FromThe Law School

OWEN M. FISS last year was ap­ Chicago Law Review, was winner of Mr. Posner's major fields of inter­ pointed Associate Professor on the the third-year Hinton Moot Court est are antitrust, communications Law School Faculty. Mr. Fiss was Competition, and was President of the policy, corporations and conservation. graduated from Dartmouth College Law Student Association and the Mr. Posner, in the academic year in 1959 summa cum laude and Phi Class of 1967. 1969-70, will teach in Competition Beta Kappa. He was a Fulbright Prior to returning to the Law and Monopoly, Distributive Justice, Scholar in Philosophy at University School to assume his recent position, The Public Control of the Corpora­ College, University of Oxford, where he was an associate for two years with tion, and the Antitrust Seminar. he received a B. Phil. degree in 1961. the Chicago law firm of Kirkland, In 1964 he was graduated from Har­ Ellis, Hodson, Chaffetz & Masters. vard Law School magna cum laude NICHOLAS J. BOSEN has recently after having been a member of the been appointed Dean of Students and Harvard Law Review. For one year RICHARD A. POSNER, formerly a Director of Placement at the Law Mr. Fiss served as law clerk to Thur­ member of the faculty at Stanford School. good Marshall, then Circuit Judge of Law School, has joined the faculty Mr. Bosen graduated from the the U.S. Court of Appeals for the as Professor of Law. Mr. Posner University of Illinois in 1963 and the Second Circuit. The next year he was received his A.B. summa cum University of Chicago Law School law clerk to Mr. Justice Brennan of laude in 1959 from Yale and his in 1966. Following graduation, he the United States Supreme Court. LL.B. magna cum laude in 1962 from clerked for the late Justice James R. Prior to his appointment to the Law Harvard. At Harvard, he was grad­ Bryant of the Illinois Appellate Court. School Faculty, Mr. Fiss was Special uated first in his class and was presi­ He was then associated with the Assistant to the Assistant Attorney dent of the Harvard Law Review. Chicago law firm of Curtis, Fried­ General in charge of the Civil Rights Following graduation from law man & Marks and most recently with Division, Department of Justice and school, he served for one year as law the Federal Trade Commission in subsequently Acting Director, Office clerk to Associate Justice William J. Washington, D.C. of Planning and Coordination of the Brennan, [r., of the United States Division. During the 1968-69 aca­ Supreme Court. From 1963 to 1965, demic year. Mr. Fiss taught Property, he served as assistant to Commissioner HAROLD DEMSETZ last year was Equitable Remedies, and Problems Philip Elman of the Federal Trade appointed Professor of Business Eco­ of the Urban Ghetto. Commission. Mr. Posner then was nomics at the Law School. His named assistant to the United States position is a joint appointment with Solicitor General. In this capacity he the Graduate School of Business of DON S. SAMUELSON last March was prepared briefs and argued appeals the University of Chicago where he appointed Assistant Dean of the Law before the United States Supreme has been teaching since 1963. School. His basic responsibilities in­ Court. Mr. Demsetz received his B.S. in clude development, alumni affairs, Mr. Posner has also served as 1953 from the University of Illinois, the Law School Record, and confer­ General Counsel for President his M.B.A. and M.A. in 1954 from ences and special events. Johnson's Task Force on Communi­ Northwestern University and his Following his graduation from cations Policy and as a member of the Ph.D. in economics in 1959, also Dartmouth in 1962, Mr. Samuelson Task Force on Productivity and from Northwestern. He has previous­ taught English literature and compo­ Competition. He is currently a mem­ ly held teaching positions at the sition for two years in the Peace Corps ber of the American Bar Association University of Michigan and U.C.L.A. at St. Patrick's College, Obollo Eke, Commission to Study the Federal and has worked as consultant for the Biafra. At the Law School, he served Trade Commission and is a consultant RAND Corporation and the Center on the staff of The University of to the RAND Corporation. for Naval Analyses.

24 Mr. Demsetz's major interests include market organization and price behavior, law and economics and microeconomic theory. He has written widely in these areas in numerous economic and legal jour­ nals. He is presently teaching the course in Economic Analysis and Public Policy at the Law School.

THE BIGELOW FELLOWS, traditional­ ly responsible for the Law School's extensive first year program in legal 1. 3. research and writing, this year will have the additional responsibility of conducting classroom discussion ses­ sions as part of the first year course in Criminal Law.

