Stanford Lawyer Fall/Winter 1980 . Volume 15. NO.2

Editor: Cheryl W. Ritchie Associate Editor: Sara Wood Designer: Jim M'Guinness

Dean's Page 2

Law & Computers: Creating a Role for Computers 4 at the Law School by Joseph E. Leininger, Associate Dean

Law & Economics: A Progress Report 10 by A. Mitchell Polinsky, Professor of Law and Associate Professor of Economics

Law & Psychology: 12 On Carefully Educating a Jury by David Rosenhan, Professor of Law and Psychology

Thoughts on a Year's Leave at the EPA 17 by Robert L. Rabin, Professor of Law

On "Interpolating Little Personal Recipes" 20 by Charles J. Meyers, Richard E. Lang Professor of Law and Dean

1980 Kirkwood Competition Signals 22 New Era for Moot Court Program

Broadway Play Brings Recognition to Alumnus 24 by Sara Wood

Dean Mann Appointed Special Master 28 in U.S. v. Alaska

School and Faculty News 30

Class Notes 35

A Tribute to Lowell Turrentine 55

In Memoriam 56

Stanford Lawyer is published semi-annually for alumni/ae and friends of Stanford Law School. Materials for publication and correspondence are welcome and should be sent to the Editor, Stanford Lawyer, Stanford Law School, Crown Quadrangle, Stanford, CA 94305. ©1980 by the Board of Trustees of the Leland Stanford Junior University. Reproduction in whole or in part without permission of the publisher is prohibited.

I Dean~sPage

n looking over the contents of this issue, I was immediately struck by the diversity of subject matter I represented in its pages: the interaction of psychol­ ogy and law in the jury process, the application of law to the field of artificial intelligence, the intersection of law and economics, and the use of a "working sabbatical" to relate practical experience to one's teaching and research. The realization that the authors and the subjects of their articles are today a part of every Stanford law student's experience prompted me to re-read a report that I prepared in 1968 as chairman of the Curriculum Committee of the Association of American Law Schools. The purpose of the committee was to examine the basic patterns of legal education and to suggest some long-range proposals. The committee's findings, in short, were that legal education in the late '60S was "too rigid, too uniform, too narrow, too repetitious and too long." With respect to its "narrowness" the report said: Course requirements do not permit students to pursue avenues of intellectual interest or to capitalize on previous academic or practical experiences. The enshrinement of the case method, a mode ofinstruction based largely on Charles J. Meyers rigorous cross-examination over purely legal materials (a teaching method we curiously call Socratic), has made law teachers suspicious of exploiting the knowledge of other disciplines that does not readily lend itself to "Socratic" exposition. Moreover, the very precision of thought that the case method develops is antipathetic to the intellectual attitudes of some of the disciplines that could complement law study (e.g. sociology, psychiatry). Nevertheless law schools must accommodate themselves to the vocabulary and thought processes of disciplines very different from our own. However distressing it may be to listen to an architect who speaks of a building "that doesn't sing," the lawyer concerned with urban planning cannot do without him, or one of his brethren who talks the same way. In short, the law schools have brought to the level ofhigh art the skill of precision in the use of language, but we must, without sacrificing that skill, put more and different substantive content at the disposal of our students. A glance at the courses being offered during the 1980-81 academic year reveals that Stanford has come a very long way since 1968. A student entering in this law school today

2 will be exposed not only to the core courses that are the because itis an area that I have worked to develop for the foundation of every law school curriculum but also to the last ten years. myriad other disciplines that intersect with law. A central In 1979, Kenneth F. Montgomery of Chicago, Illinois, a purpose of this law school is to provide a firm under­ member of the Law School's Board of Visitors, and his standing of the nonlegal environment in which the law wife, Harle, A.B. '38, en'dowed the first professorship in functions, because every legal problem has its own clinical legal education in the country. The chair recognizes set of economic, psychological, historical, and other the work of Professor Anthony G. Amsterdam, the considerations. country's foremost expert in the simulation method of Law cannot be studied in a vacuum; and the first-class clinical education. Together with Donald T. Lunde, M.D., lawyer never loses sight of the fact that the legal process is Clinical Associate Professor of Psychiatry in the School of a part of the social process. He knows when and how to Medicine and Senior Research Associate at the Law work with accountants, doctors, economists, sociologists, School, Professor Amsterdam is designing a basic clinical engineers, whose expertise can help him or his client. law course for use at Stanford as well as other law schools. In 1966, Stanford made its first commitment to the It is expected that the course will revolutionize law development of stronger ties with other disciplines when teaching the way the casebook did in the last century. it established the first JD/MBA program in the country. The Montgomery Professorship will enable Stanford to Since that time, interdisciplinary work at the School has spearhead this revolution. grown steadily. Joint degree programs have been formally This year, the School received yet a third monumental established with several other departments, including gift. Through the generosity of the Ralph M. Parsons economics, history and political science. Moreover, law Foundation of Los Angeles and the William Randolph students are encouraged to develop their own programs Hearst Foundation of New York City, Stanford Law with virtually any department on campus, subject to the School now holds the first endowed professorship in law approval of both the law school and the respective and business in the country. department. The message is clear: solid links between the Law School The composition of the faculty also reflects the growing and other disciplines now exist. And the prognosis is for interest and interaction with other disciplines. In addition more links to be formed in the future. One of the great to teaching Trusts and Estates, Lawrence Friedman is the strengths of the Stanford Law School in the past has been resident legal historian. Through his research and teaching, its constant search for ways to improve every aspect of its Lawrence has made path-breaking contributions to the educational program. That has meant reaching out in new field of American Legal History. David Rosenhan holds a and different directions, without losing or compromising joint appointment as Professor of Law and Psychology and the fundamental goal of academic excellence. Stanford has in that capacity produces significant work in both fields. maintained that excellence, while it continues to be A. Mitchell Polinsky, a new member of the faculty, is innovative and a leader for other law schools to follow. Professor of Law and Associate Professor of Economics. What does the future hold? I foresee even greater In addition to offering courses in law and economics flexibility and diversity within the curriculum and a (including a first-year required course in economic analysis growing understanding of the role of the lawyer as social -the first of its kind in any law school), Mitch engineer, who is in most instances at the center of the is a resource for faculty members who are interested controversy and charged with the responsibility of in the application of economics to their courses and assimilating all of the data, weighing all of the expert research. Finally, each year the School invites a computer opinions, and creating the appropriate legislative and specialist to spend a year at the School as a Law and, administrative rules and procedures that allow it all to Computer Fellow. While pursuing original research this work. Stanford is committed to providing its students and individual also acts as a resource for faculty and students faculty with the resources and the expertise to make that interested in the law and computer field. possible. These are significant innovations that emphasize the impact of other disciplines on law. But perhaps the most significant measure is the recent funding of three major chairs. In 1978, the Law School received funding from the family of an alumnus to endow a chair in law and economics. This gift was personally gratifying to me

3 Creatinga RoleforLawand Computersat Stanford by Joseph E. Leininger

0 doubt most lawyers agree with the view expressed by Holmes on page one ofThe Common Law (1881), • that "the law...cannot be dealt with as ifit contained only the axioms and corollaries ofa book ofmathematics." A modern paraphrase might saythat little of worth is discoverable inthe law simplyby the manipulation ofdata according to fixed rules. This may partly explain why the computer­ the data-manipulator par excellence-has only belatedly won the attention ofthe legal profession and the law schools. Since the late 1950's the computer has enjoyed enthusiastic acceptance in other professional fields, including engineering, medicine, education andbusiness management. But it has found a firm place inlaw only during the last ten years.

4 chandising, ownership and use of com­ puter equipment and software. A partial Computers at the Law School ". ..it maybe estimated that list of the problem areas includes contract­ At the Stanford Law School we are using 25 American law schools ing and leasing, taxation, protection of the computer in a number of ways. Since rights in software, privacy safeguards in 1977 the Law Library has participated in a offer regular or occasional database management, computer "abuse," computer-based book cataloging and instruction in some aspects electronic funds transfer and its related inter-library loan system (created at Stan­ ofcomputer law:" commericallaw issues, programmer liabil­ ford as the BALLOTS system but now ity for defective software, the use of known as the Research Libraries Informa­ computer-produced materials in evidence, tion Network) that provides ready access the computer industry and its regulation to other collections on and off the campus. A lot has happened, however, in those and-a recent addition to the list-regula­ A LEXIS terminal has been in place for ten years. Many law firms, law schools, tion of the flow of data across inter­ about the same time, and some two-thirds courts and government agencies now em­ national borders. There is a fast-growing of the School's students now receive train­ ploy LEXIS, WESTLAW or JURIS systems literature on these subjects, and lawyers ing in its operation. A major part of the to assist their legal research. Computers are around the country are being prompted by Placement Office's work, including the widely used for billing, book ordering and client needs to gain some familiarity with scheduling of job interviews, has been au­ cataloging, and other administrative tasks. them. A still-small but growing group of tomated at a substantial saving of time to They are increasingly used for file man­ practitioners is developing special compe­ both staff members and students. Pro­ agement in complex litigation and for the tence in the area. Three journals, one of grams are being completed for the Admis­ preparation of wills, trusts and other legal them edited by law students at Rutgers, sions Office that will speed the work in­ instruments. Computerized text-editing, give attention to these problems, and it volved in assembling an entering class of which greatly eases the revision process, is may be estimated that 25 American law about 168 students out of some 3,000 becoming common. Computer-aided schools offer regular or occasional instruc­ applicants each year. Several members of statistical techniques are of growing im­ tion in some aspects of computer law. the faculty and staff have their own text­ portance in legal research and litigation. We have already mentioned some of the editing terminals, another terminal is All of these uses are giving lawyers direct concerns of the second branch of the field: available in the Law Library for general experience with the computer that serves computer applications to law. These in­ use, and students show increasing interest to build their interest and confidence in it. clude computerized legal information re­ in building their skills in this new medium. In recent years, too, a "law and com­ trieval, the use of computers in pretrial The computer also makes possible various puter field" has come to be recognized by discovery and trial presentation, text­ kinds of statistical studies, for both schol­ the American Bar Association and other editing and other computer-based pro­ arly and administrative objects, that would professional organizations, as well as by a cesses in law office management, the role not have been conceived or attempted a number of law schools. The field can be of computers in law enforcement and judi­ few years ago. variously defined, but for convenience here cial administration, and computer-aided For some time, ho\vever, the School's in­ we may divide its subject matter into two instruction in law. Within this general cat­ stitutional interest in the computer has ex­ groupings: applications of law to egory are two other concerns to which we tended well beyond these everyday appli­ computer-related activities, and computer will return: artificial intelligence applica­ cations. Through the efforts of Dean Bay­ applications to the law. The first grouping, tions to legal research and analysis, and the less Manning and Assistant Dean Thomes often referred to simply as "computer use of quantitative methods in the law. All E. Headrick, the School in 1968 obtained a law," embraces a congeries of substantive of these areas have been explored at vary­ substantial grant from the IBM Corpora­ legal problems associated with the mer- ing length in books and journals, and a few tion for the establishment of a Law and law schools have given them selective Computer Fellows Program. This treatment in course offerings. enterprise was founded on the belief that rapid advances in computer technology of­ fered challenges and opportunities to lawyers that should be identified and dealt with. To this end, the program was de­ signed to support several law teachers each year in intensive computer science studies at Stanford, with the hope that they would explore the uses of the computer in their own research and share their new knowl­ edge - through course offerings or other­ wise - on return to their own schools. But things didn't work out quite that way. It proved hard to find young law teachers who could leave their jobs for a full academic year. As an interim measure, the School sponsored two summer semi­ nars - in 1968 and 1969 - for selected law students from schools around the country who had interest in and some experience with computers. The seminars were con­ ducted by Dean Headrick with the collab-

