Cover: Nathan Abbott, founding head of the Stanford Department of Law (see article on pages 4-11). This portrait is from an unsigned oil painting hung in the Harold G. King Moot Court Room and reproduced more fully on page 4. Photography by William H. Smith of Stanford's Visual Art Services. FALL 1993 46 (YOL.28,NO.l) FROM THE DEAN 27 2 The Way to the Courthouse When and how should beginning lawyers learn applied practice skills? by Paul Brest

FEATURES 4 The Early Years STA FF A pictorial essay, DEPARTMENTS beginning a century ago, on the making Editor-in-Chief: Constance Hellyer of Stanford Law School. 27 Associate Editor: Ann Dethlefsen by Howard Bromberg, j5M '91 Assistant Editor: Susan Infantino School News Contributing Editors: John Boykin, Candace Demeduc, Bruce 12 Goldman, Sheila Stavish 32 Class Correspondents: The Lesson Board of Visitors 63 praiseworthy alulllni/a: Memories of the inimitable Student Interns: Irene Christensen, Professor Osborne inspired this Grace Kim 53 prize-winning short story. Designer: Ev Shiro, In Memoriam Stanford Publication Services by Art Leinwohl ('58) Production: Joanna McClean 54 STANFORD LAWYER (ISSN 0585-576) OPINION is published annually for alumni/a: Class Notes and friends of Stanford Law School. Formerly semi-annual, the magazine now alternates with the tabloid, 18 95 STANFORD LAW ALUM (ISSN 1061­ 34 47). Correspondence and material The Tempest-Tossed Alumni/x Gatherings for either publication should be sent New groups of refugees to: Publications Director, Room "13, Stanford Law School, Stanford, CA and asylum-seekers Back cover 94305-8610. test our historic generosity of spirit. Coming Events Copyright 1993 by the Board of Trustees of Leland Stanford Junior by Rill Ong Hing University. Reproduction in whole or in parr, without permission of the publisher, is prohibited. 20 Articles published since 1980 are listed in Current Law Index, Legal­ Forum Trac, and Dialog's Legal Resource Index. Issues of the magazine since A marketplace of ideas 1966 are available on microfiche from throughout the through William S. Hein & 0., greater Stanford Law community. Inc., 1285 Main Street, Buffalo, NY 14209-1987. WHEN SHOULD A LAWYER LEARN THE WA'

his past August, in a motion proposed by the Illinois Bar Association and introduced by Robert MacCrate of Sullivan & Cromwell, the American Bar Association amended Standard 301(a) of the Standards for Ap­ Tproval of Law Schools to add the language I have italicized: A law school shall maintain an educational program that is designed to qualify gradu­ ates for admission to the bar and to prepare them to participate effectively in the legal profession. The most natural reading of the amendment would be to affirm the historic mission of law schools to provide students with the foundations to become effective practitioners- foundations on which graduates will build through mentorship, self­ education, and continuing educa­ Law school may not be tion during their years of practice. But there is reason to believe that some bar officials will endeavor to the best time or place to teach use the amendment to subordinate this mission to the goal of requiring law schools to provide all students applied practice skills with a panoply of applied lawyering skills-including trial advocacy and law office management-so they are "prepared" to practice law without further guidance on graduation day. I believe that this would be a serious error-short­ sighted and injurious to both the profession and the academy. THE MAcCRATE TASK FORCE REPORT The amendment to Standard 301 (a) comes word for word from the Report of an ABA Task rorce, chaired by Mr. MacCrate, entitled Law Schools and the Profession: Narrowing the Gap. Among its central recommendations is that law schools should "expand instruction in practical lawyering skills" with the aim of instructing stu-

2 STANFORD LAWYER FALL 1993 I ···················································· . r TO THE COURTHOUSE?

dents in the "full range" of practice skills.' The Task Force urges state licensing agencies to "consider Paul Brest modifying bar examinations that do not give appro­ Richard E. Lang Professor and Dean priate weight to the acquisition of lawyering skills." And it encourages law firms and other employers that recruit at law schools to "convey to students, ment, the context was nonetheless a very limited both by their words and their decisions, the impor­ one. An appellate case is, after all, the very last stage tance they place on a student's having had exposure in which the law operates, and often represents a to a broad range of skills and values instruction, in­ failure of the legal system or its actors at earlier cluding clinical courses. "2 stages. The issue presented by the amendment to The greatest innovations in legal education Standard 301(a) and by the MacCrate Report is not since Langdell have been methods of instruction whether law schools have a responsibility to prepare that allow students to learn substantive and proce­ students to be skillful and ethical practitioners-of dural law in a much wider variety ofcontexts. These course they do-but how that responsibility can best include clinical teaching through simulations and be carried out and how it is shared with postgradu­ supervised live practice; detailed case studies of the ate training. My most fundamental criticism of the sort often used in business schools; and amazing Report is that it seeks to impose a unitary answer on new high-technology instructional methods, includ­ all of the 157 law schools accredited by the ABA. ing interactive video programs which, for example, Until now, the diversity of American law schools has allow students to observe a trial, interpose objec­ rightly been regarded as an advantage, allowing tions, and receive rulings on them. There is no better each institution to respond to the different needs of way to understand what a leading question is or students pursuing different legal careers and to what it means to make a record than by observing or undertake continuous curricular experimentation participating in a simulated trial process. By the designed to improve legal education. This system same token, one can learn much about contract, has yielded what is generally regarded as the best property, or corporation law by drafting and negoti­ system of legal education in the world. It was just ating business agreements in simulated settings. such experimentation that led to the Langdellian re­ volution in the late nineteenth century and to the WHEN ARE PARTICULAR PROFESSIONAL development ofclinical legal education in the second SKILLS BEST ACQUIRED? halfofthe twentieth. The acquisition of professional skills is at least as important a part of a legal education as learning AN INCREDIBLY BRIEF HISTORY doctrine, ethics, history, and jurisprudence. A key OF LEGAL PEDAGOGY section of the MacCrate Report, the "Statement of Legal doctrines operate in particular contexts­ Fundamental Lawyering Skills and Professional Val­ negotiating a contract, representing a criminal de­ ues" (SSV), organizes these skills in ten categories: fendant, seeking a zoning variance-and only have problem-solving, legal analysis and reasoning, legal meaning in those contexts. Before Langdell, this research, factual investigation, communication, obvious fact had not permeated the walls of the counseling, negotiation, litigation and alternative academy, and the law was taught as a body of ab­ dispute resolution, organization and management stract principles. Langdell's innovation, now over a of legal work, and recognizing and resolving ethical century old, was to place doctrine in the context of appellate cases. While this was a great improve- Continued on page S1

FALL 1993 STANFORD LAWYER 3

by Howard Bromberg, ISM '91

':rhe study oflaw at Stanford University is nearly as old as the University itself In April 1893, a year-and-a-half after opening, the University published the plan, organiza­ tion, and courses for a Department of Law. And four months later, on September 8, 1893, the first class-Elementary Law-convened in the University chapel. The new Department represented an innovation in legal education. Rather than set up a separate law school, Stanford President David Starr Jordan decided to establish a law department open to both undergraduate and graduate students. He had two reasons. First, he wanted to make sure that Stanford-educated lawyers earned at least a bachelor's degree-a relative rarity in the profession at the time. Second, he wanted to enable all Stanford students to study the legal system, fulfilling founder Leland Stanford's wish to "present the fundamental principles oflaw in such a manner that every student may understand them. " As the Department of Law matured, it began to concentrate on the professional training of future lawyers, symbolized by its change in name to Stanford Law School in 1908. This photographic essay recalls those initial fifteen years in which the study oflaw at Stanford took root.

.... NATHAN ABBOTT .£... FAMOUS FIRST. While jordan was negotiat­ ing with Huffcutt and I... ELAND STANFORD, ESQ. Abbott, Senator Stanford Though best known as a railroad was persuading an old magnate, politician, and universi­ political ally to join the ty founder, Leland Stanford's first Department. On March 2, profession was law-a calling 1893, two days before leav­ that greatly influenced his educa­ ing national office, Presi­ tional philosophy. In 1848, when dent Benjamin Harrison this daguerreotype was taken, he accepted his friend's offer to had just been admitted to the become a non-resident Professor New York Bar. His subsequent of Law at Stanford-and the first career as lawyer, governor, and former President to serve as a pro­ senator persuaded him of the fessor anywhere. need to educate young Americans in the legal foundations Senator Stanford boasted that of democracy. In 1893, while planning the Law Department Harrison had "experience, from his with President jordan, Stanford wrote: "We want the peo­ position, that no other man has ple instructed in the law, for with the law rests the science had. His lectures will undoubtedly of government." be very valuable, not only to our students, but to all civilized peo­ ple." Cartoonist joseph Keppler took a less exalted view. In the ~ ,., ,.); OOKING FOR A LEADER. caption beneath this March 22, ;, ..i -. jordan conducted an extensive 1893, cartoon in the humor ~~'*~ search for a professor to head the magazine Puck, Harrison '. ~.~.. " planned Department. His first warbles: "Oh, what do I ,;,!>~ offer was to Woodrow Wilson, care for a Presidencee? /A Professor's life 0.'1" then a Princeton professor of is the life for me! / Away out on the far Pacific Coast / The jurisprudence and a leading advo­ youthful Freshmen will I roast; / And the seals of Alaska cate of the undergraduate study of shall shiver with awe / When I preach on International law; but Wilson declined. Ernest Law!" (In fact, Harrison arranged to begin teaching in the Huffcutt, a brilliant law professor spring of 1894 to allow time to prepare innovative lectures at Northwestern, did accept ten­ on the history of the American Constitution.) tatively in january 1893 and With the appointment of Harrison and Abbott, the first even drafted the Depart­ law faculty seemed complete. "I think there will be instruc­ ment's curriculum in anticipa­ tion in ... Law," Leland Stanford wrote triumphantly in his tion of its September 1893 last letter before his death on june 21,1893. opening. But a few weeks later Huffcutt chose Cornell over Stanford and recommended his colleague, Nathan Abbott. On March 6, 1893, Abbott (affectionately caricatured here) accepted jordan's offer and became the Department's founding Head. ..£.. VIRTUE OF NECESSITY. When Abbott learned of Senator Stanford's fii!!!iTUDENT REFORMERS. Crusading students of the death, he became so new Law Department made a dramatic impact on the larger skeptical about the University. Pledging to reorganize the haphazard student University's prospects that in August 1893 he requested a government of the two-year-old University, law student Ed year's leave. The Law Department, scheduled to open in one "Sosh" Zion was elected student body president in month, suddenly had no professor! Jordan asked the September 1893. The competition for votes the following University Librarian, who happened to have a law degree, spring between Zion's reformers and the insiders was so to fill in. The librarian, Edwin Woodruff (above), accepted intense that Jordan complained of "presiding over a young on condition that Jordan come to the first class to explain Tammany Hall." The reformers won a decisive victory in the unusual circumstances. "But Dr. Jordan did not April 24, 1894, with the election of engineering student appear," Woodruff recounted, "so I made a frank explana­ Herbert Hoover as treasurer and law students Lester tion of the situation to the members of the class and stated Hinsdale and Herbert Hicks as student body president and that we would study law together. Thus the work started..." football manager, respectively. With this accidental initiation, Woodruff discovered a This montage from the university student yearbook love and talent for law teaching that led to a 33-year career pays tribute to the leaders (Hoover is on the left, Zion in at Stanford and Cornell (where he would become Dean). the center) who had made a republic of student government. "The best law teacher I ever knew," Abbott would later say of Woodruff.

:FROM THE GROUND UP. Abbott's early fears were almost realized, as the University approached bankruptcy following Stanford's death. Nonetheless, Abbott did arrive in September 1894, the Department's second year. He installed the Department's first office and library in a bed­ room in the men's dormitory, Encina Hall (shown here in an 1895 photograph). He even built much of the furniture himself. To instruct the wide variety of students taking law classes, he evolved a teaching method that "happily com- bines the lecture, textbook and judicial decision," as one student wrote. "A summary of each subject studied is dictated in the form of notes, and this is supplemented by the informal discussion and 'quiz.'" With the University's financial woes leading to the early departure of Harrison and Woodruff, Abbott was forced to do most of the teaching himself. "I have tried to saw wood with a dull saw," Abbott complained to Jordan, "but I have 'sawed,' although my back has ached sometimes." His labor was rewarded with rapid growth of the Department-by 1897, the second largest on campus.

STANFORD UNIVERSITY ARCHIVES ..PEN DOORS. As a primarily undergraduate division of a new university founded on egalitarian principles, the Law Department registered many students who might not have been welcome at more traditional law schools. Hispanic, Chinese, Japanese, and women students were en­ rolled in the Department's first classes. Walter Fong ~TUDENT LIFE. For its first decade, the Law De­ (left), in 1896 the first partment reflected its largely undergraduate composition. Chinese graduate of The most celebrated law students were those who excelled Stanford, minored in law on the football field, such as Jackson Reynolds and Charles and became a member of a San Francisco law firm and later Fickert (later among the Department's most prominent president of a college in Hong Kong. alumni). Student life was dominated by a proliferation of law clubs, which combined moot court training with social camaraderie. The origi­ nal members of the Arcade club posed for this turn-of-the-century photograph. ~AKING STANFORD LEGAL. A different sort of club-this one formed by law alumni-probably saved Stanford University. In founding the institution, Leland Stanford had made use of unprecedented legal procedures that gave him absolute control. George Crothers, shortly after receiving the first M.A. issued by the Law Department in 1896, discovered that the University's novel organization violated California law. With the help of some fellow law alumni, Crothers formed the Stanford University Constitu­ tional Amendment Club to push for an amendment to the state constitution that would permit Stanford's unique status. On November 6, 1900, after a year of intense cam­ paigning, the amendment passed. Decades later, law profes­ sor George Osborne would call Crothers "the architect and builder, the refounder of Stanford's present secure legal foundation and structure."

"rURNING PROFES­ SIONAL. As the Law Depart­ ment grew, it began to focus more on professional than on undergraduate education. IIOME ON THE QUAD. In 1900, the Department Several new professors were moved from Encina Hall to the northeast side of the Inner added, including Clarke Whit­ Quadrangle (on the left side of this early photograph). The tier (left), who would teach at new quarters, which Law would occupy until 1950, con­ Stanford from 1897 to 1902 tained two large recitation rooms, three faculty offices, and and (after a stint at Chicago) a library. Whittier's comment: "We were too proud for from 1915 to 1937. A comprehensive three-year program words." was implemented that would form the heart of the curricu­ lum for decades. "We felt quite grown up," recalled

Whittier. And in May 1901, the Department awarded its STANFORD UNIVERSITY ARCHIVES first professional degree, an LL.B., to top student James Burcham. ~IONEERING WOMEN. One distinguished graduate of the Department was Di Margaret Gardner (left), who became a Deputy City Prose­ cutor in Los Angeles. The Law faculty had mixed views about women students. Professor Abbott told the San Francisco Chronicle in 1901: "I do not believe much in the modern system of edu­ cating women....The tendency is to spoil a good woman to make a poor man out of her." But Professor Whittier was more enlightened: "The few young women who joined our ranks were not in any separate category from the men," he would recall. "There seems to be no sustainable objection to the admission of women to law schools."

.I....AW FRATS. Three law fraternities were begun in the 8HOCK AND AFTERSHOCK. On August 18, 1906, early days. Dean Marion Rice Kirkwood would later write philosopher and psychologist William James was staying at that the law fraternities "have regular meetings at which Professor Abbott's home in Palo Alto (center in the early they give over a large part of their time to consideration of 20th-century photo at right) when the great earthquake some legal matter, the argument of a moot case, the discus­ struck. James, eager to record his perceptions of the event, sion of some proposed law reform, or the presentation of refused to budge, saying, "I've been waiting for this oppor­ various points of view in practice by lawyers who have tunity for years." The Law Department headquarters on the made a success in the profession. In these and other ways Quad emerged relatively unscathed, but the living quarters they develop in their members an interest in law as a sci­ of some members of the Department were damaged. Law ence." They also found time for fun, as shown in this photo student William Barkley was sleeping when "the chimney of Phi Delta Phi, founded in 1897. fell within 2 or 3 feet of my head. I tried to jump over the side of the railing, but the bricks were coming too thick and I was afraid the front porch would fall and mash me." The Department suffered a greater jolt one month later, when Abbott announced that he was leaving to become a profes­ sor at Columbia Law School.

10 STANFORD LAWYER FALL 1993 :FROM DEPARTMENT TO SCHOOL. Abbott's tenure spanned just about the entire life of the Stanford Law Department. The face of the future can be seen in this photo of the faculty, taken in the spring of 1907 shortly after Abbott's departure. Charles Huberich (center front) succeeded Abbott as executive head. Reflecting a national trend toward higher and more spe­ cialized standards for legal education, Huberich called for creation of "a true pro­ fessional school." By December 1908, President Jordan and the Stanford Trustees agreed and voted to change the Department into a Law School. A new addition to the faculty, Frederic Woodward, became the School's first Dean; Charles Huston (upper left) would succeed him in the deanship in 1916. Arthur Cathcart (upper middle) taught at the Law School until 1938. Leon Lewis and George Boke (front left and right) FURTHER READING were here only briefly. But Wesley Hohfeld (upper right) • Bromberg, "Legal Legacies: A Brief History of Stanford would become the early School's most eminent scholar and Law School," Stanford Magazine, September 1993. a progenitor of the legal realist movement. Stanford was • Bromberg, "Our Professor, The President," Stanford becoming a leading law school. 0 Lawyer, Fall 199'1, • Bromberg, "Who Stole the President's Wine? Stanford Howard Bromberg is currently working on a history of Magazine, June 1991. Stanford Law School. He holds a j.S.M. in addition to a • Henry C. Clausen, Stanford's Judge Crothers: The Life J.D. degree, and was a teaching fellow from 1988 to 1990. Story of George Crothers (1967) . • Orrin Elliott, Stanford University: The First Twenty-Five Years (1937).

PALO ALTO HISTORICAL ASSOCIATION

Tmagine (frisson) that you are back in Mr. Osborne's classroom. Accept, too, that the subject is Torts. This prize-winning short story takes it from there.