The Bigelow Fellows for this year are: Stephen A. Herman of Norfolk, Virginia who received his LL.B. in 1968 from Virginia where he was Research and Projects Editor of the Virginia Law Review; Cameron Clark of Minneapolis, Minnesota who received his J.D. in 1969 from the University of Minnesota where he served as Note and Comment Editor 2. 4. of the Minnesota Law Review; David Fleming of Dover, Kent, England 1. Owen M. Fiss who read law at Hall, Trinity 2. Don S. Samuelson Cambridge University from which 3. Richard A. Posner he received his LL.B. degree in 1969; Michael A. Jackson of London, 4. Nicholas T. Bosen

England who received his LL.B. S. Harold Demsetz degree from the University of London in 1964 and his LL.M. from Yale in 1966; and Joel H. Kaplan from Brooklyn, New York who received his J.D. in 1969 from The University of Chicago Law School where he served as an associate editor of the

University of Chicago Law Review. 5.

25 the average person, the prac­ Totice of law takes place in the courtroom. Television, newspapers and Louis Nizer have, in their vari­ ous ways, tended to advance this view. For many first-year students, the contrast between this vision of prac­ tice and the demands of law school is stark. The grand forensic postures give way to the quiet labors of read­ ing and analysis. The courtroom mystique retreats. As students are repeatedly exposed to the infinite ana­ lytical games that can be played with cases and concepts, and they return from summer clerkships in law firms and law departments, they have con­ siderable reinforcement for the propo­ sition that the office, and not the courtroom, represents the "true" practice of law. The curriculum adds credibility to this perception. Classes use case­ books; casebooks are appellate de­ cisions. The facts for discussion are The Seminar's most unique feature tary evidence and the closing argu­ accepted as "given." is the remarkable way in which it ment. Participants play the role of As an experiment, in 1967 a semi­ simulates actual litigation. Discovery witnesses so that the attorneys can nar in Trial Practice was introduced is wholly self-initiated. Pre-trial conduct the demonstration sessions to the curriculum. It was taught by motions are heard by Circuit Court live. Students then take the lawyer Professor Geoffrey Hazard. Student judges. The case is tried with a jury roles and their performances are used reaction was, and remains, enthusi­ and before a judge. as a basis for criticism and suggestion. astic. Professors Edmund Kitch and The Seminar, which is conducted During the second phase of the Philip Ginsberg have since joined over a twenty-week period, is divided course, the components are put Hazard in teaching the Seminar since into two phases. The first phase con­ together. Students are divided into it has doubled in size. sists of a series of two-hour evening two and three-man firms and given The assumption underlying the demonstration sessions presented by responsibility for the complete prepa­ course is that the analysis and presen­ prominent Chicago trial lawyers. ration and presentation of a case. tation of facts and legal contentions These sessions cover the basic ele­ A case consists simply of a client in trial litigation can be approached ments of litigation: the client inter­ and a set of potential witnesses who with the sophistication associated with view, pleadings, interrogatories, have learned roles from the depo­ appellate argument or legal planning. depositions, pre-trial motions, pre­ sitions taken in the actual case. All It was also thought that traditional trial conferences, the opening state­ of the cases are modeled upon actual legal analysis would be helped ment, direct examination, cross­ cases from the Circuit Court of Cook through an understanding of the examination, presenting the expert County. fact finding procedure. witness, the introduction of documen- The team interviews its client. It

26 then drafts, from the universe of potential causes of action, the appro­ priate complaint. When the complaint is received by the defendant, he brings it to his "firm." An appro­ priate answer or motion is filed. Discovery is conducted, as in the real world, through motions to pro­ duce, interrogatories and depositions. With the conclusion of discovery, pre-trial conferences are held, the issues narrowed, and the case set for trial. At the trial the only exceptions to authenticity are the absences of voir dire and the stenographic tran­ scription of the proceedings. The jury is empaneled and the case is tried before a judge. By the time of the trial, since each of the separate ele­ ments of the trial have been pre­ viously attempted and practiced, the cases move smoothly. The introduc­ tion of documentary evidence is typically fluent. Objections, as might be expected, are not infrequent. After the presentation of the evidence, the jury instructions are argued. Finally, the closing arguments are given. Juries, in the Seminar, have been "out" for as long as three hours­ testimony to the seriousness with which they perform their task. The Trial Practice Seminar seems at this point a relatively permanent addition to the curriculum. Its essen­ tial benefits remain: its presentation of the essential components of the litigation process, its challenge to students to draw upon a variety of lawyer's skills and the opportunity it presents to students to take the first step to the acquisition of courtroom experience and judgment.