5 Creating a Role for Law and tion in business adminstration at the con­ ers in the field, both to assess developments Computers at Stanford clusion of his fellowship. The fellows had and to point new directions. A 1972 work­ varying interests, and they were shop brought together some 30 scholars oration of Bruce C. Buchanan, then a re­ encouraged to give those interests full play. and specialists in the law and computer search associate (now an adjunct profes­ Some attended courses in computer sci­ field for a general stock-taking and ap­ sor) in Stanford's Department of Com­ ence, operations research or statistics, praisal of work then being done. In the puter Science. They focused on computer while other gave most of their time to re­ following year the School sponsored a con­ applications to law, with emphasis on search. Three of them, at our invitation, ference on "Computers, Society and Law: problems of information retrieval. In that conducted seminars: Fischer on "Law, The Role of Legal Education," jointly with period, too, a grant was made to a law Cognition and the Computer" (1971-72), the American Federation of Information school faculty member, Professor William McCarty on "Decision Technology and the Processing Societies. This attracted around F. Baxter, to enable him to spend an Law" (1972 - 73), and Hamilton on 90 legal scholars, computer scientists, and academic year in studies of statistics, ma­ "Computers and the Legal Process" (1973 other professionals to Stanford for a two­ trix algebra, and computer science. He has -74)· day discussion of where, if anywhere, the since drawn heavily upon those studies in Our most recent, and probably our last, law schools ought to be going with respect his teaching and research on antitrust law, fellow under the IBM grant was Professor to computer-related training. No firm con­ government regulation of business, and Spencer Neth of the Case-Western Reserve clusions were reached, but the proceedings legal economics. Law School. He was with us during the were duly published. Spring semester of 1979- 80, during which Over the years there has been recurring he applied himself diligently to a heavy interest among the fellows in the applica­ load of studies in programming tech­ tion of artificial intelligence techniques to "...for many it (artificial in­ niques, the management of information law. "Artificial intelligence" is a term telligence) conjures up im­ systems, computer-aided instruction, and widely used by computer science people ages ofbrainy robots with the application of cognitive psychology to but disliked outside the discipline because computer systems. He is planning to pre­ for many it conjures up images of brainy destructive tendencies." pare a scholarly article drawing upon his robots with destructive tendencies. It is an experience here, a:ld perhaps to inaugurate especially inapt term to employ with a course on law and computers at Case­ lawyers, whose particular image is of an Western Reserve. automated robot-judge that dispenses un­ I assumed charge of the program on Others participated in the program, appealable rulings at the press of a button. Dean Headrick's departure from the though not as fellows. Associate Professor Other appellations have been suggested­ School in 1970, and in 1970 - 71 we re­ Richard K. Markovits of our faculty re­ at least for branches of the artificial intelli­ ceived our first off-campus fellow, Asso­ ceived support during the summer of 1972 gence field-including "semantic informa­ ciate Professor William E. Boyd of the for studies in statistics and computer pro­ tion processing," "symbolic information University of Arizona Law School. After cesses. Susan H. Nycum, now a processing" and "knowledge engineer­ nine months of study in computer science practitioner-specialist in computer law ing"; but none ofthem has caught hold. As he wrote a perceptive piece on "Law in and past Chairperson of the ABA's Section explained in a recent Campus Report pro­ Computers and Computers in Law: A of Science and Technology, was a program file of Professor Edward A. Feigenbaum, Lawyer's View of the State of the Art," research associate in 1972-73. Colin EH. Chairman of Stanford's Computer Science which later appeared in 14 Arizona Law Tapper, Fellow and Tutor in Law at Mag­ Department, artificial intelligence (or AI) Review 267-311 (1972). dalen College, Oxford, and Britain's lead­ is primarily concerned with the modeling An alternative to bringing law teachers ing authority in the law and computer of logical inference processes in defined to Stanford was to award fellowships to field, was a visiting professor at the School problem areas. It involves complex pro­ young law graduates who already had in 1975 - 76. During his stay he offered a gramming techniques that enable the com­ some knowledge of computer science and seminar on "Computers and the Law" and puter to carry out a form of "reasoning" were interested in entering law teaching. did most of the work on a book ofthe same on the basis of stored knowledge. The After Professor Boyd, the next five of our title that has since been published. Milton knowledge is of two kinds: the basic facts, fellows were in this category. They in­ R. Wessel, a New York attorney of long rules and generally accepted procedures re­ cluded Mark J.E Fischer (1971 - 72), a experience with extensive involvements in lated to the problem area under study; and graduate of the Harvard Law School who the computer field, also conducted a the "experiential" - or judgmental ­ came to us from a federal court clerkship; course on "Computers and the Law" in knowledge of experts in that area. (Com­ L. Thorne McCarty (1971 - 73), another 1978-79. Annev.d. L. Gardner, a graduate puterized chess is a familiar example.) Pro­ Harvard Law School graduate who is now of the School now working toward a Ph.D. fessor Feigenbaum and his colleagues, in­ a professor at the SUNY, Buffalo, School of in Computer Science at Stanford, has re­ cluding Professor John McCarthy, have Law; ]. Roger Hamilton (1973 - 74), a ceived modest support for her past two brought Stanford to world prominence in graduate of the University of Oregon summers' research; she is attempting to this field. Two of the functioning systems School of Law now in computer-related bring computer resources to bear on an created at Stanford are the DENDRAL practice; James C. Boczar (1974 - 75), a analysis of legal reasoning, with examples program, which gives "intelligent" assis­ University of Miami School of Law gradu­ drawn from the law of controls. The tance to chemists in the interpretation of ate who went from here to the University of School has also extended hospitality to a molecular data produced by mass Arkansas School of Law as an assistant number of foreign legal scholars with spectrometry; and the MYCIN program, professor and later into private practice; interests in the computer, several of them which advises on diagnosis and therapy for and Dennis E. Burton (1976-77), a gradu­ for extended periods. blood and meningitis infections. Three ate of the University of New Mexico Finally, the program has sponsored occa­ programs still in the preparatory stage will School of Law who took a teaching posi- sional meetings of scholars and practition- assist scientists working in recombinant

6 DNA technology, facilitate the designing The ultimate, "practical" objective, which their consequences that has ever of large scale integrated circuits, and assist McCarty makes no claim to having been devised. in the analysis of data on the geology and achieved or even approached, would be to potential hydrocarbon content of oil field assist a lawyer in the analysis of corporate To our knowledge, TAXMAN is the areas - in short, help locate new wells. reorganization problems under the Code. country's first working experiment in arti­ Many otherprojects involving both faculty The lawyer could not expect simply to feed ficial intelligence applications to law. members and students are in various ph­ the computer a set of facts concerning a Other projects have been conceived, in­ ases of development. The profile quotes merger and to receive back an opinion on cluding one dealing with the rule against Professor Feigenbaum: "We are creating the tax consequences. But by drawing perpetuities, by Susan H. Nycum here at programs that will assist professionals. upon a database containing both statutory Stanford, and another focusing on assault What we have succeeded in doing already and interpretive materials, the system and battery, by Jeffrey A. Meldman of is to elicit and make available in programs might-through its specially designed pro­ M.LT. But no other has reached the ad­ the knowledge and reasoning power of grams-assist the practitioner in an "inter­ vanced programming stage. Indeed one some of the finest minds in the areas we active" way, that is: to "talk" with the writer, perhaps thinking that TAXMAN is have studied." lawyer and provide help at various stages capable of more than it really is, recently Our interest in artificial intelligence was of the analytical process. McCarty points raised the question whether a layman's use spurred by an article written jointly by out that in this project, as in other artificial of it would constitute the unauthorized Dean Headrick and Bruce Buchanan on intelligence undertakings, one of the most practice of law. His conclusion: probably "Some Speculation About Artificial Intel­ challenging tasks has been to articulate not. ligence and Legal Reasoning," which ap­ and "represent" in the computer the con­ Meanwhile, McCarty is pressing on with peared in 23 Stanford Law Review 40- 62 cepts and logical processes that must go his research. With the help of a National (1970). After reviewing work being done in into the analysis. But he regards this as a Science Foundation grant and the collab­ computerized legal information retrieval, worthwhile exercise in its own right, as he oration of computer scientists at Rutgers, the authors described the analytical pro­ explains on pages 839- 40 of his article: he is engaged in an even more ambitious cesses involved in two common tasks ofthe undertaking, called TAXMAN II. This will lawyer: interpreting the facts of an occurr­ ... Whatever its practical applica­ refine and extend the capabilities of the ence, and the relevant law, to a client's tions, the TAXMAN system pro­ parent program. benefit; and recommending actions that vides, I claim, an important tool for satisfy a client's goals and avoid unfavor­ the development of our theories able legal consequences. They then ex­ about legal reasoning. A great many plored possibilities for the use of artificial of the classical jurisprudential prob­ "...the system might...'talk.' intelligence methods in the performance of lems are tied to problems about the with the lawyer and provide those tasks, drawing upon experience al­ uses of abstract concepts in the regu­ ready gained in the DENDRAL program lation of human affairs. In [the] ... help atvarious stages ofthe and others. They concluded that the re­ writings there are many illuminating analytical process." lationship between law and artificial intel­ examples and many valuable in­ ligence should be seriously explored. sights about the structure and dynamics of legal concepts. But taken as a whole, the jurisprudential McCarty's example has been followed literature is notoriously imprecise: by other participants in our program. Two "The ultimate 'practical' ob­ the conceptual structures themselves West German lawyers with computer ex­ jective would be to assist a are only vaguely defined and vag­ perience, Walter G. Popp and Bernhard uely distinguished from one Schlink, spent four months at the School as lawyer in the analysis ofcor­ another; the dynamics of conceptual visiting scholars in 1974. During their stay porate reorganization prob­ change appear only as suggestive they attended courses, familiarized them­ lems under the code." metaphors...The TAXMAN system selves with artificial intelligence studies adds a strong dose of precision and being done here, and worked to perfect a rigor to these discl;lssions of linguis­ program of their own that deals with Ger­ tic and conceptual problems. Its crit­ man law. It is described in their article, As a fellow in 1971 - 73, L. Thorne ical task is to clarify the concepts of "JUDITH, A Computer Program to Advise McCarty moved the inquiry an important corporate reorganization law in Lawyers in Reasoning a Case," 15 Jurimet­ step beyond speculation. He devoted a such a way that they can be repre­ rics Journal 303 - 314 (1975). As already great deal of his time to a project that is sented in computer programs. This mentioned, Anne Gardner is engaged in an fully described in his later article, "Reflec­ requires a degree of explicitness artificial intelligence project involving the tions on TAXMAN: An Experiment in Ar­ about the structure ofthese concepts computer analysis of contracts problems. tificial Intelligence and Legal Reasoning," that has never previously been at­ Her Ph.D. dissertation, on legal reasoning, 90 Harvard Law Review 837- 893 (1977). tempted. When we describe con­ is well underway, and she is about to Very briefly, TAXMAN involved the crea­ cepts in this way, we implicitly ar­ undertake the difficult programming tasks tion of computer programs intended to ticulate theories about them; when to which her research has led her. Her model specific concepts and processes that we run the computer programs that interest, like McCarty's, is less in produc­ occur in the taxation of corporate reor­ embody these concepts, we test out ing a service for lawyers than in exploring ganizations, with focus on the definitional implications of our theories. Used in the possibilities and limits of the approach. provisions of Section 368 of the Internal this fashion, the computer is the Headrick and Buchanan summed it up in Revenue Code of 19 54-avery limited, and­ most powerful tool for expressing the conclusion to their article. Their obser­ therefore manageable, problem domain. formal theories and spinning out vations are still timely:

