R SPRING 1986 VOL. 20, NO.2 WHY IS THIS MAN SMILING?

Because he finally found someoneto laugh atone of his jokes? Because he thinks he may at last have found an appropriate mascot for Stanford? (See Stanford Lawyer, Vol. 19, No.1, at 91, for an earlier effort along these lines.) Neither of the above. Instead, it's because the Law Fund has finally bro­ ken the elusive $1,000,000 barrier! Total gifts were up from $854,274 in 1984 to $1,009,548 in 1985. (If you don't have your calculator handy, that's a rise of18 percent - in a year when most Stanfordfunds simply held theirground.) You'll find the details in the Fund annual report published in the next (Fall) issue of the Lawyer. Special thanks are due not only to our new Law Fund Director, Elizabeth Lucchesi (who took overin Octoberand virtually sprintedto the endofthe year), her predecessor Kate Godfrey, and the rest of the Law Fund staff - but in equal measure to Law Fund President George Sears, his loyal crew of alumni/ae volunteers, and last, buthardly least, to eachofyou who donated a portion ofyour well-got gains to the School. This may notbe a veryprofound Dean's message, butit's certainlya happy one. I scarcely need add that I hope this upward trend continues. ~U; STANFORD LAWYER SPRING 1986 VOL. 20, NO.2

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

Stanford Lawyer is published semiannually for alumni/ae and friends of Stanford Law School. Correspon­ dence and materials for publication are welcome and should be sent to: Editor, Stanford Lawyer, Stanford Page 2 Page 14 Page 22 Law School, Crown Quadrangle, Stan­ ford, CA 94305. Copyright 1986 by the Board of Trustees of the Leland Stan­ ford junior University. Reproduction in whole or in part, without permission FEATURE ARTICLES of the publisher, is prohibited. The Pursuit of Total justice 2 Lawrence M. Friedman The Making of a Community Law Project 8 Steven Dinkelspiel '85 and Peggy Russell '84 Child Advocacy: A Look at Test-Case Litigation 14 Robert H. Mnookin

ALUMNI/AE WEEKEND 1985 20 Warren Christopher, Award of Merit 22

AT ISSUE Child Abuse and Neglect: The High Cost of Confidentiality 24 Robert Weisberg '79 Taking a Walk: The U.S. and the World Court 26 Judith C. Appelbaum '77

SCHOOL NEWS 28 Faculty Notes 35

ALUMNI/AE NEWS Class Notes 37 In Memoriam 71 Alumni/ae Gatherings 72 Cover: The neighborhood law office of Coming Events Back Cover the student-initiated EastPalo Alto Com­ munity Law Project (see pages 8-). In the foreground are students Leon Bloomfield '86 and Teresa Leger-Lucero '87. Execu­ tive DirectorSusanBalliet and clientjones Paige are at rear. Coverphoto by Tim Holt.

The Pursuit

Criticisms of this sort are not new in by Lawrence M. Friedman American history, but they do seem to The Birth of Our Modern Marion Rice Kirkwood have gained force in recent years. The Legal Culture Professor ofLaw "litigation explosion;' however, may be largely mythical- if the rate oflitigation Recall, if you will, the "good old days" of NA HORROR MOVIE popular a per1000 population has gone up since the the early Republic. People thenexpected while back, the world was invaded nineteenth century, nobody has yet little from the public sector. The genera­ by some sort of living goo from shown this to be a fact (though the lack tion ofGeorge Washington, JohnAdams, outer space that relentlessly gob­ of hard evidence does not seem to and Thomas Jefferson believed, to be bledup everythingin its path. Some dissuade thecritics). On theotherhand, sure, in ajust society and was willing to critics of the American legal system the so-called "law explosion" is indeed a fight for it. The difference lies in the depict it as a phenomenonvery like that reality, whether you look at the growth precise conception of justice, and the cosmic blob - swallowing up billions of in the numberoflawyers, the increasing expectation that flowed from it. dollars and whole social institutions as it volume oflaws, statutes, and regulations, What people expected from govern­ grows. There is a serious "litigation or at the reach of law and legal activity. mentwas a degree ofphysical protection, explosion;'itis said. Everybodyis suing As comparedto a centuryago, no areaof a certain amount of subsidy for the everybody else. The machinery oflaw is life seemscompletelybeyond thepoten­ economy (especially in transport and breaking down. We have a "crisis" onour tial reach of law. finance), a criminal justice system, a hands. What the crisis consists of, and But it is not right to focus too much framework oflaw, a courtsystem, a post why it is a crisis, is never made entirely attention on courts, litigation, and office, defense againstforeign enemies, clear; but that a crisis exists - of lawyers. These legal actors and institu­ and not much else. They got what they legitimacy and in the operating system ­ tions merelyreflect whatis happeningin askedfor - no more and sometimesless. is a point onwhich scholars tend to agree, society as a whole. To understand what People faced enormous uncertainty right, left, and center. is happeninginside thelegal system, one even as to life itself. Little could then be This was the import ofHarvard presi­ must start from the outside, by looking done about the diseases and other dent Derek Bok's much-quoted March at great general movements of social maladies that made early death a com­ 1983 speech. Bok, a lawyer and former forces. America has made the legal mon event. In economic affairs as well, law schooldean, excoriated not only the systemwhatit is; thelegal systemhas not catastrophe could strike the unlucky. entire American legal system ("among made America. Ofcourse there is mutual Unemploymentinsurance, pensions, and the mostexpensive and leastefficient in influence, butthe main lines ofcause run insurance for bank deposits did not exist. the world"), butalso thelegal profession. from societyto the law, not the otherway. Farmers had no buffers against crop Too many "able" college graduates were Briefly stated, my central proposition failure from drought, frost, or other going to law school, he complained, is that social change leads to changes in plagues ofnature. The death ordisability resultingin a"massive diversion ofexcep­ legal culture, which in turnproduce legal of a worker could plunge a family into tional talent" into pursuits that were, change. The key concept here is legal poverty. There was no workers' compen­ frankly, parasitic. Lawyers and lawsuits culture: the ideas, attitudes, values, and sation, and only a remote chance of col­ produce nothing; instead, they strewthe opinions about law held by people in a lecting money from the employer. scene with social wreckage: conflict, society. What has happened, in the last There was, in fact, no general expec­ complexity, and confusion. centuryorso, to Americanlegal culture? tation of liability. People did not expect

Spring 1986 Stanford Lawyer 3 TOTAL JUSTICE

"If there is a breakdown of trust in society, if social cohesion has eroded, this is not to be laid at the lawyers' doors:'

Such laws changed the legal landscape legal system, surfacing in many branches and set new forces in motion. of law and in many forms and disguises. More important, perhaps, they The modernlaw ofbankruptcy is only changed the very definition of "legal" in one example. Our society is structured people's minds, changed the level and to allow many kinds ofsecond, third, even shape ofpublic expectations, ideas about fourth chances. Juvenile records are compensation from anyone - not the what was possible, what was natural, sealed, thenwiped outwhenthejuvenile employer, and not the state. In a well­ what was feasible through law. This in turns eighteen. Oureducational system known passage in Mark Twain and turn encouraged a fresh round of is generally reluctant to close the doors Dudley Warner's novel, The Gilded Age, demands. Reduction of uncertainty in of opportunity; people who flunk out of the authors describe aterrible steamboat one areaoflife led to demandsfor reduc­ school can usually try again. And there disaster. Twenty-two people died, and tion ofuncertaintyin others. Theprocess are no be-all and end-all exams, as there scores were missing or injured. But on spiraledin the direction ofmore law, more are (for example) in France. investigation, the "verdict" was the state intervention. Anotherimplicit principle is what one "familiar" one, heard "all the days of our This lies at the root ofthe development might call tenure: the legal protection of lives - 'NOBODY TO BLAME.' " of the "social" part of the welfare state, long-term relationships. We see this in Life, in sum, was filled with cosmic with its disasterrelief, workers'compen­ the law of landlord and tenant, where unfairness, or, if you will, injustice. The sation, unemployment insurance, pen­ sharplimits are now placed onlandlords' facts of life were reflected in the legal sions, and soforth. Thewelfare state has rights, especially those of residential culture. In both, there was no general in effect become an insurance state in a landlords. The tenure principle can also expectation of justice, no norms that "no-risk" society. The state has learned be seen in the employment of teachers promisedjustice in everycircumstance, how to spread risks through a system of and othercivil servants. In fact, laborlaw and no rules that generally promised taxation and welfare. Theinsurance men­ in general has moved toward greaterjob compensation. Thatwas reservedfor the tality spills overinto the private sectoras protection. The same normmay evenbe next world, if anywhere. well, including the law of torts. seen in the famous Marvin v. Marvin Whether public or private, these "palimony" decision. Societyin general, developments, taken together, have and judges and legislators in particular, New Levels of Expectation radically transformed society - so have beenshowinganunmistakable sen­ deeply and fundamentally that people sitivity to tenure, that is, to long-term What has happened since the nineteenth take the changes for granted. As the relationships - a sensitivitylargely miss­ century amounts to a major revolution in changes take place, new norms are ing in nineteenth-century cases. legal culture as well as in the social order. generated that reflect the altered legal These many changes, taken together, Technology has remade the world, and culture. Law responds, unconsciously, to add up to a radically alteredlegal culture. in so doing has vastly reduced certain the climate ofopinion around it. New doc­ There are many changes, and they are kinds of uncertainty. Developments in trines radiate throughout the legal complex and interwoven. Butthey seem medicine, engineering, and economics systemand cropup in all sortsofoddlegal to be moving in certain definite direc­ increased the capacity of human beings corners. tions. Specifically, two new social prin­ to control "natural" forces. People came Consider, for example, the implicit ciples, orsuperprinciples, have appeared to feel that it was possible to prevent social principle or norm that can be as part of American legal culture. situations ofperil orneed - that govern­ expressed, ratherinelegantly, as follows: Perhaps these are better thought of as ment inspectors, for example, could there shall be no calamity so great, so two clusters of expectations. make sure cannedmeatwas notrancid or overwhelming, that it utterly and irre­ The first is whatwe can call a general poisonous. This was followed by a con­ vocably ruins a person's life (unless the expectation ofjustice - the citizen's crete demand thatthe state should exert person is monstrously evil or criminally expectation of fair treatment, that control. The government, in at fault). There is, of course, no such everywhere and in every circumstance. response, enactedlaws about pure foods explicit legal principle. But this norm or Justice here is not merely a matter of and drugs, meatinspection, and the like. principle lies underneath the skin ofthe courtroom procedures. Justice is, or

4 Stanford Lawyer Spring 1986 ought to be, available in all settings: in But the principle is significant. The idea hospitals and prisons, in schools, on the that the state has a duty to provide for job, in apartment buildings, on the "innocent" victims reflects a new and streets, within the family. Itis a pervasive powerful norm: the norm oftotaljustice. expectation of fairness. Justice is not only fair treatment by otherpeople and by government; it also The Due Process Revolution means gettinga fair shake outoflife. Life is certainly"unfair" if a manbuys a can of One manifestation ofthe searchfor total soup and dies offood poisoning. Ifa per­ justice is that vast expansion of pro­ sonis hurtin a tornado, orhit by a car, or cedural rights labeled the "due process born with some terrible defect, these revolution." Due process is, of course, a situations, too, can be described as fundamentalconstitutionalprinciple arti­ unfair. People evencall themunfair, even culated first in the Fifth Amendment, though they know that nobody is really now nearly 200 years old, and extended responsible. What matters is "felt injus­ in the Fourteenth, ratified more than100 tice" - whether the unfairness comes years ago. from the Draft Board, or the appoint­ Yet evenatthe turnofthis century, the ments committee of an independent legal culture allowed what was, from a university - orevenfrom an "act of God:' modern standpoint, extraordinary The second principle, which is obvi­ deference to administrative authority. ously connectedto thefirst, is a general Executive power seemed to provide expectationofrecompense. Thatis, some sort of sanctuary from due pro­ somebody will pay for any and all cess, a "zone of immunity." calamities that happen to a person, pro­ The famous Brownsville, Texas case vided only thatit is notthe victim's "fault;' illustrates this attitude. A shooting took or at least not solely his fault. Who that place in 1906 in which one man was killed somebodyis - public orprivate - does and a police lieutenant wounded. Com­ not seem to make much difference to munity suspicion (fed by virulent racism) people. Recompense is, in part, what centered on a company of black soldiers people really meanby fairness orjustice. stationed at Fort Brown, just outside The term "general principle" is used town. Nobody had any idea which black quite loosely; obviously there are many soldiers were guilty; none ofthe soldiers holes and gaps in these "general" expec­ confessed orinformed onthe others. (In tations, and certainly in the state of the fact, all were probably innocent.) Butthe law. Still, one can see a tendency, run­ company was severelypunished - every ning in a particular direction and leaving single man was drummed outoftheArmy tracks and marks all about the system. - a decision confirmed all the way up to An example of movement (however the commander-in-chief, President halting) toward this norm is victim com­ Theodore Roosevelt. One black soldier, pensation. Thestate, ofcourse, punishes Oscar W. Reid, tried his luck in federal criminals atpublic expense, and criminals court, buthis protestlost at everylevel. are in theory bound to make restitution The Supreme Court upheld the execu­ to theirvictims. Butin practice mostvic­ tive branch. Whether to discharge tims recover nothing from burglars, somebodyfrom the Army, and with what armed robbers, rapists, and thieves. kind ofdischarge, was amatterwithin the They bear their losses themselves President's discretion. (often, to be sure, with the help ofinsur­ The last generation or so has turned ance). In 1965, however, California began doctrine inside out. One by one, courts to offercompensationto victims ofcrime. and legislatures have stripped institu­ The statute recited a "public interest" in tions of their former immunity. The helping crime victims exposed to Army still has vast power over its "serious financial hardship:' The amounts soldiers, but military justice bears a that California pays out under the pro­ closer resemblance to civilian justice gram are small, and few people collect. than in the past. Administrative agencies