27 JUDGE HENRY FRIENDLY of the United prohibition of very large firms from States Court of Appeals for the acquiring a leading company in any Second Circuit received an honorary industry in which the four leaders degree at the University's Spring have 50 percent of the market. Convocation. The following is the statement made Grant Gilmore, by PROFESSOR FRANKLIN ZIMRING has Harry A. Bigelow Professor of Law recently concluded his work for the in presenting Judge Friendly for the National. Commission on the Causes degree. and Prevention of Violence. He was "I present, as a candidate for the Director of Research for the task force degree of Doctor of Laws, Henry report, "Firearms and Violence in Jacob Friendly, Judge of the United American Life." The research re­ States Court of for the Appeals vealed that and Second Circuit. handguns long guns did not contribute equally to crimes "After a brilliant career at the bar, of violence. Although only one-fourth Judge Friendly accepted his appoint­ of all firearms in this country are ment to the bench in 1959. In the handguns, they account for approxi­ brief ten years of his second career mately three-fourths of the homicides. he has come to be recognized as one fudge Henry f. Friendly The report concluded that the most of the outstanding judges of this effective way of gun violence In the time left over from reducing generation. who cannot himself to gladly subject would be through a federal control his duties and from his avo­ the often technicalities of judicial deadening which would eliminate 90 cation of mountain he has system climbing, our craft. No one can be a great percent of the 24 million made contributions to privately who cannot rise above them. significant legal lawyer held His book on The Federal handguns. scholarship. Our greatest practitioners and judges based on Administrative Agencies, and scholars have been incomparable the Holmes Lectures delivered at the technicians in whom the free play of Harvard Law is the rich School, creative imagination has, nevertheless, harvest of a lifetime's de­ thought not been inhibited. They are those voted to the basic of ad­ problems who can see, even in the narrowest ministrative law. His remarkable of issues and in the most trivial of Cardozo lecture before the Associa­ cases, the broadest vistas; they light us tion of the Bar of the City of New toward the unknowable future. In York-'In Praise of Erie and the this select company Judge Friendly New Federal Common Law'-shows has taken his place." both a sense of history and a sensitive awareness of the intricacy of the relationship between state and federal DEAN PHIL C. NEAL was head of the law. task force appointed by President "We are often told, Mr. President, Lyndon B. Johnson in 1968 to study that the study of law sharpens the the antitrust laws. The task force mind by narrowing it. Unfortunately report was recently made public. Two there is more point, so to say, to the of its suggestions have been much remark than most of us care to admit. discussed. They involve the restruc­ No one can be even a of markets the good lawyer turing oligopolistic and Franklin Zimring

28 HE KARL LLEWELLYN PAPERS III Chicago; Lee F. Benton, presently T a Teaching Fellow at Stanford School A statute is a piece of prose of Law; Harvey E. Blitz, currently for study most meticulous an Instructor at New York Univer­ and any solid lawyer knows sity School of Law; Hendrik De Jong, that to read "thev's" for "these" and with Faegre & Benson in Minne­ "those" apolis; Quin A. Denvir, now working is utterly ridiculous. for Covington & Burling in Wash­ ington, D.C.; William P. Gottschalk, A statute, in both thought and word, presently with Kidder, Peabody & Co. is semi-architectural; in Chicago; Marilyn J. Ireland, now and it is bad, it is absurd, with Friedman, Koven, Salzman, when any phrase or Act is blurred Koenigsberg, Specks & Homer in by "reading" that's conjectural. Chicago; John A. Johnson, with United States Steel in The text lays out, the text you see, Pittsburgh; unyielding, all perimeters; Robert T. Johnson, [r., currently Law Clerk to Federal District Ber­ though slight penumbra there must Judge be nard Decker in Chicago; John R. you'll find in force and quantity Karl Llewellyn Labovitz, currently working for the sharp, given verbal limiters. National Commission on Foundations and Private Philanthropy in Chi­ A the other "purpose," (on hand) cago; Thomas L. Ray, presently in diffuse or categorical, California; Alvin C. Warren, Jr., announced, implied, or radar-scanned, A t the annual Commencement Assistant Professor at the University is what need, to understand you .r-l.. Luncheon this past year various of Connecticut Law School; Clifford the oracle. statutory honors and prizes were awarded to L. Weaver, currently Law Clerk to students in the Law School. Seventh Circuit Judge John Hastings "Purpose" was always, and remains The Edwin F. Mandel Award, in Chicago; and David A. Webster, what lends to words all guiding made annually to the member of the now Law Clerk to Federal District spirit. third-year class who has contributed Judge John C. Godbold in Mont­ New Statutes bind by their intent the most to the Legal Aid program, gomery, Alabama. old statutes by what might be meant, was awarded to [o Ann Raphael, what else is sense or half-way near now a Heber Smith Fellow. it? Reginald The Hinton Moot Court Compe­ tition winners this year were John A. T ast May a live jury trial was This poem is part of Karl Llewellyn's Johnson, now with the Law Depart­ L held in the Kirkland Courtroom papers collected by William Twining, ment of United States Steel in Pitts­ and heard by Judge Jacob M. Braude Professor of Jurisprudence, The burgh, and S. Charles Sorensen, now of the Circuit Court of Cook Coun­ Queen's University, Belfast. Lawyer, with Frederickson, Byron & Colburn ty. The case involved head injuries and scholar, poet teacher, Llewellyn in Minneapolis. which were sustained by a young boy at the taught Law School from 1951 Those third-year students elected in an automobile accident. Unlike until his death in 1962. to the Chicago Chapter of the Order past years when the trials went to The in book form are now papers of the Coif for 1968-1969 include: verdict, this year the case was settled available from The Law School's Melvin S. Adess, now with Kirkland, after voir dire and the plaintiff's Alumni Office. Ellis, Hodson, Chaffetz & Masters case in chief.