7 Creating a Role for Law and dimensions. At the same time, both Con­ tive use of computer models - and other of Computers at Stanford gress and many state legislatures are in­ the new approaches - in law-related areas creasingly concerned with the optimal use requires close collaboration between of resources and are requiring executive lawyers and technicians. He said: It is premature to state categorically departments to consider the potential eco­ that computers will be used as aids nomic impact of new regulation. It is safe Part of the job of the lawyer is to in the process of legal reasoning, or to assume that these legislative require­ design institutional mechanisms even that they should be. It is hard that will encourage ... continual re­ ments will lead to litigation that will in­ even to imagine a consensus on the finement of [a] ... model. Another volve courts and counsel in the evaluation import of the research we propose. part of his job involves the setting of of complex analytical studies utilizing Certainly lawyers at one extreme substantive standards and guide­ formal, computer-produced models. This will already have written off com­ lines within which the modeling ef­ will simply add to the heavy new burdens puters as a waste of time and money, fort will take place .... If a systems of understanding that have already been while some at another extreme will engineer intends to address public placed on the courts by litigation involving be so convinced of the computer's policy questions, then he will neces­ complex quantitative issues in the areas I potential as to feel threatened by its sarily be working with laws and law have mentioned, and others. Chief Judge future encroachment upon their makers and lawyers; conversely, if David L. Bazelon of the United States work. Between these extremes are the lawyer intends to address a com­ Court of Appeals for the District of Co­ numerous positions, some more plex systems problem like pollution lumbia has spoken and written forcefully plausible than others. Such a system control, he will be well-advised to on this problem. could be developed only to die of make use of all the technical neglect; it could survive only in the methodologies that are presently cloisters of academia; it could be­ available. come an occasional tool of a small or After McCarty, two other fellows ­ large number of lawyers; it could, James C. Boczar and Dennis E. Burton ­ conceivably, become a major influ­ pursued research in this field but did no ence in the practice of law. teaching. McCarty has continued his in­ volvement with the area at SUNY, Buffalo, New Methods School of Law, where he has given semi­ nars on "Quantitative Methods in the A second, quite different, area that has Legal Process," and on "Economic Models been of interest to several of our fellows is in the Legal Process." loosely called "quantitative methods and What does this total experience of a dec­ law." This is concerned with the applica­ ade and more suggest for the future? We tion to legal problems (or, more precisely, have seen the birth and early development to problems having legal components) of a ofthe law and computer field, and with the melange of new methodologies that are important help of the IBM grant we have heavily dependent upon the computer and done a few things to help nurture it. Should are being applied to an ever-wider range of the institutional effort now continue, or policy and management problems by gov­ has enough momentum been built to insure ernment and industry. They include statis­ At the Law School some of the new that important matters in the law­ tical inference, mathematical modeling methodologies have been relevant to such computer relationship will be addressed and optimization, computer simulation, regular or occasional offerings as Legal without that effort? and decision analysis. The need for this Economics, Law and Economics, and The answer depends, I believe, upon kind of study seems plain. Though increas­ Methodology in Social Science. But they which activities within the field we are ing numbers of students with technical first received systematic attention in talking about. Probably as good a case can backgrounds are entering the law schools, McCarty's 1972-73 seminar on "Decision be made for ongoing teaching and research most lawyers have very little competence Technology and the Law," for which he in computer law-as we have defined it, the in these new approaches to problem took time from his TAXMAN work. All of branch that embraces the substantive legal analysis, planning, decision making, and the student participants had a level of problems associated with computers and management. Yet many of them are being technical experience higher than the Law their use - as for continuing work in called upon to exercise their professional School average - in mathematics, physics, environmental law, mass media law or skills and judgment on problems that can or engineering. The seminar's central focus urban law, as examples. Each of these in­ properly be defined and analyzed only in was on a series of readings and case studies volves the application of at least several highly "quantitative" terms. Such prob­ demonstrating the use of optimization, bodies of existing or emerging law, includ­ lems are routinely encountered in the areas simulation or gaming techniques in con­ ing some specific legislation, to problems of environmental protection, nuclear nection with environmental control, the that are related only by a common, non­ power regulation, antitrust, legislative re­ study of oligopolistic markets, and urban legal element-in our case the computer. A districting, and school desegregation - to management problems. The group also ex­ course or seminar on computer law, regu­ name a few. amined the "global simulation" work then larly offered, would have the obvious value The concept of "technology assess­ being done at M.1.T., statistical decision of informing students and encouraging re­ ment," popular in government circLes, theory and the law of evidence, and the use search on the distinctive issues thatincreas­ challenges lawyers both in and outside of of computer technology in the court sys­ ingly confront lawyers, legislators, admin­ government to involve themselves in a tem. In a later paper reviewing the seminar istrative agencies and courts in the area. whole range of problems with technical experience, McCarty noted that the effec- More, it would provide a needed forum for

8 the study and discussion of more general, work, however, with encouragement and but at least equally urgent, questions con­ some coordination from the faculty and cerning the accommodation of rapid the Dean's office. It offers at least two ad­ They (artificial intelligence technological change in our country and vantages: a fair assurance that the issues andlaw) are still quite the world. selected will be treated carefully, and in esoteric, compared to other Yet I am not sure that this deserves prior­ appropriate depth; and second, a means of ity over other needed teaching and re­ acquainting more students with at least a fields oflaw-related teaching search, especially if it would substantially few of the issues in the problem area - here and research." burden the School's budget. A number of computer law-than would otherwise gain the continuing issues in computer law can any formal exposure to them. It leaves gaps arguably be treated as effectively, perhaps in the coverage, to be sure. But perhaps we more effectively, in existing courses and can invoke a Darwinian principle to sup­ trators, or judges. Those efforts might also seminars taught by faculty members with port the idea that this might not be all bad. cast important new light on the legal special competence in the relevant fields. On balance, I am of the view that we reasoning and research processes - now Among the continuing issues I have in should seek to engage as many faculty understood largely through intuition- and mind are the protection of rights in members and students as possible in the assist the development of those processes software, the taxation of computer sales examination of computer law problems to meet the needs of an increasingly com­ and services, the use of computer­ within the framework of standard offer­ plex society, made so in large part by its produced materials in evidence, and the ings, and not commitLaw School resources growing reliance upon technology. protection of privacy. It seems fair to say to regular teaching and research in com­ There are already opportunities at Stan­ that a teacher of computer law does not puter law as a separate effort. ford for law students and faculty members need an extensive background in computer The other branch ofthe field-computer to acquaint themselves with these two science, though he or she should of course applications to law - needs some separate problem areas through cross­ have basic "literacy" in computer pro­ analysis to provide a basis for answering registration, joint degree programs, or col­ cesses and a good understanding of the our question. I doubt that any law school is laborative teaching or research. The Grad­ industry and its practices. The emphasis able to contribute very much of worth to uate School ofBusiness, the Department of must be - or usually is - on instruction in the development of computerized legal in­ Economics, and the .Department of law. But the "smorgasbord" approach, as formation retrieval systems as such, even Engineering/Economic Systems - in addi­ some call it, places a heavy burden on both though they are becoming increasingly im­ tion to the Department of Computer Sci­ instructor and studentif it is to afford more portant in legal research. This also applies ence - offer courses in computer-related than a sampling of the fare. to the use of computers in discovery and fields including mathematical modeling trial preparation, in law enforcement and and optimization, simulation, and deci­ judicial administration, and in other rela­ sion theory. Students in the law-business tively straightforward tasks. All of these program, some twenty each year, gain ex­ matters are better addressed, and are being posure to some of these methods as a mat­ addressed, by others. Some imaginative ter of course. and useful programs for computer-aided But more is appropriate, and needed. In instruction in law have been developed at a my opinion there is a clear place for a pro­ number of law schools, notably Min­ gram sponsored by the Law School, prefer­ nesota, Harvard and Illinois; this work ably with outside funding, that will give should doubtless continue. opportunity and direction to a few persons In my view, however, the two problem each year - faculty members, students, fel­ areas that concern the application of arti­ lows - for intensive work in these two ficial intelligence methods to law and the areas. The cooperation of other Stanford use of quantitative methods in legal prob­ departments, particularly the Department Thus we must weigh the benefits of a lem solving offer the most promise and of Computer Science, is assured. Unique single, coherent offering in computer law opportunity for distinctive contributions scholarly and technical resources are avail­ against the difficulties of the "pervasive" by law schools. They are both truly "inter­ able to support the effort. Through the method, whereby computer-related mate­ disciplinary," in that the problems they en­ Law and Computer Fellows Program the rials would be incorporated with others in compass are amenable to productive study Law School has already taken what some existing courses and seminars. If they have only through the collaboration of two or have called an "institutional initiative" in not yet done so, the teachers of these offer­ more persons well-schooled in the disci­ these areas. It should not be abandoned. ings - patent and copyright law, taxation, plines relevant to those problems, or administrative law, evidence, etc. - will through the efforts of one person well­ predictably turn their attention to schooled in all of the pertinent disciplines. computer-related issues as they are at­ They can best be studied in an academic tracted by the novelty or importance of ~etting. They are still quite esoteric, com­ those issues. This is .a familiar pattern in pared to other fields of law-related teach­ law teaching and research. ing and research. But they challenge inves­ Associate Dean Leininger was graduated from One problem with the "pervasive" ap­ tigation by persons with the necessary the University ofCalifornia at Berkeley in I95I, receiving an A.A. in anthropology and proach is that it tends to be haphazard and competencies whose efforts, over time, Far Eastern studies, and from Harvard, with slow-moving if sole initiative is left to indi­ might well harness the computer to the an LL.B., in I959. He was secretary ofInter­ vidual instructors, for they must often laws in ways that will significantly national Legal Studies, I962 -66, and vice­ make difficult choices among new mate­ enhance lawyer's capabilities to do their dean, I966 -69, ofHarvard Law School be­ rials for their courses. It can be made to jobs as counselors, advocates, adminis- fore coming to Stanford.