I : " " 1(' it '\

by Arthur Leinwohl ('58)

he venerable George Osborne, pro­ fessor of law, entered the side door of the auditorium-like classroom as the bell sounded. The room fell com­ pletely silent as he moved toward his front and center table, limping slightly and sup­ ported by his heavy shillelagh-like cane. His full shock of white hair coupled with his no­ nonsense facial expression of toughness made clear that he was a person of formida ble tenacity. Osborne's technique of classroom exchange was legend, and the new first-year class remained profoundly apprehensive though they had advanced to the third week of the term. Osborne laid his cane on his desk, sat down, opened the class seating chart, and slowly be­ gan scanning the array of tense faces. The stu­ dents appeared to have aligned themselves in perfect diagonally straight lines in the hope of being shielded from his view. Osborne was credited with the uncanny knack of selecting the most unprepared student for the daily rack­ ing-or so it seemed, since there was no way to prepare for Osborne. "We will continue our discussion Mr. LaTourneau." "Yes, sir." LaTourneau showed of the law of torts," he said noncha­ "Well, sir, I couldn't hope to offer momentary relief at the question's lantly, his eyes deliberating between better words than Salmond's," simplicity. the class and the seating chart. "Does LaTourneau ventured after an un­ "Do you have possession of it, anyone have any questions as to comfortable pause. Mr. LaTourneau?" where we've been so far?" he asked "Indeed, indeed. I'll not argue "Yes, sir." with mock innocence. The class stiff­ that. Evidently, Mr. LaTourneau, "Physical possession?" ened. Unsubstantiated but spine­ you have sufficient time not only to "Yes, sir." chilling rumors had circulated fully comprehend your assigned read­ "Are you touching it, Mr. LaTour­ regarding the fate of the last student ing, but to do advanced reading as neau?" to volunteer in one of Osborne's well. Very commendable. And since "Ah ... no, sir." classes, back in 1947. you've chosen to speak for Salmond, "Well then, in what manner is "Very well, then, there being no may I assume that you comprehend your alleged possession physical?" questions, I will assume that complete his words?" "Well, sir, I'm not touching it but understanding is the case-we shall "Yes, sir," said LaTourneau, un­ I do have the physical ability to con­ see. Mr.-ah-Mr.-ah." The class abashed. trol it," LaTourneau guessed again. froze as Osborne fingered the seating "Well then, Mr. LaTourneau, let us "I see. Then possession of your chart. "Mr. LaTourneau." LaTour­ focus on Salmond's words 'property, book means the physical ability to neau instantly became an island of persons, reputations, or anything else control it. Is that right, Mr. LaTour­ anxiety amidst a sea of relief. The di­ which is theirs,' I believe you said. neau?" agonal lines relaxed. It was known What is property, Mr. LaTourneau?" "I think so, sir ... I mean ... yes, that once Osborne selected his dia­ "What is property, sir?" sir, it is." A noticeable twitch became logue victim, it was for the whole "That's what I asked," said evident in LaTourneau's left eyelid. hour. "Will you briefly state for Osborne. "Suppose that the student next to us, in your own words, your present "Well ... property is either-real you was the world's heavyweight understanding of the purpose of the or personal," said LaTourneau cau­ boxing champion, and suppose fur­ law of torts?" tiously. ther that he had adamantly expressed Glancing at his notes, LaTour­ "Yes, but what is it, Mr. LaTour­ to you his intent to possess the book neau, Phi Beta Kappa from an Ivy neau?" snapped Osborne. and he sat poised and determined to League school, president of his under­ "Well, sir ... property is the sub­ have it. Would you, according to your grad class, and winner of several in­ ject of possession." reasoning, still have possession of it, tercollegiate debating competitions, "Mr. LaTourneau, you've now in­ Mr. LaTourneau?" became resigned and somewhat com­ troduced a new term-'possession'. "Well, sir ... ah ... ah ... I think posed. He began his recitation. "Well, If you feel that this term is necessary that my mental intent to possess it sir, the law of torts exists for the pur­ to your definition of property, then would be the controlling factor." pose of preventing persons from hurt­ pray tell us what possession is." "Mr. LaTourneau, am I to under­ ing one another, whether in respect to "Well ... possession is the exercise stand, then, that mental intent over­ their property, their persons, their ofphysical control over ... ah ... pro­ rides your requirement to physically reputations, or anything else which is perty." LaTourneau at once wished control the book-and that physical theirs. The fundamental principle of he could retrieve the word. control is, therefore, no longer a re­ this breach of the law is alterum non "Control over what, Mr. LaTour­ quirement for possession?" laedere, to hurt nobody by word or neau? We seem to be going in a cir­ "Well, sir, my intent ..." deed. An action in tort, therefore, is cle," said Osborne impatiently. "Mr. LaTourneau, my question usually a claim for pecuniary com­ "Ah control over ... ah ... was unambiguous and completely pensation in respect ofdamage so suf­ things ohjects." LaTourneau ges- susceptible to a 'yes' or 'no' answer­ fered." LaTourneau felt numb but tured with his hands as he groped for now which is it?" adequate. words. "No, sir ... ah ... the control does "Excellent, Mr. LaTourneau, ex­ "And you say that the control has not have to be physical." cellent, Latin and all," said Osborne to be physical, Mr. LaTourneau?" "Then what you said earlier about with dramatic enthusiasm, "but you "I think so, sir." physical control was nonsense, was it forgot one word. You forgot to say "You think so, Mr. LaTourneau? not, Mr. LaTourneau?" unquote, didn't you, Mr. LaTour­ Do you mean to say that the defini­ "I didn't quite mean it that way, neau? Salmond cited those words tion of the term you've introduced sir. " over fifty years ago and he attributed has only your speculation as its basis? "But you said it, Mr. LaTourneau. them to Justinian as the basis for all Mr. LaTourneau, is that your book in Don't you mean what you say?" law. I asked for your own words, front of you?" asked Osborne. "Usually, sir, but sometimes I don't

14 STANFORD LAWYER FALL 1993 say what I mean." "I don't know, sir." a wee bit better than you've done "Touche, Mr. LaTourneau, "Mr. LaTourneau, do these ques­ here. Now then, Mr. LaTourneau, touche," said Osborne quickly. tions seem trivial?" what is possession?" asked Osborne "Then the ability to exercise physical "Not trivial, sir, but somewhat calmly, as though the hour had just control is not to be taken literally, but removed from real life. " begun. now seems to depend upon some sort "I didn't bring up the term 'posses­ "I don't know, sir." of mental intent to control it, is that sion'; you did. And now it appears "What is property, Mr. LaTour­ correct?" that you don't know the meaning of neau?" "Yes, sir." words you use. As for real life, Mr. "I don't know, sir." "Tell me, Mr. LaTourneau, are you LaTourneau, last week in New York "Those, Mr. LaTourneau, are un­ one of our married students?" City a man was arrested. He had doubtedly the two most accurate "Yes, sir." statements you have made "Suppose then, Mr. La­ thus far this hour. Tell me, Tourneau, that unknown to did you ever think that you you, before you came to knew what property was?" school this morning, your "Yes, sir." wife had slipped five dollars "And now you don't?" into your wallet. Now you "No,sir." couldn't have any mental in­ "Mr. LaTourneau, are tent with regard to the five there many things you are dollars since you weren't quite sure of?" aware it existed. Hence, you "I don't know, sir." wouldn't have possession of "Now then, Mr. LaTour­ it and, therefore, no property neau-since Salmond has rights in it, such that if evidently granted you his someone took it from you, power of attorney, what did you would have no claim. Is he mean when he professed that your contention, Mr. that a purpose of tort law LaTourneau?" is to prevent people from "Well, not exactly, sir. hurting one another in re­ Ah ... ah ... if it's the kind of spect to their persons. What thing that one would nor­ does that mean, Mr. La­ mally desire possession of, Tourneau-'in respect to and it's in his wallet, then I their persons'?" would say he has possession "It means that people ... yes ... he would have can't physically harm one possession." LaTourneau's answer rented a furnished apartment and another, sir. " seemed to lack his earlier conviction, was occupying that apartment when "Mr. LaTourneau, you seem to and the eyelid twitch was now it was raided the next day by the po­ have a preoccupation with the word amplified. lice, who found a substantial quantity 'physical'. Very well, then, have you "So possession seems to depend of heroin hidden in a closet panel. ever seen a vicious tackle intention­ upon desirability after you find out The newspapers reported that the ally executed in the course of a foot­ what it is? Suppose then that it was man claimed that he had no knowl­ ball game?" a black widow spider rather than five edge of the heroin and that it must "Yes, sir." dollars: Would you have possession have been there before he rented the "Had a tort been committed, Mr. of it?" apartment. New York has a statute LaTourneau?" "Ah ... no, sir." making the illegal possession of nar­ "I don't think so, sir. That's one of "But suppose it was a very rare cotics a crime. Now it seems to me, the risks of the game." specimen and of considerable money Mr. LaTourneau, that the precise "Good. Now what if, after the value to a collector?" asked Osborne. definition of 'possession' was very tackle, the downed player was inten­ Both of LaTourneau's eyelids were much at issue and that real life was tionally piled upon by the opposi­ twitching, out of sync. considerably involved in what we've tion-an offense that was outside the "I can't hear you, Mr. LaTour­ been talking about. It seems further, rules of the game?" neau," said Osborne with his palm Mr. LaTourneau, that if you were "Itstill seems to be one of the risks, cupped around his ear in feigned defending this man on the issue of sir, and the rules of the game provide deafness. possession, you would have to do just penalties."

FALL 1993 STANFORD LAWYER 15 "Good. Now what if, after the you an idiot, would I be hurting you the child's injuries, will the mother be pile-up was cleared, a member of the in respect to your person sufficient to hurt in respect to her person for the opposition intentionally kicked the sustain a tort action?" mental anguish she suffers? And downed player squarely in the head? "I don't think so, sir." would there be a tort action for her Any tort? Does playing the game in­ "What if I called you a son-of-a­ anguish, Mr. LaTourneau?" clude the risk of being intentionally bitch, Mr. LaTourneau?" "I would think so, sir." kicked in the head long after the "I beg your pardon, sir!" said La­ "Are you certain?" whistle?" Tourneau, momentarily entertaining "Yes, sir." "I'm not sure, sir." anger, then quickly rejecting it. "But suppose this had happened "Well, what if he's kicked five "A son-of-a-bitch, Mr. LaTour­ on the Fourth of July, during a pa­ times, Mr. LaTourneau?" neau. Would that be actionable?" rade, and within the sight of five "Well, that would be pretty outra­ thousand other people, all of whom geous, sir. I would think that a tort were horrified by the sight. Would might be involved." five thousand lawsuits be appropriate "Good. Now what if he'd only for their mental anguish, Mr. LaTour- been kicked once?" neau? Haven't all five thousand LaTourneau sensed the jaws of been hurt in respect to their per­ a trap. "I don't know, sir." sons by witnessing that dread­ "Well, you were pretty sure ful scene?" about five kicks, Mr. LaTour­ "It would certainly be an neau! How about twice?" unpleasant experience for The trap closed. His eyelids them, sir." were now twitching in uni­ "Will five thousand tort son and at high frequency. actions stand, Mr. LaTour­ "Well, sir, I guess it de­ neau?" pends on the extent of the "I guess so, sir." injury." "Wouldn't the courts fill "You've completely lost up pretty fast, Mr. LaTour­ me, Mr. LaTourneau. It now neau? Does that really make seems that you've made the sense?" extent of the injury the deter­ "I guess not, sir." mining factor as to whether a tort "What doesn't make sense, was committed. Have you done Mr. LaTourneau-to protect peo­ your assignment for today, Mr. ple against mental anguish?" LaTourneau?" "No, sir, I guess it doesn't make "Yes, sir." sense ... " "Well then, in the Draper case, "Because it would fill up the courts spitting in another's face cost thirty­ "I don't know, sir." overnight, Mr. LaTourneau? Is that five hundred dollars. And in the "What if I made a mere motion your reason?" Ragsdale case, an unconsented-to threatening to strike you, Mr. La­ "Yes, sir." The twitch had invaded lusty hug and kiss were priced at Tourneau?" asked Osborne, raising LaTourneau's left cheek. forty-seven hundred dollars. Do you his fist. "Is this a good reason for denying agree with these cases, Mr. LaTour­ "Yes, sir, that would be an as­ remedies for valid legal claims, Mr. neau?" sault." LaTourneau-because the court cal­ "Yes, sir." "Good, Mr. LaTourneau. Now tell endars might get too busy? Should "Good. Were the physical injuries me, where was the harm? I didn't that be a limiting or controlling in those cases very extensive, Mr. strike you and commit a battery. I factor?" LaTourneau?" merely frightened you by the gesture. "I guess not, sir," LaTourneau an­ "No,sir." What is the hurt?" swered automatically, aware that his "Does there have to be any phy­ "Well, sir, people have a right not only out was the clock. Why had it sical injury whatsoever, Mr. LaTour­ to be intentionally frightened." moved so little since his torment neau?" "Fright. Good, Mr. LaTourneau. began? "I suppose not, sir." Then what about other forms ofmen­ Osborne, sensing the young man's "Are you sure, Mr. LaTourneau?" tal pain? Suppose a drunken truck total frustration, changed the pace. "Yes, sir." driver runs down a small child within "Do you smoke, Mr. LaTourneau?" "Mr. LaTourneau, if I were to call the sight of its mother? In addition to "Yes, sir."

16 STANFORD LAWYER FALL 1993 "In view of the growing quality conditions, liver ailments, and the neau, you seem to have wasted our and quantity of cancer evidence, Mr. like. Aren't we being hurt in respect to whole hour, haven't you?" LaTourneau, are you being hurt in re­ our persons by this advertising?" LaTourneau paused. "I don't think spect to your person by smoking?" "I guess so, sir." so, sir." "Yes, sir." "Will a tort action stand, Mr. The trace of a smile showed on "By whom, Mr. LaTourneau?" LaTourneau?" Osborne's face. "Neither do I, Mr. "By the tobacco people, sir?" "I'm not sure, sir." LaTourneau," he said as the bell rang. asked LaTourneau, hoping he had "Damn it, Mr. LaTourneau, are "Neither do 1." 0 guessed right. we or are we not being hurt in respect "Are you being coerced to smoke, to our persons by being induced to Atthur Leinwohl (AB '56) partici­ Mr. LaTourneau?" overindulge?" pated in Osborne dialogues as a He had guessed wrong. "No, sir." "Yes, sir." member of the Law Class of 1958, "Then you are smoking of your "Then will a tort action stand?" with whom he retains ties. A member own free will and accord, right?" "Yes, sir." of the California bar since 1966, he "Yes, sir." "Really? Well, Mr. LaTourneau, now practices with his wife, Bonnie, "Are you sure, Mr. LaTourneau?" by way of summary, it seems as in Foster City. "I flash back on "Beg your pardon, sir!" though the law of torts will protect us Osborne wherever I witness a partic­ "Are you a psychiatrist or a psy­ from heavyweight champions, black ularly effective cross-examination, or chologist, Mr. LaTourneau?" widow spiders, football injuries, hear a judge or a justice pose a pene­ "No, sir." frights, the sight of dreadful things, trating or fundamental question to "Then how can you be sure that smoking, overeating, advertising, counsel, " he declares. you are smoking of your own free will unpleasantness, the moon, and a host The imagined dialogue above was and accord? Have millions of dollars of other things-limited only, it ap­ originally written in 1964 and won in advertising been totally wasted on pears, by the length of our conversa­ third place for Short Story in the you, Mr. LaTourneau?" tion. It seems then, Mr. LaTourneau, 1965 Santa Clara Valley (California) "I don't know, sir." that the law of torts is omnipotent Writer's competition. Recently rec­ "Well, Mr. LaTourneau, not you, and will secure universal peace of ommended to the editors by a dis­ perhaps. But what of the rest of us, mind for all of us. That being the case, cerning classmate, it has been lightly preyed upon as we are by the best tal­ there is no need to waste your time on adapted and abridged for publica­ ents of Madison Avenue-luring us, any of the other law courses. Is that tion. man and youth alike, to the glories of your view, Mr. LaTourneau?" smoking with its promise of sex ~'No, sir." fantasies with young girls who also "Then what is the purpose of the smoke; with its promise of the good law of torts? What is its scope, its life in the great Western outdoors; breadth, its depth? What are its \I' AND YOU, with its proof that athletes of stand­ boundaries, and are those boundaries DEAR READER? ing enjoy their cigarettes? If this ad­ fixed or moving? What human inter­ vertising serves its purpose and ests will it protect-and what human ~ ;. What do you think of the induces us to smoke, then aren't we interests are left to other bodies of , Socratic method of teaching being hurt in respect to our persons, law or agencies of society for protec­ . so memorably practiced by Mr. LaTourneau?" tion-and what human interests Professor Osborne? Was it an "I guess so, sir." aren't protected at all? Well, Mr. La­ unnecessary "trial by ordeal" "Will an action for tort stand, Mr. Tourneau?" or a first-class way of training LaTourneau?" "I don't know, sir." students to think like lawyers? "I don't know, sir." "Ofcourse you don't, Mr. LaTour­ Please send your comments "What do you mean, you don't neau, we know that. That's why you to the editor, Constance Hell­ know? Are we being hurt in respect to are here. Perhaps after this first year, yer, at Stanford Law School, our persons?" and the study of a thousand or so Stanford, CA 94305-8610. "Yes, sir." cases-and after several years of med­ Letters may be excerpted for "What about food, then, Mr. itation, reflection, analysis, synthesis publication in the forthcom­ LaTourneau?" and practice-then, Mr. LaTourneau, ing STANFORD LAW ALUM. "Sir?" if you're fortunate, you may experi­ "Food, Mr. LaTourneau, food. ence a sudden blinding glimpse of the Food is abundantly advertised such obvious. Then you can read Salmond that people are induced to over­ and others and hope to capture some indulge, causing premature cardiac measure of insight. Well, Mr. LaTour-

FALL 1993 STANFORD LAWYER 17 THE TEMPEST-ToSSED

New groups ofrefugees and asylum-seekers test our historic generosity ofspirit

by Bill Ong Hing Associate Professor ofLaw

~he spectacle-some might say, 1 ~pectre-of boatloads of Chin­ ese at America's shores has fueled the controversy over our refugee policies and contributed to the debate over the impact of immigrants on our soci­ ety. Arguing that our borders are far too porous, some policymakers have rushed to attack the refugee and asy­ lum system under which an increas­ ing number of emigres are seeking admittance. Such proposals include summary screening, a higher burden of proof for asylum, and no judicial review. My purpose here is not to ad­ dress the details of these proposals but rather to offer some background on issues related to the refugee and asylum system. We should, I believe, stop and consider before raising fur­ ther barriers against people whose lives may be at stake. The United States takes consider­ able pride in its long history of pro­ viding refuge to foreign nationals displaced by the ravages of war or persecuted by totalitarian govern­ ments. As early as 1783, President George Washington proclaimed, "The bosom of America is open to re­ ceive not only the opulent and re­ spectable stranger, but the oppressed

18 STANFORD LAWYER FALL 1993 and persecuted of all nations and reli­ seeking Lithuanian seaman to his The parole authority was also used gions." For two centuries kindred Soviet ship. to admit more than 15,000 Chinese statements by leaders and citizenry Despite these tensions, policy­ who fled mainland China after the have helped project, even if they did makers showed every sign through 1949 Communist takeover and more not always accurately reflect, a cer­ the early 1970s of being satisfied with than 145,000 Cubans who sought tain national generosity of spirit. their system of policies, laws, and ad refuge after Fidel Castro's 1959 coup. This generosity has often allowed hoc decisions. As they saw it, when­ Satisfaction of policymakers exceptions to existing policies on ever large numbers of deserving with the status quo began to evapo­ immigration from particular coun­ refugees appeared, new legislation rate with the upsurge in Asian immi­ tries or regions of origin. Thousands could be enacted or existing laws and gration that started in the mid-'70s. of refugees, sometimes hundreds of regulations manipulated. That sort of The watershed event was the fall of thousands, were escorted here by an flexibility in a legal regime was, to Saigon in April 1975. Initially, the array of congressional acts that, on their minds, desirable. It also permit­ United States merely wanted to evac­ an ad hoc basis, superseded nation­ ted policymaking consistent with uate the approximately 17,600 al quotas. Prominent among these their political preference for refugees American dependents and govern­ was the 1948 Displaced Persons Act, from Communism. ment employees. However, to invoke which enabled 400,000 refugees and numerical restrictions in the midst of displaced persons to enter, mostly a controversial and devastating war from Europe. The 1953 Refugee Re­ would have been unconscionable, lief Act admitted 200,000 refugees, and evacuees soon also included including 38,000 Hungarians and Refugee law and former employees, some 4,000 or­ about 2,800 refugees of the Chinese phans, 75,000 relatives of American Revolution. citizens and residents, and 50,000 Refugee migration to the United policy has reflected Vietnamese government employees States finds its origin in the noble pur­ and officials. Between April and suit of a humanitarian foreign policy. December 1975, the United States In passing the Displaced Persons Act, the tensions between thus admitted 130,400 Southeast Congress declared: "It is the historic Asian refugees, 125,000 of whom policy of the United States to respond were Vietnamese. to the urgent needs of persons subject humanitarian aims The exodus did not stop there. By to persecution in their homelands, 1978 thousands more were admitted including, where appropriate, hu­ under a series of Indochinese Parole manitarian assistance for their care and practical Programs authorized by the attorney and maintenance in asylum areas [,] general. Following the tightening of ... admission to this country of refu­ Vietnam's grip on Cambodia, several gees of special humanitarian concern domestic and inter- hundred thousand "boat people" and to the United States, and transitional many Cambodian and Laotian assistance to refugees in the United refugees entered. In fact, annual ar­ States." national concerns rivals of Southeast Asian refugees This rhetoric notwithstanding, increased almost exponentially: refugee law and policy has reflected 20,400 in 1978; 80,700 in 1979; and the tensions between humanitarian 166,700 in 1980. aims and practical domestic and in­ The unpredictable numbers of ternational concerns. In the 1930s, A closer look at the basic struc­ Southeast Asian refugees provided for example, the United States turned ture of the system and the policies part of the impetus for reform and, away thousands of Jews fleeing Nazi that informed it bears witness to ultimately, passage of the 1980 Re­ persecution, in large part because of this ideological bias. Consider the fugee Act. The new law provided the powerful restrictionist views then 1952 McCarran-Walter Act, which two tracks for admission to the dominating immigration laws. A granted the attorney general discre­ United States. The first gives the 1939 refugee bill that would have res­ tionary authority to "parole" into the President power to admit refugees cued 20,000 German children was United States any alien for "emergent who are outside the United States, defeated on the grounds that the chil­ reasons or for reasons deemed strictly while the second relates to procedures dren would exceed the German in the public interest." Although the by which aliens in the U.S. or at ports quota. And in 1972 the U.S. Coast original intent was to apply this pa­ of entry may apply for asylum. To Guard and Naval intelligence, con­ role authority on an individual basis, obtain either refugee or asylum fused over proper asylum procedures the 1956 Hungarian refugee crisis led status, a person must establish a and indecisive in the face of conflict­ to its expanded use to accommodate ing objectives, returned an asylum- those fleeing Communist oppression. Continued on page 52