29 hird Year Malaise, like the in close contact with faculty in an societal relevance of their subject T case system, appears to have intensive consideration of all of the matter. become a recognized feature of legal various issues involved in a single Another recurrent theme involved education. It is an inefficient pause complex transaction or problem, "clinical" work. There is already in the educational process character­ such as the development of a shop­ precedent in this area. The Trial ized by decreased class attendance, ping center or air pollution legis­ Practice Seminar is one example. increased consumption of coffee and lation. A somewhat different Another is the first-year tutorial pro­ a heightened awareness of the desire suggestion was that some be given gram which requires first-year to be through. It has become the law the opportunity to study in depth students .to research and draft eight school analogue to Spring Fever. a single area of substantive law to ten legal memoranda and briefs. The malaise may be merely the through a combination of courses, This program might be expanded in to the ot necessary consequence of seven years seminars and long papers. other years include drafting of higher education. It may be, for All of the above seminar-related simple contracts, wills and convey­ third-year students, the result of two suggestions were viewed as having ances. Another clinical opportunity years of appellate case analysis and the following benefits: close faculty was seen in the new Illinois Supreme the case system. contact, an increased interdisciplinary Court Rule allowing third-year Last year the Curriculum Com­ approach, and the contemporary students, under proper supervision, mittee, chaired by Professor Kenneth Dam, led an investigation to see if the curriculum could offer relief.

Faculty-student study groups were formed for discussion of Urban Legal Studies, Interdisciplinary Studies and, simply, The Third Year. There was also much informal discussion, over coffee, in the Green Lounge. A number of seminar-related suggestions were recurrent in the discussion. One was to provide semi­ nars using subject matter and teach­ ing methods other than the traditional analysis of law through appellate decisions. The skills of empirical research, social science methodology and computerization were thought to be non-legal skills relevant today to legal education. Some years ago accounting was such an example. Studies of proposed solutions to law­ related social problems such as court delay and auto compensation plans were also discussed. Another suggestion was to enable a limited number of students to work