9 LAWANDECONOMICS AT STANFORD: A PROGRESS REPORT

by A. Mitchell Polinsky

conomists don't know limits. government regulation. In brief, econom­ School faculty members have an interest in They have undertaken (serious) ics provides a unifying framework for the economic approach to law. They in­ E economic analyses of marriage, thinking about legal rules and institutions. clude John Barton in contracts and inter­ religion, and even suicide. It is therefore On the practicing front, economists are national law, Lawrence Friedman in law not entirely surprising that economists used in a variety of legal matters. For and soci~ty, Thomas Grey in legal found their way to law. What may be sur­ example, they are regularly called upon by philosophy, and Robert Rabin in adminis­ prising is the welcome they have received both plaintiffs and defendants in antitrust trative and tort law. Also to be included from lawyers. Just within the past decade, cases to testify on such issues as predatory this year is Robert Mnookin (visiting from the law schools at Berkeley, Chicago, Har­ pricing, price discritnination, market de­ Berkeley) in family law and personal fi­ vard, Michigan, N.Y.U., Penn, and Yale, as finition, and market concentration. nancial counseling. well as Stanford, have appointed at least Economists are also frequently involved in Besides the Law School faculty, there are one economist. Two academic journals other legal problems such as the determi­ a number of otherpersons around Stanford now exist - the Journal of Law and Eco­ nation of damages in personal injury cases, with law and economics interests. These nomics and theJournal ofLegal Studies­ the calculation of fair rates of return in include Michael Block, Aaron Director, which specialize in publishing articles public utility proceedings, and the assess­ and Thomas Moore at the Hoover Institu­ analyzing legal issues from an economic ment of environmental policy. Whenever a tion, Michael Boskin and William Roger­ perspective. Practically every month at legal argument or policy depends in part son in the Economics Department, and least one of the law reviews at Chicago, on an economic argument or policy ­ Gerald Meier at the Business School. Short Harvard, Stanford, and Yale contains an which is often - economic expertise is es­ and long term visitors to the Hoover In­ article or student note using economic sential. As a result, a greater number of stitution are also a source of interested par­ analysis. And during the past few years a practicing lawyers are finding that they ticipants. Recent visitors have included number of consulting firms which spe­ must learn how to communicate with and Thomas Borcherding from Simon Fraser, cialize in providing economic support in use economists. Patricia Munch from the RAND Corpora­ litigation have been created. tion, and George Stigler from Chicago. Why have economists been so warmly Stanfords Activities Also within the past couple of years, a received by lawyers? On the academic number of new Law School courses have front, economic analysis has been found Stanford Law School has long been been developed that involve the use of eco­ useful by both law teachers and law stu­ known for its interest in "law and econom­ nomic analysis. Last year (and continuing dents becau.se it helps them to understand ics." William Baxter in antitrust law and this year), an alternative first-year better the relationships among different regulated industries and Kenneth Scott in curriculum was used for a third of the areas of law. For example, in a section of banking regulation and corporation law entering class. This program, developed in Stanford Law School's first-year have probably been the most active early large part by Paul Brest, has a substantial curriculum, a short course in the spring users of economics at the Law School. social science component. Perhaps for the term uses the same basic principles of eco­ When Charles Meyers became Dean in first time at any American law school, an nomics to analyze common law remedies 1976, he announced an even greater com­ introduction to "law and economics" be­ for breach of contract and for automobile mitment to the subject. Within the last came an integral part of the first-year accidents. From an economics perspective, three years, a number of new faculty mem­ curriculum. This introduction consisted of contract and tort remedies face similar bers have been appointed with research two "minicourses," one on "Economic problems: How can incentives be created interests in law and economics. They in­ Analysis of Law" that I taught and the which will lead parties to take the correct clude Robert Ellickson (whose appoint­ other on "Liberal Theory" that Mark amount of care and thereby appropriately ment takes effect_ next year) in land use and Kelman taught. In addition, I was brought reduce the probability of a breach or of an property, Thomas Heller in legal theory into regular Property, Contracts, and Torts accident? Given that some breaches and and tax policy, Thomas Jackson in com­ classes to discuss the economic approach accidents are inevitable, how should the mercial law, and Mark Kelman in legal to such topics as products liability and nui­ resulting risks be allocated among the af­ theory. (My being brought to Stanford last sance law. fected parties? In addition to common law year was also a direct result of Dean In the second and third years at the Law topic, economic analysis helps law Meyers' commitment and the generosity of School, there are a number of courses teachers and law students understand the a donor very close to the Law School.) In which use economic analysis. These in­ costs and benefits of statutory law and addition to the above, many other Law clude Baxter's courses on economics for

10 "In addition to common law topics, economic analysis helps law teachers and law students understand the costs and benefits ofstatutory law and government regulation."

lawyers, antitrust and regulated industries, The Economics Department at Stanford the deterrent effect of capital punishment. Heller's tax policy seminar, Rabin's also offers a course, which I teach, for ad­ Staffing for such a course might also in­ environmental law course, Scott's courses vanced undergraduates and graduate stu­ volve Stanford professors from the Busi­ on banking institutions, securities regula­ dents on the economic analysis of law. This ness School and the Departments of Eco­ tion, and business associations, and my course covers such topics as nuisance rem­ nomics, Engineering-Economic Systems, own law and economics seminar. edies, criminal sanctions, antitrust and Statistics. The Law and Economics Seminar, which enforcement, breach of contract remedies, The Law School is also planning a major is jointly offered with the Economics De­ land use control, products liability and research conference on law and economics partment, is the focal point for student and medical malpractice. during the summer of 1981. This confer­ faculty research at Stanford on this subject. ence, which is co-sponsored by the Inter­ Each meeting of the seminar consists of a national Seminar in Public Economics, presentation by an invited academic will bring leading scholars in law and eco­ lawyer or economist, frequently from The Future nomics from the United States, Canada, another university, on a topic of current The Law School is presently considering Great Britain, and Western Europe to Stan­ interest. For example, last year Professor the development of a new course on the use ford to hear "state of the art" research Richard Posner of the University of by lawyers of economic experts and of papers. Law School faculty and selected Chicago Law School spoke on contribu­ statistical/econometric methods. (Such a students will have an opportunity to par­ tion among joint tort-feasors; Professor course could be broadened to include the ticipate. Jerry Mashaw of Yale Law School dis­ use of other kinds of experts as well ­ Although the Law School has already cussed errors in the administrative provi­ psychiatrists, engineers, accountants, etc.) accomplished a great deal in terms of ap­ sion of welfare benefits; and Professor Ste­ This course would be based on a series of plying economics to legal problems, there ven Shavell of the Harvard Economics De­ case studies in which economic or statisti­ are many other activities that could be partment lectured on causation. Students cal analysis has played an important role in undertaken as financial support becomes who enroll in the seminar undertake legal proceedings. Two examples would in­ available. Besides the development of the supervised writing on the application of clude the use by the Federal Communica­ new course mentioned earlier, it would be economics to a particular legal problem. tions Commission of an economic analysis desirable to have more active joint degree Student topics last year included analyses of the effect of cable television on the prof­ programs with the Economics Department of a taking case, of employment termina­ its and growth of broadcast television sta­ and the Business School, to make research tion contracts, and of the choice between tions, and the consideration by the Su­ support available to a greater number of fines and imprisonment as criminal sanc­ preme Court of econometric evidence on interested faculty, and to bring legal prac­ tions. titioners and policymakers who use eco­ nomic analysis to Stanford for a semester or two. I hope to be able to describe some of these developments in more detail in another progress report.

Mr. Polinsky is a Professor of Law in the Law Schoolandan Associate Professor ofEconomics in the Economics Department. Before coming to Stanford, he held a similar appointment at Harvard. He has an A.B. in Economics from Harvard, a Ph.D. in Economics from M.I.Y., and an M.S.L. from Yale. A. Mitchell Polinsky

II OnCarefullyEducatinga Jury by David L. Rosenhan

n June 13, 1980, a Federal District Courtjury rendered its O judgment in Mel Industries v. AT&T. Guilty, it said, and under the treble-damages provisions of the Sherman Antitrust Act, confronted AT&T with a 1.8 billion dollar penalty, the largest ever accorded in an antitrust litigation. The outcome of this very complex litigation will be appealed of course. But the verdict itself raised again a question that continues to trouble many observers of such trials: can the jury, that hallowed bastion of judicial democracy, be counted upon to renderjustice in cases that are as complicated as this one was? The question is not new by any means, "...can thejury, that hal­ son would be appalled at the prospect of a nor is its implied distrust of the jury sys­ lowed bastion ofjudicial dozen of his yeomen and artisans trying to tem for such cases. As early as 1921, democracy, be counted cope with some of today's complex litiga­ Learned Hand indicated that he was "by upon to renderjustice in tion in a trial lasting many weeks or months."3 no means enamored of jury trials, at least cases that are as compli­ in civil cases." More recently, Carl Becker, Are the issues involved in litigation in­ that eminent historian of American law, cated as this one was?" volving corporate securities and finance, put the matter very clearly: patents, advanced technology and in an­ "Trial by jury ... is antiquated ... and titrust simply too complicated for the or­ inherently absurd - so much so that no limitations of juries." Subsequently, lower dinary juror? If one is to infer from the lawyer, judge, scholar, prescription-clerk, courts have debated the intent of that behavior of many attorneys, they are cook, or mechanic in a garage would ever footnote. One court wrote that "After oft~n ambivalent about the matter. At the think for a moment of employing that employing an historical test for almost outset, they may feel that justice can be method for determining the facts in any two hundred years, it is doubtful that the done in these cases by the jury, though situation that concerned him." 1 Supreme Court would attempt to make often they rue that decision. According to The question of jury competence in such a radical departure from its prior in­ AT&T's lead attorney, AT&T chose a trial complex questions gained impetus from a terpretation of a constitutional provision by jury because "we were worried about footnote in the Supreme Court's decision in a footnote" (609 F. 2d 411 at 425). But the attention we would get from judges in in Ross v. Bernhard. 2 There, the Court the matter will not rest. Recently, Chief this district because they're so overbur­ upheld the right to a jury trial in a share­ Justice Warren Burger continued to ex­ dened with cases. It seemed to us we holder action but indicated that that right press reservations about the present func­ would get the undivided attention of a was not to be construed universally. tion of juries in complex civil actions. "It jury. Looking back, we would have done it Rather, on a case-by-case basis, "the 'le­ borders on cruelty to draft people to sit differently. I would be less than candid if I gal' nature of 'an issue is determined by for long periods trying to cope with issues didn't say that anything would have been considering ... the practical abilities and largely beyond their grasp .... Even Jeffer- better than this. We were absolutely flab- On Carefully Educating a Jury