Spring 1986 Stanford Lawyer 5 TOTAL JUSTICE

6 Stanford Lawyer Spring 1986 are no longer supposed to take major of fairness and legality and demands a the generalized expectation of justice. action - action that affects people's single standard ofjustice. To satisfy this Out of this rich stew of norms comes lives - without attention to due process. demand, everyinstitution has to fall into a vast increase in demands on the legal Decisions to drop somebodyfrom Social line. Suing drunk drivers and insisting on system, a fearful amount of fresh law, Securityrolls, orto deportanalien, orto fairness from the Social SecurityAdmin­ and - perhaps unavoidably - increased zone a neighborhood to keep out istration are two sides ofthe same great demand for the services of individuals business or apartment houses, have to polygon, the same great urge for total trained in the law, i.e., lawyers. conformto complex doctrines thatdefine justice. Is the modemclimate ofhigherexpec­ fair procedures. And with the new and tations good orbad for society?Itis cer­ expanding law of prisoners' rights, even tainly controversial; and many people are penitentiaries and jails have been An Assessment tryingto roll parts ofit back. Whetheror affected. Infact, justabouteverydiscrete not this should happen is another ques­ class of people you can think of­ tion. I freely confess my personal students, women, the handicapped, Totaljustice has become a social norm; pleasure over many ofthe manifestations ethnic minorities, the elderly, mental it is also, more and more, a working prin­ of total justice. I like the spread of due patients - have acquired newprocedural ciple transforminglegal and social institu­ process; I like the welfare state; I like rights. tions. Its fingerprints are all over - in tort justice for minorities; I like the broader Also, and very significantly, the con­ law, labor law, the law of landlord and meaning of equality, the greater reach cept of due process now covers actions tenant, the expansive world ofconstitu­ and depth of individual rights. by private institutions once more orless tionallaw, the due processrevolution, the If I had to guess, I would probably immune from legal interfer~ence. A due behavior of large institutions, and the make this prediction: the new legal process requirement now blankets regulation (or nonregulation) of aspects culture - the general expectation of hospitals, factories, department stores of private life. justice and its corollaries - may buckle and universities. Muchofthevastfield of labor law concerns limits on employers' rights. Aboss cannotfire workers merely because they join a union, or complain "Modem legal culture insists on a single, unified about work conditions, orbecause they are handicapped, orblack, oroverforty, domain of fairness and legality and demands a orbecause he may not like the way they single standard of justice:' part their hair. Of course, labor law has its own special, complexhistory, butthe movement toward legalization and the spread of due process run strikingly Thetrendtoward totaljusticehas been and bend, butit will not go away. Itis not parallel to developments elsewhere in deepand powerful. Many changes in the an accident, a technical error, a lawyer's society. legal system seem to have the hard trick. It has survival value, and survival Due process may thus be evolving in metallic ringofanirresistible process. It power. It is by now a basic feature of the direction of still another superprin­ would be too strong to say they are American life, a tribal custom, deeply ciple: no organization orinstitutionofany "determined"or"inevitable;'butthey do germ.ane. It has penetrated into the size shouldbe able toimpairsomebody's have deeproots, notonly in the American marrow of the people's bones. It is fun­ vital interests ("life, liberty ... pastbutalso in those massive structural damental to modem society, and seems, property") without granting certain pro­ changes that have utterly transformed at least for the foreseeable future, to be cedural rights. What these rights are is the whole Western world. here to stay. 0 the subjectofanenormous body ofcase Legalization itself is about as law, noteasily summedup in a simple for­ unavoidable as a process can be, if by mula. Theyinclude the right to some sort legalization is meant the proliferation of ofnotice, the right to argue against what formal rules, regulations, and pro­ is proposedto be done, and (if the action cedures. This has to be, simply as a mat­ is wrong orillegal) a fair shake atgetting ter of scale. Some of this legalization is it reversed. accountedfor by the substitutionofpublic Theapplication ofdue processrequire­ rules for private ones, and by the ments in the private as well as public development ofparallel systems ofpublic sphereis alogical offshootofthegeneral and private rules. But a vast amount of expectation of justice. Modern legal legalization is an inevitable product ofthe culture insists ona single, unified domain welfare state and the newlegal culture -

Spring 1986 Stanford Lawyer 7 by Steven Dinkelspiel '85 and Peggy Russell '84

omething remarkable has furthers our efforts to make students and community organizing in the San happened at Stanford Law aware of the need for and rewards of Francisco Mission District, and were School. A group of students public interest, pro bono work. It's a ter­ eagerto continue community work dur­ - working with the School's rific asset:' ing law school and eventually as lawyers. encouragement but without Many individuals and organizations To these students, Stanford - for all its its financial support - has established a participated in the development of the excellentacademics, accessible faculty, law office in the lower-income areaacross Community Law Project, including Law and bucolic setting - had little contact the Bayshore Freeway. Named the East School administration, faculty, and staff, with the social and political issues of the Palo Alto Community Law Project, the EastPalo Alto community members, and "outside world:' Although the Law School office is designed not only to provide the Project's professional staff. All agree, had developed an excellent classroom much-needed legal services to a neigh­ however, that the Project has from the clinical teaching program, this was boringcommunity, butalso to expand the beginning been essentially student limited to role playing and simulation legal training and experience available to inspired and student driven. The key exercises. The curriculumthenhadjust Stanford law students. element has been four years of hard one course involving real-life clients: Pro­ The Project has emerged in the two work - mostly extracurricular - by fessorMichaelWald'sJuvenile Law. The years since its opening as a major committed students from several Law only other way students could gain influence in the life of Stanford Law School classes. academic credit and legal experience School. Fully a third ofthe studentbody What motivated the studentfounders with"realpeople"was by leavingcampus is now involved, whether through Law to take on this challenge? How did their for a semester-long externship. Schoolclasses taughtin conjunction with dream of a community law practice "We started talking about what we the office, pro se clinics staffed by student become a reality? And what benefits would like to do and how it could work;' volunteers, community education pro­ do participating students derive from recalls one ofthe original group, Cynthia grams, orProjectadministrationand fund the Project? Robbins '83. "EastPalo Alto immediately raising. And on November 25, 1985, the became the focus of our planning." Law facwty accepted thefavorable report Located only five miles away from the of its EPACLP Evaluation Committee The Kernel ofthe Idea Stanford campus, East Palo Alto was and recommended unanimously that the in 1981 a diverse and dynamic commun­ School help ensure the Project's con­ The idea ofestablishing a Stanford-linked ity of 18,000 with a burgeoning political tinuation by providing significant fund­ community law office in East Palo Alto consciousness. Residents, the majority raising assistance. grew out of lunch-time conversations in ofwhomwere black, Hispanic, orAsian, "The East Palo Alto Community Law 1981 among a small group ofsecond-year were becoming increasingly well-organ­ Project is good for the citizens of East students committed to public service. ized and vocal, with efforts coalescing Palo Alto, good for our students, and Thesefriends had come to Stanford with primarily around the drive to incorporate good for the School;' Dean Ely said such diverse work backgrounds as as an independent city. recently. "It adds diversity to our stu­ agricwtural assistance in Western Africa, Socially and economically, however, dent body and to our curriculum. And it refugee resettlementin SoutheastAsia, East Palo Alto and adjacent eastern The Making ofa

8 Menlo Park (population: 2000) continued expertise but no community-based clini­ student body or to carry through with to sufferfrom a hostofproblems endemic cal program:'Whatbetterway to link the such an ambitious plan. Several pro­ to low-income communities: severe two than with a Stanford-affiliated law fessors remembered the closure in the unemployment, an alarming school drop­ office in EastPalo Alto? Itwas a compel­ sixties ofa countyiegaIaid branchoffice out rate, poor housing conditions com­ ling idea. Mter checking with key East withwhich theSchoolhad beeninvolved. bined with skyrocketing rents, and Palo Alto leaders to see whether legal "I was worriedaboutundertakinga major mountingdifficulties in gettingand retain­ serviceswere indeedneededand wanted projectwithoutknowingwhatthefunding ing government benefits. At the same (theywere), the students decided to try sources would be;'recalls Friedenthal. "I time, EastPalo Alto hadin 1981 only two to make the idea a reality. didn't want anything to be started that local lawyers, and many residents could couldn't be finished:' Anotherreasonfor not afford to pay the legal fees. Those caution was that the School was in residents who qualified for federal legal Sellingthe Ideato Others 1981-82 between deans. serviceshadtotravelseveralmiles away In the Spring of 1982 the students to Redwood City for counsel, where they Laying the groundwork proved to be a decided to forge ahead on their own. oftenfound federal cutbacks meantthere difficult task. The studentshadlittle con­ Naming themselves as directors, they were no legal aid lawyers to help. ceptionofthe organizinginvolved in start­ incorporated the "East Palo Alto Com­ "It just hit us over the head;' says Jim ing a law practice. Furthermore, they munity Law Project" as a nonprofit Steyer '83. "Here were two seemingly were not at all sure how to convince the agency. Two of their number sped to disparate but naturally paired com­ various constituencies aboutthe impor­ Sacramento on the last filing day with munities. One with20,000 people butvir­ tance of the effort. papers prepared by the book. When tually no lawyers or legal services. The The students first appealed to mem­ these didn't quite matchthe Secretaryof other a school with all kinds of legal bers of the faculty. A strong core of State's requirements, the students made supporters quickly emerged, including hastychanges ona typewriterborrowed Paul Brest, William Simon,JackFrieden­ from the Secretary's secretary. "It took thaI (now Associate Dean for Academic a while for the adrenalinto settle;'recalls Affairs), Barbara Babcock, Michael Stephane Atencio '83. "But we got what Wald, and Miguel Mendez. Impressed we wanted - legal standingfor a project by the students' enthusiasm, these pro­ that had previously existed only in our fessors provided encouragement, minds and hearts:' advice, and in some cases, academic The students were also working that credit (for an analysis of needs and the springwith faculty advisers ondevelop­ development of a plan for setting up a ing an academic focus for the proposed community practice). Project. "The possibility of truly inte­ Among themselves, however, faculty gratingthe theoryside withthe practice membersexpresseddoubtaboutthestu­ side was exciting, and somethingthathad dent group's ability to involve the larger not really been done elsewhere;' says

A goingconcern: Staffattorney Francisco Lobaco meets with a client.

Classroom-clinic interaction: Students studying Immigration Law with Visiting Associate Professor Bill Ringalso work in the Project's Immigration Clinic. 9 COMMUNITYLAW PROJECT

Brest (now the School's Kenneth and munity of East Palo Alto. The founders munity's "legal" problems - for instance, Harle MontgomeryProfessorofClinical turned for advice to a wide range of landlord-tenant relations and consumer Legal Education). Sample syllabi were residents - ministers, educators, com­ fraud - could also be lessened if developed for a variety of courses that munity organizers, business leaders, and residents were better informed about could be taught in conjunction with the politicians - and were metwith encour­ their rights and responsibilities. More­ practice. Some Project organizers also agementtemperedwith a strongdose of over, community education and par­ planned to continue developmental work caution. Thepeople ofEastPalo Alto had ticipation would contribute to the goal of on the Projectas parta newPovertyLaw been disappointed in the past by well­ self-sufficiency, which was soimportant course beingdevelopedfor Autumn 1982 meaningbutonly sporadically committed to EastPalo Alto as anewly emerging, in­ by Professors Brest and Simon. volunteers, particularly students from dependent city. In the fall of 1982 - armed with the outside of East Palo Alto with little But truly "entering" the community fruits oftheirresearchand with theback­ understanding of the community. The proved to be a considerably greater ing of key professors - the student individual residents contacted were challenge than merely crossing the advocates descended on the office of excited about the prospect of a commu­ freeway. None of the students had lived John Ely, the new Dean of the Law nity law office opening in their midst, in East Palo Alto or spent enough time School. They were delighted to find Ely buttheyhad no desire to provide a socio­ there to have a true feel for the life ofthe (a former attorney with San Diego economic "laboratory" for altruistic law community. Their other obligations­ Defenders, Inc.) both interested and students or a finishing school for bud­ such as coursework, finals, and job supportive. Although he did notfeel able ding litigators. East Palo Alto residents hunting - also made it difficult to develop during the first weeks of his tenure to wanted cooperation, respect, assist­ working relationships with EastPalo Alto endorse the idea of affiliating the Law ance, and above all, honesty. residents. The students hoped to over­ School with an as yet unformed com­ This sentiment was perhaps best come these problems through an ambi­ munity law office, the Dean did tell the expressed by Omowale Satterwhite, tious community outreachprogram, but students that he personally found the directorofthe EastPalo Alto Institutefor they did not really know whatforms this idea to bea good one. He decided to issue Community Development, who said: outreach should take. a challenge: if the students could raise "Don't promise to do things you can't do, Perhaps the most striking illustration enoughfunds to operate an EastPalo Alto and be suretofollow through on whatyou ofthechasmbetweenthe students'con­ law office for two years, and ifthefaculty promise:' This advice was often hard to ceptions of effective "community out­ then felt that the Project offered impor­ follow for the students, who desperately reach" and the reality of community tant opportunities for academic and pro­ wanted to win acceptance for the Project. fessional training, the School would Tempting as it was to try to be all things formally associate itself. With this affil­ to all people, the studentshad tolearnto iation would come a commitment from acknowledge the needfor a broad range the School to mounta fund-raising drive. of services while admitting that they could not provide all such services themselves. Spreadingthe office too thin Working with would be a sure path to failure. the Community The students wanted very much to involve the community in the develop­ Having gained the conditional support ment of the Project. They recognized of the Law School administration, the that legal representation, while vitally founding students thenfaced theirmost important, was only one way ofaddress­ important and difficult challenge: gar­ ing the myriad problems faced by East neringthe trustand supportofthe com- Palo Alto residents. Most of the com-

Openingceremonies: A "great day" for Jim Steyer '83, Peggy Russell '84, Michelle Mercer '86, Steven Dinkelspiel '85, and other co-founders and participants.