FALL 1993 STANFORD LAWYER 19 A new section ofreadings. Impressed by the richness ofthought among members ofthe greater Stanford Law community, we present this sampling.

genocide; about whether to intervene Ultimately when our vital inter­ The Question for purposes that are quite different ests are at stake, we will always re­ from the traditional mission of our serve our option to act alone. As [the of Force armed forces-purposes such as President] has said, our motto in this peacekeeping, peacemaking, humani­ era should be: "together where we by Hon.Warren Christopher '49 tarian assistance, evacuation of can; on our own where we must." Americans abroad, and efforts to have spent a good portion of my combat drug smuggling and terror­ Christopher is the U.S. Secretary of I life practicing various forms of ism. While there is no magic formula State. From his prepared statement diplomacy, negotiation, and problem to guide such decisions, I do believe for his confirmation hearing before solving, from the effort to secure the that the discreet and careful use of the Senate Committee on Foreign release of the American hostages in force in certain circumstances-and Relations, January 13-14,1993. Iran, to responses to urban unrest and its credible threat in general-will be police brutality, to the practice of law essential to the success of our diplo­ over four decades. I have argued, and macy and foreign policy. Although still believe, that diplomacy is a ne­ there will always be differences at the glected imperative. I believe we must margin, I believe we can-and apply new dispute resolution tech­ must--eraft a bipartisan consensus in niques and forms of international ar­ which these questions concerning the bitration to the conflicts that plague use of force will no longer divide our the world. nation as they once did. I also know from experience that However, we cannot respond to nations do not negotiate on the basis every alarm. I want to assure the of goodwill alone; they negotiate on American people that we will not the basis ofinterests, and therefore on turn their blood and treasure into an by Prof. John H. Barton '68 calculations of power. As I reflect on open account for use by the rest of the our experience in the Cold War, it is world. We cannot let every crisis be­ e need to build a link for citi­ clear that our success flowed from come a choice between inaction or Wzens into the United Nations our ability to harness diplomacy and American intervention. It will be this system. The U.N. system is a system power together-both the modern­ administration's policy to encourage of nation states and provides essen­ ization of our forces and negotiations other nations and the institutions of tially no role for a representative in­ for arms control; both advocacy for collective security, especially the put from the populations of nations. human rights and covert and overt United Nations, to do more of the Yet the world has moved on to a opposition to Soviet expansionism. world's work to deter aggression, re­ much more complex pattern of In the years to come, Americans lieve suffering, and keep the peace. In sub-national, trans-national, and will be confronted with vexing ques­ that regard we will work with supra-national interests and link­ tions about the use of force-deci­ Secretary General Boutros Ghali and ages-and these interests and link­ sions about whether to intervene in the members of the Security Council ages are particularly important in the border disputes, civil wars, outright to ensure the U.N. has the means to development, environment, and eco­ invasions, and in cases of possible carry out such tasks.... nomIC areas.

20 STANFORD LAWYER FALL 1993 Europe has already responded to these concerns. The European Com­ munities have a Parliament, once cho­ sen by national parliaments, now directly elected. Although weak, the Parliament has growing powers and has sometimes compelled signifi­ cant rethinking of a policy. And the Council of Europe has a Parliamen­ tary Assembly, chosen by national parliaments and responsible for a number of the most important European advances in human rights. Ultimately, the U.N. will be un­ able to function without such a body, possibly a popularly chosen "House of Representatives" to parallel the in­ stitutions that represent national gov­ ernments. In the meantime, we must explore more consensual approaches that might be available without Charter amendment.

Barton is Stanford's George E. Osborne Professor ofLaw. From his statement before the U.S. Commis­ sion on Improving the Effectiveness of the United Nations, January 25, .1993.

Elephants and National Sovereignty Alig Hand for Ginsburg by Raymond Bonner '67

by Prof. Gerald Gunther OSt scientists and conserva­ tolerate Canadians or French­ Mtionists believe that culling men, let alone Africans or Asians, uth Ginsburg was my student at [elephant herds] is sometimes telling them how many bison RColumbia Law School. She was a necessary for ecological rea­ there ought to be in Central brilliant student; she demonstrated sons-to save trees and forests, to Park? Many Americans do not extraordinary intellectual capacities, preserve other species, and, how­ even want their own government as she has in everything she has un­ ever daft it may sound, even to interfering.... This view echoes dertaken throughout her life. save elephants.... the sentiments that many In my close attention to Ruth's [But] what if Zimbabwe Africans have about elephants career over the years, especially her decided to cull elephants for no and other wild animals-they judicial career, some of Judge scientific reason whatsoever, but might be wonderful, and even Learned Hand's words often come to simply because Zimbabweans worth conserving, but not near mind as aptly describing Ruth Bader were complaining that there were my farm. Ginsburg. Hand once said that the too many elephants? Can one prime condition of great judging is a imagine 50,000 black bears in Bonner has been a foreign corre­ "capacity for detachment." A great California, which is about the spondent for the New York judge, he also said, acts "with pa­ size of Zimbabwe? The issue is Times and a staffwriter with the tience, courage, insight, self-efface­ not just numbers, but sover­ New Yorker. From his latest ment, understanding, imagination eignty: Does the international book, At the Hand of Man: Peril and learning." community have the right to tell a and Hope for Africa's Wildlife Ruth Bader Ginsburg, I am con­ country what to do about its (Alfred A. Knopf, 1993). vinced, possesses the ingredients, the wildlife? Would New Yorkers "moral" qualities, Hand thought es­ sential for greatness. She is also char-

FALL 1993 STANFORD LAWYER 21 ments under specified circumstances. To a majority ofJustices, parental in­ Expert Witnesses: volvement rules were justified by the "peculiar vulnerability" of adoles­ AProposal cence and the importance of preserv­ ing family ties. However, a minor by Dan 1. Burk, JSM '93 should be able to avoid consent and notice requirements by establishing everal factors in our adversarial in court either that she is sufficiently Slegal system currently work mature and well-informed to make against judges' ability to ascertain an independent decision concerning what is objective scientific evidence in abortion or that, even if she is imma­ particular disputes. first, the written ture, the abortion would be in her code of conduct governing lawyers' best interest.... professional behavior does not en­ Do petitions to bypass parental courage them to act impartially; it re­ involvement result in thoughtful quires them, instead, to act as zealous exercise of judicial discretion? Or advocates on their clients' behalf. should the resources consumed by The norms of the scientific com­ courts and counsel in bypass cases munity, by contrast, hold that scien­ Mon. Ruth Bader Ginsburg be directed to more productive tists are expected to recognize approaches, such as pregnancy pre­ meritorious ideas from whatever the vention? .. source, to present their findings in an acteristically sympathetic to the fact [The evidence is that judicial by­ unbiased manner, and to test new that the disputes before her involve pass procedures have not] usefully ideas rigorously before accepting human beings and that a court's rul­ contributed to adolescent decision them. In a court proceeding, however, ings have an impact upon those hu­ making. Of some 1,300 Massachu­ the norms of science are often quickly man beings. setts abortion cases involving peti­ superseded by those of law. The most I fully expect to criticize Justice tions to bypass parental consent, obvious reason for a scientist to aban­ Ginsburg's opinions on the Court­ courts found the adolescent to be ma­ don the norms of science is money. after all, that is my professional task. I ture in 90 percent of these cases and Working as an expert witness can be am confident, however, I will never in all but five of the remainder held extremely lucrative, and it is well have reason to doubt her integrity, that abortion was in her best interest. known among lawyers that experts her judicial temperament, and her an­ Four of those cases were either over­ can be found who will testify to al­ alytical abilities. turned on appeal or resulted in abor­ most anything if the price is right. tions authorized by another judge. The legal system's inability to Gunther is the William Nelson In the single case where the court manage scientific disputes results Cromwell Professor of Law at refused to permit termination of the largely from its inability to recognize Stanford and author ofa forthcoming pregnancy, the petitioner accom­ when scientists, for whatever reason, biography of the late judge Hand. plished that objective in another have at least temporarily traded the Excerpted from Prof. Gunther's state. Although the frequency of values of science for those of law. statement to the Senate judiciary adolescent abortion has declined in The most workable [proposed Committee, july 23, 1993, urging the Massachusetts since the implemen­ solution] would provide for judges, confirmation of judge Ginsburg to tation of consent requirements, rather than the parties to the dispute, the Supreme Court. almost all the decline appears attrib­ to recruit the experts and require the utable to an increase in out-of-state parties to pay for the expert's time. abortions. For a system of court-appointed Studies of other state notification experts to work, though, the judiciary procedures similarly find that all but a must have assistance in selecting the tiny percentage of bypass petitions experts. The most likely source for Going Through are granted. such assistance is scientific societies. By providing a roster of competent the Motions Rhode is a member of the Stanford experts in particular specialties and Law School faculty. From her chap­ subspecialties, these societies could by Prof. Deborah 1. Rhode ter, "Adolescent Pregnancy and playa major role in helping the courts Public Policy," in The Politics of deal with scientific issues. na series of cases during the Pregnancy, edited by Rhode and I late 1970s and early 1980s, the Annette Lawson (Yale University Burk, a 1992/93 teaching fellow at Supreme Court held that states could Press, 1993). the School, is a biologist as well require parental consent or notifi­ as a lawyer. Adapted from "When cation for abortion services to minors Scientific Norms are Abandoned in as long as adjudicative procedures the Courtroom," Chronicle of were available to bypass such require- Higher Education, March 17, 1993.

22 STANFORD LAWYER FALL 1993 The U.S. Senate tries President Johnson

Two Impeachments that Shaped America

by Hon. William H. Rehnquist '52

he Constitutional Convention and evil, when customary re­ both sides of the aisle in each case, T[made] two original contribu­ straints must be cast off in order but each time enough members of tions to the art ofgovernment. The that evil may not triumph.... the majority party balked at the first was the idea of a presidential, Provisions in the Constitution for demands for party unity to acquit as opposed to a parliamentary, sys­ judicial independence, or provi­ both Chase and Johnson.... tem of government, wherein the sions guaranteeing freedom of The importance of these two executive is chosen by the elec­ speech to the president as well as acquittals in our constitutional torate and is not dependent upon others, suddenly appear as obsta­ history can hardly be overstated. the confidence of the legislature for cles to the accomplishment of the We rightly think of our courts as his office. The second was the con­ greater good.... the final voice in the interpretation cept of an independent judiciary, The framers, and the authors of our Constitution, and therefore with the authority to declare in­ of The Federalist Papers, had not tend to think of constitutional law valid acts ofthe legislature that ex­ envisioned political parties as we in terms of cases decided by the ceeded the limits imposed by the now know them. But they were courts. But these two "cases"­ Constitution. The first of these was very much on the scene by 1805, decided not by the courts but by threatened by the impeachment and even more so in 1868. Would the United States Senate-surely and trial of Andrew Johnson in the dominant role played by politi­ contributed as much to the mainte­ 1868, and the second was threat­ cal parties make the Senate a parti­ nance of our tripartite federal sys­ ened by the impeachment of san tribunal, which would be tem of government as any case Samuel Chase in 1805. willing to undermine the funda­ decided by any court. Both proceedings took place mental principles of the Constitu­ at a time when the United States tion in order to remove a political Rehnquist is Chief Justice of the was undergoing a sea change in its enemy from office? ... U.S. Supreme Court. From his political beliefs.... At such times it Remarkably, in each of these book, Grand Inquests: The Histor­ is easy for those heavily engaged in two cases, the answer to that ques­ ic Impeachments of Justice Samuel the struggle to see it as an apoca­ tion proved to be no. There were Chase and President Andrew lyptic confrontation between good undoubtedly political partisans on Johnson (William Morrow, 1992).

FALL 1993 STANFORD LAWYER 23 speaking employees. Can Unions American Workers, Whether, and under what cir­ cumstances, the practice of rotating ComeBack? Foreign Owners managers violates existing American law is unclear. What is clear is that the by Prof. William B. Gould IV by Eileen M. Mullen '93 policy poses complex questions for American EEO jurisprudence. he decline of the labor move­ any Japanese corporations American antidiscrimination law is Tment-a kind of free-fall descent Mhave a practice of rotating based on a domestic model, which as­ during the 1980s and 1990s-has Japanese managers from Japanese sumes that employment discrimina­ made workers more vulnerable than parent corporations into executive tion in the United States emanates at any time since the Great Depres­ and managerial positions in Ameri­ from the policies of American em­ sion of the 1930s. The plight of many can subsidiaries. Rotated managers ployers and that discrimination based workers coupled with the inability typically remain at their American as­ on citizenship will be against foreign­ of unions to represent them at the signments for three to six years before ers, not American citizens. bargaining table is a volatile com­ returning to Japan. Current antidiscrimination law bination. It is one that erodes the The policy of rotating managers offers no guidance as to whether fabric of democratic institutions and is just one example of ASJF [Ameri­ American courts should attempt to is thus profoundly worrisome to all can subsidiaries of Japanese firms] protect American workers from prac­ who value pluralism and a system employment practices that Ameri­ tices which appear exclusionary but of checks and balances in the work­ cans allege discriminate in favor which originate on foreign soil, and if place. of Japanese personnel and prevent so, how courts might provide such Can unions come back? Only a Americans from rising within protection. confl uence of factors can bring this the ranks of management. ASJFs These are uncharted waters for about. The first is a friendly adminis­ have also been accused of excluding the domestic model of EEO juris­ tration, like Roosevelt's New Deal in Americans from corporate decision­ prudence. the 1930s which provided help to the making, giving Americans titles with­ unions in the midst of the Great out authority, and maintaining Mullen graduated from Stanford Depression, and legislation designed separate career paths for American Law School in June. Adapted from to promote both collective bargaining and Japanese employees. her note, "Rotating Japanese Mana­ and industrial democracy. Critics maintain that ASJFs gers in American Subsidiaries of The second is the unions them­ exclude non-Japanese employees Japanese Firms: A Challenge for selves. They must rid themselves of from the decisionmaking process by American Employment Discrimina­ their lethargy and radically restruc­ inviting only Japanese managers to tion Law," Stanford Law Review, ture their organizations along the attend business meetings, conducting Vol. 45, No.3 (February 1993). lines of early industrial unions. This meetings in Japanese without provid­ of course is unlikely to happen unless ing translation, withholding informa­ some external force, economic or tion from non-Japanese employees, otherwise, prods them to do so. and discussing business during after­ Economic history in this century sug­ hours socializing open only to Japa­ gests that the dramatic ebbs and flows nese personnel. Health Care of the economy coincide with the Moreover, Japanese employees growth and decline of the unions. at ASJFs have complete job security, Reform: A cautionary note is in order. while Americans are employed at While there is no evidence that unions will. The result, according to critics, is ANote of Caution can come back and reverse their that American employees bear nearly downward movement in this century, all of the burden when the firm seeks by Prof. Henry T. Greely it is quite possible that unorganized to reduce its workforce. workers, less well protected than Establishing that these prac­ Editor's note: The developing battle their union counterparts in difficult tices occur, however, does not mean over health care financing gives cre­ economic circumstances, may be that they necessarily violate Amer­ dence to these 1991 predictions. storing away a resentment that will ican law. Foreign-owned companies explode in coming years. operating in the United States et's start with three hard truths may be exempt from Title VII juris­ l and one bleak scenario. Gould is the School's Charles A. diction by virtue of bilateral commer­ The first hard truth is that Beardsley Professor ofLaw. Adapted cial agreements. Furthermore, significant reform has to come from from his latest book, Agenda for the employment practices may not the federal government. Washington Reform: The Future of Employment contravene Title VII. Americans retains exclusive control over em­ Relationships and the Law (MIT would probably expect an American ployment-related health insurance. Press, 1993). firm located in another country­ The second hard truth is that France, for example-to depend on a passing any meaningful reform at cadre of high-ranking, English- the federal level will be difficult.

24 STANFORD LAWYER FALL 1993 In Washington, the center of political some strategic aspects of the process attention, the stalemate is very well to the medical profession, to insur­ The Ultimate protected. ance companies, to large and small The third hard truth: any pro­ employers, and to public interest Will Battle gram is only as good as its implemen­ groups. Those groups, and only those tation. groups, will participate in the imple­ by David Margolick '77 These hard truths lead to one mentation of the program, each to possible scenario. Sometime in the guarantee continuance of its own hen Seward Johnson, Sr., pos­ next decade, responding to ever power. The legislation's fine print Wsessor of the Johnson & louder cries of pain from the middle about implementation will guarantee Johnson millions, died in May 1983, class about diminishing access and that the process of providing medical he left his third wife, Basia, virtually from business about increasing costs, care will continue much as before. all of his $400 million fortune; but the federal government will institute The hard questions-about what we she secured it only after battling her a major reform of the health care mean by a right to medical care, six stepchildren, the bitter fruits of financing system. It will either adopt a about how we should confront the the old man's two prior marriages. Canadian-style single payer system of scarcity of resources that requires The will contest was the largest, national health insurance, or, more some form of rationing, about how costliest, ugliest, most spectacular, likely, will require employers to cover medical care should be organized and and most conspicuous in American their workers and dependents while provided-will never have been an­ history. There was a huge set of play­ building a social safety net for the swered. ers: lawyers from several of New rest. The President and Congress will York's most illustrious law firms, wit­ fight over who is to get credit for Greely is a member of the Stanford nesses, family members, jurors, and a this breakthrough, the crisis will be Law School faculty. Adapted from judge who was self-made, street­ "solved," and the system will soon be "The Future ofthe American Health smart, and almost entirely out-of­ in worse shape than ever. Care System: An Introduction to the control. In many ways the contest The compromises necessary for Health Symposium" in Stanford Law was less between Johnsons than be­ passage will have given control over & Policy Review, Fall 1991. tween the people, variously strong­ willed, determined, or opportunistic, who had annexed themselves through marriage to their fortunes and the lawyers who had annexed themselves to them. Faced with a se­ Act of Courage ries of unfriendly wills spanning more by Dennis deLeon '74 than twenty years, the aggressive, ruthless lawyers Seward's offspring and their spouses hired set out to or four years, I have been If more people proclaim their make the experience so traumatic, so Ftorn about when and how to H.LY. status, we will change the embarrassing, so humiliating, for say publicly that I carry H.LV., way society treats persons with Basia that she would cry "uncle" to the virus that causes AIDS. There the virus. My hope is not based her stepchildren and pay them-and were always too many com­ on any expectation that discri­ handsomely-just to go away. pelling reasons not to say any­ mination will end tomorrow but The Basia that emerged from the thing. Every such excuse started on a sense that it is good to show case was alternately compassionate with the word "fear"-fear of society that people with H.LV. and cruel, cunning and naive, loyal employment discrimination, fear are leading productive lives and and fickle, generous and selfish, ex­ ofthe politics ofAIDS, fear of be­ will tenaciously resist attempts plosive and meek, articulate and coming a pariah.... Would I be at exclusion.... tongue-tied, helpmate and tormentor, evaluated on my merits if I Every time the public sees cheerful country girl and urbane sought to be a judge, a law firm one more person with the virus shrew. But Basia survived what she member or a government ap- leading a productive life, the called her"American hell," and pomtee. ....;l possibility of eliminating AIDS­ emerged as one of the world's wealth­ Given all these reasons for based bigotry becomes more iest women. not going public about the dis­ tangible. ease, why come out? Why put Margolick writes the "At the Bar" my professional and economic DeLeon is New York City's legal column for the New York Times. life in jeopardy? Why subject my Human Rights Commissioner. Adapted from his book, Undue partner of 15 years (who is H.LV. From an op ed, "My Hopes, My Influence: The Epic Battle for negative) to possible reprisals Fears, My Disease," in the New the Johnson & Johnson Fortune just for living with me? York Times, May 15,1993. (William Morrow and Company, The simple answer is hope. 1993).