"...does the problem lie bergasted. It's the size of the verdict that's elsewhere with the nature but well controlled; the second, broader, obscene." At another point, the same at­ of the trial itself, or with the closer to the real-life of the jury, but less torney was quoted as saying, "In my mind capacities of the attorneys focal. The first source of evidence arises there's no way the verdict will be upheld, orjudges to motivate and from a study that was conducted by my­ and it's going to make the jury system self and a group of colleagues which in­ look bad."4 educate?" . cluded both attorneys and psychologists. The question of jury competence is In the course of preparing for an upcom­ often put less well than it might be. The ing Iitigation, we videotaped a lengthy question is not whether the jury is compe­ trial simulation which dealt with the fi­ tent to decide in such cases, but under nancial aspects of the dispute. what conditions is it likely to render better In this simulation, the judge opened the decisions or worse ones? Moreover, trial, instructed the jurors regarding their granted that the jury does occasionally task, and presented a brief overview of the decide without fully considering all of the litigation, in much the manner that judges relevant issues, is that the jury's fault, or commonly employ. Subsequently, without does the problem rather lie elsewhere with opening remarks by either side (which ab­ the nature of the trial itself, or with the sence clearly made comprehension more capacities of the attorneys or judges to difficult) the jurors listened to the presi­ motivate and educate? dent and CEO of each of the litigant firms Sound answers to these questions are. describe the issues from his point of view. hard to come by. Like jury selection and The full technical jargon dealing with the trial tactics, jury comprehension is a rich financial aspects of the case was em­ topic for research collaboration between ployed, with care taken by the respective lawyers and psychologists. But the issues attorneys to define particularly arcane involved here should not be avoided terms. Charts and graphs were used where merely by asserting the need for further necessary. After each witness was exam­ research. In the first place, there are ined and cross-examined, the attorneys sources of information that should be proceeded to their summations. That ruled out at the outset. One such source is done, the jury deliberated. the impressions of judges and attorneys The "jury," in this study, was carefully based on their· post-trial interviews of selected to match closely the characteris­ jurors. Such interviews tend to be brief tics of federal jurors on five crucial di­ encounters, conducted en masse, just mensions: age, gender, race, income and moments after the jury has emerged. The education. 40% had a mere high school jury in Memorex v. IBM, for example, was whether any random judge would have education or less. Additionally, 37% were interviewed by the judge immediately achieved such depths of understanding in either unemployed, retired or housewives. after it had deadlocked. Based partly on so complicated a matter. In fact, the bulk of these "jurors" were his observations, he later wrote that the Fundamentally then, the question is: precisely the venire about which one hears "magnitude and complexity of the present under what conditions will a jury meet its numerous complaints: that they were too lawsuit render it, as a whole, beyond the obligation to carefully weigh all of the is­ uneducated, too unskilled and too un­ ability and competency of any jury to sues, and under what conditions is it likely motivated to provide a real hearing for understand and decide rationally." But to fail? On the latter matter, there is no complex civil complaints. like a school principal who interviews a question but that juries occasionally fail All told, 35 jurors heard the "case," group of boys about their drug habits, a to meet the standard. My colleagues and I which was tried four times: twice before judge may not be well positioned to get have encountered jurors in antitrust cases, juries of twelve, once before a six-person the facts. His stature, knowledge and for example, who never deliberated fun­ jury and once before a jury of five. The commitment to the case may well intimi­ damental questions of market share, or jurors viewed the five-hour videotape and date the jury, and lead them to reveal indeed, had no idea that the fundamental commenced deliberations on the second much less than they understand. issue was antitrust. It would be an error, day. Their deliberations were tape­ Moreover, with a deadlocked jury, their however, to make inferences about jury recorded and subsequently analyzed. immediate frustration and fatigue may capacity from such tragedies. For there is After they finished deliberating, the jurors inhibit responsiveness. In this particular equally compelling evidence that juries were intensively interviewed by a team of case, later depth interviews with individ­ can and do have a much deeper apprecia­ social scientists to determine, among ual jurors by relatively neutral parties re­ tion of these complex issues than is widely other things, how much they understood vealed that many jurors had a remarkably imagined. about the case, and how involved they deep understanding of many of the issues, Evidence on this matter comes from were in the deliberations. so deep in fact, that one wondered two sources: the first relatively narrow What was remarkable about the find- "...we were quite surprised ings was in fact, the degree to which the at the vigor of the delibera­ - Whether, as Chief Justice Berger ob­ jurors understood the issues of the case, tions and the seriousness served, it was "cruel" to draft these and more significantly, how their under­ with whichjurors took their people to sit for long periods of time can- standing enabled them to overcome the not, of course, be determined long after biases and predispositions that they had task." the fact. But it is remarkably the case that regarding the litigants before they actually evidence on the effects of such cruelty has heard the case. This is not to say that yet to be located after the jury had sat for everyone on the jury had a complete com­ a long time. Quite the contrary, jurors are prehension of all of the issues. Far from it. overwhelmingly pleased with their work, There were some, as there are on every delighted to have been of service, and jury, whose understanding was dim and aware that they have contributed much to whose grasp tenuous. But on the whole, the justice process. Moreover, they com­ the degree of understanding was remarka­ monly feel that they have learned a good ble, and only minimally correlated with deal, often in the tutelage of expert attor­ educational or vocational achievement. neys and judges. "You couldn't get an Gaps in an individual juror's understand­ education like this for any amount of ing of either the facts or the relevant dis­ money," one of them remarked, and he tinctions that needed to be made (for was not alone. Perhaps this is but another example, mere adverse effects that arise instance of the old adage that men and from ordinary competition, from those dogs come to love the things they've suf­ that arose from illegal competition) were fered for. But regardless" their near­ filled in by other jurors during the delib­ unanimity on this matter is striking. Only eration process - a process, we should re­ when the jury is unable to arrive at a call, that judges sitting as sole arbiters in unanimous verdict are these feelings di­ such cases are not exposed to. The result minished to some extent. Then, jurors was that 40 % of the jurors had an excel­ often feel that their efforts were to lent appreciation of the issues in the case, nought. Clearly, the presiding judge can and were clearly able to come to terms do a good deal to alleviate these feelings, with them. Another 20% would be de­ if only by pointing out that reasonable scribed as having a good, though not ex­ people will often disagree on complicated cellent, comprehension of the issues. matters and that justice is being served Equally remarkable was the degree of even under such conditions. energy and argument that was brought to - On the whole, jurors understand bear in the deliberations by these jurors. real thing whose findings were as artifac­ much more about such cases than is often For the issues in the case were far removed tual as such experimental simulations assumed. This is not to say, as I indicated from the experience of all of them. None tend to be artificial. Perhaps so. But that earlier, that they understand all of the is­ had had experience in high finance, in the view does not accord with our experience sues, nor even that they can recall all of kinds of competition that characterizes interviewing real jurors from real complex the issues that others - attorneys, for large corporate enterprises, and in the trials, which is our second source of in­ example - might find significant. But kinds of decisions that are made by corpo­ formation on these matters. By now, we when some care is taken to educate them, rate executives. They were, to a person, have observed nearly a dozen trials, all of terms such as convertible debentures, middle America whose contact with big them involving litigation in technological, debt/equity ratios, and demand curves do business, where it existed at all, was at the financial and antitrust arenas in both state not defeat them, even though these terms lower echelons. Nevertheless, they reso­ and federal courts. The trials have been are quite remote from their everyday ex­ hated to these issues, debated them lengthy, ranging in time from one to perience. The intricacies of the market fiercely, often continuing those debates nearly eight months - presumably as share concept, mysteries of modern into lunch and coffee breaks, and even exhausting for the jurors as they were for technological innovations and "whodun­ after the jury had rendered a decision. the judge and attorneys (and us). Shortly its" of patent theft allegations all pene­ Once again, it should be noted, some after each of these trials were completed, trate the sensoria of unemployed people, jurors were relatively passive, relying on we interviewed individually all of the many of whom barely have a high school others to press the issues home. But over­ jurors who consented to meet with us, education, and housewives. Again they do all, we were quite surprised at the vigor of often as many as three quarters of the not retain and understand everything: the deliberations and the seriousness with members of each jury. These interviews given the relatively low level of agreement which jurors took their task. were quite lengthy, never less than 90 about what is central in a complex litiga­ It can be said, of course, that these "ex­ minutes, and sometimes as long as four tion, that would be too much to expect. periments" - one hesitates to use that hours. Our consistent observations have But by reasonable standards, it is perfectly formal word - were mere shadows of the been these: clear that ordinary jurors have the ca- On Carefully Educating a Jury

"The problem ofinforma­ pacity to understand many of these mat­ tion overload is a serious that overload to infect his or her motiva­ ters. one, one that needs to be tion to understand the case. Forewarned What then regulates their understand- given considerably more in this instance, is forearmed. Second, the ing? Under what conditions will they meet thought." effects of information overload can be re­ their obligations, and what conditions, duced when attorneys take care especially encourage failure? It is a commonplace to during summation, to collect the many say that their understanding will be facili­ facts around a few significant issues, to tated to the extent that attorneys and highlight those issues and to enable the judges patiently and provocatively teach, jurors to retrieve from their notes infor­ but it is a commonplace that nonetheless mation that is relevant to those issues. needs to be said. Increasingly such trials Such summations require considerable are coming to be seen as educational ven­ thought- and advance planning, and often tures, and increasingly attorneys are turn­ a good deal of time to present. The court ing for counsel to educators and social sci­ has often been helpful here, in both entists who are experienced in presenting encouraging attorneys to plan their pre­ complicated information to innocent sentations carefully (if they do not already minds and enabling them to learn. The comprehend the advantages of such plan­ evidence suggests to us that this kind of ning) and in giving them sufficient time to collaboration can be enormously fruitful. summarIze. Taking note of the length and complex­ The standard closing remark regarding ity of these trials, and in recognition of the the need for further investigation and re­ burdens these issues place on human search applies here. It is important to memory, a number of federal courts have learn more about the conditions under recently allowed jurors to take notes dur­ which juries understand the issues of a ing the trial and to refer to their notes complicated case, and how their under­ during the deliberation process. This in­ standing can be maximized. Over the past novation, in our experience, has been very decade, the very nature of the civil jury constructive, though not entirely success­ trial has changed dramatically, from one ful. Jurors frequently complain that while that was mainly a legal ceremony to one they have it all written down, they are that is increasingly an educational process hard pressed to retrieve information from in which judges and attorneys actively their bulky notebooks, or to separate sig­ participate. Further changes in this direc­ nificant facts from trivial ones. One de­ tion are likely to occur, and will be facili­ voted juror was halfway through a trial tated by greater insight into the capacities before she understood the significance of convince a jury, but because it needs to be of jurors and the conditons that maximize exhibit numbers, and how the informa­ part of the trial record. Such fragmented their learning. tion in exhibits could later be retrieved. information (from the juror's perspective) Clearly, more can be done here, by in­ is dangerous. The typical juror lacks a Footnotes structing jurors at the outset in simple "cognitive tree" on which to post such in­ coding and retrieval techniques, by formation, and as a result, merely hears 1. Quoted in In Re U.S. Financial Securities distracting "noise." The confusion and encouraging and giving them time to ex­ Litigation, 609 F.2d 4 II at 429, fn 66. amine their notes at the end of each day, frustration that so arises can easily ooze 2.396 U.S. at 538, fn 10. and perhaps to summarize them. to other issues in the trial, leading them to 3. Quoted in The National Law Journal, Aug. Yet, even after care has attended the designate these issues, too, as incom­ 13, 1979 at 21. education 'of the jury in both substantive prehensible or insignificant. 4. New York Times, June IS, 1980. and retrieval issues, one senses a deeper The problem of information overload is problem which is occasioned by the psy­ a serious one, one that needs to be given chological incompatibility of the twin considerably more thought. Two admit­ goals of a jury trial: to convince the jury, tedly partial solutions come to mind. Professor Rosenhan holds a joint appointment First, overload is not nearly so dangerous and to make a trial record. That incom­ in the Law School and department ofPsychol­ patibility arises from the ordinary limits when people are prepared for it. At the ogy. His principal subjects are Mental Health of the human mind, which can retain and outset of the trial, the judge might simply Law and Psychology and Law. He received an assimilate seven issues, plus or minus two, warn the jury that it will be inundated A.B. in Mathematics (I95I) from Yeshiva Col­ and no more. Even devoted jurors who re­ with information that is occasionally un­ lege, and an M.A. (I953) in Economics and ligiously take notes are overwhelmed by codable. That is the natural course of Ph.D. (I958) in Psychology from Columbia the large corpus of information that arises these trials, and a "good juror" ought University. in such trials, not because it is likely to neither to be upset by that fact nor allow r6 VIBWING TlfB ADMINIS.TRATIVB PROCBSS FIRSF-lfAND: TbougbtsonaYearsLeave attbeEPA

by Robert L. Rabin

uring the summer of 1978, my growing feel ing that it was time D .to spend a year outside the academic environment ripened into a deci­ sion to look for an interesting way ofutiliz­ ing my professional skills. My impulse to spend a year doing something different was largely attributable to the path my career had taken since I completed my own education. While I had engaged in some outside consulting, my principal activities in recent years were teaching and research. Although my work was diverse in charac­ ter, it had been largely grounded in an academic perspective. I wanted a tempo­ rary change that might prove useful upon my return. Most of my writing, as well as a substan­ tial amount of my teaching, has been in the administrative law field. As a result, I gravitated naturally towards the idea of spending a year at an administrative agency. Under the right circumstances, such an arrangement seemed promising for a number of reasons. Ideally, my teaching