10 Stanford Lawyer Spring 1986 response was the Project's fIrst public bestofintentions. Only by working with education program, organized in the fall existing community organizations (like Establishingthe Law Office of 1983. By this time the founding stu­ local senior citizens or tenants groups) dents had graduated, and a "second could we hope to attract an audience for Despite the failure of our first public generation" of students (including the our educational programs. Recognizing event, there was much in the fall of 1983 authors) was responsible for pushing for­ the need to build credibility over time was to encourage us. The response we were ward the original vision for the Project. an important step in our education about getting from local funding sources was For months we had been hearing that how to share the resources of Stanford truly remarkable (in one case even consumer fraud was a major problem in with its neighbors. exceeding the amount we requested). East Palo Alto. Although the Projectlaw office was not yet open, we thought we could offer as ourfirst tangible commun­ ity service apublic seminaron Consumer Protection. We threw ourselves into it ­ recruiting knowledgeable speakers, EAST PALO ALTO PROJECT AT AGLANCE mailing out hundreds offlyers , and tack­ ing up posters around the city. The big night arrived. Fifteen students and three speakers satexpectantly in the main meeting room at the City Council building. One - justone - East Palo Alto resident showed up; she had happened to be in the building that night and noticed a sign announcing the meeting. Embarrassed and confused by this fiasco, we adjourned to a nearby pizza parlor. The discussion thatfollowed was probably the lowest point in the Project's history. "We seriously considered throw­ ing in the towel;' says Michael Calabrese '84. "We wondered whether we, as law students, had the necessary knowledge, patience, and commitment:' In the end, however, the students decided the idea ofacommunity law office was still viable. We just needed "to make an extra push in the next few months:' Discussions with community advisers shed light on our mistakes. We quickly learned that the mere availability of free advice was not enough to draw a crowd in EastPalo Alto. Residents were under­ standably cautious about embracing a new service, even when offered with the

Spring 1986 Stanford Lawyer 11 COMMUNITYLAW PROJECT

The San Francisco Foundation had in In early 1984, then, the two decision­ Alto CommunityLaw Projectwas, atlong spring 1983 awarded a two-year, unre­ making bodies for the EPACLP - the last, a physical reality. stricted grant of $125,000. Peninsula Board and the Student Steering Com­ Community Foundationhad followed that mittee - made theboldestand probably summer with a two-year pledge of wisest decision of the Project's early The Project inAction $50,000, and in the fall we were notified years: hiring an executive director, Susan of a gift of the same amount from The Jackson Balliet. The move was bold The EPACLP law office formally opened James Irvine Foundation. Bolstered by because it committed the Project to for business on March 15, 1984. The this kind ofinstitutional support, we were begin offering services despite the lack ribbon-cutting ceremony, to which the able to garner generous gifts from indi­ of firm, long-range funding. And it was community was invited, was also the viduals as well. Thus, as ofthefall of1983, wise because Balliet (a 1966 Stanford occasionfor a reunionofthefirst genera­ the many months of fund raising by the graduate with aJ.D. from the University tion founders, all now graduated. "We founders and the subsequentgeneration ofSan Francisco) has proven ideal for the walked through the halls, knocking on of students had born fruit with over job. Formany years an attorneywith the walls and looking into offices;'recallsJohn $275,000 in gifts and pledges. SanMateo County LegalAid Society, she Prieskel '83. "We could hardly believe Another source of encouragement is able to provide guidance in litigationfor there was a real building there, where was the Project's Board of Directors, bothiNdividual clients and class actions. people would practice! And a new wave expanded the previous springto include And her familiarity with East Palo Alto ofstudents coming along to keepit going. not only founding students but also Pro­ meant the Project could begin working It was a great day:' fessors Babcock and Friedenthal, East with the communityas soonas it opened Community response was over­ Palo Alto Mayor BarbaraMouton, Harry its doors. whelming. Balliet and the second staff Bremond of the Palo Alto law firm of Before that could happen, however, lawyer (Francisco Lobaco) were Wilson, Sonsini, Goodrich & Rosati, the students had to rent and equip swamped with calls about everything Henry Organ of the Stanford University suitable office space. In January, the from adoptionto zoning problems. Athird developmentoffice, andJudges Thelton perfectbuilding became available: an old attorney (Fania Davis) soon joined the Hendersonand LaDoris Cordell '74. Both farmhouse convertedto ahomefor sem­ staff. And as the months passed, a Henderson and Cordell had practiced in inary students. Located on Bay Road in semblance of sanity developed. Com­ EastPalo Alto (Hendersonas director of the heartofEastPalo Alto, it had already munity residents learned what the the legal aid office there in the mid­ beendivided into a series ofsmall rooms office's main areas of service were­ seventies) and servedas deanofstudents ideal for offices. One of the students initially landlord/tenant problems (many at the Law School. raced down from San Francisco with a related to a new rent control ordinance) The Projectwas, however, clearly ata personal check to secure the building. and public benefits (welfare and Social crossroads. The funds so far raised, Thenextfew weeks were spentpainting, Security entitlements), and later, in while impressive, would notcovermuch cleaning, and scrounging equipment response to communityneed, immigra­ more thana single year's operations (then (including typewriters loaned by the Law tion (including deportation defense and budgetedat$225,000) - far less thanthe School and furniture donated by Wells visas) and youth justice Guvenile court full term ofthe Dean's "trial period:' But Fargo Bank). Asecondlawyerwas hired, cases, school expulsions, and other further delay would only serve to under­ as well as support staff. The East Palo issues affecting younger residents). mine the Project's credibility with both Additional services have been devel­ thecommunityandfunding sources. For oped to "leverage" the Project's chief two-and-a-half years, law students had resource: thelarge numberofeagerand been trumpeting the arrival offree legal talented studentvolunteers. Adomestic services in EastPalo Alto. The time had violence clinic was opened where come to open the office. students, after some training, could

12 advise victims oftheirlegal situationand negotiate the bureaucratic and statutory beenlargely responsible for raising from help them prepare requests for tem­ maze ofgovernmentbenefits programs. outside private sources virtually all of porary restraining orders. Students have The Immigration Clinic openedin thefall the start-up funds needed to establish also beenstaffing an evening small-claims of1985 is staffed primarily by studentsin the Project and keep it running for its clinic. A third student staffed clinic was Visiting Associate Professor Bill Ong first two years. started this year to help residents Hing's Immigration lawcourse. And this arrange uncontested divorces. spring, Michael Wald's Juvenile Law An exciting new opportunity for studentsbeganprovidinglegal represen­ WhatDo Students Gain? students hasjustbeenintroduced in the tationto minors, while studentsin Gerald form of a volunteer attorney program. Lopez's Self-Help and Lay Lawyering The enthusiasm with which students Several local law firms have agreed to course are working on ways of teaching have greeted this public interest enter­ take onlegal problems beyond the scope local residents "how to represent them­ prise has surprisedeventhefounders. In of the present Project. The firms will selves and others, ifnotin thecourtroom, its first full year of operation (1984-85) rotate responsibilityfor aneveningclinic, then in the daily hassles that make up over100 students - 20percentofthe stu­ where attorney-studentteams will work somuchoflife" (suchas consumerprob­ dent body - became involved on some together on intake and pursue selected lems and welfare eligibility). level. The number this year has already cases to their conclusion. The Projectis also distinctive, possibly reached 170 - or 33 percent. In the two years since opening, the unique, in the degree ofstudentinvolve­ One reason the Project has attracted East Palo Alto Community Law Project ment. Not only do students provide the so many studentsis thatitprovides a rich has directly servedover2000 clients with broad range of legal services and com­ variety of experiences. For many problems rangingfrom adogbite to Social munity education mentioned above. students, the office is their only oppor­ SecurityAdministration delays in making They also participate heavily in Project tunity to work with clients. "It's why I court-ordered payments. Many other planning and administration, through the went to law school- to help real people residents have been reached by com­ Student Steering Committee, member­ with real problems;'says Eric Cohen'86. munity education programs on such ship onthe EPACLP BoardofDirectors, Students interview clients and discover topics as immigration, Aid to Families and numerous committees concerned their most effective methods for eliciting with Dependent Children, and Califor­ withparticularclinics orprograms. Other and imparting information. They learn nia's coming "workfare" requirements. students were involved in the research investigative techniques, engage in Communityeducationhas in fact been leading to the successful settlement in creative analysis ofclients'problems, and strongly emphasized by students and April of a suit against a local landlord write briefs for. use in administrative Project staff. "We are trying to teach charging allegedly illegal rents to 300 hearings. Some students may also find clients in all our programs;' says Teresa tenants. Finally, Project organizers have thatthis range ofexperiencehelps them Leger-Lucero '87, "partly because we (Continued on page 75) know that we can't possibly meej all the legal needs of this community, but also so that residents will be better able to understandthelegal systemand dealwith problems before they become serious:' Anotherhallmark ofthe Projectis the close and growinglinks betweencourse­ work and clinical practice. Students enrolled in thePovertylawcourse taught by Brest and Simon have been helping clients to solve housing problems and to

Student enthusiasm: Emily G Lichtenstein '88, Deborah Forman '87, andJonathan Freedman '87 confer in the Project library. 13 14======----~ Stanford Lawyer Spring 1986 by Robert H. Mnookin, Professor ofLaw

Spring 1986 Stanford Lawyer 15 CHILD ADVOCACY

ive cases undertaken, at Unfortunately, adults can­ F leastin part, onbehalfof not with any certainty make children. Each a dispute with such determinations either. a government entity. Each Even the most attentive and handled by reform-minded well-informed parent is hard lawyers. Each brought as a put to predict which dis­ class action in a federal court. ciplinary regime or educa­ The Supreme Court, in the tional environment will have seminal children's case In re the best effect on a specific Gault, declared that"neither child. The actual outcomes the Fourteenth Amendment might well differ even among nor the Bill of Rights is for siblings. And psychologists adults alone:' And since the and other experts may Court's landmark desegrega­ plausibly disagree with each tion decision in Brown v. other on, say, which of two Board of Education, advo­ homes is likely to be most cates have increasingly used beneficial for a given child, or test-caselitigation not simply whethera stintin juvenile hall to enforce the rights of indi­ would straighten out a par­ vidual children but also to ticular law breaker. change policy. The fact is that current Is such litigation a sensible knowledge about human way to promote the welfare of behaviorprovides no basis for children? I and severallaw scholars from observations on the strengths and the individualized predictionrequired by around the country (see biographical weaknessesofsuchlitigationfor achiev­ the "bestinterest" standard. None ofthe note) addressed this question by study­ ing reform. numerous competing theories ofhuman ing the course and outcome ofeachofthe behavioris considered widely capable of five cases. Although I don't have space The EnigmaofChildren's Interests generating reliable predictions about the here to describe these studies, I would psychological and behavioral conse­ like to discuss three underlying issues Those involved in debates overchildren's quences ofalternative decisions for apar­ involved in test-case litigation on behalf policy generally agree that the "best ticular child. of children. interest" of children should guide deci­ Evenif one could make reliable predic­ Thefirst is whatI believe to bethe root sionmaking. But what in fact are their tions, the secondproblemwould remain: problem facing anyone concerned with bestinterests? And how does one know What set ofvalues should a judge use to children's policy: How does one know what policies will best serve that end? determine a child's "best interest"? The what policies best serve the interests of Two fundamental problems typically decisionmaker must be able to tell what children? The second concerns the arise. Thefrrst, thepredictionproblem, is counts as good from what counts as legitimate role of courts: How much that it is often exceedingly difficult to bad - a question that may be no less policymaking power should be exercised predict the consequences ofalternative ultimate than the purposes and values of by judges, insulated as they are from children's policies. The second, the value life itself. Should one be concerned electoral politics orotherdirect popular problem, arises from the difficulty of mainly with thechild's happiness, orwith control? Thethirdis aparadox, and itcon­ selectingthe criteriathatshouldbeused spiritualand religious training? Orshould cerns the proper role of the child advo­ in evaluating alternative consequences. the primary goal be the child's long-term cate: children, as disenfranchised and Predictionand value problems are not economic productivity? Are stability and vulnerable citizens, needadvocates; and unique to children's policies, buttheyare securitymore desirable thanintellectual yet, particularly whenthe clientis a child, especially acute in this context because stimulation? Such questions could be how can the advocate be held genuinely children oftencannot speakfor theirown elaborated endlessly. accountable to thechild-client's interests? interests. Very young children may be Rational choice, already difficult when These questions, being essentially entirely unable to articulate their focused on a single child or family, unresolvable, make a definitive assess­ preferences. And though older children becomes even more complicated in ment of test-case litigation on behalf may have muchto say, theirinexperience policymaking. First, policy decisions of children impossible. Our five studies and immaturity often cause adults to affect many children, and children vary do, however, permitme to make - in the doubt children's capacity to decide what enormously. A policy that may benefit fifth section of this article - some is in t1)eir interests. some children may, because ofindividual

16 Stanford Lawyer Spring 1986 or circumstantial differences, hurt Stone in a somewhat cryptic footnote to others. the otherwise undistinguished case of Second, solutions become much more United States v. Caroline Products Co. intricate as more individuals and Courts, theJustice argued, should direct organizations are involved in implemen­ theirmost searchingscrutiny toward (1) ting them. In a custodydispute, thejudge legislation that "restricts those political is concerned primarily with the future processes which can ordinarily be behavior of the mother and the father. expected to bring about repeal of Things may be very different if the deci­ undesirable legislation;' and (2) legisla­ sion must be implemented through a tion by majorities that affects "discrete large bureaucracy, such as a school and insular" minorities, especiallyunder district or a welfare department. circumstances where prejudice against Third, in most policy contexts the a minority may be a "special condition, judge must take into account more than which tends seriously to curtail the the interests ofthe child. Whetheradmit­ operation of those political processes ted or not, the interests of others­ ordinarily to be relied upon to protect including bureaucracies - may be at minorities:' stake and have a legitimate claim to Justice Stone's suggestion has since consideration. been cultivated into a full-blown theory Prediction and value problems do not by John Hart Ely. In his 1980 book, necessarilypervade everyaspectofthe DemocracyandDistrust, Ely argues that adjudication ofchildren's issues. In some the scope of judicial review in constitu­ "easy" cases, it is reasonably clear that tionallitigation can be circumscribed to the interests of children require some ensurethatpublic policymakingremains immediate policy change. When young people are at substantial risk of imme­ diate harm, there may be little need to formulate long-term predictions about "Neither the Four­ alternatives. teenth Amendment Nonetheless, I believe thateasycases are the exception, not the rule. In more nor the Bill of Rights typical circumstances, value and predic­ tion problems make the"bestinterest"of is for adults alone:' ­ children essentially indeterminate and U.S. Supreme Court speculative - a fact that has profound implications for children's policy and for those seeking to bring about reform. the responsibility'of officials accountable to the electorate. "The tricky task;' according to Ely, "has beenand remains The Legitimate Role of Courts thatofdevising a way orways ofprotect­ ing minorities from majority tyranny that How much power should judges exer­ is not aflagrant contradictionofthe prin­ cise on behalf of children? ciple of majority rule:' Ely advocates a The question of the proper role of "participation-oriented, representation­ courts in our governance is, of course, reinforcing approach to judicial review:' central to constitutional theory. While However, he cautions, "judicial review the discussion is characteristically under the Constitution's open-ended couched in terms far broader than provisions. ..should deal only with ques­ children's policy, examining the basic tions of participation, and not with the question in the children's context is substantive merit of the political choice revealing. underattack:'He suggests that, consis­ One general justification for judicial tent with democratic theory, a court activism was proposed some forty years should intervene when the political ago by Supreme Court Justice Harlan system is systematically malfunctioning;