FALL 1993 STANFORD LAWYER 25 Some Pleasures of Law Practice

by Saul Cohen '53

uch has been written lately Supplement or the Pocket­ Mabout the pain of law prac­ Part and finding that the law The Americans tice. Surveys show lawyer dissat­ has been changed and that the isfaction with their careers to be change applies to your case. Are Coming widespread and large numbers of • Reviewing an associate's lawyers who would change ca­ pleading and suggesting by Martin Kimel '86 reers if they could. Aggravation changes that improve it with clients or opposing counsel markedly. ggressive American law firms is commonplace, and malprac­ • Coming up with a creative so­ Ahave descended upon the Conti­ tice suits multiply. lution to break an impasse at nent in search of new business con­ Are there no pleasures in the which all parties were facing nected with the economic integration practice of law? It seems to me enormous expense and stress. of Europe now under way.... By that there are, and I have tried to • Hearing the judge say that working seven-day weeks to impress list some in no particular order: your motion is granted. clients, the American firms are pres­ • Knowing that the argument suring the reluctant Brussels bar to • Being with other lawyers, a you just made was a good ar­ do the same.... good bunch on the whole. gument. Wonderful. The big New York­ • Following through on a line of • Waiting for the jury to bring based law firms already have largely inquiry without knowing in its verdict, and then having ruined the practice of law in America. where it will lead. them walk in with several Now they want to ruin it in Europe, • Being a champion for some­ jurors looking at you and too.... Paying huge salaries to their one who is unable to fight his smiling. new recruits, these firms need to or her own battle. • Getting a substantial new squeeze every billable hour possible • Helping someone make his or client with an interesting case out of their associates. To do so, her dream come true. and the ability to pay a sub­ these firms thrive on creating a crisis • Being asked by a lawyer or stantial retainer when you are atmosphere even when no crisis firm to represent them. sitting at your desk wonder­ exists. • The compliment implied in ing if anyone will ever call Since at least the Renaissance, being asked to act as an arbi­ agam. Europeans have been willing to wait trator or mediator. • Being told that some client until Wednesday-or even the fol­ • Finding the right case, one on had spoken very highly of lowing week (queUe horreur!)-for a all fours with your case. If it's you, or that someone said you legal opinion. Now, apparently, they an opinion by an important handled a matter brilliantly, must be convinced that they need the court, or even the Supreme or that your reputation was work completed over the weekend. Court, so much the better. certainly good. As a result, instead of leisurely • Having a colleague ask you a • Making a substantial contri­ strolling about Brussels' Grande question and being able to re­ bution to your community. Place or visiting Paris for the week­ fer her to the exact case or • If you went to certain law end, a young lawyer will get to spend statutory provision she needs. schools, telling someone Saturday and Sunday inside a law li­ • Giving good advice to clients, where you went to school. brary. The old saying has it that especially when the client Americans live to work, while Euro­ knows you are giving good Cohen is a partner in Sutin, peans work to live. For European advice. Thayer & Browne of Santa Fe, attorneys who value their five-week • Being told by clients that re­ New Mexico. Adapted from "A holidays and time away from the of­ gardless of the result, they are Leisurely, Unfootnoted Essay on fice, there is real cause for concern.... pleased with the job you did. the Pleasures of Law Practice" Absent action, it is likely that the •N egotiating a settlement in the Bar Bulletin of the State relatively laid-back European coun­ when your client would have Bar of New Mexico, June 4, selors will pass the way of the Austro­ been willing to pay more or 1992. See also "The Pleasures Hungarian Empire. accept less. of Law Practice," ABA Journal, • Being told that the law is June 1993. Kimel practices law in Washington, against you, but checking the D.C. From his article, "Invasion of the Superlawyers," in the Daily Journal, January 12,1993.

26 STANFORD LAWYER rALL 199.1 Stellar recruit Kathleen Sullivan Here to Stay

ovements of profes­ Msors from one law school to another are not usually grist for the media. But the decision of Kathleen M. Sullivan to leave Harvard for Stan­ ford was carried on the Associated Press wire and explored in lengthy news­ paper articles-not to mention lamentations in the Harvard Crimson and Harvard Law Record. The object of all this attention is a prodigious 38-year-old who has already published nUIner­ ous articles, been honored for her teaching, argued cases before the U.S. Supreme Court, testified on the Hill, and become Kathleen M. Sullivan influential in national poli­ cy debates as an op-ed writer and television news delighted it was recipro­ versity in England, earn­ of Appeals for the Second commentator. cated. The faculty and ing a 1978 bachelor's Circuit. From 1982 to Sullivan joined the Stan­ students are just ecstatic." degree with first-class 1984, she practiced law, ford Law faculty this Sullivan's explanation: honors in philosophy, doing appellate work in summer as a permanent, "Who could resist teach­ politics, and economics. constitutional law and tenured professor. A popu­ ing at a world-class law She received her law criminal defense cases. lar visiting professor here school in paradise?" degree cum laude from She began her teaching in the spring of 1992, she A native of Long Is­ Harvard in 1981, where career at Harvard as an leaves Harvard after nine land, New York, Sullivan she was the top oralist in assistant professor of law years on its faculty, the last graduated from Cornell the Ames Moot Court in 1984, rising to the rank four as a tenured professor. University in 1976 as a Competition. offull professor in 1989. Her decision prompted member ofPhi Beta Following graduation, Sullivan is currently at a delighted Dean Brest to Kappa. She then spent Sullivan served as a law work on a book about say: "The School fell in two years as a Marshall clerk to Judge James L. free speech, prompted by love with her, and we are Scholar at Oxford Uni- Oakes of the U.S. Court the recent dispute over

FALL 1993 STA FORD LAWYER 27 the National Endowment be better if it were less Supreme Court upheld explains, is "about getting for the Arts. This past homogeneous, if the the Bush Administration's students excited, about summer she addressed author's individual voice gag rule on the mention communicating my own another on-going debate were allowed to come of abortion at federally love of the subject to with a critique in the New through." supported family plan­ them." She habitually York Review ofBooks Sullivan's public ning clinics. Though on draws charts, matrices, (August 12 issue) of appearances range from the losing side in that spectrums, and timelines David Brock's controver­ testimony before the instance, she has worked on the chalkboard to sial The Real Anita Hill: Senate Judiciary Commit­ on the winning side of illustrate her points. The Untold Story. tee on Robert Bork's cases for clients from the Students like to tease her Gifted with a zesty, col­ Supreme Court nomina­ Commonwealth of Puerto about the homemade loquial prose style, Sulli­ tion, to endowed lectures Rico to the state of visual aids, she confesses, van writes as often for at universities here and Hawaii and the city of "but these things repre­ general publications like abroad, to expert com­ Berkeley. sent how I've organized the New York Times, I"os mentary on the influential Sullivan is also an un­ the concepts in my own Angeles Times, and New television programs, commonly effective pres­ mind." Republic as for scholarly MacNeil/Lehrer News­ ence in the classroom. At Sullivan began teach­ journals. hour and Nightline. Re­ Harvard, she was the first ing at Stanford this fall Her toughest editors freshingly unruffled in recipient of the Albert M. with a section of first-year are the students who run that often hot medium, Sacks-Paul A. Freund Criminal Law. Upper­ law reviews. "They tend she has proven herself a Award for Teaching class students will have to confuse intellectual lucid and engaging com­ Excellence. And as a visit­ their chance in the spring, rigor with sobriety," she mentator on Supreme ing professor at Stanford when the stellar scholar says. "But humor Court and First Amend­ Law School last year, will teach Constitutional shouldn't be banished ment issues. notes Dean Brest, she in­ Law II. 0 from scholarly writing­ Among the cases Sulli­ spired exceptional enthu­ just most of the footnotes. van has worked on is Rust siasm among students. Academic writing would v. Sullivan, in which the Her teaching, Sullivan

New faculty Mabry Brings World Trade and Business Experience

partnership in the San Instruments ofForeign she received a teaching Francisco law firm of Policy, published in 1987 fellowship and edited two Howard, Rice, Nemerov­ by the International Law scholarly journals on ski, Canady, Robertson Institute. international law before & Falk to join the faculty Mabry's experience in receiving her J.D. in on July 1 as an associate the international arena 1978. professor. She had previ­ includes a childhood in Mabry began her law ously spent the Autumn Brussels, a college year at career with a three-year 1992 term at the School Makerere University in stint in the federal gov­ as a lecturer. Uganda, and work as an ernment, first as an "Linda Mabry brings interpreter (French and attorney-adviser for the unusual international and Spanish) for the State State Department and legal strength to our fac­ Department. then as a special assistant ulty," says Dean Brest. After graduating mag­ to the general counsel of Linda A. Mabry "She will playa key role na cum laude in political the Commerce Depart­ in preparing our students science from Mount ment. She entered private for a future in which busi­ Holyoke College in 1973, practice in 1981, working he School's business ness, trade, and infor­ she earned a 1975 mas­ with two firms in Wash­ Tlaw program has ac­ mation are increasingly ter's in international af­ ington, D.C., before join­ quired a new asset in the global." fairs from the School of ing Howard, Rice in form of Linda A. Mabry, A noted practitioner, Advanced International 1987. an expert in international Mabry is also coauthor Studies atJohns Hopkins. Asked what attracted trade and commercial of a book-length treatise, She went on to law school her to an academic career, transactions. Mabry left a Export Controls as at Georgetown, where Mabry cites the "oppor-

28 STANFORD LAWYER FALL 1993 Votes ofconfidence the water law field. This Los Angeles firm of July, the California Law O'Meiveny & Myers as Review published his arti­ a trial attorney, becoming Thompson, Environmental Law cle on the role of local a partner in 1984. His water organizations in cases included litigation Leader, Wins Tenure and More shaping water policy. With regarding development Stanford researchers from of oil and gas resources in other disciplines, Thomp­ the Beaufort Sea, distri­ arton H. (Buzz) other innovative means son has also studied and bution of federal water BThompson, Jr., the of instruction, to give stu­ reported on how farming resources, taxation of architect of the School's dents an understanding of regions adjust to reduced petroleum resources, burgeoning curriculum in the complexity of issues in water supplies. insurance coverage for environmental and natur­ environmental law. The He generally favors asbestos-related injuries al resources law, has had a program under his direc­ more realistic pricing and and property damage, signal year. In January, he tion has embarked on a fewer subsidies for water. and cost overruns on received tenure and a pro­ number of ambitious initia­ "Economics is one of the nuclear power facilities. motion to the rank of pro­ tives, including the devel­ most powerful tools we Thompson espouses fessor. Then in June, the opment of new interactive have for influencing be­ the same broad-based graduating students pre­ teaching materials; the pro­ havior," he said in a recent approach to the practice sented him with the 1993 motion ofenvironmental interview (STANFORD ofenvironmental law as John Bingham Hurlbut partnerships among busi­ LAWYER, Fall 1992). "We he does to its teaching. In Award for excellence in ness, government, envi­ should use it unless it has his keynote address at the teaching. ronmental groups, and very inequitable conse­ commencement exercises A seven-year member Stanford; and an environ­ quences." inJune (see pages 37-38), of the faculty (STANFORD mental law clinic. A third-generation he reminded graduates LAWYER, Fall 1986), Coauthor of the latest Californian, Thompson that effective advocacy is Thompson seeks, through edition of a leading case­ received his law and not a matter of simply liti­ interdisciplinary and book, Legal Control of M.B.A. degrees at Stan­ gating, but also ofeducat­ Water Resources, Thomp­ ford in 1976, and went on ing, seeking coalitions, son was recently referred to clerk for Supreme Court and forging compromise to by the Los Angeles ChiefJustice William through alternative dis­ DailyJournal as one ofthe Rehnquist. pute resolution. 0 "movers and shakers" in He then joined the

tunity to reflect on issues on a deeper level. Know­ ing something to practice is different from knowing it to teach," she observes. "I have spent much of the last ten years representing U.S. and foreign high­ technology companies in outbound and inbound trade and investment transactions. Now I have a chance to step back from the details ofspeci­ fic cases and think about the broader principles and implications." Mabry says she is "thrilled to be returning to academia, where as a student I had some of my most challenging and re­ warding experiences." 0 Barton H. (Buzz) Thompson, Jr. '76

FALL 1993 STANFORD LAWYER 29 In business Lazier, Munger Professor, Tells It Like It Is

companies and real estate professorship in 1989 management. He is also (STANFORD LAWYER, the coauthor with James Spring 1990), is himself C. Collins of Beyond an eminent business exec­ Entrepreneurship (Pren­ utive and investor. Also an tice-Hail, 1992) and of a attorney (Munger, Tolles forthcoming text from & Olson of Los Angeles), Irwin Press on managing he is currently the vice­ small companies. chairman of Berkshire Lazier's contributions Hathaway, chairman of to Stanford include serv­ several of its subsidiaries, ing on the board of the and chairman of the Daily Stanford Bookstore. In Journal Corp., which pub­ the community, he and lishes two leading legal his wife, Dorothy, are newspapers and Califor­ known for their support nia Lawyer magazine. ofTheatreWorks ofPalo Munger serves on the Alto, the San Francisco School's Law and Business Ballet, and Interplast, the Advisory Council and the international medical Dean's Advisory Council. outreach program. Lazier Nancy Munger is a also serves as chairman of Stanford graduate in eco­ the board of his under­ nomics (AB, magna cum graduate alma mater, laude, 1945). A dedicated Grinnell College. volunteer for both her community and her alma William C. Lazier NANCY AND CHARLES mater, she has, among MUNGER other activities, served as Charles Munger, who a ten-year member and nvestor William C. with the United States with his wife, Nancy, vice-president of the Stan­ I Lazier, teacher since Filter Corporation, Light­ endowed the Munger ford Board ofTrustees. D 1991 of the eye-opening craft ofCalifornia, and course, "What Lawyers Arthur Andersen & Co. Should Know About "To excel as a business Business," has been pro­ lawyer, one must under­ moted from visiting pro­ stand the world of busi­ Promoted fessor to Nancy and ness from the perspective Charles Munger Professor of the clients one coun­ ofBusiness. sels," Lazier explains. To Professor Fried Lazier brings to the that end, his course covers, classroom the real-world in compressed form, many Sheds Light on Taxation perspective that the Mun­ of the basic business sub­ gers hope to see imparted jects, such as finance, mar­ to the business lawyers of keting, production and ax expert and legal the­ the Progressive-era law the future. General partner operations, organizationaI Torist Barbara H. Fried and economics move­ ofBristol Investment, structures and human re­ became a tenured profes­ ment, focusing on the which he founded in 1971, source management, and sor this June. A Harvard work of Robert Hale Lazier also chairs the competition and strategy. law graduate, she joined (1884-1969). Hale, she boards oftwo metal­ Holder of a 1957 the faculty in 1987 after explains, was a lawyer products manufacturers: M.B.A. from the Stanford three years with Manhat­ and economist best American Security Pro­ Graduate School ofBusi­ tan's Paul Weiss Rifkind known to contemporary ducts, which makes safes, ness, Lazier was a popu­ Wharton & Garrison. legal scholars for his and Columbia Products, lar teacher at the GSB Fried has just complet­ groundbreaking theoreti­ maker ofstainless steel throughout the 1980s, ed a four-year research cal work on economic sinks. Earlier in his career, conducting classes in the and writing project: an coercion and property Lazier held executive posts management of smaller intellectual history of rights. He also wrote

30 STANFORD LAWYER FALL 1993 eral appeals court clerk­ ship and three years with the New York firm doing tax work. At various times also an instructor at the Simmons College Graduate School ofMan­ agement and a research associate at Harvard Business School, she brought a range of skills to her adopted career as a Stanford law teacher (STA FORD LAWYER, Fall 1987). Fried's classroom per­ formance won her the 1991 John Bingham Hurl­ but Award for excellence Barbara H. Fried in teaching. She tries, she says, to encourage stu­ dents to "push on argu­ extensively on puhlic utIli­ few years. Her writings best to finance it. The cur­ ments-whatever their ty rate regulation, an area include an article in the rent tax phobia leads to source-until they have that, she says, "became a May 1992 Stanford Law bad tax policy, forcing satisfied themselves whe­ primary battleground for Review, "Fairness and the politicians to opt for ther those arguments hold working out the appropri­ Consumption Tax." taxes that are obscure, water." And whatever her ate limits ofgovernment Asked what she consid­ rather than efficient and students' eventual pursuits, control of private proper­ ers the most important fair." she hopes that they become ty." Fried's book, Robert current issue with regard Harvard all the way, "better equipped to think Hale and Progressive to taxes, she says: "Whe­ Fried earned a B.A. about policy issues from a Legal Economics, is forth­ ther we can move the polit­ (magna cum laude) in societal perspective, so that coming from Harvard ical dialogue away from 1977, an M.A. in English they can act as quiet lead­ University Press. mindless anti-tax rhetoric, and American literature ers in both professional Contemporary taxation and towards thinking in 1980, and a J.D. and social circles." 0 questions have also occu­ about what we want gov­ (again, magna cum laude) pied Fried over the past ernment to do and how in 1983. Next came a fed-

Wednesday's children Professor Wald Goes to Washington

rafted by the Clinton other child welfare pro­ Dadministration this grams. This portfolio in­ summer, Michael S. Wald volves helping to direct is now Deputy General the work of some 700 Counsel of the Depart­ individuals, including 550 ment ofHealth and Hu­ attorneys. man Services. Professor A nationally known Wald is responsible for authority on family and dealing with legal issues juvenile law, Wald was a related to the Aid to Fam­ principal draftsman of a ilies with Dependent major statute, the Adop- Children program (AFDC) and to foster care and Contilllted on page 32 Michael S. Wald