"The percentage of single-minded work­ aholics was at least as high as I have observed in law firm and law school settings." would benefit from a year of experience at which agency should I approach, and (b) sufficient amount of consulting for the an agency, viewing the administrative pro­ what kind of position should I seek. As Ford Foundation Division of Environmen­ cess in action. My research would be chan­ might be expected, I narrowed the list of tal Affairs to have developed an interest in neled into new directions by the projects prospective agencies by reference to both the area. Second, I knew enough about the that I worked on. And finally, my horizons my own subject matter interests and my EPA to be convinced that its mandate in­ would be expanded by the very process of sense of where I would find the most cluded a wide range of complex, vital pol­ acquiring a great deal of substantive in­ stimulating work environment. A fortui­ icy issues which the agency was making a formation about a relatively discrete set of tous set of circumstances led me in the conscientious effort to approach in an in­ policy issues. direction of the Environmental Protection novative way. Finally, I had the good for­ All of this was very abstract, of course. Agency. First, while I was by no means an tune to have a close friend and former col­ The threshold questions remained: (a) expert on environmental law, I had done a league among the agency's top officials- Thoughts on a Year's Leave at the EPA

creating, I surmised, the maximum for the week that involved discussions with likelihood that any arrangement I worked the top officials' in the Office of Planning "...my colleagues were out would lead to interesting work. and Management. Before I knew it, I had as largely public sectortypes Still, I had to face the second question: much as I could handle. I was off and run­ who felt more comfortable What type of position was I seeking? This nIng. issue was actually relatively simple for me fashioning pUblic policy to resolve. I had done a sufficient amount than reacting to it." of empirical work on agency processes, in­ Three Major Projects volving interviewing and data collection, to feel certain that a year as a somewhat I worked on three major projects during isolated "scholar in residence" would yield the year, which I will describe briefly in relatively little in the way of new experi­ order to give some sense of what I was ence. Rather, I wanted to be on the firing doing, as well as a wide variety of smaller line if possible, treated as a working assignments. Before arriving, I was told member of a policymaking group ­ about OPM's continuing efforts to assist treated, in other words, as though I would' the Office of Enforcement in bringing a be around for an indefinite period of time. higher degree of efficiency to the handling Only in such a position, I thought, would I of civil penalty enforcement cases. The be likely to have a year that was genuinely problem is many-faceted. Civil enforce­ different from my ordinary range of re­ ment cases are investigated and prepared in ~'One aspect ofthe group search, consulting and writing activities. the EPA regional offices. The cases are then dynamic is that everything After some exploration, it proved possi­ sent to EPA headquarters for review and has to be cleared with ble to work out in general terms a position approval. Headquarters, in turn, sends the everyone." at the EPA which seemed to match my de­ approved cases to the Pollution Control sires to their needs. As Senior Environmen­ Section of the Lands Division in the De­ tal Fellow, a newly established position, I partment of Justice where another round would work in the Office of Planning and of review takes place, leading to initiation Management (OPM) on projects that in­ of action either by the local U.S. Attorney volved cooperative work with the "sub­ or a DOJ headquarters attorney. stantive" program offices - the Office of At each stage there is a delay, and fre­ Air, Noise and Radiation, the Office of quently strong disagreement about the Water and Waste Management, and the adequacy of case preparation. Our job was Office ofToxic Substances-as well as with to see if we could find ways to assist the the Office of Enforcement. Having agreed regional EPA offices in preparing cases that on the position, met my future colleagues would withstand scrutiny. We also were and discussed a range of available projects, asked to suggest ways in which the review "The technology, scien­ the inevitable doubt remained: Would the process itself might be streamlined. Work­ year, in fact, turn out to be what it prom­ ing with an interdisciplinary team, I was tific understanding and ised? One never knows in advance. involved in the preparation of a case devel­ economic projections rest A little over a year after my initial explo­ opment manual for regional attorneys and on very uneasy foun­ rations, on the first ofSeptember, 1979, my a set of proposed case review and audit dations, not ofthe EPA's three-year-old daughter asked, "Daddy, procedures for headquarters' attorneys. making." why are you dressed so pretty today?" And My other major projects were more sub­ my wife queried, "When you get in there, stantive in nature, dealing directly with what happens? Will you just sit there until central problems of health and safety. someone shows up with some work?" Apt About two years ago the government questions. I was feeling a bit uncomfort­ banned the production of aerosol spray able in a business suit - more formal than cans charged with chlorofluorocarbons my daily teaching attire. And, I was experi­ (CFC's), a chemical compound that ap­ encing just a bit of apprehension about pears from the available evidence to be whether there really would be work for depleting the ozone layers 'in the strato­ "the professor." But all of my concerns sphere. Such depletion could lead to severe were very quickly put to rest. I arrived to human and biological damage through in­ find that meetings had already been sched­ creased ultraviolet radiation. Unfortu­ uled for later that day on two of my princi­ nately, other major uses of CFC's - princi­ pal projects. On my desk was an itinerary pally as a refrigerant, insulator and solvent

r8 - have more than made up for the aerosol day, when I was intiated into the world of some rather elusive sense - often superfi­ ban, and those uses are steadily growing. "meetings." Collaboration and com­ cially grounded in more prestigious titles The issue on the table was whether further promise are the essence of the process. In or higher government service classifica­ regulatory action was required, and if so, the academic sphere, most ofthe important tions - which led to a preoccupation with the form it ought to take. [In passing, I work I do is accomplished in relative isola­ job prospects in other agencies or in other should mention that the problem has a very tion-class preparation, research and writ­ programs within the EPA itself. complicated international dimension, ing, and so forth. Assuredly, I gain a great Finally, a word about process. Getting since the impact of United States cutbacks deal from collegial discussion, and obvi­ things done at the agency is no easy matter. could easily be undermined by continuing ously classroom teaching involves con­ One aspect of the group dynamic is that growth abroad.] stant interchange with students. Nonethe­ everything has to be cleared with everyone. An EPA work group, principally staffed less, when it comes down to it, I resolve And often the established procedures are out of OPM and the Office of Toxic Sub­ most of the tough intellectual problems I archaic or meaningless, or the channels of stances, spent many months fashioning a confront - whether before class or in my communication are clogged. Here, then, strategy to deal with both the domestic and research - on my own. Putting aside com­ we do find some confirmation of received international issues created by CFC use. parative judgments of merit, I did find the wisdom about bureaucratic processes in Before my term ended, we succeeded in sharp difference in process an interesting action. devising a scheme that will put a cap on change of pace. Still, my impression was that the major domestic CFC production at current levels Secondly, let me address some stereo­ obstacles to significant advances in agency and allow trading among producers under types, not necessarily shared by me, which performance lie elsewhere. The problems a marketable permits system. The latter were quickly dispatched by observing the of modeling, monitoring and enforcement step will be a highly significant move for agency from the inside. To begin with, most under the Clean Air Act, as well as related the EPA, indicating its willingness to try of the people in OPM worked very long problems under some ofthe otherprincipal out a new economic incentives approach to hours by any standard, and were extremely environmental statutes - the basic deter­ regulatory control. conscientious. The percentage of single­ minations of magnitude of harm and exis­ The third project that I spent consider­ minded workaholics was at least as high as tence of unlawful action - are staggeringly able time on also involved an economic I have observed in law firm and law school complicated to resolve. The technology, incentives approach. Under the Clean Air settings. And, the overall quality of the scientific understanding and economic Act, air quality standards establish the personnel at OPM was similarly very high. projections rest on very uneasy foun­ upper limits on allowable emissions for Moreover, it was soon evident that, for the dations, not of the EPA's making. To make certain pollutants. Recently, there has been most part, my colleagues there were not matters worse, the statutes are poorly much discussion and some agency action dramatically "pro-environment" or pro drafted and the Congressional "support" aimed at creating incentives for least-cost anything else; they were professionals with given the agency often borders on uncons­ achievement ofthese limits. One strategy is a job to do, trying their best within the cionable behavior (committee grandstand­ to allow pollutants to "bank" any emis­ existing constraints. Most of them could ing about travel expense items for t:ips that sion reductions they achieve beyond the almost as easily have been working at the in fact are the bane of the typical agency established limits, and either use or sell SEC or FCC, as far as subject matter orien­ official's existence; committee indifference these excess reductions at a later point in tation was concerned. and/or ignorance about substantive time. During the latter half of my stay, I On the other hand, at a more subtle level statutory issues that need to be addressed). worked with a group from OPM that was there were some characteristics that All in all, it was an interesting,. some­ given the task of translating this concept marked off these professionals - whether times frustrating and at other times re­ into a limited property right via a com­ lawyers, economists, or management types warding place to spend a year. A window prehensive set of regulations. - from their counterparts in private prac­ into another world. It certainly deepened tice. First of all, in most cases they simply my understanding of the adminstrative would not have been as comfortable on the process - which was a basic reason for "Window Into Another business side of the table. To put it another undertaking the venture in the first place. World" way, while they may not have demon­ strated a burning allegiance to the envi­ Let me turn to a few general observations ronment, my colleagues were largely pub­ about a year in the bureaucracy - based on lic sector types who felt more comfortable my involvement in these and a wide variety fashioning public policy than reacting to of less time-consuming projects. First, a it. Secondly, and perhaps related, I did sociological observation. In sharp contrast sense a pervasive restlessness. Unlike to the academic setting, virtually every­ academics and private sector profession­ Professor Rabin teaches Administrative Law, thing accomplished at the agency results als, most of them did not regard the EPA Torts and Environmental Law at Stanford. He from a group decisionmaking process. I as their long-term hotTIe. Rather, they earned a B.S. (1960), aj.D. (1963), and a Ph.D. was struck by this contrast on my very first were concerned about "advancement" in (1967) from Northwestern University. On"Interpolating Little Personal Recipes"

by Charles J. Meyers

jects. The conflict, as I understand it, was life and times-lessons about social justice, between limited government and tyranny. about individual liberties, and about The point is put succinctly by the best of statecraft. I shall not attempt to deal with Dean Meyers delivered these remarks on More's biographers, R.W. Chambers, who all of these grand themes but will limit March 29, I980, upon accepting the St. writes: "Henry succeeded in establishing a myself to a single, yet vital, lesson to be Thomas More Award from St. Mary:Js Uni­ dictatorship, which he maintained for the learned from the failure of Henry's tyranny versity School of Law in San Antonio, remaining years of his life. But at what and the triumph of representative govern­ Texas, at their annual Law Day cere­ cost? Whether we think of the exploration ment. Broadly stated, that lesson is that the monies. The award was made in recogni­ of distant seas, of English poetry, of legitimacy of a ruler, and of the ruler's tion of Dean Meyers:J many contributions English prose, of English scholarship, of laws, derives from the people, speaking "to the law and legal education as a English education, of the material pros­ through their elected representatives. If nationally recognized author, scholar; perity of the English people (apart from a courts usurp the legislative function and teacher and administrator. :J:J small body of profiteers), of finance, of flout the legislative will without a clear craftmanship, of architecture, of freedom, command from the Constitution, they ex­ of justice, Henry's tyranny marks a set­ ceed their prerogative and lose their legiti­ back. Everything had to pass through the macy. bottle-neck of one man's mind, and Henry, These are strong words but I believe they though able, was not equal to the task. are warranted. In my state of California, Henry's dictatorship was bound to fail in the people are losing faith in judges. When the long run, because it revolted the con­ the Chief Justice ran against her record for he honor that you have so gen­ sciences of his subjects. The resistance to confirmation, she gained a bare 520/0 of ] erously given me is named for one of despotism which More began was bound the vote, the lowest percentage in such an the greatest figures in English his- to be carried on, from opposite sides both election in the history ofthe state. And that tory. I should suppose that most educated by Catholic and Puritan."l was before the discreditable story ofPeople people have some knowledge of the life Henry failed and tyranny receded. As v. Tanner 4 unfolded. That story, in brief, is and times of Saint Thomas More and knew biographer Chambers writes, " ... Parlia­ this: On Election Day, 1978, the Los about him before Robert Bolt wrote the ment, which Henry had fostered as an in­ Angeles Times reported that the California play, A Man For All Seasons. More was, strument of his despotism, ... became an Supreme Court had refused to enforce the after all, the author of a book that added instrument of freedom. Yet we must not "use-a-gun, go-to-prison" law recently the word "utopia" to the English language. forget ... those who, in the darkest hour of enacted by the legislature, but had with­ And More was a prominent figure in the English liberty, dared to say "NO" to the held its decision until after the election to reign of Henry the Eighth: a Lord Chancel­ fiat of despotism, and who nevertheless protect the Chief Justice. Thereafter, the lor of England-not that we know them all kept their loyalty unimpaired .... "2 The Chief Justice called for an investigation, - but a Lord Chancellor who lost his office one we remember best is, of course, which was arranged, but on terms unac­ and then his head, over a matter of con­ Thomas More. ceptable to her and some of the other jus­ SCIence. I do not wish to be misunderstood: More tices. The investigating commission de­ But for me at least, until I prepared for did not die for parliamentry rule; its time cided the hearings should be open to the this occasion, the issues that led to More's had not yet come. But he did die for free­ public, and they began that way. Justice condemnation and death remained dom of conscience. As he mounted the Mosk broughtsuit to close the hearings; on obscure. Public television's "Masterpiece block on July 6, 1535, to speak his last appeal Justice Newman (formerly a law Theatre" had informed me amply about words, he said to those around him, "That professor and dean of a law school) refused Henry's six wives, but it was the library they should pray for him in this world, and to disqualify himself and had to be re­ that helped me to understand the funda­ he would pray for them elsewhere, protest­ moved; the pro tempore court closed the mental conflicts of the time. ing that he died the King's good servant, commission hearings, and that body was Henry was not only a bad husband, but a but God's first."3 confined to issuing to the public a brief bad king. And the issue that divided Henry I believe he died for a principle even statement that it had conducted its investi­ and More was deeper than the Act of greater than freedom of conscience; he ac­ gation and had found no wrongdoing, and Supremacy, which separated the English cepted martyrdom as the price a principled regretted that it could say no more. people from the Catholic Church, more man will pay to place limits on the power The suspicion of whitewash still lingers; fundamental, even, than the power of the of the state; he died for liberty. and the harm to the California judiciary is monarch to dictate the religion of his sub- There are broad lessons for us in More's incalculable. But in the long run the deci-