Spring 1986 Stanford Lawyer 17 CHILD ADVOCACY

~._------

The participation issue is, by contrast, prepared to presume that indirect a real one. Children are represented in representation is by definition inade­ the political process only indirectly, and quate, one must decide when this indirect there is often reasonto question the ade­ representation actually translates into quacy of this surrogate representation. inadequate representation deserving Parents, though the obvious potential special judicial solicitude. Because spokesmenfor children, are surprisingly children do notappearto be subjectto the inactive outside the educational sphere. prejudice that plagued the religious and There are, of course, some groups of racial groups singled out for attention handicapped children whose parents are in Justice Stone's footnote, the courts active in the legislative arena, but the will have difficulty determining whether benefits so gained apply to only a narrow the political system has actually segment of children. By and large, malfunctioned, without examining the parents do not appear to feel that their substantive merits of the particular own children are sufficiently affected by political choice under attack. And yet .- broad policies to warrant the effort of this sort of substantive review is incon­ political participation. sistentwith a process-orientedtheoryof There are, to be sure, a number of judicial review. politically powerful constituencies­ Taking account of children thus poses including women's groups, teachers' a sharp dilemma. As non-voters, they and unions, and organizations of other theirinterests may carrylittle legislative professionals - that sometimes have weight. Therefore, courts might appro­ interests in common with children. priately favor them in undertaking judi­ These groups, however, tend to address cial review. Butonly - and here's the rub children's interests only when those - ifchildren's interests were clear, and it is the court's responsibility to ensure interests lend supportto the ends ofthe one could determine when those inter­ that the democratic process works. group. Indeed, there may be times when ests were not otherwise adequately Are children an appropriate group for the livelihood of members of the group represented in the political process. special protection under this process­ depends upon policies or practices of oriented theory ofjudicial activism? Cer­ questionable benefit to children - times, The Paradox of Child Advocacy tainly theylack political power. Children in fact, when the interests of the group cannot vote, may not serve in the and ofchildren collide. Theemployees of The third issue concerns the properrole legislature, have little money of their Pennhurst hospital, for example, had a ofthe child advocate. Advocacy on behalf own, and control no organizations. In vested interest in preventing its closure. of children is inherently different and in terms of formal participation rights, What weight should be given to their some ways more problematic than advo­ minors may in fact be at an even greater claim that children would be bestserved cacy for the adult client. Children need disadvantage than were blacks - the by keeping the institution open? and deserve legal representation. And paradigm of a "discrete and insular This picture of children's representa­ yet atthe same time there are structural minority:' tion in the political process is, at best, differences in the advocate-client rela­ The casesfor interventiononbehalfof mixed. Because of the multitude of tionship that can be seen as weakening blacks, however, included more thanfor­ potential and part-time spokesmen for the accountability of the lawyer to the mal participation rights; blacks also children, it is hard to argue that children child client. How, given this weakened labored under widespread white pre­ are. always inadequately represented in accountability, can one ensure that the judice that rendered futile their efforts the political arena.. But it is equally dif­ children's advocate is responsive to their to exercise what few rights they did ficult to conclude that the political pro­ interests, and is not simply pressing his possess. Is there similar prejudice cess adequately considers children's or her own vision, unconstrained by the against children? I think not. Every interests, given their inability to partici­ actual clients? legislator was once a child; most pate directly in that process. Ordinarily we expect parents to speak legislators have children of their own. It is tempting to suggest that absence for their children's interests and, when Though they may not understand the of direct representation should qualify necessary, give advocates theirmarching plight ofachild on welfare orthe problems children as a "discrete and insular minor­ orders. In test-case litigation, however, of a broken home, there is no reason to ity" meriting active judicial intervention looking to parents does not necessarily believe that legislators are prejudiced underthe Stone-Ely theory. And yet the resolve the dilemma. For one thing, against children as a class. theory does not quite fit. Unless one is Bellotti and Pennhurst reveal that the

18 Stanford Lawyer Spring 1986 interests of parents and their children own interests. Nor do they have the • Litigation is not always a deliberative, may sometimes conflict, at leastfrom the power to hire and fire theirownlawyers, methodical, rational way of arriving at a perspective of the child advocates. norto instructthe lawyer aboutthe goals decision. In adjudication, as in legislative Should parents have a say in whether ofany litigation. And thougha numberof activity, accidents oftiming and personal their pregnant daughter receives an organizations claim to speakonbehalfof idiosyncrasies can make a difference. abortion? Or whether a mentally han­ children, children themselves do not of Moreover, it appears thatjudges are no dicapped child remains in a large institu­ course exercise any substantial control more eager than legislators to confront tion oris instead released to a neighbor­ overthe organizations or, throughthem, complexity oneitherthe moral orthefac­ hood facility? Moreover, even where their advocates. Nor do the classes or tuallevel. The litigation process can be there was no indication of a parent-child groups of children involved in test-case slow and tedious, requiring substantial conflict, the cases we studied belie any litigation control theirlawyers. Afurther staying power on the part of advocates. notion that the individual parents (much complicating factor is that, for the most The Connecticut welfare controversy less their children) control the litigation. part, the children being represented in dragged on for nearly a decade. Smith Instead it appears lawyers ordinarily play such class actions are from the poorer (lasting three years) and Goss (at almost the commanding role in developing the and relatively powerless levels ofsociety. four) were only comparatively speedy. In case, deciding whether to file suit, and In short, test-case litigation on behalf short, test-case litigation is not neces­ determining the scope of the litigation. of children lacks the ordinary sarily quick or cheap. mechanisms for client control- a situa­ • Bringing a dispute to court is not a tion of both uncertainty and special neutral act and will substantially affect the "Value and prediction responsibility for the child advocate. discourse. The contentand the structure We were, however, encouraged to find of the moral, political, and policy problems make the thatthe individual children whose cases discourse are profoundly different in were utilized in the class actions we courtfrom whatthey might have beellin 'best interest' of studied seem to have been well repre­ anotherforum. Theneedto describe the children essentially sented, despite their lack of formal or problemin legal terms can affect the way fiscal power over their advocates. The apolicy issue is addressed. Forexample indeterminate and lawyers involved did not sacrifice their (as the Goss study shows), bringing individual clients to the "cause:' Indeed, foster care into court as a constitutional speculative - a fact in four of the five cases, the immediate dispute meantthattheissue was defined that has profound problems of the named plaintiffs were as whether a foster parent's relationship resolved early in the litigation. with herchildren was a"libertyinterest" implications for In Bellotti, for example, Mary Moe or a "property interest" - terms that, children's policy and quickly secured an abortion. In Smith v. from a policymaker's perspective, are OFFER, although the Supreme Court utterly irrelevant. for those seeking to refused to decide thatMrs. Smith's con­ Litigation may also amplify the voices stitutional rights were violated, the of certain actors or interest groups and bring about reform:' Gandy children were never taken from mute those ofothers. InBellotti, moving her care, and she was eventually able to the controversy to a judicial arena adoptthem. In Goss, thenamedplaintiffs substantially diminished the power of Diminished accountability to the client had returned to school long before the pro-life advocates and augmented the is, ofcourse, a potential problem with all lawsuit was over. And in Roe v. Norton, power ofpro-choice forces. Bellotti also test-case litigation. Thelawyer in a class the welfare mothers who began the law­ demonstrates how judicial precedents action has a responsibility to a broader suitneitherdisclosed the identity ofthe can shape and limit the scope ofdebate. group of persons than the individually father norwenttojailfor contempt. Only The preexistence of the Supreme named client. And because the individual in Pennhurst did the individual client's Court's Roe v. Wade decision foreclosed client does not ordinarily foot the bill, the problem have to wait on what proved to discussion of whether abortion was client has little leverage over the attor­ beaprotractedlegal struggleoverthefate morally tolerable. Consequently, the ney's actions, including any impulse to of the hospital in which she lived. parent-intervenors, whose opposition to make a biggerdeal outofsomethingthan abortion arose from deep moral convic­ the client may want. Litigation in Action tions, were forced to oppose the statute These problems are, I think, exacer­ onthe different and narrower ground that bated in litigation on behalf of children. Whatdid ourcasestudiesindicate about it infringed parental rights. Child clients, unlike adult clients, are not test-caselitigation onbehalfofchildren? considered competent to define their Several observations can be made. (Continued on page 74)

Spring 1986 Stanford Lawyer 19 ALUMNI/AI

Grads Congregate, Cogitate, and Celebrate LUMNI/ AE WEEKEND - that The Award of Merit ceremony was recipient] :' He then, in a brief address, A special mix ofreunions, education, the centerpiece of Saturday evening's spoke eloquently about both the School football, and partying - drew over 500 all-alumni!ae banquet at the Faculty and thelegal profession (seepp. 22 -23). law graduates and their spouses to Club. Shirley M. Hufstedler ~9, For the many graduates wishing to campus October 11-12, 1985. Christopher's classmate and a cofounder linger in the Weekend's afterglow, Headlining the weekend's activities of the Stanford Law Review, presented there followed live music, dancing, and was the presentation of the School's the gold medal before a capacity unlimited reminiscing. 1985 Award of Merit to Warren crowd. First given in 1984, the Award The 1986 Stanford Law Alumni!ae Christopher ~9, former U.S. Deputy honors a Law School graduate who Weekend is scheduled for October 24­ Secretary of State and now president has distinguished himself or herself in 25, coinciding with the Stanford-USC of the Stanford University Board of public service. football game. Reunions for the Half­ Trustees. "I am greatly pleased to receive this Century Club (alumni/ae from classes The weekend began Friday evening award;' said Christopher, "and 1 am graduating fifty or more years ago) and with reunions for the Classes of 1940, especially honored to join the select classes graduating in years ending in 1950, 1955, 1960, 1965, 1970, 1975, company of Bill Rehnquist [the 1984 -1 and -6 are being planned. D and 1980. Celebrating their fifteenth reunion, the Class of 1970 gathered again on Saturday for a tailgate picnic before the Stanford-UCLA football game. The Saturday morning program opened with a brief "State of the School" report by Associate DeanJack Friedenthal (standing in for Dean Ely, who was then in China - see p. 35). Friedenthal, a former chair of the Admissions Committee, next joined current chair Thomas C. Heller in leading the participatory 'l\dmissions 'Game'" that Board of Visitors mem­ bers had played with such interest

at last May's meeting. I The program resumed (after a sunny break in Cooley Courtyard) with a discussion by Professors Paul Brest and Gerald Lopez of the School's expanding activities in the clinical area. "Rather than a separate 'clinical program';' Brest noted, "what we have here is an increasing number ofprofessors who are interestedin using clinical methods as a way of teaching:' The group then adjourned for lunch, served alfresco in Crocker Garden, before heading over to the stadium for the game.

20 Stanford Lawyer Spring 1986 WEEKE D'85

PHOTOS BY PAUL WOOD. JOHN SHERETZ AND JO ANN COUPAL

1. Shirley and Jack Jorgenson, with Gussie and Elton Martin, at the 35th-year reunion ofthe Class of1950. 2. Associate Dean Jack Friedenthal and Clifford Duke, Jr. '50. 3. Professor Tom Heller and Terry Adlhock '70. 4. One ofseveral mock committees during the 'fldmissions 'Game: " 5. Jacquelyn Garman Beehan, Karen Cook, Paula andJim Crown, andJohn Hackmann, at the Class of1980 Reunion. 6. ProfessorJerry Lopez, describing the East Palo Alto Community Law Project.

Spring 1986 Stanford Lawyer 21 1985 AWARD OF MERIT RECIPIENT

Warren ChristopherAddresses Law Alumni/ae

The School: Not the biggest, but the best

" ...when President Tresidder recruited Carl Spaeth as Dean in 1946, the Law School sought a new orbit. It has climbed to the front rank as a national law school, a national law Christopher '49, with Award presenter Shirley Hufstedler '49 school with an international reputation. In thinking about the period since to make progress when the bullets are Stanford also has made important 1946, one is tempted to review the flying, the mutual respect at Stanford strides in affording alternative career important progress made under each is a major achievement. opportunities to graduates. Most of the Deans - Carl Spaeth, Bayless Second, in the evolution in the graduates will enter private practice, Manning, Tom Ehrlich, Charlie Meyers, techniques of teaching law, Stanford but Stanford stands almost alone in and now John Ely. We have indeed stands in the vanguard, in many helping to present practical alter­ been fortunate in a succession of splen­ respects at the head of the list. The natives in the public sector, in helping did Deans. Each of them has moved shorthand description is "clinical students to keep their options open. the School significantly forward. In education;' but the broader reality at The Montgomery Loan Program the interest of time, however, let me Stanford is that much teaching is done enables students to get a taste of summarize what Stanford Law School in conjunction with representing live public service employment during stands for today, what makes it not the clients, and even more significantly, their summers, and a second program biggest, but the best. much teaching is done in simulated funded by Cummins Engineering is First, it stands for an extraordinary situations involving not only litigation, designed to help those who go into faculty - young, creative, and produc­ but negotiation and arbitration as well. public interest or public service jobs tive - person for person the best in Third, Stanford stands for frontier to handle their educational loans. the nation. That is not just my chau­ leadership in the relationships between Finally, Stanford stands for students vinistic assessment. It is the view law, economics, and business. Stan­ who are going to be leaders. The astro­ widely held by judges, professors, and ford is building a faculty in these areas nomical GPAs and LSATs are only the lawyers. It is confirmed by attempts, second to none. Commencing with beginning of the story. The Stanford largely unsuccessful I am glad to say, courses in economics and finance tradition of excellence and energy, to lure Stanford professors to other theory in the first year, Stanford is creativity and, yes, a certain creative leading law schools. developing a sequence of business casualness, will continue to produce The Stanford faculty is not just courses which produces students more than its quota of the nation's excellent. It is also diverse, and diverse ready to participate in this complex leaders. The best law school produces without being divisive. Since it is hard and vital area of American society. the best products.