FALL 1993 STANFORD LAWYER 31 tion Assistance and Child Board ofVisitors Welfare Act of 1980 (Public Law 96-272), which established a new structure for regulating Advisers Consider Innovations in the foster care system. Wald is also coauthor legal Education of the text, Protecting Abusedand Neglected as experienced outside Children (Stanford Uni­ attorneys and business­ versity Press, 1988), and persons. a recipient of the American Psychological Association LEGAL ETHICS Award for Distinguished In the first presentation of Contributions to the the annual meeting, Pro­ Cause of Child Advocacy. fessor Deborah Rhode dis­ In 1991, he conducted cussed the teaching of a study on the impact that legal ethics. Stanford, she California Proposition reported, is making pro­ 165 would have had on gress in integrating ethics children, and was credited into the core curriculum with helping to defeat the (the "pervasive" method). measure. This, she believes, is more "In modern terms, a so­ effective than teaching ciety's ability to function ethics solely as an isolated economically-its material Miles Rubin '52 Dean Brest subject. "The failure to wealth-depends upon the treat ethics as relevant human capital investment throughout the curriculum that is made in children," he practice of law is meeting was the Board's communicates a message he has observed (STAN­ Tbecoming more de­ 35th. Held May 6-7 at about ethics that a single FORD LAWYER, Spring manding, complex, the School, it was chaired course cannot remedy," 1988). "We are in a world interdisciplinary, and for the second year by she said. in which production turns international-as the Miles Rubin '52. Stanford has pioneered largely on the education recently concluded 2010 Dean Paul Brest began the pervasive approach, level and thinkingcapaci­ project of the Board of by welcoming the group with ethics units in such ties of the work force, Visitors made abundantly and noting the excellent substantive courses as con­ rather than on physical clear. How can Stanford turnout: 54 Visitors, com­ tracts, torts, criminal law, labor." He also warned: Law School in particular, prising 83 percent of and civil procedure. And "A society that doesn't and law schools generally, Board members. He Rhode herself is undertak­ invest in its children pro­ better prepare students praised the Visitors for ing to prepare a book of duces adults who will be for the challenges of the their dedication and for materials for the pervasive threats to society. So future? the unique contribution teaching ofethics that can there's a public safety in­ The Board began its they make to the School be used by law schools terest as well." consideration of this criti­ A memher of the law cal question at its 1992 faculty since 1967, Wald meeting-the last in the took a leave from his posi­ three-year 2010 series tion as Jackson Eli Rey­ (STANFORD LAWYER, Fall nolds Professor ofLaw 1992). The 1993 meeting to accept the HHS assign­ continued that work with ment. By a happy coinci­ a look at three areas previ­ dence, his wife, National ously identified as impor­ Resources Defense Coun­ tant: the teaching ofethics, cil attorney Johanna Wald, problem-solving and pro­ has just been awarded a fessional judgement, grant from the Pew and preparation for prac­ Scholars Program in tice. Also discussed was Conservation and the a resources question­ Environment, for research financial aid-with impli­ that she will pursue from cations for students' career the NRDC's Washington, choices. D.C., office. 0 The two-day annual Professor Rhode

32 STA FORD LAWYER FALL 1993 ------_.------

Board ofVisitors

throughout the country. vantage of these approach­ The Board expressed sup­ es, he said, is that they port for the School's lead­ demand a great deal of ership in this area. time from the faculty and also involve-at least PROBLEM·SOLVING where case studies must AND PROFESSIONAL be written-new costs. JUDGMENT In the discussion that Professor Barton (Buzz) followed, speakers af­ Thompson, Jr., addressed firmed that the study of Meeting participants the issues of how best to appellate opinions is still included Associate Dean Susan Bell teach problem-solving and useful. In addition, there (top left), and Board members Stephen Brown enhance professional judg­ was considerable enthusi­ '72 (top right) and Gary Williams '76 (above). ment. He observed that asm-particularlyamong the traditional appellate Board members with busi­ opinion method, while ness school experience­ effective for teaching first­ for the participatory had independently however, ways have been year students, may be less approaches Thompson reached the same conclu­ found to use high technol­ so for second- and third­ had described. sion. The School has since ogy for instruction on year students. obtained foundation fund­ skills and problem­ Thompson-a former INTERDISCIPLINARY ing for a series of interdis­ solving. Hurlbut Award winner POLICY STUDIES ciplinary research projects David Arfin, presi­ who heads the School's Ellen Borgersen, the Asso­ in which law students dent of the CLE Group of developing Environ­ ciate Dean for Academic work on real public policy Menlo Park, was invited mental and Natural Re­ Affairs, followed with a problems with students to demonstrate an inter­ sources Law Program­ discussion of problem­ and faculty from other active video package advocates the use of solving in the context of schools and with policy­ designed to teach practi­ innovative approaches, broad policy issues. She makers in the field. cal courtroom skills. such as business-school­ recalled the suggestion by "You know you're onto Developed largely at style case studies, negoti­ an outside speaker at the a good idea," Borgersen Stanford (STANFORD LAW­ ation games, and full­ 1990 Board meeting that remarked, "when lots of YER, Spring/Summer fledged simulations of the best way to train stu­ people have it at the same 1989), the eight lessons disputes. He said he has dents to think in policy time." combine computer and found that this encourages terms is to offer direct laser disc technology to creativity and originality experience 111 examIning COMPUTERS IN TEACHING allow users to take part in the students, while both prohlems and designing Computers have long been in simulations of trials. teaching them the law and policies to help solve them. known as an effective Arfin concluded by helping them to develop A number of Stanford means ofconveying bodies saying that interactive vi­ vital skills. The only disad- Law School professors of information. Recently, deo is the state of the art

FALL 1993 5TA FORD LAWYER 33 Board ofVisitors

Professor Gordon in training for legal skills. Ronald Rosen '57 He hopes that by 1995 all law students and practic­ ing attorneys will have for less income, in ex­ access to this tool. change for more time for community work and PREPARATION FOR family. PRACTICE Furthermore, said one Professor Robert Gordon Visitor, pro bono work moderated a discussion can sometimes be good designed to solicit in­ for business, whether as a sights from the Board of type of training or as a Visitors on significant way to make contact with developments in the prac­ potential clients. tice environments of the Several Board members Board members also present and future. He observed that public inter­ discussed the issue ofskills asked, "What changes asked the Visitors to con­ est and pro bono work are training, and the fact that have major implications sider what law schools can not financially viable op­ law firms today seem to for how best to prepare do to revive the public tions for many of today's have less time for teaching young attorneys for prac­ interest role of the profes­ graduates, given their edu­ and mentoring new asso­ tice?" sion. A majority of stu­ cation debt burden and the ciates. Some Visitors Gordon-who is dents enter Stanford Law demand for billable hours. wanted to see more specif­ himself engaged in re­ School with public inter­ Practitioner James ically vocational training search on the legal profes­ est, public service inten­ Gansinger '70 sparked in law schools, while oth­ sion in the United States tions-on a pro bono considerable interest with er members felt strongly and, more particularly, basis, if not full-time-he his description of an alter­ that-eonsidering the ra­ the entrepreneurial Sili­ noted. It would be good native compensation pidity ofchange today­ con Valley-suggested if more channels could be model: his Los Angeles law students most need three such changes: a found for people to ex­ firm pays associates on an the general training often decline in the amount of press such aspirations. hourly basis, which allows termed "learning to think on-the-job training for This observation stim­ them more independence like a lawyer." beginning lawyers; the ulated one of the liveliest in choosing how they util­ Former assistant dean growing internationaliza­ discussions of the annual ize their time and how Robert Keller '58 suggest­ tion of law practice; and meeting. Speaking from much pro bono work ed that the School should more multidisciplinary their diverse experiences (or family involvement) provide each student with practice, where lawyers of the pressures and struc­ they want or can afford. an in-depth understand­ are working closely with ture of modern-day law Professor Gordon ing of some specific area accountants and other practice, the Visitors vari­ noted that the almost uni­ of the law. He also advo­ non-law experts. ously offered discourage­ form sentiment of students cated an emphasis on the The professor also ment and hope. is that they would settle pragmatic, pointing out

34 STANFORD LAWYER FALL 1993 Board ofVisitors that law is not just a tool, but also a way to solve people's problems. Professor Gordon con­ Justice Durham Speaks of cluded with thanks to the Board for their perspec­ 'Big Picture' Issues tives. "Perhaps," he said, "we will eventually de­ velop several different pro­ system for the future by obtaining decisions-in totype models for the legal pointing out the deficien­ the face ofenvironmental profession." cies of the current one. " and other laws and regu­ The jurist called for "a lations at various levels DEAN'S REPORT recommitment to the cen­ ofgovernment-on pro­ Paul Brest provided the tral value and morality of posed construction or Board with an update on our system-justice. I other alterations. developments at the greatly fear that we have Alternative dispute re­ School since the previous lost sight of this guiding solution has become in­ year's meeting. This force, burying its mean­ creasingly essential in included the news oftwo ing under a morass of managing the flood, she notable additions to the complicated procedures said-"in fact it would be faculty: Kathleen Sullivan Hon. Barbara Durham'68 and bureaucracies." difficult to function with­ (regarded by some, he Among the problems out it." Nonetheless, she said, as "the best teacher popular feature of she cited are the multipli­ observed, "it is impor­ at Harvard Law School"), Arecent Board of cation oflaws and rules tant to fully realize what an expert in constitutional Visitors meetings are the involving the "drug war" ADR is: a living, breath­ law; and Linda Mabry, a dinners, hosted by the and the current "crime of ing acknowledgment that partner at Howard, Rice, members ofthe Board, the week." Twenty years our justice system, while Nemerovski, Canady, for the first-year class. ago, she pointed out, not failing, is at least Robertson & Falk, who The now-annual event criminal cases accounted faltering. " will teach international welcomes the lawyers-to­ for only 40 percent ofa Justice Durham's mis­ business transactions. be to the fellowship of the trial court's docket, while sion in speaking to the (See pages 27 and 28.) profession and allows today they average 65 students was, she said, He also noted that Board members to learn percent. Even so, justice is "to challenge you to Robert Mnookin, devel­ more ofthe concerns and neither swift nor certain, question the way things oper ofthe School's alter­ interests ofthe newest and "the endless appeal are, so that you can influ­ native dispute resolution crop of law students. ofcriminal convictions is ence the way things will program, would be leav­ The speaker this year eroding the process it was be." She urged the ing for Harvard, while was the Honorable Bar­ designed to protect." lawyers-in-training to Charles Lawrence, an bara Durham '68, Act­ The problem of "pro­ "consider some of these expert in constitutional ing ChiefJustice of the cedure trumping justice" 'big picture issues'" and law, has accepted an Supreme Court of the is also evident in the civil to "give some serious appointment at George­ State ofWashington. law area, she noted, giv­ thought to long-term town University. Famed "My hope," she said, ing as an example land solutions." 0 antitrust expert William "is to inspire a better legal use, and the difficulty of Baxter is taking early retirement but will contin­ ue to teach in his specialty of antitrust law. Brest went on to say pants learn; in addition, Associate Dean for Devel­ research mission and cur­ that the past year has seen School faculty enjoy valu­ opment, added that her riculum to assess what the a tremendous increase in able interchanges with the office is preparing a signifi­ School is doing now and executive education and business and law commu­ cant School fund-raising what needs to be done to continuing legal education ni ties. (See pages 40-41.) campaign to help make up maintain its excellence programs, thanks in large The Dean also reported the shortfall. and position of leader­ part to the efforts ofJoan that, as part of the Univer­ Brest went on to de­ ship. The Dean acknowl­ Gordon and her staff. The sity-wide cutbacks, the scribe the School's long­ edged with gratitude the benefits of these programs School's base budget is range planning process. contributions of the flow both ways, he noted. being reduced by about The faculty have been Board ofVisitors-partic­ Not only do the partici- $1 million. Susan Bell, looking at the School's ularly the Board's multi-

FALL 1993 STANFORD LAWYER 35 Board ofVisitors

Student aid issues were explored by Frank Brucato, Associate Dean for Administration (top left), Prof. Joseph Bankman (top right), and Michele Magar, now 2L (below right), among others. Also shown (center right) are Board members Leonade Jones, JD/MBA '73 and Alma Robinson '75. year 2010 project-to this aid. About half the stu­ effort. dents receive some out­ right grants, with the STUDENT FINANCIAL NEED balance being made up by Frank Brucato, the Asso­ Stanford and government Deliberations complete, ciate Dean for Adminis­ loans. Even with this aid, the Board adjourned to tration, was joined for students often struggle to The student panelists Kresge Auditorium for the this session by Professor finance their education expressed appreciation for School's annual Kirkwood Joseph Bankman and and usually end up with current programs, but Moot Court finals (see three interested students. high debt loads upon grad­ urged that the School con­ page 42). It was-though Brucato opened with a uation. sider additional means for none knew it at the time­ report on the situation for Professor Bankman aiding students in the face an opportunity to preview current students. Tuition described the public­ of rising costs. the jurist who would in 1993-94 is $20,186. interest loan program by become the next justice to With books and living which Stanford forgives FINAL FESTIVITIES join the real U.S. Supreme expenses, single students part ofa graduate's debt Dean Brest brought the Court. now need to budget a total for each year that he or she official proceedings to a There followed a Cinco ofat least $30,000 for the is in qualified employ­ close with expressions of de Mayo celebration in school year; for married ment. The advantage of appreciation for the Crocker Garden-and the students, the minimum this plan is that it focuses Board's attention and dispersal, until next year, annual budget is more like the School's limited aid thoughtfulness. He partic­ of the valued advisers who $37,900. Financial aid is resources on those who ularly lauded Miles Rubin comprise the School's awarded solely on the ba­ actually turn out to need it for outstanding work dur­ Board of Visitors. 0 sis of need, and currently most-graduates who ing his two-year tenure as about 70 percent ofstu­ work in the low-paying chair of the Board of -Reported by dents get some form of public service sector. Visitors. Sherry Symington

36 STANFORD LAWYER FALL 1993 Commencement 1993 ADay of Celebration, Praise, and Vision

tanford Law School t~. Sawarded 178 J.D. degrees on Sunday, June 13. An additional 7 stu­ dents received other law degrees. Many of the grad­ uates had also earned awards and prizes during their three years of law school (see page 39). The ceremony, which was held on the sunny green north of the Law School, followed the com­ mencement exercises of Stanford University. A throng of relatives and other well-wishers hailed the arrival of the graduat­ ing students in an academ­ ic procession headed by Dean Brest and the faculty. The John Bingham Hurlbut Award for excel­ lence in teaching was pre­ sented this year to a former graduate and now profes­ sor, Barton H. Thompson, Jr. '76 (see page 29). Chosen by a vote of the graduating class, Thomp­ son was also the keynote speaker. Matthew Lepore, presi­ dent of the class, presented the Hurlbut Award. In a brief speech before the pre­ sentation, he reflected on Dean Paul Brest the exceptional education­ al opportunities that he and most of his classmates An exuberant James Kershaw '93 (top) signals the conclusion had enjoyed throughout of a ceremony featuring an address by Hurlbut Award winner their lives. Citing the Buzz Thompson '76 (above). efforts of the recently de­ ceased Thurgood Marshall to achieve more equity in schooling for all, Lepore communities, and do what attorney-on how to it may appear-both a urged his classmates to you can to improve those make their legal careers "human dimension" and carryon the late Supreme opportunities for the less both personally satisfying "a unique policy ques­ CourtJustice's work. fortunate. " and beneficial to society. tion," he said. By focusing Lepore concluded with Hurlbut honoree Bar­ Lawyers need to take a on these elements, the these words: "I offer as a ton (Buzz) Thompson more "broad and creative graduates will be more challenge to all of you, to offered the graduates some approach to tackling legal successful with the case, be aware of the education­ personal advice-based on issues," he said. There is in whether in court or out. al opportunities available his own considerable every legal case-no mat­ Equally important, the to all the children in your experience as a practicing ter how boring or routine graduates can help change

FAll 1993 5TA FORD LAWYER 37 Commencement 1993

The many celebrants included (clockwise from top left): Coif electees Geralyn Smitherman, Janet Sommer, Cheryl Krause Zemelman, and Alan Stern; Victor Cheng lJSD '93) and well-wishers; Associate Dean Sally Dickson and Velina Underwood; the Kimberly Bomar contin­ gent; Professor Emeritus J. E. Moffatt Hancock; and Class President Matthew Lepore.

the negative views of a deciding on whose behalf ideological issue," he said. it began, with a proces­ public that "sees us more you will exercise your pro­ "Whether out of enlight­ sion-the difference as part of the problem fessional skills, and in ened self-interest, a sense being that those who had than as part ofthe solu­ deciding how to exercise of justice, or the idea of entered as students re­ tion." those skills." what it means to be one cessed as newly minted In the closing remarks The Dean urged the nation, lawyers must use lawyers. This happy of the ceremony, Dean graduates to make time in the skills we possess to transformation was cele­ Brest spoke of the their practices for volun­ help bring about social brated by one and all with "virtues" of a good teer work on behalf of the and economic change in much picture-taking and a lawyer. These virtues are less fortunate, particularly the nation's minority com­ buffet at Crown Quad. 0 tested, he said, in two "communities ofcolor. munities." kinds of situations: "in This is not a partisan or an The ceremony ended as

38 STANFORD LAWYER FALL 1993 Commencement 1993 Grads Earn Diverse Honors and Awards

embers of the Class of contributions to the Stan­ M1993 have been rec­ ford Law Review: Biran ognized for exceptional and Gleiberman. achievement in a variety of scholarly and clinical Irving Hellman, Jr. Special areas. Award, for the outstand­ ing student note published Nathan Abbott Scholar, by the Review: Mullen. for the highest cumulative grade point average in the Johnson & Gibbs Law graduating class: Andrew Review Award, for the Graham Brown. greatest overall contribu­ tion to the Review during Urban A. Sontheimer his second year: John Third-Year Honor, for the Michael Glazer. second-highest cumulative grade point average in the Jay M. Spears Award, class: Jennifer Elizabeth Eileen Mullen '93 with son, Nicholas for outstanding service to Horne. the Review during her second year of law school: Second-Year Honor, for Villmow, and Suzanne Steven M. Block Civil Gleiberman. the highest cumulative Hope Woods. Liberties Award, for dis­ grade point average at the tinguished written work Stanford Law Review end of the second year: Hilmer Oehlmann,Jr. on issues relating to per­ Special Service Award, Eileen Mary Mullen. Prizes, for outstanding sonal freedom: Iglesias recognizing exceptional work in the first-year and Zemelman, plus contributions to Volume First-Year Honor, for the Research and Legal Writ­ James John Kershaw III, 45 of the Review: James highest cumulative grade ing Program: Fitzpatrick, Mark P. Strasser, and Stephen Carpenter and point average at the end of Gleiberman, Levy, Mullen, Michael John Weber. Sandra Elaine Chavez. the first year: Cheryl Sommer, clOd Teter, plus Krause Zemelman. Jonathan Biran, Kimberly Nathan Burkan Memorial United States Law Week Ann Bomar, Matthew Competition Prize, for Award, for outstanding Order ofthe Coif, the Stevens Churchill, William excellent legal writing in service and unfailing com­ national law honor soci­ Henri Crosby, Jr., Emily the area of Copyright mitment to the Review: ety, to which were elected Parks Dentzer, Wesley Law: Teter (first place) and John Hilary Bogart. those graduating students Dale Felix, Burton Alex­ Jonathan Adlai Franklin who rank in the top 10 ander Gross, Eric Gerig (second place). Mr. and Mrs. Duncan L. percent of the class acade­ Hostetler, Michael Ti­ Matteson, Sr. Awards, for mically and are considered mothy Iglesias, Lori Ann Carl Mason Franklin the two teams of finalists worthy of the honor: Jackson, Martha J. Kegel, Prize, for the best paper in in the 1993 Marion Rice Brown, Horne, Mullen, Robert John Kulperger, International Law: Metro­ Kirkwood Moot Court and Zemelman, plus George S. Lichter, Maria poulos and Robert Ashley Competition: Zemelman Samuel Wollin Cooper, Magdalena Mejias, Torrey Madsen. and Louise Miller Franklin Michael Andrew Fitz­ Ann Olins, Deepak T. Pai, as best team; Pan and patrick, Melissa R. Glei­ Florence Y. Pan, Karen Olaus and Adolph Murie Michael William Quinn as berman, Andrew Steven Jensen Petrulakis, Roslyn Award, for the most runner-up team (see page Komaroff, Anton David Powell-Lima, Daniel A. thoughtful written work in 42). Leof, Jonathan Heuer Schulze, Martha Louise Environmental Law: Mul­ Levy, Demetrios George Senkbeil, and Holly Lor­ len (1992-93 recipient) WalterJ. Cummings Metropoulos, Michael Jay raine Sutton. and Louise Miller Franklin Awards, also in the Moot Murphy, Geralyn Gayle (1991-92 second-place Court finals. For best oral Smitherman,Janet Eliza­ Frank Baker Belcher co-recipient). advocate: Zemelman. For beth Cory Sommer, Alan Award, for the best acade­ best brief: Franklin and N. Stern, Timothy Scott mic work in Evidence: Board ofEditors' Award, Zemelman.D Teter, Keith Elliott Kenneth Eric Baime. for outstanding editorial

