence. celebration of the was University's The panel moderated by Terrill Professor Albert Alschuler gave Centennial with a luncheon a honoring Pierce '81, partner with Kovar graduates an update on the criminal from Law graduates the School's first Nelson & Brittain. justice system in his talk at a lun­ Graduates of classes fifty years. from cheon on January 17 for alumni and 1921 through 1940 attended a Loop Luncheons friends of the Law School in the luncheon held on September 12, The 1991�92 Loop Luncheon series Denver area. Edward Roche '76, 1991, and enjoyed the opportunity to will celebrate the University's President of the Denver chapter, reunite and reminisce. Over 100 Centennial with an emphasis on introduced Mr. Alschuler. The alumni and their guests gathered at faculty from the Law School and the luncheon was held at the offices of the Standard Club for the lunch and University. Sherman & Howard, graciously to hear remarks from Dean Geoffrey The Fall series began on October 15 hosted by James Hautzinger '61.

46 THE LAW SCHOOL RECORD Los Angeles San Diego

Forty-one graduates from the Los James Cowley '65, a partner with Angeles area attended a luncheon at Latham & Watkins, provided a the firm of Pillsbury Madison & Sutro conference room at his firm on on August 14,1991. The luncheon August 15 for a luncheon for gradu­ was hosted by Michael Meyer '67, a ates. Jerry Goldberg '73, president of the firm. partner with Joel Bernstein the San Diego chapter, presided over '69, president of the Los Angeles the gathering and introduced Dean chapter, presided at the luncheon and Stone, who spoke about the Law introduced Dean Stone who spoke on School. "Current Challenges to Free Expres� The Hon. Morris Abram'40 with . " sion. Seattle Hillmar Reischke�Kessler LL.M. '75 at the luncheon in Zurich

Miami Graduates in the Seattle area were invited to featured speaker at the discussion was Professor Walter Blum '41 was the join Gail Runnfeldt '79, President of the Seattle at a the Honorable Morris Abram '40, guest of honor at a reception held on chapter, luncheon held at her Karr Tuttle permanent representative of the U.S. January 12 for graduates in the Miami firm, Campbell, on February 11. Professor to the European Office of the United area, in celebration of the University's Walter Blum was the guest Nations and other international Centennial. The reception was held speaker. He to the on organizations. Urs Baumgartner at the home of Joseph Bolton '74 and reported gathering current events at the Law School and moderated the whose members Alison Miller '76, President of the panel, the Centennial celebra­ were Stephen Holmes, Professor of Miami chapter. University's tion. Political Science and Law at the of Law Minneapolis/St. Paul University Chicago School, Zurich Michael Faure LL.M. '85 of Van On August 29, Dale Beihoffer '68, Goethem law firm in Antwerp, president of the Minneapolis chapter, Graduates living in Europe held their Belgium, and Hilmar Raeschke� presided at a luncheon held at Faegre biennial reunion in Zurich, Switzer­ Kessler LL.M. '75, an attorney with & Benson for graduates in the land, September 6 and 7, 1991. Urs the federal court in Ettlingen, Minneapolis area. He introduced Baumgartner LL.M. '79 organized the Germany. Dean Stone, who spoke to the event, which began on Friday evening In the evening, the group traveled by gathering on current events at the with dinner at the Bauschanzli boat to the Au Peninsula for dinner at Law School. Restaurant. Saturday morning was the Halbinsel Au Inn. Dean Geoffrey Stone to on free. The group gathered at the spoke the group "The New York Zunfthaus zur Waag for lunch. A Centennial and Beyond: The Second panel discussion on "The Changing Century at the Law School." Assistant Professor Richard Epstein was the Equation: Adding Eastern Europe to Dean Roberta Evans '61 also at­ guest at a luncheon held on speaker Western Markets" followed. The tended the event. September 24 at the offices of Skadden Arps Slate Meagher & Flom. Douglas Kraus '73, president of the New York chapter, and a partner at the firm, introduced Mr. Epstein, who spoke on "Voluntary Euthanasia: Of Cost and Choice." His topic gener­ ated a lively debate after the talk and he answered many questions.