22 Stanford Lawyer Spring 1986 "1 accept this award not on the grounds that my own public endeavors have been extraordinary, but in the beliefthat they are only representative, and modestly so, ofourprofession."

always to operate within it. But the The fashionable view these duty of a lawyer goes further still. The days is that many successful young The Law: privilege of practicing law warrants men and women have turned inward ­ Not only aJ·ob, but a calling continuous repayment to the social that they are selfish and self-indulgent. order which confers it. I concede that there may be an This precept is drawn from the most ebb and flow in the tide of commitment It is fashionable these days to ancient definitions of the professions. but do not believe it is true that the emphasize that the practice of law is Those learned in the law - and religion, flame of idealism has burned out at a business, and a very big business philosophy, and later medicine - had Stanford Law, and I hope it is not true at that. But it is useful, on occasions a status apart from ordinary citizen­ anywhere among young lawyers. Our like this, to remind ourselves that our ship. They were assets of the whole progress as a society depends upon a business is also a profession. We labor society, and had an obligation to different truth. not just to make our fortune. We are serve - even without pay, if need be. The nation's founding principles, the vital participants of a system of Today's democratic society cannot after all, were largely the work of laws, the essential players in the drama easily digest those old notions of lawyers, and most were volunteers. called rights and responsibilities. special status. But the reasons, the The greatest social advances we have Lawyers serve a public interest by obligations of service, are still as real achieved - especially in civil rights and representing private clients with as ever. The opportunity to live by civil liberties - have depended heavily fairness and fidelity, with vigor and advising clients, representing causes, on lawyers, working as volunteers in thoroughness. (Daniel Webster was and arguing cases could not exist with­ the public interest. only exaggerating a little when he out a society dedicated to the rule of So I accept this award not on the observed that 'if he would be a great law. So when we work to serve and grounds that my own public endeavors lawyer, he must first consent to strengthen that society, we also have been extraordinary, but in the become a great drudge:) The lawyer elevate our own profession. belief that they are only representative, who solves problems, resolves One kind of service is in the public and modestly so, of our profession. disputes, and speeds the flow of goods sector. Government needs the unique And I salute Stanford for continuing to and services is practicing a profession skills that are instilled by legal training regard the law as not only a job, but and serving the public interest. This is and honed by experience at the bar. a calling; not only an opportunity a corollary of John Gardner's broader We honor those who devote their but a responsibility. theorem that you do a considerable full time to service to the public, but I close with a few words from John service to society if you perform we should give equal honor to those Gardner: 'Freedom and obligation, excellently whatever task is yours. who serve good causes in tandem liberty and duty - that's the deal. May On the other hand, the lawyer whose with their private practice. The we never forget it. May we never business it is to obstruct and obfu­ volunteer efforts of lawyers in every deceive ourselves. The obligations scate, to filibuster and fib, is undermining conceivable aspect of community you accept may be different from the profession, not enhancing it. life - schools, charities, courts - may mine, but it isn't in the grand design We have a transcendent obligation to far outstrip the contributions of those that we can have freedom without " the law - to respect it, to improve it, who are employed full time. obligation. Not for long.'

Spring 1986 Stanford Lawyer 23 At ISSUE

Child Abuse and Neglect: The High Cost of Confidentiality

neglect may nevertheless have informa­ prohibit anyone connectedwith the pro­ by Robert Weisberg '79 tion thatwould be useful to an agency or gram or institution (including profes­ courtthatis alreadyinvestigating acharge sionals also covered by evidence Associate Professor ofLaw of abuse or neglect, or that is trying to privilege laws) from revealing any con­ decide the right disposition for a child fidential information gained from the already proven a victim. A therapist or clientas partoftheinstitutionalservice. VERY YEAR in the United States, otherprofessionalcounselormay know, Confidentiality laws do, ofcourse, nor­ Eseveral thousand children are killed for example, about a parent's drug or mally containexceptions recognizing that or permanently incapacitated by their alcohol addiction, his general pattern of certainsocialinterestsin disclosure take parents, and as many as 100,000 more violent behavior, or about his ability to precedence over the client's interest in suffer serious injuries or sexual abuse. respond to treatment. Butsuchindirect privacy. Indeed, a few legislatures expli­ In numbers that are probablyfar greater informationis notand cannot sensiblybe citly abrogate their confidentiality laws but more difficult to measure, parents coveredby the mandatoryreportinglaws, for information potentially relevant to a harm their children through neglect, by with their criminal sanctions. child abuse orneglectinvestigation. But leaving themunattended and exposedto Theinapplicability ofreportinglaws is most exceptions in confidentiality laws injury, orby failing to sendthemto school not, however, the sole oreven main prob­ address the issue of abuse and neglect, or provide needed medical care. For lem in obtaining relevant but indirect ifatall, only vaguely orobliquely, remov­ these reasons, the state has the power information. Nor are the private or ing the confidentiality bar where the to intervene by asserting legal jurisdic­ customarycodes ofprofessionalconduct client is "dangerous to others;' or in the tion overchildren threatenedby parental concerning confidentiality that are interest of the client himself, or under harm, and, where necessary, by placing sometimes cited. Professionals are in courtorder, or"in the interests ofjustice:' children in foster care or terminating fact constrained by a complex con­ What we have, then, is an ill­ their parents' custodial rights. glomerationofstatutes that actuallyfor­ coordinated mess oflaws thatare beyond In deciding whether and how to inter­ bid them to reveal certain information, the knowledge or comprehension of vene, child protection agencies and however pertinent, if received in con­ most professionals, and that leave even juvenile courts need broad access to fidence from a client. the most conscientious professional in information about the parents­ These confidentiality laws fall into two confusion about whethershe is required, information that often lies with medical broad categories. Every state has the permitted, or forbidden to breach her or mental health professionals, school relatively familiar evidence privileges, client's privacy in an abuse or neglect officials, orotherproviders ofsocial ser­ such as the physician-patient and case. Professionals covered by both vices. Ofcourse in cases where a profes­ psychotherapist-patient privileges, privilege and nondisclosure laws may sional has direct evidence of abuse or which generally bar professionals from evenfind thattheselaws make conflicting neglect (such as bruises or starvation), testifying in courtproceedings as to any demands, or have different exceptions, the agency or court is virtually confidential communications they or apply differently depending on guaranteed the information. Every state receive from theirpatients orclients. But whether ornot the case is in court. The has some form of mandatory reporting most states, as well as the federal result is an ironic pairing of problems: law which requires, undercriminal sanc­ system, also have less well-known but professionals have no idea ofwhat to do; tion, that physicians and others whose equally important nondisclosure or th~y can legally justify doing almost professions involve them with children statutes, which commonly apply to anything they otherwise prefer to do. immediately report any such evidence. psychiatric hospitals or clinics, drug or The result may be moral agony for the But in many cases, a professional alcohol abuse programs, and school and professional and arbitrarily uneven pat­ without direct evidence of abuse or social welfare systems. These statutes terns of disclosure in child protection

24 Stanford Lawyer Spring 1986 systems. And most surely, agencies and effect on peoples' willingness to par­ But to say we need rules that are both courts get far less relevant information ticipate in psychotherapy. We are left to clearer and more favorable to disclosure than they need. tinker with some very speculative cost­ does not tell us how to make them. Two The problem obviously demands rules benefit analysis about whether the social superficially attractive solutions turn out on disclosure that are not only clearer, gain in otherwise unavailable information to be unsatisfactory. One would be simply but that also better respect the state's that might protect some children from to extend the mandatory reporting laws need for information in protecting death or harm (or might disprove false to govern "indirect evidence" bearing on children as against the assumed, but charges of abuse and neglect against abuse or neglect charges. However, often ill-examined, privacy needs of innocent parents) outweighs the social since indirect evidence is by definition parent-clients. cost in unnecessarily deterring from evidence that does not itselfindicate that The conventional arguments for confi­ treatment orotherservices parents who a parent has abused or neglected his dentiality take two forms. First is an would never hurt their children (or even child, an expanded mandatory law would instrumental argument: We all have an those potentially destructive parents leave professionals in confusion about interestin seeingthat parents who need who would be restrained from hurting what to report. Some costly and damag­ psychological, medical, or welfare ser­ theirchildren if they obtained treatment). ing overreporting by hyper-conscientious vices seekand obtain those services, and Asecond claim for confidentiality laws professionals would be likely. they will not do so unless they receive a is that individual parents have a categor­ Asecond solution would be to expand legal guarantee of confidentiality. Empir­ ical right of privacy to be protected from the discretionary side, by repealing all ical research concerning the psycho­ the pain and embarrassment that confidentiality laws to the extentthatthey therapist-patientprivilegedemonstrates, breaches of intimate communication inhibit professionals from providing infor­ however, that the presence or absence might cause. But even if we accept this mation that might bear on an abuse or of a confidentiality law has virtually no noninstrumental argument, it seems neglect investigation. But this approach more than outweighed by the powerful would likely compound the current pro­ evidence that parents often kill and maim blem of professionals' floundering in their children, and by strong indications moral, ifnotlegal, uncertainty, and would that professionals often have crucial, leave judgments about the need for if indirect, evidence relevant to disclosure to people who may know lit­ these charges. Besides, parents tle about the child protection system in can be protected from in­ general, and even less about the state's discriminate public dis­ need for information in a specific case. closure by agencies and Moreover, it would disable the profes­ judges. sional from telling aworried client exactly what the law of confidentiality says. The third and best solution would be a rule that requires professionals to disclose information to achild protection agency or court, but only when the agency orcourtrequests information that it reasonably believes might aid in resolv­ ing an abuse orneglect case. (Legislators could avoid possible constitutional questions concerning compelled self- (Continued on page 74)

Robert Weisberg '79, a former Stanford Law Review president, joined the faculty in 1981. His research includes a joint investigation with Prof Michael Wald of the relationship ofconfidentiality laws and child abuse and neglect laws.

25 Taking a Walk: The U.S. and the World Court

World Court jurisdiction only in cases Initially the State Department did by Judith C. Appelbaum '77 where the U.S. explicitly agreed to do appear before the Court to present its so - in short, whenit suits us. As aresult, objections to the Court'sjurisdiction over ourcountrycanno longerclaim to be the the parties, ontechnicalgrounds, and to NTILNOW, the UnitedStateshas standard-bearer of international law, a the "admissibility" of the dispute­ U stood for the rule of law among model for other civilized nations of the that is, the competence of the Court to nations. We have bothpreachedand prac­ world to emulate. adjudicate the legality of an armed con­ ticed the principle thatdisputes between Why this about-face? It happened flict. But the Court, after consideration countries should be resolved peacefully, because the Administration expected oflengthy briefs and arguments onthese according to internationallaw, and notby defeat in a case before the World Court: points, voted 15-1 thatit hadjurisdiction, armed conflict. Military and Paramilitary Activities in and 16-0thatit was competentto decide Republicans and Democrats, liberals and against Nicaragua (Nicaragua v. the merits of the case. These lopsided and conservatives, have united behind United States ofAmerica). This is the majorities includedjudgesfrom suchU.S. this principle, and behind the institution case, filed by Nicaragua in April 1984, in allies as Britain, France, Italy, West through which it is implemented: the which the United States is charged with Germany, and Japan; the latter vote International Court ofJustice, or World violating the most central precepts of included even the U.S. judge (Stephen Court. President Calvin Coolidge, in his intematiQnallaw - including Article 2 (4) M. Schwebel). 1925 inaugural address, called for the oftheUnitedNations Charter, which pro­ Itwas inJanuary 1985, afterthe Court "establishment of a tribunal for the hibits theuse offorce by one stateagainst accepted jursidiction, that the Admin­ administration of evenhanded justice the territorial integrity or political inde­ istration announced it would no longer between nation and nation:' He said: pendence of another. participate in the case - a rather trans­ "The weight of our enormous influence I do not, as one of the attorneys parent exercise in damage limitation must be cast upon the side of a reign involved, intend to discuss here the widely criticized by, among others, the not of force, but of law and trial, not by merits of Nicaragua's case. Suffice it to American Society of International Law battle, but by reason:' say that Nicaragua was able to present (at its annual assembly in April 1985). The U.S. formally committed itselfto considerable evidence of U.S. inter­ Thetrialtookplace in the absence ofthe this principle in 1946, when President ference with that small country's U.S., with the unoccupied defendant's Trumandeclared thatthe U.S. voluntarily sovereignty - through U.S. backing of table providing a daily reminder of U.S. accepted the"compulsoryjurisdiction" of the "contras;' the mining of Nicaraguan defiance of the Court. the World Court. During the last forty harbors, and other well-documented Even worse than the U.S. refusal to years the United States has in fact called actions. (Though the Court has not, as participate in this particular case, upon the Courtmany times to adjudicate ofthis writing, issueditsjudgementin the however, was the gratuitous and far­ our grievances against other nations, case, mostinformed observers expectit reachingboycottannouncedin October, most recently in our dispute with Iran to rule in favor of Nicaragua.) which amounts to a blanketwithdrawal of over the taking of American hostages The U.S. Administration was, there­ U.S. submission to the Court's jurisdic­ (1979), and with Canada over a maritime fore, faced with a case it knew it was tion in any contentious case. TheAdmin­ boundary in the Gulf of Maine (1984). likely to lose, in a forum in which it could istration accompanied this with a num­ The currentAdministration, however, not predetermine the result - unlike, for ber of rationalizations, none of which is has thrown this tradition outthe window. example, the U.N. Security Council, in capable of withstanding scrutiny and Itannounced, on October9, 1985, thatit which the U.S. had previously vetoed most of which are simply revivals of had decided to nullify the 1946 declara­ otherwise unanimous resolutions in arguments already rejected unanimously tion. Henceforth the U.S. would accept Nicaragua's favor. by the Court.