FALL 1993 STANFORD LAWYER 39 Resources Development Team Gains New Talent

mass communications five years at Harvard Law from San Diego State School. There she was University and a B.A. in associate director in a English from the Univer­ group that succeeded in sity of Pennsylvania. She raising $7.4 million in and her husband, Don, of 1991-92. the law firm Brooks & At Stanford Law Raub in Palo Alto, have School, Nardone is striv­ three children and live in ing to relieve pressure on Menlo Park. the operating budget by In April, Catherine increasing unrestricted ("Rinnie") Nardone came annual gifts. She hopes to aboard as director of the expand what she calls the Donna Raub Catherine Nardone Stanford Law Fund. She current "loyal but small succeeds Elizabeth Luc­ group of strong support­ chesi and is working close­ ers." Noting that "there's wo academic fund­ had spent the previous six ly with Nancy Strausser, a lot ofgoodwill out Traising professionals years at Mills College in who has been named asso­ there," she says, "We joined the Law School Oakland, California, ciate director of the annual need to broaden the this spring as part of the where she helped raise fund. (Lucchesi has gone circle-get more people team headed by Susan $73 million-more than on to become an associate involved and giving to the Bell, Associate Dean for double the college's director of the central School." 0 Development (STANFORD capital-campaign goal. Stanford University devel­ LAWYER, Fall 1992). And at Planned Parent­ opment office, where she Donna Raub's phone In February, Donna hood for the San Fran­ has major-gifts responsi­ number is 415/725-7008. Raub arrived to fill the cisco region, Raub bility for the East Coast.) Rinnie Nardone is at new position of associate oversaw the boosting Nardone, who holds a 415/725-8115. director ofdevelopment, of private donations by B.S. from the College of with primary responsibil­ 80 percent. Communications at ity for major gifts. She Raub has a master's in Boston University, worked

Professional education Novel Program Attracts Top Business Executives

eaders of 62 well­ market analysts, entering Lknown corporations joint ventures with com­ from around the country petitors, and setting exec­ gathered at the School in utive compensation. June for a path-breaking "To the best of our program titled "Tools for knowledge, this is the first Executive Survival." and only law school pro­ Cosponsored with the gram designed specifically National Association of for business executives Securities Dealers, the rather than for lawyers," three-day "seminar" fea­ says Joseph Grundfest, tured presentations and the Law School associate workshops on the legal professor and intellectual aspects ofsuch challenges entrepreneur who de­ as dealing with stock signed the interdiscipli- Charles Schwab

40 STANFORD LAWYER FALL 1993 High Tech

Brown & Bain Fosters Research

ultimedia works­ Ph.D. in economics. Mcomputer programs Brown & Bain-a law that include photos, mu­ firm with offices in Phoe­ sic, and voice-represent nix and Tucson, Arizona, an area where consumer and in Palo Alto-estab­ electronics have outpaced lished the fellowship with the law. Developers of a grant of $25,000, which multimedia programs will support a student often incorporate bits and research project each year George R. Roberts pieces from a number of for the next five years. copyrighted conventional "We hope to expose works. Is that fair use or especially able students to nary affair. Also instru­ copyright infringement? If the critical interplay be­ mental in making it hap­ the latter, what would be tween the transforming pen was Joan Gordon, the an administratively and quality of new technology School's director ofcon­ economically feasible roy­ and the law's need to pro­ tinuing education. alty system? tect rights through estab­ The innovative pro­ These are the leading­ lished principles that can gram was the inaugural edge questions that student afford certainty and pre­ event of the Roberts Pro­ Dale B. Thompson (2L) is dictability," said Jack E. gram in Law, Business, pursuing as the first recipi­ Brown, a partner in the and Corporate Govern­ ent of a Brown & Bain firm. "Making the law ance, established this past Fellowship in Law and accommodate the needs of spring with cornerstone High Technology. Enrolled the innovators and dissem­ funding from George R. in the joint degree program inators of high technology Roberts, a founding part­ in Law and Economics, has been a central theme in ner of Kohlberg Kravis Professor Grundfest Thompson has completed much of our work over the Roberts & Co. (STANFORD two years toward his past twenty-five years." 0 LAW ALUM, Spring 1993). Leading the seminars whether regarding securi­ were professors from ties litigation, mass torts, Stanford Law School, or intellectual property practicing attorneys, and rights-is essential to the representatives of Wall success of the enterprise," Street, institutional invest­ says Grundfest, who sat ing, venture capital, finan­ on the Securities and cial services, the federal Exchange Commission bench, and Harvard's before joining the Stanford Kennedy School of Gov­ Law faculty. "Ifyou don't ernment. Special luncheon understand the legal envi­ and dinner addresses were ronment, you're dead in made by Charles Schwab today's marketplace." of the brokerage firm of The outwardly oriented the same name; George P. program was as beneficial Shultz, the former Secre­ for the Law School as for tary of State and Bechtel the participating business CEO; and Bill Walsh, executives, notes the law coach of Stanford's foot­ professor. "We gained sug­ AN ARTFUL TRIBUTE ball team, whose perspec­ gestions from the atten­ "Magenta," by noted New York artist Al Held, now tives on management and dees for research and brightens the School's faculty lounge. The 1990 aqua­ leadership were recently scholarship. The confer­ tint/etching was donated by Charles D. Silverberg '55 in featured in the Harvard ence provided an opportu­ memory of his mother, Freda. Silverberg fils is a former Business Review. nity to combine real-world chair of the Law School Board of Visitors. A specialist in "Businesspeople are problems with academic entertainment law, he is currently ofcounsel to the Los beginning to realize that analysis." 0 Angeles firm of Silverberg, Katz, Thompson & Braun. the control of legal risk- Charles and his wife, Louise, live in Manhattan Beach. 0

FALL 1993 STANFORD LAWYER 41 Preview Moot Court Competition Gets the Real McCoy

ot all was make­ Florence Pan and Michael Nbelieve in the final Quinn appeared for peti­ round of the 1993 tioner "Betty Blackwell," Marion Rice Kirkwood and Cheryl Zemelman moot court finals. Held and Louise Franklin for on May 7, the mock respondent "Rockville Supreme Court proceed­ County School District." ings had as one of its jus­ Counsel had two tices a soon-to-be genuine issues to address. First, in article: Ruth Bader evaluating whether con­ Then Judge Ginsburg (center) with fellow Kirkwood jurists Ginsburg. Then a mem­ duct constitutes sexual Rymer '64 and Suhrheinrich, flanked by '93 finalists Pan and ber of the U.S. Court of harassment under Title Quinn (left) and Franklin and Zemelman (right). Appeals for the District of IX, should the perspective Columbia Circuit, she be that of a reasonable was joined on the Stan­ person or of a reasonable Duncan L. Matteson, Sr., Award for Best Oral ford bench by Pamela A. victim (woman)? Second, Award for Best Team of Advocate as well. Rymer '64 of the Ninth does a school district Advocates. Pan and This was the forty­ Circuit and Richard F. have a duty based on the Quinn were recognized as first Marion Rice Kirk­ Suhrheinrich of the Sixth Due Process Clause to the runner-up team. wood Competition, the Circuit. protect students from tor­ Zemelman and Franklin annual highlight of The hypothetical case tious conduct by other also took the Walter J. Stanford's moot court developed for the compe­ students? Cummings Award for program. 0 tition involved sexual Zemelman and Frank­ Best Brief, and Zemelman harassment. Students lin won the Mr. and Mrs. received the Cummings

Public Interest Auction Scores Laughs and Dollars

very student who chose ery and SPILF funds 400 alumni/re, faculty Eto work in the low­ already in hand, and a members, and students paying public service sec­ contribution by the took part, donating and tor during the summer of School-provided summer bidding on nearly 150 1993 received a support­ stipends for all of fifty eli­ items. ing grant. gible students. Bidders competed for This achievement Called "the greatest prizes ranging from din­ seemed out of reach early community-building event ner chez Iris and Paul in the year. Lately, the in memory" by Dean Brest, to salsa dancing number of qualifying Brest, the auction was lessons, to a Macintosh students has outstripped organized almost entirely Powerbook. Also on the existing resources. But the by first-year students, with block were rare and students of the Stanford Naomi Mezey ('95) coor­ signed books, original Public Interest Law Foun­ dinating. Two Bay Area artwork, fine wines, and dation came up with a law firms-Brobeck, luxury weekend get­ creative solution: a "Bid Phleger & Harrison and aways. Other noteworthy for Justice" auction. Held Wilson, Sonsini, Goodrich offerings: lunch with for­ on March 12, it raised & Rosati-joined the mer Secretary of State nearly $17,000. This­ Stanford Bookstore as (now Hoover Institution Naomi Mezey ('95) of SPILF when added to Montgom- cosponsors. And some scholar) George Shultz, a

42 STANFORD LAWYER FALL 1993 Law Review to make the journal expe­ on his landmark hiogra­ rience richer for students. phy ofJudge Learned A native New Yorker, Hand. Beattie Charts Beattie attended Stanford Beattie, who graduates as an undergraduate, this June, is looking for­ Challenging Course earning a degree in En­ ward to clerking with glish in 1988. Next she Judge Harry Edwards worked for two years as of the U.S. Court of determined to publish a writer for the national Appeals, District of "very important and office of the American Columbia Circuit. And in provocative pieces"­ Civil Liberties Union. 1995-96 she is destined which, she says, is "sur­ Since beginning law to have another peak prisingly difficult, with school in 1991, Beattie experience-a clerkship law reviews competing has also served as a re­ withJustice Ruth Bader for the few great articles. search assistant for Ginsburg of the U.S. We need to take affirma­ Professor Gerald Gunther Supreme Court. 0 tive steps." Beattie is involving the Review membership more in editorial deci­ Lisa Beattie ('94) sions, such as screening articles and selecting a symposium topic. She is isa Beattie, president of also paying increased LStanford Law Review, attention to members' is no stranger to chal­ particular areas of knowl­ lenge. She has scaled the edge and making assign­ Matterhorn and Mount ments accordingly. Kilimanjaro. Through these and other Elected last spring to moves, she hopes not head Vol. 46 of the presti­ only to enhance the quali­ gious journal, Beattie is ty of the Review, but also

football autographed by hawking his bodybuild­ Stanford coach Bill ing expertise. And the Walsh, a limited-edition roar of engines heralded photograph of the late the bidding on a motor­ Justice Thurgood Mar­ cycle excursion for three shall, tickets to the 1994 into the Santa Cruz AT&T Pebble Beach Mountains. There were Pro-Am golf tourna­ smiles all around, even ment, and a leather jacket before the proceeds were commemorating the counted. television show, The Also helping to loosen Simpsons. wallets was a wine tasting Professors Kim in Crocker Garden ar­ Taylor-Thompson and ranged by a former Napa Joe Grundfest served as winemaker turned Stan­ auctioneers, sharing the ford law student. stage and the joke pro­ Delighted SPILF mem­ duction like natural bers plan to hold another va udevillians. auction in the spring of CONTINUING APPLICATION OF THE BAR CODE Stunts and demos 1994. Alumni/a: with Crown Law Library was a hive of activity this summer. A added to the fun. Fencers ideas, donations, or sim­ crew of thirteen Stanford undergraduates spent six weeks clashed foils to excite bids ply a desire to attend may in the stacks, sticking bar-code labels in thousands upon for fencing lessons and call 415/723-3017. 0 thousands of volumes. This massive undertaking put the gear. Ramon Gonzalez Library well on its way toward the introduction of a more ('95) flexed impressively, -Kyle Chadwick (2L) efficient, automated circulation system. 0

FALL 1993 STANFORD LAWYER 43 Short Takes

PURLOINED BOOKS BEYOND TEXTBOOKS international law with A 1977 inventory of the The "Interactive Court­ two firms in New York Crown Law Library's room" multimedia pro­ City. Since 1987, I have rare book coll.ection gram developed at the been an associate profes­ revealed that 24 of its old­ Law School (STANFORD sor of law here at the est volumes had some­ LAWYER, Spring/Summer University of Iowa. I have how been spirited away. 1989) and demonstrated recently learned that I The missing works­ at the 1993 Board of have been granted tenure which had been kept Visitors meeting (see and promotion to full. under lock and key­ pages 33-34) is earning professor. I am the first included a 1514 volume kudos. It was named Best black woman in the histo­ by Sebastian Brant, Program Idea by the ry of the university to Expositiones siue decla­ ABA's Association of receive this honor. I am rationes omnium titulo­ Continuing Legal Educa­ ofcourse involved in a rum iuris, and three titles tion Administrators. And variety of professional Victor Hao li dating back to the seven­ it has received silver med­ and civic activities, teenth century. als in the NewMedia including the local The mystery went INVISION 1993 Multi­ schools committee. IMPORTED TALENT unsolved until this media Awards competi­ "I am confident that I Former professor Victor August, when Associate tion and in the New York could not have accom­ Hao Li is hack at the Law Librarian Rosalee Festivals International plished all of this by the School this fall as an act­ Long was called to the Interactive Multimedia age of 36 if it were not for ing professor, teaching a property room of a local competition. Produced by the firm foundation course called Law and police station to see if any Tim Hallahan, a former Stanford provided." Society in Asia. President of a mass ofstolen mater­ senior research associate for several years of the ial belonged to the at the School, the pro­ East-West Center, he is School. There, to her gram consists of a series MAKE THAT 1981 currently ofcounsel to delight and amazement, of eight lessons in court­ Meyers-era grads will Watanabe, Ing & Kawa­ were the purloined vol­ room techniques. For have realized that this shima of Honolulu. umes. information about the portrait of the School's The School's roster of It turns out that a interactive-video soft­ first Richard E. Lang ] 993/94 teachers also Stanford security guard ware modules, contact Professor and Dean, includes two professors who worked on the cam­ David Arfin of the CLE Charles Meyers, was from other law schools: pus until 1976-a gentle­ Group at 415/324-1827. painted by Ralph Borge Richard Craswell of the man of some taste, in 1981-not the earlier University of Southern apparently-had helped date indicated by our California, who is teach­ himself to the books AHAPPY OUTCOME typo on page 20 of the ing Contracts; and Jorge (along with a couple of The following letter, fall] 992 issue. 0 A. Vargas of the Uni­ hundred valuable arti­ dated February 16, 1993, versity of San Diego facts from other Univer­ from Adrien Wing '82, (U.S.lMexico Trade). In sity departments). For a brought us much plea­ addition, there are three decade and a half, until a sure: jurists in the classroom: tipster called police, the "I have just sent in my Hon. William T. Allen of treasures sat on display in last coupon on my stu­ Delaware's Court of his living room in the dent loans to complete Chancery (Advanced farming community of payment for money I bor­ Topics in Corporate Gilroy, California. rowed from 1979 to Law); Judge Barbara Now restored to their 1982. I would like to take Caulfield of the U.S. rightful place in Crown this opportunity to pub­ District Court in San Law Library, the precious licly thank my alma Francisco (Advocacy and volumes are once again mater for providing me the Judicial Decision­ available to scholars­ with the resources that making Process, Trial subject, ofcourse, to the enabled me to chart the Advocacy); and Han. most stringent security. course of my life. Gordon J. Myatt of the "After graduation National Labor Relations from the law school in Board (Labor Law). 1982, I spent five years in the private practice of

44 STANFORD LAWYER FALL 1993 Faculty Notes

Note: In a departure from Responsive Regulatory discovery of two new William F. Baxter, Wm. previous practice, the edi­ Institutions" (with John sources: a godchild of Benjamin Scott and Luna tor asked contributors to Braithwaite) in The Foltz's and a descendant M. Scott Professor of limit their reports to a few Responsive Community of her Los Angeles law Law, has become emeri­ highlights ofthe previous (2:41), and "Price and partner. tus. He continues to teach year. Readers are correct Prejudice" in the July 6, the Antitrust course, to to assume that Stanford 1992, New Republic mag­ Joseph M. Bankman is cel­ serve as ofcounsel to Law faculty contribu­ aZine. ebrating publication of the Shearman & Sterling, and tions to scholarship and On a personal note, he eighth edition of his case­ to write and comment on public affairs go far be­ and Jennifer Brown, a book with UCLA profes­ antitrust and other public yond that specified here. member of the Emory sor William Klein, Federal policy matters. In July­ Law School faculty, were Income Taxation (Little, August 1993, he was Janet Cooper Alexander, married on May 29. She Brown, 1993). Also recent counsel of record in the a former clerk of the late is a visiting professor this and interesting: "Is the American Airlines litiga­ Supreme CourtJustice fall at nearby Santa Clara Debate Between an In­ tion, successfully defend­ Marshall, was the key­ University. come Tax and a Consump­ ing the carrier against note speaker for a forum, tion Tax a Debate About charges of predatory pric­ "Remembering Thur­ Barbara A. Babcock, the Risk? Does It Matter?" ing brought by Conti­ good Marshall," at the School's Ernest W. McFar­ (with T. Griffith) in Tax nental and Northwest University of California, land Professor of Law, has Law Review (47:377). Airlines. Once the assis­ San Diego. The April 27 been studying the issue of Professor Bankman's pre­ tant attorney general and event celebrated the women and juries, and sentations include "Teach­ head of the Antitrust renaming of UCSD's whether women sum­ ing Tax Policy," for an Division of the U.S. Third College in honor of moned to serve may then Association of American Department ofJustice the path-breaking advo­ be struck on account of Law Schools teaching (1981-83), he is also a cate and jurist. Alexander gender. Hence her chapter workshop last fall in former teacher of the pre­ traveled to the University in Verdict: Assessing the Washington, D.C. sent occupant of that of Virginia in March for a CivilJury (Brookings, Currently the School's powerful post, Anne Ko­ Conference on Economic 1993), article "A Place in Helen L. Crocker Faculty vacovich Bingaman '68 Analysis of Civil Proce­ the Palladium: Women Scholar, Bankman has (see page 71). dure, where she spoke on and Jury Service" forthe been participating in Uni­ "Judicial Preferences and July 1993 Cincinnati Law versity affairs as chair of Paul Brest, Richard E. Procedural Rules." Her Review, and keynote the Provost's Advisory Lang Professor and Dean, publications include a speech "Gender and Committee on Early Re­ has, in addition to a num­ Harvard Law Review Juries" for the annual din­ tirement and also of the ber of Stanford activities, article, "Unlimited Share­ ner of Stanford's Center Faculty Committee on participated in a Univer­ holder Liability Through for Research on Women Financial Aid. sity ofMichigan sympo­ a Procedural Lens" and Gender. She also sium on legal education. (102:387). spoke at the Ninth Circuit John H. Barton, George E. His paper for that event, Judicial Conference in Sun Osborne Professor of Law, titled "Plus <;:a Change," Ian Ayres taught at Iowa Valley, where she intro­ was appointed by U.S. appeared in the August Law School in January duced the first gender-bias Department of Agricul­ 1993 Michigan Law and overseas, at the Mos­ study done in the federal ture Secretary Edward Review (91:8). cow Institute ofForeign courts, subsequently pub­ Madigan to a newly Relations, in July. In past lished as "Western Women formed National Genetic Frank F. Brucato, Asso­ months he also presented Lawyers" in the July 1993 Resources Advisory ciate Dean for Adminis­ papers at Toronto, Bos­ Stanford Law Review. Council, which will offer tration, hosted a forum ton, Chicago, UC-San Professor Babcock advice on the use of on loan forgiveness dur­ Diego, USC, UCLA, "enjoyed not being attor­ agriculture-related genetic ing the 1993 annual Emory, and Columbia. ney general" for a few material. Other appoint­ meeting in January of the The professor's published days last spring, when her ments are to the Soros Association of American articles include "Making name appeared on a short Foundation Commission Law Schools. Dean Brest a Difference: The Con­ list for the office. The re­ on the Study of Law in and Sally Dickson, Asso­ tractual Contributions of sulting media blitz includ­ Higher Education for ciate Dean for Student Easterbrook and Fischel" ed frequent mention of her Russia, and to a binational Affairs, were also in­ in the University of work-in-progress on the panel under Chapter 19 volved. Attended by rep­ Chicago Law Review late Clara Shortridge of the Canada-U.S. Free resentatives of 18 major (59:1391), "Designing Foltz, which led to the Trade Agreement. schools, the event provid-