20 sions in People v. Tanner may do more are running candidates of their persuasion In "A Man For All Seasons," Robert Bolt harm than the investigation itself. In Tan­ for the bench. And even when an unpopu­ portrays a scene in which More is urged by ner 1 three members of the court held that lar judge is not up for election, a recall his son-in-law, William Roper; his the statute did not mean what it said when petition can be circulated against him, as daughter, Margaret; and his wife, Alice, to it denied probation for certain crimes in­ was successfully done in Berkeley this have a man arrested. The man, Richard volving use of a gun. In a separate opinion year. 6 The grievance against the Berkeley Rich, eventually betrays More through the Chief Justice disagreed with those Jus­ judge was that he had issued an eviction perjury. The scene goes like this: * tices on the meaning ofthe statute, but read order to squatters on the plaintiff's land. "Roper Arrest him. the state constitution as forbidding the I ponder these events with a growing Alice Yes! legislature to enact such a law, because of sense of dismay, for at risk is the very exis­ More For what? separation of powers. tence of the rule of law. A central function Alice He's dangerous! I believe that constitutional position is of courts - not their only function but an Roper For libel; he's a spy! untenable. The proposition that must be elemental one - is to resolve civil disputes Alice He is! Arrest him! maintained is that the judicial branch has and to enforce the criminal law. When a Margaret Father, that man's bad. the exclusive power to fix criminal penal­ litigant or an accused faces a judge who More There is no law against that. ties and to determine when to impose has been elected on one campaign plat­ Roper There is! God's law! them. One looks in vain for authority de­ form or another, where is the appearance More Then God can arrest him. nying these powers to the legislature. The of fairness and impartiality? Indeed, where Roper Sophistication upon legislature promptly repassed the law, the is the fact? sophistication! Court granted a rehearing, and because Yet I cannot wholeheartedly fall into More No, sheer simplicity. The one justice switched his vote on the in­ step with those leaders of the bar who law, Roper, the law. I know terpretation question, the statute was come automatically and uncritically to the what's legal not what's right. enforced, according to its terms. Three jus­ defense of the bench. I do not believe that And I'll stick to what's legal. tices dissented, including the Chief Justice, the people will be content to be governed Roper Then you set man's law who adhered to the view that separation of by an autocrat in a black robe. The disguise above God's! powers invalidated the act. has worn too thin. More No, far below; but let me Could there be a more graphic illustra­ It is not too late to alter course. The draw your attention to a fact tion ofthe ultimate power of the judiciary? judges themselves, indeed the judges alone, -I'm not God. The currents And, in the case of the three dissenting can salvage the institution. If they would and eddies of right and judges, could there be a more evident abuse return to the classic model of the judge, wrong, which you find such of judicial power in the attempt to substi­ they could regain respect and avoid the plain sailing, I can't tute their preferences for the manifest will shoals of politics. By their behavior we navigate. I'm no voyager. of the legislature? must judge them. We must demand as the But in the thickets ofthe law, What comes from such grasping for norm the judge who at least begins with the oh, there I'm a forester ...." power? precedents; the judge who appreciates and The currents and eddies are becoming a Judge Learned Hand raised the ques­ practices craftmanship; the judge who maelstrom which will wreck the judiciary tion, and suggested an answer over fifty employs reason and eschews slogans; the unless the judges acknowledge the limits of years ago. Speaking of judges, he said, "Yet judge who conscientiously seeks and their power. I must confess to wonder whether in the enforces the legislative will; and above all, *Copyright by permission of Robert Bolt. end our prerogative will survive the start­ the judge who has self-doubt, who is in­ All rights reserved. ling frankness of our modern Rousseaus. If fused with the spirit of liberty, "the spirit" I. R. W. Chambers, Thomas More (Harcourt Demos should awake to the disparity be­ to quote Learned Hand again, "which is Brace & Co., New York, 1935) p. 382. tween our profession and our perfor­ not too sure that it is right." 2. Id., at 382- 3. mance, if he should find that, behind an Some will regard this view as hopelessly 3. Id., at 400. obsequious protestation of docility to his old-fashioned, indeed simplistic. But to 4. Peoplev. Tanner, 23 C'3d 16, 587 ~ 2d 1112, supposed will, we have all along been in­ scorn the legislative will, to interpolate 151 Cal Rptr 299 (Dec. 22, 1978), on rehear­ terpolating little personal recipes of our "little personal recipes," invites disaster. ing 24 C3d 514, 596 ~ 2d 328, 156 Cal Rptr own, who shall say that he will not arise The winds of rebellion are rising in Cali­ 45 0 (June 14,1979). 5. L. Hand, Have the Bench and Bar Anything and strip us of our powers?"5 fornia, and, politically as well as atmos­ to Contribute to the Teaching of Law, Am. Demos is rising in California. Special pherically, California winds generally Law School Rev 621, at 624 (1926). interest groups, on both the right and left, move east. 6. San Francisco Chronicle, March 7, 1980.

21 1980 Kirkwood CODlpetition Signals New Era for Moot Court PrograDl

In May, U.S. Supreme Court justice Byron White was a presiding judge at the Law School's Kirkwood Moot Court competition. Shown with him at a Faculty Club luncheon are, left to right, Moot Court officers Cory Streisinger '80, Russell Sauer '80, and Frank Melton '80.

Following several years of declining stu­ Committee, last fall, agreed to institute teams of two students each. A random dent interest and participation, the some fundamental changes on an exper­ drawing was held to select 48 participants School's Moot Court Program has under­ imental basis. Among the most significant from the 72 who signed up. gone an impressive revitalization, thanks were the allocation of two units of writing At the end of January, the problem and to the combined efforts of the Curriculum credit for participation in the program and the competition rules were distributed to Committee and the 1979 - 80 Moot Court the involvement of Ezra Hendon of the the participants. The first drafts of the Board. State Public Defender's Office. Mr. Hen­ briefs were due five weeks later. During Once a significant part of every law stu­ don was hired to provide parttime supervi­ this period, Mr. Hendon gave three lectures dent's experience, the Moot Court Pro­ sion to the participants and the Moot (on appeals generally, on briefwriting, and gram began to lose some ofits appeal when Court Board. on oral advocacy) and held regular office membership on the Law Review became The effect of these changes on student hours to consult with the participants. elective. This fact, coupled with insuffi­ participation was immediate and very The first drafts were submitted on cient faculty and administrative supervi­ encouraging. In early December, second­ March 7 and Mr. Hendon critiqued them sion, brought the program to the brink of and third-year students were given the de­ and held conferences with each team. Re­ extinction; during 1979 - 80 only 22 stu­ tails of the 1980 Kirkwood Moot Court vised briefs were turned in on March 21. dents participated in the program. Competition and were invited to partici­ During the next ten days, each brief was Faced with the possibility of losing what pate. Seventy-two students signed up. Since read and critiqued by six members of the has always been regarded as a vital part of the program was experimental, the deci­ Moot Court Board. A preliminary round a law school education, the Curriculum sion was made to limit participation to 24 of oral arguments was then held, in which

22 each team argued the case twice - once for Judge Joseph T. Sneed petitioners and once for respondents - be­ Christopher J. Wright fore panels of local attorneys, judges, pro­ 18 Grads Fill Judieial Kenneth G. Whyburn fessors and Board members. Clerkshipsfor1980-81 United States District Court The top eight teams advanced to the California, Northern District: quarter-finals. Four teams were selected for the semi-finals, which were viqeo­ Judge Thelton E. Henderson One member of the Class of 1979 and Joshua B. Bolten taped for later review with the participants 17 members of the Class of 1980 have ac­ by Mr. Hendon and the Moot Court Board cepted judicial clerkships for the 1980- 81 Judge William Ingram officers. term. Graeme E.M. Hancock In preparation for the final round, the United States Supreme Court California, Southern District: two top teams were allowed to revise their Associate Justice Potter Stewart Judge William B. Enright briefs once again and to take part in several Robert Weisberg '79 Norman J. Blears mock arguments before members of the District of Columbia: Board. These sessions provided both sub­ United States Court of Appeals stantive and stylistic critiques. District of Columbia: Judge Thomas A. Flannery Robert B. Bell II The finals were held on May 2, before a Judge Carl McGowan capacity audience in Kresge Auditorium. Jane M. Graffeo Florida, Northern District: Sitting as the Supreme Court of the United Fifth Circuit: Chief Judge Winston Arnow States were Justice Byron R. White, U.S. Charles M. Gale Judge Robert A. Ainsworth, Jr. Supreme Court; Judge Patricia M. Wald, Louisiana: U.S. Court of Appeals, D.C. Circuit; and Mark R. Spradling Chief Justice Robert F. Utter, Supreme Judge Thomas G. Gee Judge Fred J. Cassibry Norman M. Hirsh Court of Washington. The team ofJohn W. Brian E. Lebowitz Phillips '81 and Marilyn O. Tesauro '81 Judge Robert S. Vance Chief Judge Frederick J.R. Heebe was selected as the overall winner, over the Alan Pfeffer Paul J. Larkin team of Ronald N. Beck '80 and John V. Ninth Circuit: State Courts: Roos '80. The Phillips/Tesauro team was Judge Ben C. Duniway '31 Supreme Court, Alaska: also awarded the prize for the best written David F. Levi Justice Roger Connor brief, while Ms. Tesauro was chosen as the Joan M. Travostino competition's best oral advocate. Judge Betty B. Fletcher Commenting generally on the perfor­ Cory Streisinger Supreme Court, Minnesota: mances of the finalists, Judge Wald ob­ Judge Dorothy Nelson Chief Justice Robert Sheran served that all four performances were of Geoffrey L. Bryan Janice A. Rhodes consistently high quality. In a memorandum to Dean Meyers and the Curriculum Committee following the competition, the Moot Court Board ex­ pressed its satisfaction with the exper­ imental program and urged that it be con­ tinued next year: "In general, we feel that the Kirkwood experiment has been an unequivocal success. We were continually impressed by the quality of the briefs and oral arguments, and we share with many of the participants a belief that Kirkwood can provide one of the most valuable learning experiences in law schooL" Moot Court Board officers for 1979- 80 included President Russell F. Sauer '80, and Vice-Presidents Frank E. Melton '80, John W. Phillips '81, and Cory Streisinger '80.