Portland

Richard Botteri '71, President of the Portland chapter, invited graduates and friends of the Law School to join him at a luncheon on February 10. Thomas Balmer '77 of Ater Wynne Hewitt Dodson & Skerritt graciously hosted the buffet luncheon at his firm. Professor Walter Blum '41 spoke to graduates on the University's Centen­ nial celebration and Assistant Dean Adelheid Puttler LL.M. '86, Gunnar Schuster LL.M. '89, Johannes Jonas Dennis Barden reported briefly on LL.M. on the Law School. '89, Hanno Merkt LL.M. '89 and Thomas Paefgen LL.M. '90 the boat to the Au Peninsula in Zurich

VOLUME 38jSPRING 1992 47 Class Notes Section – REDACTED for issues of privacy

ttow CAM THE

Ellis Reid took part in a CLASS OF 1957 '5 9 panel discussion last October on "A in the Life of a First 1111':11:1:1:1:1:1:1=1=1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:111111111111111 Day ThirtY�fifth Reunion Municipal District Case," as part of David Kahn received the Indepen­ the Chicago Bar Association's dent Voters of Illinois-Independent continuing legal education seminars. Precinct Bill Organization of Rights Reunion Correspondent: His talk, "A New Beginning," Award for his efforts in securing '5 7 Barbara Fried, Fried discussed organization and leadership freedom of for all Americans. religion Companies, Inc., P.O. Box 215, of the First Municipal District Circuit The award was at a presented regalia Springfield, VA 22150. Court of Cook County, of which he is for the Bill of on 13 Rights January Even though the Class Dinner on presiding judge. this year. May 9 will be held at the Park Hyatt and not Nicky's Pizzeria, some things Class Correspondent: , Jean Allard has left her never change. The evening begins '61 Herbert Stern, Stern & 5 3 partnership with Sonnen­ with cocktails, followed by dinner Greenberg, 75 Livingston Avenue, schein, Nath & Rosenthal in Chicago with wine and continues with post­ Roseland, New Jersey 07068. to become President of the Metropoli­ dinner cocktails. Shades of Jimmy's I am your new Class Correspondent tan Planning Council, a group and UT. Twentv-seven of us have and hope to hear from the Class of involved with regional planning and given a definite "yes": Jack Alex, '61. Drop me a line or two about joint ventures between Chicago and Ronald Aronberg, Richard yourselves or any other members of the suburbs. Berryman, Herbert Caplan, Alex our class that you might know-you Irving Mehler, with coauthor Castles, Miriam (Mimi) Chesslin, can write to me at the above address. I Martha Faulk, has published a book Robert Claus, George Cowell, will be sending postcards to you for The Elements of Legal Writing, pub­ Kenneth Dam, Daniel Davis, John use in future issues. which you can just lished by The Professional Education Donlevy, William Dunn, Curtis drop in the mail to me. I am looking Group, Inc. The book gives quick Everett, Barbara Fried, Robert forward to hearing from you. answers to questions of structure and Green, Rudolph Huszagh, Daniel style and is the first desktop reference Johnson, Elmer Johnson, Howard , Melinda Aikins Bass has guide for legal writers. Krane, Wesley Liebeler, Louis 64 joined the New York state Mangrum, Robert Navratil, DaWn offices of the firm of Rivkin, Radler, Robert Poole was honored Oaks, Peter Sivaslian, Payton Bayh, Hart & Kremer as a partner in '5 6 by the State Bar of New Smith, Harry Sondheim, and charge of the firm's health care and Mexico and their annual convention Fredrick Yonkman. Hello to the elder law practice. in September, 1991. He received the "maybes" and "undecideds." There is From June 1990 to December 1991 Professionalism Award "for exemplify­ still time. Who knows, after that Robert Donnellan was on temporary ing the epitome of professionalism dinner, perhaps we will all sing "The assignment from Ford Motor throughout his distinguished legal Scales Fell on Mrs. Palzgraf' and Company's Office of General Counsel career." remember all the words. to the First Nationwide Bank of San

50 THE LA W SCHOOL RECORD �llil! VJllL. �lb[lWfi ,HoSE Gf

ON

c IT LNONT W,THOO;