FALl. 1993 STANFORO LAWYER 45 ed perhaps the first oppor­ Gerhard Casper, professor thored with Jon Varat of working on updated sup­ tunity for them to discuss of law and president of UCLA, was published. plements to two media law together the problems of Stanford University, has casebooks widely used in financing a legal educa­ weathered his first year in Sally M. Dickson, Asso­ law schools and under­ tion-particularly for the high-profile post. ciate Dean for Student graduate courses, and students going into low­ Challenges for the consti­ Affairs and a lecturer in on the third edition-pub­ paying public service tutionallaw expert have law, was a panelist in lished this past summer­ jobs-and explore some included the continuing June at the 1993 National of The First Amendment possible solutions. shortfall in government Conference on Race and and the Fifth Estate. reimbursement for indirect Ethnicity in American Franklin and his wife, Tom Campbell rejoined costs offunded research, Higher Education. At Ruth, spent the summer the faculty full-time at the formulation of a conflict­ Stanford, she organized of 1992 in Melanesia and expiration in January of of-interest policy for and taught a course for Polynesia studying village his second term as a mem­ research with commercial undergraduates during life and traditional art­ ber of the U.S. House of potential, implementation the spring semester. an adventure described by Representatives. His ser­ of an affirmative action Called "The Fire This Ruth in an article, "The vice in the 102nd Congress plan for administrative Time: Los Angeles Riots Call ofDistant Drums," earned him two awards. positions, the drafting of a 1965 and 1992-Why," in the June 1993 Stanford Citizens for a Sound Econ­ sexual harassment policy, it explored political, Magazine. omy presented him with and the selection of a new socioeconomic and other their Jefferson Award for General Counsel. "To "percolating factors" Barbara H. Fried, one of distinguished service. And some extent, I can say that related to the Rodney the new faces of 1987 and the National Taxpayers I had a ball," said Presi­ King beating and after­ the Hurlbut teaching Union named him the sin­ dent Casper. But (continu­ math. Dickson is the cur­ award winner in 1991, has gle Most Frugal Member ing the metaphor) he rent chairperson for the been awarded tenure (see of Congress. added: "Coming in from East Palo Alto Commu­ pages 30-31). A reformist Republi­ a ball at 2 or 3 a.m., you nity Law Project. Also can, Professor Campbell sometimes tend to be the resident fellow for Lawrence M. Friedman, reentered the electoral are­ exhausted." the University's Black! Marion Rice Kirkwood na this summer as a candi­ African-American theme Professor of Law, visited date for the Peninsula-area William Cohen, C. Wen­ house, Ujamaa, she Italy in January, giving a California state senate seat dell and Edith M. Carl­ received the Stanford series oflectures at five unexpectedly vacated mid­ smith Professor ofLaw, Black Community Ser­ universities. He crossed term by Rebecca Morgan. lectured on "Federal Civil vices Center's award for the Atlantic again in Rights Actions Com­ Black Institutional May-this time to Mauro Cappelletti, Lewis menced in State Courts," Development this spring. Sweden-where he re­ Talbot and Nadine Hearn at the American Bar ceived an honorary doc­ Shelton Professor ofInter­ Association judges' semi­ Former dean John Hart torate in law from the national Legal Studies, nar in Portland last Sep­ Ely, Robert E. Paradise University of Lund. Pro­ has been elected honorary tember. In January 1993, Professor of Law, contin­ fessor Friedman, who has president of the newly at the Association of ues on walkabout with a written or edited more created Asociaci6n Ibero­ American Law Schools third consecutive visiting than a dozen books, has Latino Americana de convention in San Fran­ professorship, this time at just published Crime and Derecho Procesal Consti­ cisco, he participated in a Georgetown University Punishment in American tucional. He continues to mini-workshop on global­ Law Center in Washing­ History (Basic Books, write extensively, includ­ ization, leading a panel ton, D.C. His much­ 1993).It explores the ing a book in Portuguese, discussion on constitution­ heralded new book, War changes over 250 years in Juizes Legisladores, pub­ allaw. He was also moder­ and Responsibility: Con­ our views and laws con­ lished in Brazil in April. ator and panelist for an stitutional Lessons of cerning criminal behavior Professor Cappelletti's AALS constitutional law Vietnam and Its After­ and relates these changes most notable recent workshop, Perspectives on math, was published this to changes in the larger appearance was at the a Changing Court, inJune summer by Princeton culture. "A very rich University ofDublin in in Ann Arbor. University Press. In it, he book," said reviewer Yale Ireland, where he con­ Professor Cohen concludes that the mode Kamisar in a more-than­ tributed to the celebration chaired Stanford Univer­ by which this country full-page review in the ofTrinity College's 400th sity's Student Judicial has become involved in New York Times Sunday anniversary by delivering Council during 1992­ wars clearly violates the book section. "The au­ its Moran Lecture. His 1993. And inJune, the Constitution. thor has an astonishing subject: "Towards the ninth edition of Consti­ fund of knowledge ... United States ofEurope." tutional Law: Cases & Marc A. Franklin, Fred­ And he is a gifted writer." Materials, which he coau- erick I. Richman Profes­ sor of Law, has been

46 STANFORD LAWYER FALL 1993 RonaldJ. Gilson, Charles Handbook ofEuropean Henry T. (Hank) Greely with Barbarians Inside the ]. Meyers Professor of Software Law (Oxford organized and moderated Gate" in Stanford Law Law and Business, partici­ University Press); the a National Institutes of Review (45:857), and pated in a conference on 1993 supplement to his Health workshop in Feb­ "Zen and the Art of Se­ the development ofcom­ 3-volume treatise, Copy­ ruary on the ethical and curities Regulation" in the merciaI law in a transition right: Principles, Law and human rights issues in the Journal ofApplied Corpo­ economy. Held in Kiev in Practice; and the revised Human Genome Diversity rate Finance (5:4). A June, the event was spon­ third edition of his case­ Project, with which he Hoover Institution nation­ sored by the Commercial book, Copyright, Patent, remains actively involved. al fellow for 1992-93, he Law Project for the Trademark and Related February also took him to presented research-in­ Ukraine. Since last report State Doctrines. the University of Southern progress at Harvard Law he has published "The California, where he spoke School and at the UCLA Interaction ofPolitics and Robert W. Gordon, on health insurance issues Economics Department, Markets" in The Deal Adelbert H. Sweet Profes­ at a symposium on impli­ and participated in presen­ Decade (M. Blair, ed., sor ofLaw, delivered a cations of the Project. In tations sponsored by the Brookings Institution, series of lectures at the April, he participated in a Practicing Law Institute 1992), "Understanding University of Michigan Vanderbilt University con­ and by Stanford's Contin­ the Japanese Keiretsu" Law School last fall. En­ ference on medical mal­ uing Legal Education pro­ (with Mark Roe) in the dowed as the Thomas M. practice attended by 25 gram. Yale LawJournal Cooley Lectures, they state supreme court jus­ Grundfest is also serv­ (102:871), and "Invest­ were on the topic, "Tam­ tices, where he presented ing as director of the ment Companies as ing the Past: Histories of talks on AIDS and on Roberts Program in Law, Guardian Shareholders" Liberal Society in Legal institutional liability. Business and Corporate (with Reinier Kraakman) Argument." Since last Professor Greely's pub­ Governance (STANFORD in Stanford Law Review report, he has also directed lications include a chapter, LAW ALUM, Spring 1993). (45:985), among other an NEH seminar for col­ "Legal and Political Con­ For the inaugural event of works. Gilson presented lege teachers on "History siderations," in Basic the Program, he organized papers at such expert gath­ in Law: Construction of Benefits and Clinical the School's first foray into erings as the 25th Annual the Past in American Legal Guidelines, edited by executive education: a Institute on Securities Thought." David Hadorn. Also an seminar, "Tools for Exe­ Regulation, held last expert in health care cutive Survival," which November in New York William B. Gould IV, the financing (see pages 24­ drew more than 60 senior City; New Theoretical Charles A. Beardsley Pro­ 25), Greely has provided executives of publicly Perspectives on Conflict fessor of Law, is President advice to the White House traded firms (see pages Resolution, in February at Clinton's choice to head Task Force on Health Care. 40-41). Stanford; and a conference the National Labor Rela­ on Relational Investing, tions Board. Gould's nom­ Thomas C. Grey, Nelson Gerald Gunther, William which he also helped orga­ ination to the NLRB is, as Bowman Sweitzer and Nelson Cromwell Profes­ nize with the sponsorship of this writing, before the Marie B. Sweitzer Profes­ sor of Law, has delivered of Columbia University's Congress. The professor's sor of Law, presented two the edited manuscript of Institutional Investor Proj­ other big news is the publi­ papers at other universities his monumental biogra­ ect, in May in New York. cation by MIT Press of his this spring: "Holmes on phy of the late Judge latest book, Agenda for Torts" at New York Uni­ Learned Hand to the pub­ Paul Goldstein, Stella W. Reform: The Future of versity Law School in lisher, Alfred A. Knopf, and Ira S. Lillick Profes­ Employment Relation­ March; and "James Inc. This spring he also tes­ sor of Law, has been ap­ ships and the Law. (An Bradley Thayer'S Consti­ tified before the Senate pointed by the Librarian excerpt appears on page tutional Theory" at Judiciary Committee in of Congress to a new Ad­ 24 of this magazine.) Also Northwestern Law School support of a former stu­ visory Committee on published this year was in April. dent from his Columbia Copyright Registration the third edition of his teaching days, Ruth Bader and Deposit. The 20­ Primer on American La­ Joseph A. Grundfest has Ginsburg (see pages 21­ member private sector bor Law. In August, Pro­ been named to the Legal 22). Professor Gunther is group will consider im­ fessor Gould made his Advisory Board of the spending the Fall 1993 provements to the system eighth visit to the Union New York Stock Ex­ term in New York City as through which the Library of South Africa, delivering change. He recently pub­ a visiting professor at of Congress receives lectures in Johannesburg lished "The Limited Brooklyn Law School. works for its collections. and Durban on equal pay, Future of Unlimited Lia­ This year Goldstein also under the sponsorship of bility: A Capital Markets Janet E. Halley delivered published a chapter, "The the South African Em­ Perspective" in the Yale two invited papers this E.C. Software Directive­ ployers' Consultative LawJournal (102:387), year: "Reasoning About A View from the United Committee on Labour "Just Vote No: A Mini­ Sodomy," for a University States of America," in A Affairs. malist Strategy for Dealing of Virginia symposium in

fAl.l. 1993 STANFORD LAWYER 47 April on gay, lesbian and American communities: [East Palo Alto].'" He in October 1992. He bisexual legal issues; and Chinese, Filipino,Japa- also was plenary speaker traveled to Italy in "Comments on Judge nese, Korean, Vietnam- at the Association of December to deliver an Posner's Economic Analy- ese, and Asian Indian. A American Law Schools invited lecture at the Uni- sis of Homosexuality," passage on refugee immi- Annual Clinical Confer- versity of Rome, "Ricor- at Brown University's gration forms the basis of ence and at the Western dando [Remembering] Conference on Laws and his At Issue piece begin- Faculty of Color Confer- Gino Goda," and to Nature: Shaping Sex, ning on page 18. ence. Professor Lopez Mauna Lani, Hawaii, in Preference and the Family, served as lead counsel in February to give an in February. Halley served J. Myron Jacobstein, Butler v. Bishop, a suc- address on the interna- as a legal advisor to the emeritus law librarian cessful $1.2-million civil tional traffic in cultural Arlington (Virginia) Gay and professor, and his fre- rights case against the property, to the Second and Lesbian Alliance con- quent coauthor, Texas County of San Diego's Circuit Bench and Bar cerning the authority of a professor Roy M. Mer- Sheriff's Department Conference. His article county board to pass an sky, have prepared a his- over brutality by deputy on the right of artists to ordinance banning sexual- torical reference book sheriffs. share in profits from their orientation discrimina- called The Rejected. work, "The Wrath of tion; she co-wrote an Printed by Toucan Valley Miguel A. Mendez had a Robert Rauschenberg," advisory opinion that led Publications, it provides featured article on the appeared in the]ournal the board to adopt the or- sketches of the 26 men disqualification of bilin- ofthe Copyright Society dinance. Finally, Halley nominated for the gual jury candidates, ofthe USA (40:241). has been named to the edi- Supreme Court but not "Hernandez: The Wrong torial advisory boards of confirmed by the Senate. Message at the Wrong A. Mitchell Polinsky, GLQ: A Quarterly ofGay Time," in the Winter Josephine Scott Crocker and Lesbian Studies and Mark G. Kelman pub- 1992-93 Stanford Law Professor of Law and Stanford Humanities lished "Could Lawyers & Policy Review. His Economics, has been Review. Stop Recessions? Specu- recent presentations elected president of the lations on Law and include "The Founding of American Law and Eco- Thomas C. Heller is back Macroeconomics" in MALDEF," as part of the nomics Association. A in residence after seven Stanford Law Review introduction ofAntonia visiting professor at years as director ofthe (45:1215). The professor Hernandez, winner ofthe Harvard Law School dur- University's Overseas has also recently consult- 1993 Galarza Prize of the ing the 1992-93 academ- Studies Program and a ed with the AFL-CIO Stanford Center for Chi- ic year, he is now back in 1992-93 sabbatical as on the prohibition of cano Research; and a residence and the recipi- Jean Monet Professor at employer-dominated November lecture, "The ent of a 1993 John Simon the European University labor organizations and Misuse of Character Guggenheim Memorial Institute in Florence, the hiring of permanent Evidence," for judges Foundation fellowship. Italy. At Stanford, he is replacements for eco- attending the California He and a coauthor have concurrently serving as nomic strikers. Conference for Judicial also been awarded a Professor of Law and as Education and Research. $111,600 grant from the Professor at the Institute William C. Lazier, the Last year Professor Lynde and Harry Bradley for International Studies. successful business execu- Mendez also chaired the Foundation to study the His 1993-94 courses tive who has been teach- Stanford Chicano Faculty economic theory of pub- include a seminar on com- ing the innovative course, Association. And in May lie enforcement of law. parative systems ofcapi- "What Lawyers Should he was honored by Stan- Professor Polinsky con- talism and another on the Know About Business," ford's Latino pre-law tinues to direct Stanford's problems of free trade and has earned the title of society, Derechos, for his John M. Olin Program in regulation in regional inte- Nancy and Charles Mun- "mentorship and counsel- Law and Economics. gration. ger Professor of Business ing assistance" over the in the School of Law (see dozen years since he Robert L. Rabin, A. Cal- Bill Ong Hing has sparked page 30). helped found the group. der Mackay Professor of considerable media inter- Law, spoke on tort est with his new and time- Gerald P. Lopez, Kenneth John Henry Merryman, reform at the University ly book, Making and and Harle Montgomery Nelson Bowman Sweitzer of San Diego Law School Remaking Asian America Professor of Public Inter- and Marie B. Sweitzer last November, on mass Through Immigration est Law, delivered the Professor, Emeritus, mod- toxics administrative- Policy, 1850-1990. Pub- 1993 University ofTen- erated a series of three compensation schemes in lished this summer by the nessee Law School's panel discussions-on January at the Associ- Stanford University Press, Charles Miller Lecture museums, collecting, and ation of American Law it sheds light on the devel- this spring on "Economic government funding! Schools annual meeting, opment and character of Development in the 'Mur- censorship-at the Met- and on tobacco tort liabil- the six largest Asian- der Capital of the Nation ropolitan Museum of Art ity at McGeorge School

48 STANFORD LAWYER FAl.L 1993 of Law in April. He has tives on Legal Educa- coauthored with Allan W. Her change in name just published a book- tion," at a Stanford Law Kleidon ofthe GSB, ap- from Taylor to Taylor- Smoking Policy: Law, Review symposium on peared in December as Thompson signals a Politics, and Culture legal education and civic No. 101 in Stanford's happy personal event: her (Oxford,1993)-with virtue. John M. Olin Program in marriage on May 29 to essays from a number of Professor Rhode is Law and Economics Anthony Thompson, a scholars. Professor Rabin spending Fall 1993 in working paper series. Its deputy public defender in is currently serving as Manhattan as a visiting title: "CEO Performance, Contra Costa County. program director to the professor at both Colum- Board Types and Board Robert Wood Johnson bia and New York univer- Performance." Barton (Buzz) Thomp- Foundation program on sities. son,Jr. traveled to Colo- tobacco policy research Byron D. Sher, now pro- rado inJune to give two and evaluation. He is also David L. Rosenhan, pro- fessor emeritus, continues presentations at the on the advisory commit- fessor of law and psycho1- to be overwhelmingly Natural Resources Law tee ofthe American Law ogy, has completed a reelected to the California Center's annual summer Institute's project to draft study on a novel program State Assembly, where program on water policy. a new Restatement of of court supervision in he is the leading environ- In May California Law Products Liability. which senior citizens are mental legislator. Review (81:671) pub- employed to monitor vis- lished his article, "Insti- MargaretJane Radin was its between parents who William H. Simon was tutional Perspectives on the Brainerd Currie Lec- had abused their children awarded a John Simon Water Policy and Mar- turer at Duke University and the children. The Guggenheim Memorial kets," looking at the in March. Her address, professor is happy to Foundation fellowship to important role ofwater "Compensation and report that "it works." In work on a book provi- organizations. His pre- Commensurability," con- another study, using trial sionally titled"A Theory sentations on takings law sidered whether or how simulations, he demon- of Legal Ethics." He is and the environment injuries should be under- strated that jury members also becoming something include a talk last Sep- stood in market terms who are allowed to take of a China hand. An arti- tember to the Washington (e.g., what is an arm notes are better able to cle he wrote with Qing State Bar Program on worth?). Later that remember complicated Feng ofthe Chinese State Water Rights Law. spring, at a New York events. A psychologist by Council was published in Recently awarded University colloquium on training, Professor Rosen- the May issue of China tenure (see page 29), law, philosophy, and han recently delivered a Lawyer, the PRC's coun- Professor Thompson is social theories, the pro- paper on the psychology terpart to the ABA also the proud recipient fessor presented two of altruistic behavior Journal. The first in a of the School's 1993 chapters from her book- during wartime. projected series of ten, it Hurlbut Award for out- in-progress on commodi- provided perspectives (in standing teaching (see fication. Kenneth E. Scott, Ralph Chinese) on the American pages 37-38). M. Parsons Professor of legal profession. And in Deborah L. Rhode is the Law and Business, pre- August, he went to Bei- Michael S. Wald, Jackson editor (with Annette sented a paper, "Imple- jing to deliver lectures on Eli Reynolds Professor of Lawson) of The Politics menting FDICIA-An that same subject. Closer Law, ison leave to the ofPregnancy: Adolescent Interim Assessment," at to home, Professor Simon federal government. His Sexuality and Public Pol- a Brookings Institution has been working with appointment as deputy icy, a collection ofessays Conference last Decem- The Cannery Workers general counsel for the and papers published this ber on the then year-old Project in Watsonville on Department of Health spring by Yale University Federal Deposit Insur- a recycling cooperative and Human Services was Press (see page 22). She ance Corporation Im- and other community announced by President also contributed a new provement Act. Briefly, he economic development Clinton on August 31 (see entry, on sex discrimina- found the agency imple- projects. page 31). tion here and abroad, to mentation to be less than the World Book Encyclo- enthusiastic. Professor Kim Taylor-Thompson Robert Weisberg has been pedia. Professor Rhode's Scott has also been study- has written an essay on exploring the phenome- presentations include ing the replacement of the interplay ofrace and non ofvigilantism and Rice University's Presi- CEOs in major corpora- gender in the treatment of related crimes where per- dential Lecture inJanu- tions, relating this event Anita Hill. Published in petrators feel they are ary, where she spoke on both to the composition the January 1993 Stan- engaged in self-help law gender inequality and the of boards of directors and ford Law Review, it is enforcement. His essay- challenges ofthe 1990s. to performance ofthe af- titled "Invisible Woman: "Private Violence as And in March she gave fected corporation's stock Reflections on the Clar- Moral Action: The Law a paper, "Missing Ques- before and after CEO re- ence Thomas Confirma- as Inspiration and tions: Feminist Perspec- placement. A "first cut," tion Hearing." Example"-appeared as

FALL 1993 STANFORD LAWYER 49 a chapter in Law's Vio­ lence, a 1993 book edited by Austin Sarat and Tho­ mas Kearns as part of a University of Michigan Press series on new issues in jurisprudence. Profes­ sor Weisberg, who was recently named the inau­ gural Bernard D. Ber­ green Faculty Scholar (STANFORD LAW ALUM, Spring 1993), is currently writing about literary criticisms of law. He and his collaborator, Guyora Binder of the State Uni­ versity of New York at Buffalo, gave two presen­ tations on the subject in April, one at SUNY­ Buffalo and the other at Boalt Hall. Professor Weisberg has also performed a number of services for Stanford University, such as chair­ ing the search committee for a new University gen­ eral counsel that resulted in the selection of Michael Roster '70.