26 Stanford Lawyer Spn'ng 1986 as the GeneralAssembly and UNESCO. There is, however, no evidence of bias againstus onthe World Court. Infact, we fared very well in the other two recent Court cases in which we were involved. The Court's opinion that Iran should immediately release the hostages seized in our embassy was unanimous, with even thejudges from Syria, Poland, and the Soviet Union concurring. And in the Gulf of Maine case with Canada, the larger part ofthe disputed territory was allocated to the U.S. Given this record, one must ask whether, when a case is broughtthatwe feel sure to lose, thefault lies in the Court or in ourselves. Our government's decision to walk away from the Courtrepresents a serious breakwith ourtraditional commitmentto the rule of law and to international adjudication of disputes among nations. Commitmentofprinciple is not, however, the only thing at stake. Prior presidents have been not only moral men, but realists as well. They recognize that the advancementofthe rule oflaw and wider use oftheWorld Courtto resolve conflicts can serve ourself-interest. Ifthe United STEVE REOUTT States hopes to invoke the rule of law in its own behalf in the future - for For example, the Administration has as a"propagandaweapon"by Nicaragua. example, to challenge the actions of said the Nicaragua case should not be But Nicaragua could only achieve a pro­ state-supported terrorists - we must before the Courtbecause it is "political:' pagandavictoryifthe U.S. is found guilty be willing to hold our own conduct Obviously there is a political dimension ofviolating internationallaw. Ifthe Court accountable to the relevant international to the controversy between Nicaragua were insteadto uphold thepositionofthe rules and norms. Ifwe insist ona system and the United States, butthat is true of United States that Nicaragua is the of international adjudication that any dispute betweentwo nations. So long aggressor, the propagandaeffects would guarantees we will win every case, no as the case presents legal questions for be reversed: our country would be the one will participate and we will have no adjudication, itis fully in keeping with the public relations beneficiary ofthe suit and system at all- only chaos. That is why role the Courtwas createdto play. Infact, Nicaragua would be disgraced. There is the U.S. departure from its historic role thatis exactly the position the U.S. itself nothing inappropriate in this. A nation as the preeminent supporter ofinterna­ took in the case we brought against Iran thatis guilty ofviolatinginternationallaw tionallaw is not only unseemly; it is also in 1979 overthe seizure ofourdiplomatic canbe said to meritthe opprobriumofan short-sighted and dangerous. D personnel. Ironically, Iran's lawyers then adverse World Courtjudgment; indeed, used the same arguments about the since the Courthas no real enforcement "political"nature ofthecaseandtheinap­ power, the moral weight ofitsjudgments propriatenessoftheCourtasaforumthat may be its most potent means of secur­ Ms. Appelbaum is apartner in Reichler theU.S. has sincemadein the Nicaragua ing compliance with its decisions. & Appelbaum, the Washington, D.C. law case. The Courtproperlyrejectedthese Still another rationalization for U.S. firm that serves as counsel to the Govern­ arguments in bothinstances. withdrawal from the Court was that the ment of Nicaragua with regard to the TheAdministration has also attempted Courthas become politicized and biased International Court ofJustice and other to excuse its withdrawal from the Court - a criticism similar to one sometimes matters. by charging that the Court is being used made ofcertainotherU.N. bodies, such

Spring 1986 Stanford Lawyer 27 tinued, "that the law is an important and noble profession, Babcock Becomes First McFarland and I hope to get that across." Professor Babcock is currently working on a biography of the foun­ der of the public defender movement in America, Clara Professor Barbara Allen Shortridge Foltz (1849-1934). Foltz was also the fi rst woman Babcock has been to be a member of the bar in California. appointed to the Law Babcock lives on the campus with her husband, fellow School's new Ernest W. Stanford Law Professor Thomas C. Grey. She has frequently McFarland chair. She is served on, and in 1982-83 chaired, the School's Appoint­ the fi rst woman to hold an ments Committee. And in 1985 she chaired the University's endowed professorship Student Conduct Legislative Committee. at the School and was The professorship to which she has been named was before that the fi rst woman endowed by Ernest W. McFarland '22 shortly before his appointed to the permanent death in 1984. McFarland (whose remarkable career was faculty. described in our Fall 1984 issue) was, among other things, Babcock joined the Stan­ majority leader of the U.S. Senate (1951-52); governor of ford Law faculty in 1972 after Arizona (1955-59); and the chief justice of the Arizona six years (1966-72) fi rst as State Su preme Cou rt (1968-71 ). staff attorney and then as "I'm really happy to have the McFarland chair," Babcock director of the Public Barbara Babcock said, "because he devoted his life to public service-an Defender Service of Wash­ ideal I admire." D ington, D.C. She was previously (1964-66) an associate with the law firm of Edward Bennett Williams. In 1977 President Carter named her assistant attorney general for the Civil Division of the U.S. Department of Jus­ tice, where (on leave from Stanford) she served until 1979. Goldstein Named professor since joining the "Barbara Babcock has a national reputation as a lawyer­ to Lillick Chair Stanford Law faculty in 1975, scholar," wrote Dean Ely in a September 10 report to the and was a visiting associate Stanford University Board of Trustees. "She is also an out­ Professor Paul Goldstein professor in 1972-73. standing teacher." has been appointed to the "Paul Goldstein's publica­ In 1981 , Babcock received the School's John Bingham Stella W. and Ira S. Lillick tions and his work for the Hurlbut Award for Excellence in Teaching. And in 1982 Professorship in Law. federal government and for the University of San Diego awarded her an honorary Goldstein has been a full international treaty organiza­ J.D. degree. tions have established him Babcock teaches an advanced course in criminal as one of the nation's lead­ procedure, as well as introductory courses in both civil ing academic lawyers in the and criminal procedure. field of copyright law," wrote A pioneer in establishing sex discrimination law as a Dean Ely in a September field of legal study, Babcock is coauthor of a classic text in 10 report to the University the field, Sex Discrimination and the Law: Causes and Board of Trustees. Remedies (1975). She has also published another law A text by Goldstein­ text (with Paul Carrington) titled Civil Procedure: Cases Copyright, Patent, Trade­ and Comments on the Process of Adjudication (1977). mark and Related State Babcock grew up in Washington, D.C., did her under­ Doctrines (2d ed., 1981)­ graduate work at the University of Pennsylvania (B.A., 1960), has been widely adopted in and studied law at Yale (LL.B., 1963). She then served as law schools across the law clerk to Judge Henry W. Edgerton of the U.S. Court of country and is regarded as a Appeals in Washington, D.C., before beginning her law landmark in the general field career with the Williams firm. of intellectual property law. "I've done a lot of different things in the law and liked Goldstein is particularly them all," she said in a recent interview. She would like her interested in copyright students to know that "you can lead a really good and issues raised by new tech­ integrated life as a lawyer. I sincerely believe," she con- Paul GOldstein nologies, including both new

28 Stanford Lawyer Spring 1986 forms of copyright subject He is highly regarded as a ment in difficult situations." Lillick, McHose & Charles. matter-such as computer teacher and has twice (1978 The Lillick professorship Goldstein and his wife­ software-and new meth­ and 1983) won the School's that Goldstein now holds a member of the Santa Clara ods for reproducing and John Bingham Hurlbut honors Ira S. Lillick, an 1897 University art faculty-have using copyrighted works­ Award for Excellence in graduate of the Law School, a three-year-old child such as home videotaping Teaching. When asked what and his wife, Stella W. Lillick. and Iive on the Stanford and photocopying. he most wants his students Mr. Lillick was a founder and campus. D He is currently chairman to learn, he replied: "How to for many years senior part­ of an advisory panel for a develop and exercise judg- ner of the firm now known as national study, "Intellectual Property Rights in an Age of Electronics and Informa­ tion," for the Office of Tech­ nology Assessment of the Ellickson Appointed to Paradise Chair U.S. Congress. The study is expected to help Congress Robert C. Ellickson was (1967-68) with the Presi­ adapt intellectual property named last summer to dent's Committee on Urban laws to the real ities of the the Robert E. Paradise Housing (Kaiser Commit­ electron ics age. Professorship in Natural tee), writing about one- The problem, Goldstein Resources Law. He joined half of the resulting report, explained in a recent inter­ the Stanford Law faculty in A Decent Home. He gained view, is, "How do you pre­ 1981 as a professor after industry experience during serve incentives for the eleven years with the Univer­ two years as assistant to the production of information sity of Southern California executive vice-president of that is easy to copy and Law Center and experience Levitt & Sons, then the larg­ transmit covertly? Unless in both government and the est homebuilding firm in you give producers ade­ building industry. America. quate protection, they won't Originally from Washing­ Ellickson began his teach­ invest the right amount in ton, D.C., where he attended ing career in 1970 at USC, the right kind of literature, public schools, Ellickson where he was given tenure graduated with high honors in 1975. He has held visiting music, and art." Robert Ellickson Also an expert in real from Oberlin in 1963, professorships at the Uni­ property, Goldstein has received his law degree versity of Chicago (1974-75), include a text (co-authored written two important texts (LL.B.) in 1966 from Yale, Stanford (1977), and Yale with A. Dan Tarlock '65), in the field-Real Estate and then studied city (1984-85). In 1977 the Uni­ Cases and Materials on Transactions (2d ed., 1985) planning for a year at the versity of Miami's Law and Land-Use Controls (Little, and Real Property (1984)­ Massachusetts Institute Economics Center awarded Brown&Co., 1981). Hehas and often teaches the intro­ of Technology. him its Annual Prize for Dis­ also in a number of journal ductory course in property Returning to Washington, tinguished Scholarship. articles applied economic law. he worked for two years Ellickson's publications analysis to such land and Goldstein, a native of property rights issues as Scarsdale, New York, homeowners associations, earned a B.A. in 1964 from nuisance law, and land Brandeis and an LL.B. in development controls. 1967 from Columbia, where "Bob Ellickson is one of he was a law review editor. the preeminent scholars of That same year, he was land-use law in the United appointed to the law faculty States," Dean Ely told the of the State University of University Trustees in a New York at Buffalo, rising to September 10 report on the full professor in 1973, two appointment. "He has also years before joining the proven to be an uncom- Stanford faculty. (Continued on next page)

Spring 1986 Stanford Lawyer 29 all members of the Class of the first year they fell one Law School 'Jury' Ends 1986-first won their slots game short of the champion­ Open-and-Shut Season through merit in the halcyon ship,andlastyea~ racked days of first year, finding by interview absences, fell "The Jury"-a team of a perfect season for ou r Contracts a picnic com­ early in the playoffs. twelve (of course) law stu­ relentless ruggers, who pared with the rigorous All the more sweet, then, dents-secured the Univer­ denied cert to nine succes­ demands of coach (and was this year's triumphant sity intramural touch-football sive opponents on their way wide receiver) Eric Deller. finale-a fitting peroration to championship on November to an undefeated record and Early victories begat a large seasons of camaraderie and 24 before some fifty ecstatic a cumulative score of 209-0. following of fellow students, a defensive achievement fans. The 6-0 victory sealed The Law School twelve- who awaited the weekly consonant with the best tra­ games with an anticipation dition of Stanford lawyers. usually reserved for Asked to account for The Supreme Court tax deci­ Jury's success, Coach sions. More often than not, it Deller invoked the familiar ELLICKSON (continued) was the cool head and flam­ victory toast: "Here's to the ing arm of quarterback Jeff right stuff-to those who monly effective and popular more influenced by their Ouicksilver that struck down have it, and those who only teacher." notions about how good the final appeals of rivals. dream of it." Ellickson, who in 1977 neighbors should act, than But until now the ultimate -Keith Hansen '86 D received the USC Associ­ by what the law is," he prize had eluded the team; ates Award for Excellence reported in a recent inter­ Football champs (I-r front) Paul Ferdinands, Mike Zeller, Steve Sherwyn, in Teaching, frequently view. "Lawyers tend to think Brian Condon, and (back) Jeff Quicksilver, Allain Andry, Eric Deller, Gary teaches fi rst-year Torts and that law is always the most Shumway, Brent Bullock, Vinnie Altamura, and Jeff Schneider. Property courses, as well as important instrument of the second-third year Land social control, but it's clear Use Law course. from my and others' field­ He was involved in, and work that this is not true. wrote the preface for, the Major domains of human Stanford Environmental Law activity are beyond the Society study, Land Use reach of law. and Housing on the San "I'm trying to blend eco­ Francisco Peninsula (1983). nomics, sociology, and He is also interested in the game theory to say some­ natural resources law sub­ thing systematic about the jects of public lands, water reach of law-where it can resources policy, and land have influence and where taxation, and has taught it can't." Real Estate Transactions, An ardent Scrabble and Oil and Gas Law. player, Ellickson competed In the current issue of the in the 1985 North American Stanford Law Review, Ellick­ Open. He lives, with his son reports some results of wife and two children, in a study of how neighboring Palo Alto. Lucchesi Named to Law Fund Post, landowners resolve their The Robert E. Paradise Huch to Alumni/ae Relations disputes. An advocate of Professorship in Natural empirical research, he Resources Law was estab­ Elizabeth Lucchesi has Law Fund post, which she personally interviewed 73 lished in 1982 through a gift been appointed Director of assumed in October 1985, residents of Shasta County, by Paradise and his wife, the Law Fund. Already well was previously held by Kate California, to find out how lone, of Arcadia, California. known to graduates of the Godfrey, who has moved to they dealt with trespass Howard R. Williams, now School, Lucchesi has for the the University's Develop­ by livestock. retired, was its first holder. D past five years been Director ment Office as director of "Landowners are often of Alumni/ae Relations. The its personal solicitation

30 Stanford Lawyer Spring 1986 and special gifts programs. tant director for alumni pro­ Succeeding Lucchesi as grams. She has also served Alumni/ae Relations Director for eight years as a volunteer is a newcomer to the School, freshman advisor. Lucchesi Susan M. Huch, a graduate is active in the Association of of the City College of New American Law Schools, as a York with several years member of the executive experience in sales (for the committee of the Section on McKesson Corporation and Institutional Advancement, 3M Company). Huch has and in the Junior League of been active locally as a Palo Alto, as a member of director of the Resource the board of directors. Center for Women-where "We're entering an excit­ she ran their executive ing period with the centen­ recruitment subsidiary and JO ANN COUPAL nial campaign for Stanford," Susan Huch and Elizabeth Lucchesi continues to do fundraising she says. "I'm glad to be a -and of TheatreWorks, a Lucchesi, a graduate of her working life at Stanford, part of that effort, and I know local, semiprofessional Randolph-Macon Woman's including five years with the that Stanford Law alumni will theater company. College, has spent most of I Business School as assis- rise to the challenge." D