Francisco, where he served as Associ­ nion this May. Recently several of our lawyer. And how is your daughter ate General Counsel and Senior Vice classmates asked me why it would be doing in the big league beauty President. worth their while to attend. Who pageants? Jim Hunter-Latham in David Porter, assistant general would they meet? What would they Chicago. What was the process you counsel for the Northern Trust talk about? Would it be worth the went through in downsizing your law Company, serves as a member of the effort, time and expense? Here is the firm by sixty lawyers? Were these all faculty teaching the Graduate essence of my answer. associates? What are you going to do Program in Financial Services Law at The obvious benefits. Everyone in with nonproductive partners, or the Chicago-Kent College of Law. the class knew between 5 and 100 partners whose compensation is William Sharp has joined the firm members of the class. Relationships greater than their current or prospec­ of Schwartz & Freeman in Chicago as have been maintained over the years tive value? Mike Meyer-Pillsbury in a partner. His practice concentrates in with some subset of that group. The L.A. You had great success in the L.A. portfolio real estate workouts for Twentv-fifth Reunion in Chicago, office leasing market in the 80s. How financial institutions. May 7�9, 1992, represents a good time are you adjusting to the market in the to get together again. In addition, 90s? Every real estate lawyer in , At a seminar sponsored last there is value to maintaining net­ America has some variant of this 66 September by the American works, contacts and potential referral problem. Quarter Horse Association, Jewel sources. All reunions generate some Roberta Ramo-Albuquerque. Klein spoke to steward and racing predictable benefits. But there are Why are you running a second time official candidates seeking accredita­ some less obvious benefits as well. for the presidency of the ABA? What tion with the association. Her address Some areas of interest to me: do you plan to do if you win? Is there focused on racing law and disciplinary Bill Achenbach-Charlottesville, any way that your classmates could be hearings. In December, she spoke on Virginia. How do you manage to live of help? David Minge-Montevideo, legal issues for new horse owners at a in Charlottesville, have an office in Minnesota. I very much enjoyed your seminar sponsored by the Illinois Chicago and manage to maintain son interning with me this fall. Thoroughbred Breeders and Owners relationships with your partners and Excellent dude. However, I'd really Foundation. financial planning clients? What are like to hear your side of the story. You've to the tools in your electronic cockpit? got discount somewhat the Bruce Johnson-Portland, Maine. perspectives of the president of the CLASS OF 1967 OK Bill can do it. But he isn't Young Democrats of Dartmouth. Art practicing law. How do you serve your Massolo-First National, Chicago. Twenty-fifth Reunion Chicago area client base out of Keck What is happening to the world of Mahin's Oakbrook office, while living banking? Where is real estate going? in Maine? For one thing the phone What about the economies of the , Class Correspondent: Don calls to Chicago connect with him in third world? (Art has opinions and factual to 6 7 Samuelson, Samuelson Portland. You say that billable hours support. Get him talk before Associates, Suite 600, 68 E. Wacker should not be the currency of the he starts dancing.) Hans Petter Place, Chicago, IL 60601. profession. It should be some measure Lundgaard-Norway. Is there any to translate ombudsman We will be having our 25th Reu- of the value added by the work of the way your

VOLUME 38jSPRING 1992 51 being quite so adventuresome, I have joined my father's firm, where I shall Leslie Cares have the opportunity to do not only litigation but also transactional work domestic and (both international) Many young professional people and and just about anything every­ would like to take part in hands-on thing else you could think of. To volunteer projects to help the suggest that I am excited about this needy, rather than just donating would be somewhat of an change money, but find that their busy understatement. I guess once you have schedules allow them little free Missouri (pronounced Missour[ah]) in time. Leslie Bluhm '89 has can't it out. your blood, you just get discovered a way to tap that So it's back to the banks of the frustrated energy and put it to that I return to Mississippi practice public service. She has founded a some law with my dad, attend non-profit organization, Chicago Cardinal baseball out in games, hang Cares, which creates and manages the Central West End and dine at hands-on volunteer projects, all of Rigazzi's now and then. Perhaps I which take place after working even dabble in a little might politics hours. The aim is to make it as easy (surprise, surprise). as possible for busy professionals to Please send me news about your­ offer practical help. Volunteers with the New York firm of selves either at the address of undergo an orientation session Skadden, Arps, Slate, Meagher & Schramm & Pines or at new home my then are sent a monthly project Flom and devoted some of her time which will be on the address, placed calendar. They can choose freely helping in a similar organization, which I to send postcards promise you, which projects to support and can New York Cares. She started news for the next issue of soliciting allocate as much or as little time as Chicago Cares when she returned the Record. they please. No regular commit­ to live in Chicago last year. Leslie all is well with Hope you. ment of time is required. Some takes a long-term view of the volunteers even switch among organization and her young , Class Correspondent Andy projects. With a current roster of volunteers and foresees benefits Debevoise & 89 Ostrognai, 700 volunteers, there are always well into the future. "By providing 875 3rd New Plimpton, Avenue, enough people to continue the its volunteers with easy access to York, NY 10022. work. The twenty-six projects hands-on community service, announcements are the Wedding currently on the calendar including Chicago Cares is able to expose first order of business. Scores of tutoring children at Cabrini Green them to critical problems faced by classmates are to like rushing marriage (the only project that does require a our community," she said. "Thus so many, dare I say, lemmings. Just regular commitment of time), these volunteers will be better Donnem tells me that kidding. Liz writing resumes for the homeless, prepared to solve community Michelle Fischer became recently assisting at soup kitchens, and problems when they find them­ engaged to Ken Hersh in Cleveland, rehabbing homes for low-income selves in leadership roles in the where Michelle works as an associate families. future." Graduates interested in at Reavis & Ken Jones, Day, Pogue. Leslie got the idea for Chicago offering their services to Chicago was not to for the one, apparently, go Cares when she was an associate Cares should call (312) 715 �4060. old bended knee, roses and cham­ pagne routine; his proposal was far more elaborate. Michelle happened to come home one day from work to find was perfect. For further details (and School and the Pritzker School of her house chock full of balloons, some for all of you who save old newspapers Medicine (a big congrats on that of which carried messages which as a hedge against inflation), you can one!) and he and his wife had their guided her further into the house. She see the wedding announcement in the first daughter, Rachel Ellen (an even eventually was led into the bedroom, January 12, 1992 edition of the New bigger congrats). He is now working at where she found an engagement ring York Times. Best wishes to all the Mayer, Brown & Platt, doing tax tied to a single rose. And who says newly affianced. litigation and health care law. In his romance is dead? The subject of weddings makes me free time (what free time?), David Mark Broude was engaged to Susan think of the month of June (it's funny continues to write articles. Zuckerman in the early fall, and plans how you don't have to worry about Debbie and Andy Lee are enjoying a wedding in March. Mark and Susan smooth transitions when you imitate the good life in Minneapolis-St. Paul met on January 1, 1991, at Mark's James Joyce). June was a month of (they work in Minneapolis, live in St. annual football party. I was fortunate firsts for (Dr.) David Hyman. He was Paul). Andy works at Leonard Street enough to be in attendance at that the first student in the history of the & Deinard as a real estate lawyer in party, and can report, in all serious­ University of Chicago to graduate Minneapolis and Debbie works in a ness, that I knew then that the match with a joint degree from the Law life insurance company. Who needs to