Deborah M. Weiss partic­ ipated in a symposium last December on Social Investing. And in January she had an article, "Can Capital Tax Policy Be Fair? Stimulating Savings Through Differentiated Tax Rates," published in the Cornell Law Review (78:206).

James Q. Whitman has Leaving a Legacy an article, "Of Corpor­ atism, Fascism and the For information about making First New Deal," in the AmericanJournal of a bequest or other form of deferred gift, Comparative Law (39:4). please write or call: He spent last fall at UC­ Berkeley's Boalt Hall as a senior fellow at the Rob­ Susan S. Bell, Associate Dean bins Religious and Civil Stanford Law School Law Collection, and is Stanford, CA 94306-8610 currently at Yale as a vis­ iting professor. His pre­ sentations include an -zr415/723-6123 August 1992 invited lec­ ture at the University of Tiibingen in Germany. D

50 STANFORD LAWYER FALL 1993 FROM THE DEAN other decisionmakers in their reso­ apply until they are in practice, if Continued from page 3 lution of legal disputes; and to advise then. I would place some aspects of legislators and other policymakers on factual investigation, counseling, and dilemmas. law reform."3 While there are profes­ negotiation between these poles. The MacCrate Report rightly ob­ sors who excel both as scholars and as These skills are relevant to virtually serves that clinical methods are ex­ clinical instructors of the more prac­ every law practice, and indeed to al­ tremely helpful in learning many of tice-oriented la wyering skills, the most all aspects of life, personal and these skills. But, having usefully dif­ combination is not all that common. professional; students have opportu­ ferentiated among the skills in the The two activities tend to attract peo­ nities to apply them outside of the SSV, the Report goes on to assert, vir­ ple with different interests; moreover, classroom; and negotiation has im­ tually without discussion, that all law clinical instruction and scholarship portant theoretical dimensions that students should be instructed in all of are each so time-consuming that few intersect well with a degree of skills these skills before graduation. My ordinary mortals can sustain excel­ learning. own experience and thinking lead me lent work in both activities. Of course, these views represent to make some differentiations, based only one of a multitude of positions on the following considerations: Resources. In a sharp break with the held by legal educators. They have tradition of ABA regulation of law been shaped by my experience as a Pedagogy. People learn best when schools, the MacCrate Task Force faculty member, clinical instructor, they can utilize the skills and knowl­ specifies the appropriate instructors and dean at a particular institution. I edge as they acquire them. Without and faculty-student ratios for skills certainly do not fault the Task Force the opportunity to take what one courses and, indeed, the method of members for holding different views. learns in the classroom and apply it pedagogy. Primary responsibility for I do, however, fault them for seeking outside, the classroom learning be­ skills instruction should be assigned to impose them on educators and in­ comes attenuated and lost. It is like to permanent full-time faculty' in stitutions no less thoughtful or com­ taking music lessons without having classes with very small faculty­ mitted to professional education than an instrument to practice on at home. student ratiosS and with individual­ themselves. This suggests that law school may be ized evaluation. 6 I agree with this as a better time for students to develop an ideal (though one should not IF NOT IN LAW SCHOOL, WHEN? the skills of legal research, analysis, underestimate the potential of in­ THE IDEAL AND THE REAL and writing than, say, those of trial teractive video and other emerging In an ideal world, the education advocacy or law office management. technologies that facilitate the self­ of lawyers would follow the pattern learning of some practical skills). in medicine and most other profes­ Intellectual development. There are However, the cost of implementing sions: the acquisition of foundational opportunity costs in spending the law the recommendations would be mas­ substantive knowledge and skills in school years on applied skills training sive/ Whether or not this allocation school, followed by a closely super­ rather than on building strong in­ of resources is ultimately justified, the vised apprenticeship. Quite a few tellectual foundations in law, policy, Report's failure to discuss these costs law school graduates in fact enter pri­ and legal theory, and in legal research and who shall pay them is baffling, vate firms and government offices and writing skills. Law school gradu­ not to say irresponsible. in which they receive personal super­ ates are practicing in an increasingly vision and mentorship from experi­ complex legal, economic, and social Leaving aside considerations of enced lawyers. But though a growing environment, and they need concomi­ cost, I would place the ten skills number of state bars require continu­ tantly broad knowledge to become identified in the SSV on a spectrum in ing education and some require new effective practitioners. The second terms of the emphasis they should re­ lawyers to take courses in practical and third years of law school, far ceive during and after law school. At lawyering skills in their early years of from being large holes in need of one end of the spectrum lie skills that practice, no jurisdiction currently filling, provide the last sustained provide the foundations for virtually requires a period of supervision or opportunity for many students to any law practice and for continuing apprenticeship for new lawyers. develop breadth and a degree ofdepth professional development during the Many law school graduates enter in areas as diverse as finance theory, years of practice. These include prob­ solo or small group practice immedi­ international law, and intellectual lem-solving; legal reasoning, analy­ ately after they pass the bar. And the property, and to hone their skills in an­ sis, and research; oral and written quality of on-the-job training even by alysis, problem-solving, and writing. advocacy and communication; and large firms and institutional employ­ recognizing and resolving ethical ers varies widely. Faculty expertise and responsibilities. dilemmas. Every law school should Bowing to the realities of state As Judge Harry Edwards recently provide all of its graduates with a bar politics, the MacCrate Task Force observed, the profession relies on law solid grounding in these skills. does not even hint at an apprentice­ professors to produce legal scholar­ At the other end, I would place ship requirement, but rather seeks to ship that "analyzes the law and the the more practical or applied skills of regulate the one set of institutions legal system with an aim to instruct litigation, trial practice, and law over which the ABA has direct con­ attorneys in their consideration of office management, which most stu­ trol through the accrediting process. legal problems; to guide judges and dents will have little opportunity to It is also not surprising that the Task

FALL 1993 STANFORD LAWYER 51 Force should aim for the lowest com­ FOOTNOTES the enormous impact of the Report's

mon denominator. Under these cir­ I Recommendation Cl3; pp. 234, recommendations on resources at his cumstances, it is understandable that 240, and 241. The Report also own institution. law schools should feel beleaguered specifically recommends that law and dig in against the recommenda­ schools offer "well-structured clinical 8 The Report recommends that law tions of the Task Force. But, in view programs [to] help students under­ schools evaluate their programs in the of our obligation to the profession, it stand the importance of the skill of light of the SSV. (Recommendation would be irresponsible not to take ac­ 'organization and management of le­ C7) It also recommends that "the or­ count of the realities of postgraduate gal work.''' (Recommendation C15) ganized bar ... should strive to make professional education. I think a pro­ available to all new lawyers effective

ductive accommodation of the di­ ! Recommendations 02 and C22. instruction in lawyering skills and verse interests might take this form: values at a cost that new lawyers can

.l Edwards, "The Growing Disjunc­ afford." (Recommendation 012) It School self-assessment. As part of the tion Between Legal Education and "urges that all states ... consider im­ self-study done in preparation for the Legal Profession," 91 Mich. L. posing upon all attorneys subject to reaccreditation, every ABA accred­ Rev. 34,42-43 (1992). their jurisdiction a requirement for ited law school should assess its skills periodic instruction in lawyering training offerings in light ofits overall 4 Recommendation C24. skills and professional values." mission and the typical career paths (Recommendation E2) And it "en­ of its graduates, including their realis­ 5 Pages 248-251. courages law firms, corporate law de­ tic opportunities for postgraduate partments and government agencies education, with the aim of offering 6 Recommendation C6. to examine their in-house training and/or requiring skills training it programs for lawyers ... to ensure believes appropriate to the circum­ 7 In a forthcoming article in the that appropriate and effective in­ stances. This requirement acknowl­ Journal of Legal Education, Dean struction in skills and values is pro­ edges the diversity of law schools, John Costonis ofVanderbilt discusses vided." (Recommendation E4) while requiring every school regularly to examine and justify the role of skills training in its curriculum. Postgraduate training. State bars AT ISSUE should ensure that practical lawyer­ Continued from page 19 ing skills training is available at a rea­ sonable price to all lawyers, and "well-founded fear ofpersecution"­ migration judges were ordered to in­ should consider requiring new a term from the 1968 United Nations crease productivity and hear at least lawyers to take skills training in sub­ Protocol. 18 cases per day, and some attorneys jects appropriate to their practices. By Since the implementation of were scheduled for hearings at the the same token, law firms and institu­ the 1980 Act, the United States has same time for different clients in dif­ tional employers should ensure that allowed in more than a million ferent parts of the city. The Fifth their new lawyers receive appropriate refugees under the first-track system, Circuit chastised immigration skills training. This recommendation, making it a leader (although not the officials for violating due process while respecting each jurisdiction's per capita leader) among refugee­ [Haitian Refugee Center v. Smith, traditional responsibility for main­ admitting countries. In contrast, only 676 F. 2d 1023 (5th Cir. 1982)]. A taining the quality of its bar, empha­ 5,000 to 10,000 asylum applications similar suit in California ended with sizes the importance of lawyers' have been approved per year. To say the INS agreeing to reevaluate poten­ possessing the skills necessary to their the least, the U.S. has not reacted tially up to 500,000 Salvadoran and professional work and places an ap­ warmly to notable groups who have Guatemalan asylum cases from the propriate responsibility on institu­ reached our borders seeking asylum 1980s, due to strong evidence of dis­ tional employers. under the second track. When crimination against those nationals Haitians, El Salvadorans, Guatema­ [American Baptist Churches v. The MacCrate Task Force rec­ lans, and now Chinese began arriving Thornburgh, 760 F. Supp. 796 (N.D. ommends these strategies,8 but seeks in significant numbers, the powers­ CaI./1991)]. (Unfortunately, no such to go considerably farther in mandat­ that-be were quick to label them as reevaluation has been provided for ing the curricula, teaching methods, economic rather than political the hastily rejected Haitians.) faculty-student ratios, and teaching refugees. As the move to summarily ex­ personnel for all law schools. This response has manifested it­ clude the recent influx of Chinese Nothing in the Report itself justifies self in humiliating ways. In the early seeking refuge heightens, we should this intrusive and counterproductive 1980s, for example, the Immigration remember our nation's experience, approach, and I fervently hope that and Naturalization Service imple­ not only with Jews in the 1930s, but the recent amendment to Accredita­ mented an efficiency plan in Miami also with Haitians, Guatemalans, and tion Standard 301(a) will not be un­ by which Haitian asylum hearings El Salvadorans in the 1980s. Recent derstood as a move in this direction. 0 were often limited to 15 minutes, im- revelations of political repression in

52 STANFORD LAWYER FALL 1993 their countries indicates that we re­ peated with these refugees the mis­ take we made of barring Jews at the time of Nazi persecution. Do we re­ IN MEMORIAM ally know enough about the situation in China to confidently turn away Chinese fleeing from Fujian Province as economic migrants? Why are they 1923 1939 1950 so willing to endure hazardous jour­ neys? And is arresting and deporting Albert V. Muller Albert L. Burford, Jr. Samuel B. Dunford those who are then subjected to rep­ March 19, 1993 March 7, 1993 February 8, 1993 rehensible work environments in this country a response we will look back on with pride? 1928 1940 1952 Proposals to reform the asylum system have been premised in large Leighton M. Bledsoe William T. Hartzell Sydney Morgan Allen part on INS assertions that once a August 4, 1993 April 22, 1993 October 3, 1993 person requests asylum, the process can take years. The implication is that Richard K. Knowlton asylum applicants are exploiting the 1929 1942 July 1993 system, thus justifying a process of summary exclusion. But remember Fred Austen Wool Emmet J. Blot that the backlog is largely the INS's April 23, 1993 February 7, 1993 1953 own doing, because it has had to reevaluate up to a half-million Frank B. Yoakum, Jr. Patricia Lane Gilbert M.W. Smith Salvadoran and Guatemalan cases. December 19, 1991 August 14, 1993 January 25, 1993 Make no mistake, expediting the process is not altogether a bad goal. But due process must be maintained, 1932 1943 1954 along with sensitivity to the fact that bona fide refugees have been trauma­ Oliver S. Northcote Bradley Schaeffer Oscar F. Irwin tized and that more than one conver­ February 16, 1993 June 15, 1992 April 10, 1993 sation with each applicant is usually necessary to learn the whole story. Philip Cavalero Robert Reid Wulff As Congress reacts to the waves December 11, 1992 1945 September 14, 1993 of refugees reaching our shores and considers reform, let us hope that its Leonard B. Low members do not act in a way that be­ 1933 April 27, 1993 1955 trays our longstanding humanitarian ideals. Those ideals remind us that we Douglas Clark Gregg Philip H. Dorn are a nation that understands that April 12, 1993 1947 June 8, 1993 when we make decisions related to refugees, special values are at play be­ Edgar B. Stewart John S. Hartwell Hon. Henry E. Morse, Jr. cause life itself may be at risk. 0 July 1, 1993 March 31,1993 Unknown

Bill Ong Ring has just published his second book, Making and 1936 1948 1961 Remaking Asian America Through Immigration Policy, 1850-1990 Leon E. Warmke Richard James Burdge Paul K. Robertson (Stanford Uni­ April 1993 April 30, 1993 September 13, 1993 versity Press, 1993). A Stan­ ford Law teach­ 1938 1949 1973 er since 1985, he helped found John A. Loomis Charles B. Cole John Leroy King and continues to August 26, 1993 April 1993 January 21, 1993 serve as the pro bono director of the Immigrant Legal Resource Center.

FALL 1993 STANFORD LAWYER 53 raduates of the School enjoyed a vari­ Gety of get-togethers these past few months, from serious discussions ofissues in the profession and politics, to light­ hearted social receptions and parties. The Stanford law Society of South­ ern California sponsored an April 271un­ cheon to explore the familiar plaint about the legal profession's becoming less civil. Professor Ronald Gilson was the featured speaker with a talk, "Cooperation and Competition: Can lawyers Dampen Conflict?" Not surprisingly, the ensuing discussion was quite animated. The Sal­ vatori Room atop the Chandler Pavilion ofthe los Angeles Music Center provided an elegant setting for the event. Professor Tom Campbell joined the Orange County law society for lunch on May 11 at the Center Club in Costa Mesa, where he recounted some true tales of congressional lobbying. The former The Class of 1968, now 25 years out, at the Villa Montalvo representative called his talk "How Congress Really Works." larry Boyd '77 introduced Campbell to the growing tion at luce, Forward, Hamilton & cal and global scope. Kudos to Stephen southland contingent. Scripps. The firm's "penthouse" confer­ Brown '72 for arranging the affair. That evening in San Diego, Ed luce ence room provided a spectacular view. Washington, D.C. alumni/a: had an '48 welcomed Stanford colleagues and Topics of conversation included today's opportunity to hear one of the nation's fellow associates and partners to a recep- law School and political matters of a 10- leading conservationists-Dr. Jay Hair, president of the National Wildlife Federation-on '''Politics,' legislation and Other Aspects of a Major Environ­ mental Organization." The June 7 event was held at NWF's headquarters on Dupont Circle. Terry Adlhock, JD/MBA '72, the new president of the Stanford law Society of Washington, D.C., helped organize the affair, which was cospon­ sored with the local chapters of the Stanford Business School and Stanford Club. Far-flung alums in London, England, met for lunch on June 10 at Goldman Sachs International Ltd. on Fleet Street. Professor Kenneth Scott '56 was there to talk about campus developments, helping those present feel as if Stanford weren't so distant after all. The occasion was hosted by Reuben Jeffery m,JD/MBA '81. Law societies in five cities hosted Students Dahlia lithwick ('95), Kathy Durousseau ('94), and events this summer for recent grads and Alyse Graham ('95) in Washington, D.C. current students, including the newly ad-

FALL 1993 STANFORD LAWYER 95 mitted Class of '96. The Washington, D.C., affair-a june 23 winetasting-was held at the U.S. Senate Office Building, courtesy of Senator jeff Bingaman '68. The School's newest congressmen, Eric Fingerhut and Xavier Becerra of the Class of '84, were among those attending. The New York City counterpart was held july 13 at the Manhattan home of Marsha Simms '77. The Southern California law society welcomed new and old alumni/a: to a gathering on the outdoor terrace of the Kachina Grill in downtown Los Angeles. Shaunajackson '91 organized the june 30 event and rallied a large number of recent graduates to attend. San Francisco new­ comers were invited to a july 15 reception at the high-rise Bankers' Club. Associate Dean Ellen Borgersen welcomed one and all, noting that the assembled group rep­ resented over 40 years of graduates of Stanford Law School. And in Seattle, the multigenerational event took the form of a picnic August 15 at the lakeside resi­ dence ofjustice Barbara Durham '68. Los Angeles grads converged on the Hollywood Bowl july 24 for their now­ annual picnic and concert fete. Mark Bronson '89 and Paul Work '89 were the 1993 organizers. The Los Angeles Phil­ harmonic once again provided a lively program-this year celebrating the 30th birthday of the Pink Panther and con­ ducted by composer Henry Mancini. The American Bar Association 1993 annual meeting in New York City offered alumni/a: from throughout the country a chance to become acquainted and reac­ quainted. The associated Stanford recep­ tion was held August 11 at Essex House, a Central Park landmark. Those present heard the latest on the School from Dean Paul Brest. Also this year, the Class of 1968 marked their 25th anniversary with a three-day reunion, April 16-18, at Stan­ ford and environs. Chairs for the gala were Anne Kovacovich Bingaman and Paul Ginsburg. The Law School's Alumni/a: Week­ end 1993 in October coincided with Stan­ ford University's grand Homecoming, making for a rich selection of intellectual and other offerings. A report on the event, with photos, will appear in the spring Center: STA FORD LAW ALUM. Watch your mail Sen. Jeff Bingaman also for invitations to local law alumni/a: gatherings. And feel free to call the '68 and Prof. William Baxter '56 at Alumni/a: Affairs office (415/723-2730) the 1968 reunion. Left: James Amschler with any questions or suggestions you '68 and Dean Brest at the ABA meeting. might have. Above: convivial guests at the -Margery Savoye Hollywood Bowl pre-concert picnic.

96 TA FORD LAWYER FALL 1993 Announcing

STANFORD LAW SCHOOL SUMMER INSTITUTE

A one-week program of instruction

Negotiation and mediation workshops and a broad selection of cutting-edge courses taught by members of the Stanford Law faculty

June 27-July 1, 1994 III.'~

For information, call or write Joan Gordon, Esq. Stanford Law School Stanford, CA 94305-8610

'7r 415/723-5905

Up to 36 California MCLE credits 1994 January 5-9 Association of American Law Schools Annual meeting January 6, Stanford reception In Orlando, Florida

April 8-10 Class of '69 Reunion At Stanford

For information on these and other events, call the Alumni/x Relations office, 415/723-2730

STANFORD UNIVERSITY Nonprofit Organization Stanford Law School U.S. Postage PAID Stanford, CA 94305-8610 Stanford University Permit No. 28