Reisch '88 Jacobstein Looks Ahead as Library Earns University Passes 300,OOO-Volume Mark Service Award Sometime during the month the more useful of the new of May 1985, the School's materials and systems not Fi rst-year law student Scott Robert Crown Law Library included in traditional "vol­ Reisch is one of seven stu­ added its three hundred ume" (books and journals) dents honored by the Uni­ thousandth volume. Though counts, such as those versity this January with its still relatively small com­ employing microfiche and Award for Service. Con­ pared to library holdings at computer technologies. ferred by Stanford's Dean of other major law schools, this At this juncture in our his­ Student Affairs, the award figure represents a higher tory, I find myself, as Law recognizes students who than average growth rate­ Librarian, looking to the make exceptional contribu­ 191 percent since 1960. future. Will the Library con­ tions to the University and This dramatic increase in tinue to grow at the same the local community. our holdings parallels the impressive rate? What will Reisch, who received his OLIVIA M PETERSON Scott Reisch growth during the same be the effect of new technol­ A.B. from Stanford last June, twenty-five years of our fac­ ogies on the future of librar­ was cited for his work while an undergraduate in "rescuing" ulty (from 22 to 40), student ies? Will the book and the and reorganizing Stanford-in-Government (SIG), and for his body (from 454 to 536), and journal, as we now know willingness to continue working with the group in 1985-86­ number of second- and them, disappear? "thereby disproving the belief that no first-year law student third-year course offerings Some commentators are can see beyond the rim of a torts textbook." (from 52 to 74). The Law already predicting that the SIG helps students obtain internships in government and Library has, of course, electronics revolution will . public-interest organizations, and runs an on-campus played a vital role in making make present methods of speakers bureau on public policy issues. possible the intellectual vari­ providing legal information Reisch, who is still active as an adviser, began working ety and depth these devel­ to lawyers and legal schol­ with SIG in its campus program, participated in two summer opments represent. ars obsolete. Certainly the internships (both with the Veterans Administration in Wash­ The last decade has also availability of computerized ington, D.C.), and served as SIG chairman in 1984-85. D seen the introduction here of (Continued on page 34)

Spring 1986 Stanford Lawyer 31 5

In Camera

Law may be an overwhelm- __ ingly left-brain activity. But pleasing evidence of right­ brain sensitivity can be seen in common rooms and offices all round the School. We are particularly struck by the number of evocative photog raphs taken by faculty members. Herewith some examples.

Moffatt Hancock, Marion Rice Kirkwood Professor Emeritus Steps, Frost Amphitheater One of three black-and-white photographs given to the School by Professor Hancock with the request that they be hung "where students can see and enjoy them." On permanent display in the ante­ chamber of the Crown Library building lobby. Four other Stanford scenes by Prof. Hancock already graced the Library's Vrooman Room. "I want students who come here to realize that they are on one of the most beautiful campuses in the country, so that they will take time to explore it," he explains.

32 Stanford Lawyer Spring 1986 Professor Deborah Rhode Hyde Park (The Serpentine), London Hung in her Crown Quad office. Professor Rhode develops her own black-and-white photos. "If I had more free time," she says, "I'd undoubtedly squander it in the darkroom."

Dean Ely Kun Ming Lake, Beijing Taken during his recent trip to China. One of seven color photos on temporary display in the lobby case, Crown Library building. "It's supposed to conjure up Whistler-in one of his oriental/ impressionist moments," says Ely. "But the mist may not quite work in black and white. Let's just say it conjures up boating."

Spring 1986 Stanford Lawyer 33 5

LIBRARY (continued)

bibliographic systems and data bases is already changing traditional meth­ ods of doing legal research. And newly available are laser disks with tremendous storage capacity. (In fact, it is estimated that one disk may be able to contain the equivalent of all the Califor­ nia Reports and California Appellate Reports, or per­ haps even the entire Second Series of the National Reporter System.) If anything is certain, how­ ever, it is that prediction is hazardous. Some of you may remember, for example, forecasts that television would entirely replace the Librarian Jacobstein (1) sees future for traditional materials (2, with Patty radio, or that by 1980 private Moncada '86) as well as technologically new systems (3, Tom Sears '88 ownership of helicopters and senior reference librarian Iris Wildman). would be commonplace! Predictions have also been made about how microfilm would replace bound books and journals, School Interview Program Closed to but this has certainly not Employers Who Won't Hire Gays occurred. And all the new and exciting developments Employers that discriminate on the basis of sexual orienta­ in methods of storing infor­ tion are no longer allowed to conduct interviews at the mation have not, as far as I School. can see, made a dent in the The decision was made by the faculty on October 14, need for what some refer to 1985, at a meeting called in response to requests from a as "hard copy." Indeed, the number of students and faculty members. number of books published Whatever changes may lie "We were already on record as opposed to hiring discrim­ and of new journals started ahead, however, one thing is ination against gays and lesbians," Associate Dean Jack continues to increase at certain: our Robert Crown Friedenthal recently explained. "But our new policy is a what is (at least in budgetary Law Library will have the more direct and powerful statement that discrimination terms) an alarming rate. continuing obligation-and based on sexual orientation is wrong." Those of us who are fond privilege-of providing The chief employers affected are federal government of the printed word may be information resources for a agencies that make a regular practice of not hiring homo­ assu red that we are not faculty on the cutting edge sexual applicants. Students interested in these employers about to be deprived of the of research and for a student may arrange for interviews independent of the School's pleasure of holding a bound body actively engaged in career services facilities. book in our hands-though writing and research on a The Gay and Lesbian Law Students Association seeks to we may have located it with wide array of legal topics. promote networking on employment and other issues. The the help of a computerized - J. Myron Jacobstein, Pro­ Association asks alumni/ae sharing its orientation to write: catalogue! fessor and Law Librarian D GLLSA, Room 45, Crown Quad, Stanford, CA 94305. D

34 Stanford Lawyer Spring 1986 ature) and the Academie Justice and Chinese State in October as a Mellen Faculty Notes des Sciences Morales and Education Commission. The Fellow in Law. He has also Politiques (to which Cappel- deans traveled to Shanghai, recently given talks on Barbara Babcock, now letti now belongs). Currently Nanjing, Xian, and Beijing, "Virtue, Commerce, and Ernest McFarland Professor on leave from Stanford to where they visited the law Lawyers" at a Columbia (see page 28), spoke on the chair the Law Department departments of several Law School legal theory criminal justice system, at a of the European University universities and institutes workshop and at a Johns San Diego Law Library lec- Institute in Florence, he is of law and politics, met with Hopkins University seminar ture in October. In March working towards completion professors, students and in legal history. she addressed the newly of the international research trade officials, and toured established Women Law- project he codirects, various facilities, including William B. Gould IV is the yers' Foundation in Hawaii "Integration Through Law: a penitentiary. author of two new books: on the subject of women in Europe and the American Strikes, Disputes, Proce- power-"an occasion of Federal Experience." Four Jack H. Friedenthal, the dures and Arbitration: particular interest," she volumes have so far been School's associate dean Essays on 'Labor Law explains, "because the invi- published, with another for academic affairs, has (Greenwood Press, 1985); tation was initiated by former three expected in 1986. been elected to Stanford and Labor Relations in University's Advisory Board students, now successful The project's purpose: Professional Sports (with practitioners, whom I taught "To analyze the role of law -a seven-person body Robert Berry, for Auburn that reviews all University while visiting in 1976 at the in the processes of cultural, House, 1986). While a visit- University of Hawaii." Bab- economic, and political inte- appointments and promo- ing fellow at the Australian tions. He and his Harvard cock is also active on the gration of peoples and National University in Can- boards of the East Palo Alto nations." coauthor Arthur Miller also berra, he presented lectures Community Law Project and recently completed a third there and at the University of the National Institute of Trial Robert C. Ellickson, the edition of their text, Sum and New South Wales in Sydney, Advocacy. newly named Robert Para- Substance of Civil Proce- Monash in Melbourne, and dise Professor of Natural dure. Dean Friedenthal the University of Adelaide. Thomas Campbell has spo- Resources Law (see page spoke to alumni/ae in Phoe- Traveling to London, he ken recently on a number of 29), was a speaker at an nix in November and in Los addressed the ABA Labor topics. Antitrust in marketing Urban Land Institute confer- Angeles in February. And in and Employment Law and distribution practices ence on growth manage- March he presented the Section, on comparative was the subject of a Feb- ment October 21 in annual Tulane Law Review aspects of American and ruary 6 lecture for the Prac- Washington, D.C. On Octo- banquet speech. British labor law. Back at tieing Law Institute in San ber 30, he gave a paper, Lawrence Friedman has Stanford, he helped organ- Francisco. He gave a "The Inadequacies of Law recently had th ree books ize and gave a paper at a speech on multi-employer and Economics and Other published: the second edi- Law School conference, The bargaining at the San Fran- Theories of Social Control," tion of A History of Ameri- National Labor Relations cisco Labor and Employ- at a law faculty workshop at can Law (which originally Act after Fifty Years-the ment Law Conference, the University of Toronto. appeared in 1973); Your subject also of an NLRB February 21 , in Yosemite. And in mid-November he Time Will Come: The Law conference that he later And on February 28, for the presented a comment, enti- of Age Discrimination and addressed in San Fran- Stanford Alumni Association tied "Adverse Possession Mandatory Retirement cisco. In other appearances of Palo Alto, he discussed and Perpetuities Law," at a (issued as part of the Rus- he gave a paper, "The "International Law in a World conference, Time and the sell Sage Foundation "Social Burger Court and Labor of Terrorism." Common Law, administered Research Perspectives" Law," at a Hofstra Law by the Emory University Law series); and Total Justice School Conference on the Mauro Cappelletti was and Economics Center. (in the Foundation's 75th Burger Court; and presided elected February 10 as Anniversary Series). An over a conference on the a corresponding member of John Ely was one of nine article based on Total future of U.S. labor unions, at the Institut de France, the American law school deans Justice begins on page 2. the Center for Democratic centuries-old institution that who spent two weeks during Institutions in Santa Barbara. includes the Academie October in China as guests Robert Gordon spent a Francaise (primarily for liter- of the Chinese Ministry of week at Princeton University (Continued on next page)

Spring 1986 Stanford Lawyer 35 5

Center in Colorado, on Tort Liability System. The FACULTY NOTES (continued) reforming U.S. products lia­ Commission's goal is to rec­ bility law. And in November ommend a set of tort reform Thomas Grey presented his against Stanford students he was at Airlie House in Vir­ initiatives by November. recent Stanford Law Review arrested in an anti-apartheid ginia as a commentator at a paper, "The Constitution as demonstration. Kaplan's conference on private anti­ Michael Wald and Robert Scripture," at a Harvard Law conclusion: police actions trust litigation, sponsored Mnookin were both faculty seminar in Novem­ were in some instances by Georgetown University honored February 12 by the ber. In January he delivered "wrong and unjustifiable," Law Center. National Center for Youth a paper in San Diego, on but not sufficiently so as to Law and the Youth Law Cen­ Takings (a new and contro­ warrant charges agai nst the Deborah L. Rhode delivered ter in San Francisco. Wald versial book on constitu­ officers involved. In another a paper at a conference on has' for many years done pro tionallaw by Richard vein, Kaplan has had pub­ the First Amendment last bono work with the Centers Epstein). And in March Grey lished, with Robert Weis­ October at Northwestern as a staff attorney, board gave a talk on AIDS and the berg, a new book, Criminal Law School. Rhode was also member, and adviser. His Constitution at a Los Ange­ Law: Cases and Materials a featured speaker (on the recent study with David L. les conference on legal (Little, Brown, 1985). subject of solicitation) at Chambers of Smith v. aspects of the disease. the plenary session in Jan­ OFFER, a foster parents' A. Mitchell Polinsky is uary of the Association of rights case that went to the Samuel Gross argued currently on sabbatical at American Law Schools. Supreme Court, appears in before the U.S. Supreme the Hoover Institution as a the book that provided the Court January 13 in the National Policy Fellow. He Robert Rabin is serving as basis of the Mnookin article case of Lockhart v. McCree, participated in an August Reporter to the ABA Action beginning on page 14. D which concerns death-quali­ conference at the Keystone Commission to Improve the fied juries and whether they are biased in their determi­ nations of guilt or innocence. He explored another kind of bias in a recent article­ "Race and Death: The Judi­ cial Evaluation of Evidence of Discrimination in Capital Sentencing"-which was published in a Death Penalty Symposium issue of the U. C. Davis Law Review.

Thomas Heller participated in the Stanford University faculty committee that developed the plan (approved in November by the University provost) for a new Institute of International Studies at Stanford; he is currently serving on the committee to bring the liS into being.