VOLUME 38/SPRING 1992 65 DEATHS

The Law School Record notes with extraordinary support of the Univer­ regret the deaths of: sity of Chicago Law School, from which he received his J.D. degree in Arnold Shure 1906 .. 92 1929. In 1945, Mr. Shure established the Frieda and Arnold Shure Research In 1971, the Illinois House and Fund at the Law School, noting at the Senate passed resolutions applauding time that "our small contribution will serve it a Arnold Shure's "creative and exem­ better if makes available plary leadership in voluntary service," fund to support research dealing with the immediate thus giving official recognition to a public welfare; e.g., restrictive the lifetime of dedication to public housing, covenants, small and other such service. Arnold Shure, a prominent investor, which touch the Chicago attorney, who died on problems closely needs of the or January 24 at the age of 85, was a underprivileged pioneer in the area of plaintiffs' inadequately protected ordinary litigation, especially in the field of citizen." In 1968, he established the Arnold I. Shure in securities law. Always an advocate of Professorship Urban Law to the of the "little guy," he brought justice to encourage study laws low-income and many individuals who would other­ affecting otherwise wise have had no remedy. His public disadvantaged groups. Arnold Shure Mr. Shure's commitment to the service activities were legion. He core academic mission of the Law served as President and Director of the expanded the purposes of the Shure School was reflected in his consistent Jewish Students' Scholarship Fund, Research Fund to support the research Director of the Clarence Darrow support of the Law Library. In 1966, of senior members of the Law School he established the Law Book Community Center, Director of the Library faculty across a broad range of legal in he created the Highland Park Community Chest, Endowment; 1991, issues. In a passing remark to Dean Baar & Morris Law Director of American Friends of Kixmiller, Library Stone last year, Arnold Shure at various times Hebrew University, Trustee of the Fund; and, through­ summed up the generosity of spirit out his he enriched the Law College of Jewish Studies of Chicago, life, and concern for others that governed collection the donation of President of the German Students' Library's by his life. "You know, the only money of his extensive Relief Fund and in a host of other major portions you can take with you when you die is

. In substantiat­ public service capacities. personal library 1991, the money you've given away to his belief in the of His tireless work for the betterment ing importance others to make the world a better he of his fellow man is exemplified in his high quality legal scholarship, place."

1926 1933 1952 John J. Abt David F. Silverzweig Robert Kasanof August 12, 1991 December 27, 1991 November 30,1991

Paul Basye 1934 1958 November, 1991 Florence Broady Melvin Margolies July 24, 1991 September, 1991 1928 Leonard W. Stearns Orville E. Ross 1959 November 7,1991 George V. Bobrinskoy Jr. 1929 August 26, 1991 Bernard Baruch 1936 June 1991 Arthur L. Margolis 1964 April 8, 1991 Warren Lehman Lester Plotkin November 16, 1991 August 29, 1991 1937 Peter N. Todhunter 1965 Irving T. Zemans October 18, 1991 W. Donald Boe Jr. August 6, 1991 November 6, 1991 1947 1930 Francis J. Maher 1982 Bernard A. Petrie February 16, 1991 David Conover 1990 September 1, 1989

68 THE LAW SCHOOL RECORD

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