30 to practice in the Illinois courts. nation of the first two, is that some give special emphasis to the inter­ Recognizing that many of the courses might be taught in alternate disciplinary aspects of urban renewal. reforms proposed would make in­ years as lecture courses and reading A new course in Distributive Justice creasing demands upon faculty time, courses. will draw upon a bibliography of law, much of the discussion grew practi­ A number of these suggestions economics, philosophy and political cal. One suggestion was to "free" are being experimented with in the science to analyze the efficiency of faculty time, to utilize it more effi­ curriculum for this academic year. the various governmental institutions ciently. Some courses were thought Professor Currie will experiment with involved in the redistribution of capable of being taught in alternate the reading course concept with wealth. A course in Natural Re­ years. Another suggestion was that Conflict of Laws. It will be taught sources will examine readings from certain courses be taught as "reading" through a bibliography and a small scientific, economic, and political­ courses. Some areas of law seem number of lectures. science materials to provide back­ sufficiently developed in the secondary An increased interdisciplinary ground for the understanding of air literature that a student can learn flavor will be found in a number of and water resource problems and in them through a carefully selected the new courses. An added advanced formulating and evaluating laws bibliography and a modest number of property course entitled Urban Re­ that deal with them. lectures. A third possibility, a combi- newal and Land-Use Planning will Empirical research will also be available in the curriculum through a seminar given by Professor Zeisel entitled Capital Punishment: Em­ pirical Research And The Law. A number of new seminars will be 51 r. Racial Dis­ Spring crimination in Hours offered which also utilize the inter­ Government Employment] 2 503. disciplinary approach. Among them Regulation of 512. Urban Planning will be The Urban Public School Ra�e Relations t 2 Policies which will be 5 11. Racial Dis­ System taught by 514. Urban Public crimination in Professors Fiss, Burt and Zimring. School Employment; 2 This two-quarter seminar will System] 2 Urban Public 514. attempt to draw together the diverse 516. Law and School problems of law, government, social Psychiatry t 2 System] 2 science and public policy involved 520. Trial Practice t 2 515. Higher Education Law and in the creation, structure, and 545. Workshop in 516. Industrial Psychiatry t 2 operation of an urban school system. Organization 530. Current A second seminar, Urban Planning Corporation 546. Regulated Policies, will be jointly taught by Problems 3 Industries Professor Dunham of the Law School 535· Taxation 3 549. and Professor Meltzer of the Center Discretionary 541. Labor Law Justice for Urban Studies and will examine 545. Workshop in 55 I. Constitutional Industrial the involved in program­ Law problems Organization ming the physical restructuring of 559· The The Legislative 552. Supreme cities. Process Court There is, it seems, both ferment and action in the exploration of new teaching methods and subject matters relevant to legal education.

31 Walter V. Schaefer (Ph.B. instance he had the unusual distinc­ Justice'26, J.D. '28, LL.D. '60) of the tion of being unopposed. Illinois Supreme Court, received the "Justice Schaefer has brought to highest honor of the American Bar his judicial office a comprehensive Association, the ABA Medal, at the knowledge of the law, deep insight, Association's 92nd Annual Meeting broad vision and a wise, humani­ in August. The citation which ac­ tarian approach. He is neither a strict companied the presentation of the constructionist nor an activist. He is Medal to Justice Schaefer, who is aware both of the obligations and Chairman of the Law School's Visit­ limitations of his judicial position. ing Committee, reads in part: The reputation of Justice Schaefer "We have been fortunate over the for judicial scholarship is national. years to have had many outstanding He is invited frequently to lecture, on the state courts. judges supreme and his papers have been published One of the most a these distinguished, in many law reviews. Two of Justice Walter V. Schaefer Justice of the Supreme Court of merit particular mention. In 1956, he Illinois, is Walter V. Schaefer. His gave the Oliver Wendell Holmes influence as a leader of legal thought Lecture at the Harvard Law School and the of his recognition judicial on the topic 'Federalism and State eminence have extended far beyond Criminal Procedure,' presenting one the borders of the state on whose of the first comprehensive considera­ tribunal he has served for highest tions of the problems of criminal eighteen years. law in the state courts under the "Justice Schaefer received his law Federal Constitution. More recently, degree at the University of Chicago in 1967, he delivered the Benjamin N. in 1928. He chose to his pursue legal Cardozo Lecture before The Associ­ career in Illinois, gaining wide ation of the Bar of the City of New experience in private practice, in state York. His address was entitled 'The and federal government service, and Control of Sunbursts: Techniques as a professor of law at Northwestern of Prospective Over-ruling,' constitut­ University. His many enduring Philip Kurland an contribution to the contributions have included his co­ ing important literature on the authorship of the Illinois Civil subject. PROFESSOR PHILIP KURLAND de­ "Justice Schaefer is a rare crafts­ Practice Act, adopted in 1933, and livered the Cooley Lectures at the a whose his chairmanship of the 'Schaefer man, lawyer's judge opinions University of Michigan Law School are models of and Commission,' created by the Illinois clarity judicial on September 15-19. The title of his He believes that legislature to study and modernize learning. any judge's lectures was: "Politics, the Constitu­ outward lies in the structure of state government in greatest recognition tion, and the Warren Court." The 1949-1951. the respect, admiration and affection five individual lectures were "Intro­ "With this broad background he of his fellow lawyers, and that his duction; Myths and Realities," "The inner satisfaction comes from became a Justice of the Illinois Su­ greatest Congress, the President, and the the devotion of mind preme Court by interim appointment his and heart Court," "Federalism and the Warren of Governor Adlai E. Steve�son in to the achievement of the ideal-per­ Court," "Egalitarianism and the 1951. He has twice been elected to haps unattainable but still inspiring­ Warren Court," and, "Problems of the Court, and in the most recent of universal justice for all men." a Political Court."

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