John Kaplan was tapped by University President Ken­ nedy to investigate alleged police brutality in October

36 Stanford Lawyer Spring 1986 · (",~ ATHERINGS N SEVEN CITIES across the nation, I attendance was up and interest keen as alumni/ae got together to strike up new friendships, affirm old ones, and learn more about the Law School of their choice. "Aloha" was the byword at a March 27 reception of Hawaii alumni/ae marking Dean Ely's first trip to the 50th State. Sponsored by Charles Wichman '52, the event was held at Honolulu's Pacific Club, where the Dean provided the 35-plus in attendance with an update on the School. The Law Society of Southern Cali­ fornia has had a busy year, with gather­ ings on November 7 and February 7. Dean Ely, guest of honor at the Novem­ ber event, reported on the School's achievements since his last visit with the Los Angeles chapter. Elizabeth Lucchesi, the School's new Law Fund Director (see page 30), was also on hand to greet alumni/ae. Hats off to Hugh McMullen '71 for organizing the event at the Times­ Mirror Building in downtown LA. The February event was a luncheon honoring new admittees (mostly members of the Class of '85) to the California Bar. The recently restored Mayfair Hotel was chosen for the well-attended get-together by planners Pamela Ridley '79 and Frank Melton '80. As guest speaker, Associate Dean Jack Friedenthal discussed the future of the student athlete concept. On November 15, Friedenthal flew to Arizona, where he was guest of honor at a Law Society of Phoenix cocktail reception. The 30 alumni/ae present local alumni/ae a chance to meet Susan M. Washington, D.C., co-sponsored two heard Friedenthal discuss developments Huch, the School's new alumni/ae relations recent events with the Washington­ at the School and his involvement (as the director (see page 30). Baltimore Chapter of the Stanford University's representative) with the Two time zones away, on October 7, Business School Alumni Association. On Pac-l0 Conference and the National Col­ the recently reorganized Stanford Law November 7, there was a wine and legiate Athletic Association. Society of Chicago held a cocktail buf­ cheese reception with Edwin Colodny, Back in the Bay Area, the San Fran­ fet with Professor Tom Campbell as the President of US Air, at the law firm of cisco Law Society had an enthusiastic guest speaker. Campbell, a former Chi­ Steptoe & Johnson. Colodny discussed turnout of 80 alumni/ae for an October 24 cagoan, was introduced by Alvin Katz '77, how his airline remained profitable while luncheon at the Hyatt Regency. Negotia­ the Society's new president. Over 25 others went bankrupt. And on January 31, tion and mediation experts Guy Blase '58 alumni/ae attended the get-together, held recently appointed SEC Commissioner and John Griffiths '60 shared their insights at the East Bank Club. Joseph A. Grundfest '78 (see page 62), on alternative dispute resolution. Further east, on November 20, some presented a talk to 30 alumni/ae gathered There was equally strong interest in the 25 Boston alumni/ae got up a little for a buffet lunch, at the law firm of Hogan San Francisco chapter's January 24 lun­ earlier to have breakfast with Professor & Hartson. Neil Golden '73 lent his cheon/debate on State Supreme Court Tom Jackson, on leave while spending the organizational touch to both events. ChiefJustice Rose Bird's upcoming elec­ autumn term at Harvard Law School. Please mark your calendars for Stan­ tion. Professor Michael Wald and Berke­ Ellen Corenswet '75 earns a mention for ford Law Alumni/ae events scheduled this ley Law Professor Stephen Barnett rep­ arranging the meeting at her law firm of summer and fall (see back cover). You resented opposing sides on the issue. Also Hale & Dorr. may be certain of a warm welcome from held at the Hyatt Regency, the event gave The Stanford Law Society of the School and fellow alumni/ae. D

72 Stanford Lawyer Spring 1986 Mary Ann W. Frantz '78 Frank E. Melton '80 Miller, Nash, Weiner, Hager Tuttle & Taylor, Inc. STANFORD & Carlsen 355 S. Grand Avenue LAW SOCIETIES 111 S.W. 5th Avenue Los Angeles, CA 90071 Portland, OR 97204 (213) 683-0600 (503) 224-5858

Arizona Washington Graeme E. Hancock '80 Philadelphia Fennemore, Craig, von Ammon, Jackie R. Brown '75 Udall & Powers Bruce A. Rosenfield '76 Brown Mathews First Interstate Bank Plaza Schnader, Harrison, Segal & Lewis 150 Court in the Square 100 W. Washington Street Suite 3600 401 Second Avenue South Phoenix, AZ 85003 1600 Market Street Seattle, WA 98104 (602) 257-5448 Philadelphia, PA 19103 (206) 621-7557 (215) 751-2080 Washington, D.C. Chicago Cornelius J. (Neil) Golden, Jr. '73 Alvin Katz '77 Chadbourne & Parke Neal, Gerber, Kanter & Eisenberg San Diego 1101 Vermont Avenue, N.W. Three First National Plaza Theodore W. Graham '63 Washington, D.C. 20005 208 S. La Salle Street Luce, Forward, Hamilton & Scripps (202) 289-3000 Chicago, IL 60604 Suite 1700 (312) 269-1739 Bank of California Plaza 110 West A Street San Diego, CA 92101 Stanford Women Lawyers Denver (619) 236-1414 Christine Curtis '71 Brian T. Dolan '65 Department of Industrial Relations Davis, Graham & Stubbs 525 Golden Gate Avenue 370 17th Street Room 614 Suite 4700 San Francisco San Francisco, CA 94102 Denver, CO 80202 (415) 557-2746 (303) 892-9400 R. Frederick Caspersen '71 Farella, Braun & Martell Suite 3000 Patricia Cutler '71 Mid-Peninsula 235 Montgomery Street Spiegler Cutler Liao & Kagay Marilyn N. Taketa '69 San Francisco, CA 94104 Three Embarcadero Center (415) 954-4427 Attorney at Law San Francisco, CA 94111 Suite 380 (415) 956-5959 5300 Stevens Creek Blvd. Donald J. Querio '72 San Jose, CA 95129 Severson, Werson, Berke (408) 554-8715 & Melchior One Embarcadero Center Oregon 26th Floor San Francisco, CA 94111 John R. Hassen '65 (415) 398-3344 Blackhurst, Hornecker, Hassen & Brian 129 North Oakdale Medford, OR 97501 Southern California (503) 779-8550 Pamela M. Ridley '79 Nossaman, Guthner, Knox & Elliott Suite 3100 John L. Barlow '81 445 S. Figueroa Street Fenner, Bamhisel, Willis & Barlow Los Angeles; CA 90017 123 N.W. 7th Street (213) 612-7841 Corvallis, OR 97330 (503) 757-0575

Spring 1986 Stanford Lawyer 73 motherhad good cause not to identify the legislative policymaking on behalf of Child Advocacy father of her illegitimate child. In each children would reveal many disadvan­ instance, the resultwas nota substantive tages as well. Perhaps one virtue of the (Continued from page 19) policy applicable to all casesbutarequire­ American political systemis that there is ment that the decision process allow an more than one forum for those who wish individualized determinationofan appro­ to defend or change policies. • Test-case litigation, though distinctive priate outcome for a particular child In sum, our five studies showed that in many ways, is still very much a part of or family. going to court will often make a dif­ the political process. Sugarman's study One might almost conclude that ference, although notnecessarilythe dif­ ofRoe v. Norton, for example, reveals an lawyers and courts tendto prescribedue ference the advocate had in mind. We enormously complex process in which process no matterwhatthe problem. But were also interested to see that, atleast federal courts, state legislatures, the I think thathere there is a deeperreason in ourfive cases, the federal courts were Congress, and thefederal bureaucracy all as well, having to do with the enigmatic verymodestin what they were willing to acted and reacted to each other. More­ nature of the interests of children. By do - a picture that is certainly inconsis­ over, merely filing a lawsuit sometimes requiring individualized determinations tentwith charges thatwe have an "imper­ pushes government agencies into adopt­ ratherthanmaking generalrules, one can ial" judiciary. The hopes of legal child ing new practices to improve the state's aspire to doing the right thing for each advocates, who believe courts can chances in court. Before a court ever individual child. achieve broad reforms, and the fears of adjudicated the plaintiffs' claims, officials Prescribing due process may also conservatives, who seejudicial activism in both Goss and Smith implemented new serve a useful political function for the as pernicious, seem equally inflated. D procedural safeguards for students and courts, by allowing them to decide for foster parents. without deciding. A court can trumpet • Thefederal courts oftenattemptto cut broad principles of procedural fairness a compromise in situations where the while delegating the actual decisionmak­ Confidentiality parties were unable to do so themselves. ing process to a lower level. (Continued from page 25) Particularly in Goss, Smith, and Bellotti, There are, however, dangers in this there were no clearwinners. In Bellotti, approach. Forone, it may give enormous incrimination by limiting use of the for example, the plaintiffs successfully discretion to officials responsible for confidential information to noncriminal . persuaded the Supreme Court that the making the individual determinations. proceedings.) Though no party in this 1974 Massachusetts statute requiring The actual outcomes will often be less situationis ideally objective orinformed pregnantminors to seekparentalconsent visible, and it canbecome extremely dif­ in resolving the conflict between the for abortion was unconstitutional. Justice ficult for advocates to monitor the pro­ parent's need for privacy and the state's Powell indicated, however, that a statute cess. In addition, symbolic adjudication, needfor relevant information, at the early that instead gives a pregnant minor a like symbolic legislation, may merely stage ofinvestigation the child protection choice of either asking her parents or dampen a political dispute while leav­ agency is best suited. If and when the going to court would pass constitudonal ing the underlying policy problem case gets to court, thejudge herselfwill muster. Thus the Court rejected the unresolved. be best suited to reassess the need to claims of those who thought that preg­ breach confidentiality. And once in court, nant minors should have the same abor­ any additional harm the parent may tion rights as adult women, while at the Conclusion suffer from controlled disclosure of same time rejecting the claim that information already in the hands of the parents should always have a right to be Ourstudywas launched with a seemingly agency is likely to be small. involved. Neither side got all it wanted. straightforward question: Is test-case This solution would grant broaderand • Substantive disputes about policy may litigation a sensible way to make policy on clearerpowers to child welfare agencies to a remarkable extent be transmuted behalf of children? For reasons that and courts to obtain information. But into due process claims. For example, should now be clear, a definitive answer regardless of what statutory balance is Goss did not define the circumstances cannot be given withoutresolving ques­ struckbetweenparental privacy and child that justified a school suspension; tions that appear insoluble. protection, legislatures must give this instead, the Supreme Courtdefined the I feel like the small-town mayor who, complex problem more attention that it minimum procedures that school officials when asked which of his town's two' has so far received. Few legislatures had to follow in suspending a student. restaurants had better food, replied, seem, in fact, to have formed any policy And the eventual result of the Connec­ "The one you don't go to:' As we have at all- a situation that not only places ticut welfare dispute was a process under seen, test-case litigation has many professionals in a quandary butalso most which state welfare workers would deter­ disadvantages - butcompared to what? certainly allows preventable harm to mine, case by case, whethera particular I am confident that a detailed study of children. D

74 Stanford Lawyer Spring 1986 beyondits value to individual students. It Plan - to instill a sense of professional Community Law Project has proved to beanexcellentway ofcom­ responsibilityin its graduates. "The Pro­ (Continued from page /3) batting the disengagement that many ject has created a community of people students feel after the first year. While that are in some way interested in com­ Stanfordhas developedits curriculumin munity service;' says Michelle Mercer identify which aspects of legai practice several ways to address this problem, the '86. "Students are more likely to consider most appeal to themin developing long­ birth of the Project has provided an public interest law or at least pro bono term career priorities. engaging and valuable learning environ­ work than they would have otherwise:' Students-also derive much satisfaction ment. The ability ofstudentsto shiftfrom Participating students cannot help but from their participation. To do something first-year case analysis to clientrepresen­ gain a heightened appreciation ofthe way practical like helping a client get his tation, policy analysis, and intensive writ­ the legal system affects minorities and money backfrom a dishonestauto mech­ tenadvocacy has added a new dimension the disenfranchised. "This type of work anic, orprotectinga batteredwoman, can to Stanford legal education. tends to sensitize students;' observes be terrifically rewarding and add mean­ The Law Project also provides new Judge Cordell, who chairs the EPACLP ing to a legal education. "I've been going academic opportunities for faculty and board ofdirectors. "It will make thembet­ to school for a lot of years;' says Chris­ students alike. Itimmediately expanded terlawyers - and betterhumanbeings:' topher Ho '87. "With the Project I am the clinical scope of courses in Juvenile Theunanimous supportexpressedby finally beginning to see what I have Law and Poverty Law. The addition to the thefaculty lastfall shows thatthe School learned in School becoming useful:' curriculum of a course in Immigration recognizes the contribution the Com­ For student organizers, there are Law and Policy was made possible by its munity Law Project is making to the unusual opportunities for learning and linkage with the Project-basedImmigra­ quality of educational life at Stanford. practicing leadership skills. Students tion Clinic, which is supportedby an out­ With this vote came a commitmentfrom working with the Executive Directorare side grant. The Project also provides an the School to launch an ambitious effort helping to run a functioning law office, excellentvenuefor communityeducation to help raise funds for the Project and a including budgetaryplanning and manag­ efforts developing out of the innovative commitment from individual faculty ing the office's cash flow - experiences Teaching Self-Help and Lay Lawyering members to develop additional academic some attorneys may not have until they course. Several otherareas for possible courses using the EPACLP as a base. make partneror opentheir own offices. coordination were noted by the faculty Thus, in a very shortspanoftime, the Students working with funding sources EPACLP Evaluation Committee, e.g., studentdream ofa communitylaw office engage in oral and written advocacy not consumer law, family law, criminal law, has become notonly a reality butalso an unlike thatneededin the courtroom. The and areas of small business law. integral and valued part of the Stanford several students eachyearwho serve on "Whether and how these might develop Law School experience. If sufficient the Board ofDirectors grapple withper­ depends, of course, on faculty interests funds can be raised to continue the Pro­ sonnel issues and operational crises and the resources and judgment of ject, boththe community and the School while developing long-range programs. EPACLP;' the Committee wrote. "None­ will benefit for years to come. D Student committee chairs and coordi­ theless, the potential for ongoing affil­ nators have also had to learn to organize iated activities seems great:' the large numbers ofstudents who want Moreover, the existence of the to participate. EPACLP adds a new facet to the Law Involvement in the Projectalso allows School's reputation, which should help in students to reflect on the limits and recruiting. Forsomeyears, Stanford has possibilities ofthe law. "You soonrealize been perceived as more "isolated" than that legal problems are a tiny fraction of most other major law schools. The theproblems thatpoorclients face;' says School's past lack of connection to sur­ Mary McComb '87. Many students have rounding communities has probably hurt said thatrecognition ofwhatthelegal sys­ its ability to attractsome excellentfacility tem can and can't do has been an impor­ and students who value this element of tant part of their Stanford education. a legal education. The Project changes this significantly. Stanford Law School now has a student body that is vitally Gains to the Law School "involved" in the community. The CommunityLaw Projectalso sup­ We believe that the creation of the East ports the School's efforts - such as the Palo Alto Community Law Project is of Montgomery Public Interest Loan Pro­ greatbenefitto the Law School above and gram and the Low Income Protection

Spring 1986 Stanford Lawyer 75 mrr--

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1986 AUGUST 11 Stanford Law alumnilae reception American Bar Association annual meeting New York City

SEPTEMBER 15 Stanford Law alumni/ae luncheon California State Bar annual meeting Monterey

OCTOBER 24-25 Alumni/ae Weekend 1986 With reunions for the classes with years ending in -1 and -6. At Stanford.

For information on these and other events, call Susan Huch, Director ofAlumni/ae Relations. (415) 723-2730.

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