23 ljr-uadwaY Vlay Ijr-ino~ l2e£uonitiun tuAlumnu~ by Sara Wood

[Editor's note: A Law School reunion questionnaire completed by George The Sleepy Lagoon case set off many Shibley '34 brought to our attention Shibley's involvement as defense counsel "Zoot Suit Riots" between Mexican­ in a widely publicized criminal trial held some 38 years ago, People v: American youths - sporting pleated, Zammora, 66 Cal. App. 2d (1944), also known as "The Sleepy Lagoon high-waisted pants, or zoot suits - and Murder Case." In the case, 22 Mexican-American teenagers were charged with sailors and Los Angeles police. To the murder, but their convictions were later overturned on appeal. In 1978 Shibley Mexican kids (kids from about 14 to 20 again received widespread publicity because of the production of a play called years old), the zoot suit meant style, "Zoot Suit," based loosely on that case and on the "Zoot Suit Riots" that class, excitement and acceptance. occured during and after the trial. The riots were between Mexican-American youths on one side and sailors and Los Angeles police on the other. "Zoot Suit" was produced first at the Mark Taper Forum in Los Angeles and later simultaneously at the Aquarius Theatre in Hollywood and the Winter Garden in New York City. In its 1980-81 season, CBS is planning a 9-hour special about "The Sleepy Lagoon Murder Case" and Shibley has been asked to be a technical advisor. We thought our readers would be interested in Shibley's recollections of the case and the circumstances surrounding it.] he play "Zoot Suit" was writ- ten by Luis Valdez. Much of the material for the play was drawn from court records, documents, transcripts, letters and news­ paper articles of the period. The term "zoot suit" was coined during that period to refer to the pleated, high­ waisted pants worn by Mexican­ American teenagers at that time. To the teenagers, the zoot suit seemed to mean style, class, excitement and acceptance. But to others it meant gang violence, for those who wore zoot suits were identified with the young defendants in "The Sleepy Lagoon Murder Case" who had received widespread and unfair publicity both during and after the trial. In a Los Angeles Times article dated 8/13/78, "Once Again, Meet the Zoot Suiters," playwright Valdez wrote: Sleepy Lagoon was an irrigation ditch in Montebello where Mexican­ American youths, who were allowed only occasional, restricted access to public pools, went to swim. The area also served as the local lovers' lane. On August 2, 1942, the body of Jose Diaz, 22, was found near the pond; his skull had been fractured. Al­ though what happened to Diaz never became clear, either during or after the trial, 22 Mexican-Americans were arrested and charged with his murder. The prosecution charged that the de­ fendants, members of a group calling (Continued) itself the "38th Street Gan'g," had be­ aten Diaz to death after crashing a birthday party he was attending. Throughout the 13-week trial news­ papers and commentators took the same prejudicial tone as did the judge. An anti-youth, anti-Mexican hysteria dominated press coverage. Individual trials were so outrageously mishan­ dled that the convictions were later overturned. During the Sleepy Lagoon murder tflal th - word HMe- i~' n" W S f_= placed by both "Zoot Suiter" and "pachuco." And so it was in relation to "gang violence" that most Anglo newspaper readers became familiar with these terms."

Particular reference to the judicial mis­ conduct of the case was made in an arti­ cle written by Paul Fitzgerald, a former CAJC (California Attorney for Criminal Justice) President. (The following mate­ rial first appeared in the July/August 1979 issue of FORUM, the bi-monthly magazine of California Attorneys for Criminal Justice, 6430 Sunset Boulevard, No. 521) Los Angeles 90028):

Over the years, right and wrong have come to light about the Sleepy Lagoon case. It is now widely recognized that the young Chicanos who were brought to trial were innocent of any crime; and that the guilty parties were the "neutral" judges, prosecutors, police officials, and press who promoted sensationalized prejudice at every turn. The success and popularity of Luis Valdez' recent play, "Zoot Suit," is a reflection of this recognition.

26

DeanMannAppointed SpecialMasterin U.S.v.Alaska

The Supreme Court of the United States has appointed Professor J. Keith Mann, Associate Dean for Academic Affairs, to serve as Special Master in the case of United States v. Alaska. The case arose in the Supreme Court of the United States as an original action pursuant to Article III, Section 2, Clause 2, of the United States Constitution. As Special Master, Dean Mann is re­ sponsible for conducting a trial on the is­ sues of the case and then submitting his findings and recommendations in a report to the Court. The case involves the boundary between areas of state and federal interest along the northern coast of Alaska from Icy Cape east to the Canadian border, a distance of approximately 500 miles. The Court is being asked to rule on several issues of first impression in making seaward Special Master Mann resides during two days ofhearings held near the end ofJuly in boundary determinations. The outcome the Law School's Moot Court Room. will determine title to lands containing oil reserves amounting to as much as two bil­ lion dollars. The disputed areas are submerged lands seaward of the mainland and, in most in­ stances, landward of offshore barrier is­ lands. The issues arise in three separate contexts. The first issue concerns the northern boundary of National Petroleum Reserve­ Alaska, located in the western region of the north coast of Alaska. This reserve was established by President Harding in I 1923 to assure that the extensive oil supplies known to exist there would be preserved and available to the Navy in a national emergency. The State of Alaska, through its Statehood Act and the Sub­ merged Lands Act, acquired rights to min­ erals seaward of the Reserve. The north­ ern boundary of the Reserve, and specifi­ cally where the boundary lies in relation Special Master Mann on Cross Island, Prudhoe Bay, Alaska. After the hearings in the to Harrison, Smith, and Peard Bays, must case were held at the Law School, Special Master Mann and Counsel for the United be determined to establish the dividing States and Alaska flew to Prudhoe Bay for an inspection tour. They landed on the line between these state and federal rights. barrier islands from a helicopter (shown) and were taken by a United States Next, to the east, is an area of extensive Geological Survey research vessel, the Karluk, to a disputed formation known as petroleum development, including Prud- "Dinkum Sands." On board Karluk, Special Master Mann (left), discusses disputed areas with Louis F. hoe Bay. There is no Reserve involved here Claiborne, Deputy Solicitor General of the u.S. (center) and (right) G. Thomas and the State is acknowledged to have ex­ Koester, Assistant Attorney General, State of Alaska, en route to "Dinkum Sands," clusive mineral rights beneath inland wat­ Prudhoe Bay. ers and within 3 miles of the coast. There is disagreement as to whether waters be­ tween the mainland and a series of offshore islands, but more than 3 miles from either, belong to the State. There is also disagreement as to whether one of these "islands" even exists. (In this par­ ticular region, it is anticipated that data will be collected by monitoring tidal gauges for a year before the facts are pre­ sented.) The disputed submerged lands have already been leased in a joint federal/state lease sale. Oil companies paid "bonuses" of some $400,000,000 for the right to obtain leases in these disputed areas. It is expected that royalties of 3 or 4 times that much will accrue from oil and gas production. Distribution of these sums must await the outcome of this liti­ gation. The third region lies further east. Here, the Court is being asked to determine the The skipper of Karluk, Peter W Barnes, a marine geologist, in skiff (off Karluk) near boundary of another federal reserve, the "Dinkum Sands," Prudhoe Bay. Arctic National Wildlife Range, and to determine whether the submerged lands within the Reserve, if any, were excluded from the Submerged Lands Act's grant to the State. Like the Petroleum Reserve, the Wildlife Range is a vast land area whose northern boundary approximates the north coast of Alaska. The Federal Gov­ ernment contends that the Range includes water areas between the mainland and barrier islands and that these areas are necessary to the purpose of the Range. The State disagrees. In July, two days of hearings in the case were held in the Moot Court Room at the Law School. Afterward, Special Master Mann and Counsel for the United States and Alaska flew to Prudhoe Bay for an inspection tour. The case is still underway and additional hearings are anticipated in the late summer of 1981. Charles W Findlay, III, Land and Natural Resources Division, U.S. Department of Justice (left) and Special Master Mann in Fairbanks, Alaska, en route to Prudhoe Bay. Michael A. Wisnev of St. Louis, Mo. and Mark R. Spradling of Oklahoma was named Nathan Abbott Scholar for City, Okla., for outstanding service to the LawSehool highest cumulative grade point average Review. Commeneement in the Class. The Urban A. Sontheimer This year special Merit Awards were Prize for second highest cumulative presented by Dean Meyers to three stu­ Exereises grade average went to Cory Streisinger dent organization leaders who have of Eugene, Ore. made outstanding contributions to their The Frank Baker Belcher Award for organizations. They included David F best academic work in Evidence went to Levi of Libertyville, III., president of the Jane M. Graffeo of Richardson, Tex. Stanford Law Review,' Cory Streisinger More than 1,000 parents and friends at­ Susan L. Gaylord of Claremont and of Eugene, Ore., vice-president of the tended commencement exercises for Rikki L. Quintana of Santa Fe, N. Mex. Moot Cou rt Board; and Pau I L. Saffo of the Class of 1980, the Law School's 87th shared the honors for the Carl Mason Rolling Hills, president of the Stanford graduating class. Franklin Prize, awarded annually for the Journal of International Law. Following opening remarks by Dean most outstanding paper in International Following the class response, given Charles J. Meyers, John S. Shaw III of Law. by Class President Mari C..Bush, a Birmingham, Ala., a member of the The Olaus and Adolph Murie Award champagne reception for the graduates Class, presented the 1980 John Bing­ for the most thoughtful written work in was held in Crocker Garden. ham Hurlbut Award for Excellence in Environmental Law went to Lisa M. and Teaching to Professor John H. Barton. A Robert B. Bell II of Washington D.C. 1968 graduate of the Law School and a Stanford Law Review awards were member of the faculty since 1969, Pro­ given to Norman M. Hirsch of Waco, Professor John H. Barton (left) is fessor Barton is an expert in Arms Con­ Tex., for outstanding editorial contribu­ trol, Contracts, and International Busi­ tions to the Review; Joshua B. Bolten of presented 1980 John Bingham Hurlbut ness Transactions. Following the presen­ Washington, D.C. and Graeme E.M. Award for Excellence in Teaching from tation, Professor Barton gave the com­ Hancock of Palo Alto, for outstanding John Sherman Shaw III (right) during mencement address. student notes published in the Review; 1980 Law School Commencement. StanfordJoins Otherttbp Law Sehoolsin Law FirmAppeaI

The skyrocketing costs of educating lawyers has prompted the deans of six of the nation's top law schools to take unprecedented steps to alleviate what is regarded by many to be a potentially dangerous situation. In May, the deans of Chicago, Co­ lumbia, Harvard, Pennsylvania, Stan­ ford, and Yale sent a letter to the manag­ ing partners at 200 of the country's largest law firms. The two-page joint appeal stated, "Simply put, the cost of running a great private law school is g rowing faster than the income it can raise from normal sources." The letter urged each firm to establish a matching gift program whereby the firm would match all contributions by its individual members. The idea of a matching gift program is not new to law firms. Over the past few years at least ten fi rms have adopted such prog rams. Stanford has received matching gifts from several of these firms, including Covington & Burling, Cravath, Swain & Moore, Donovan Lei­ sure Newton & Irvine, Kirkland & Ellis, Lawler, Felix & Hall, Morgan, Lewis & Sehool~Faeulty ne~s

Bockius, O'Melveny & Myers, and American Business Abroad (McGraw surfaced about three years ago when Wilmer & Pickering. Hill, 1958). he was serving as president of the From the perspective of the law Atwood first thought about updating Boston Bar Association. As president he schools, the appeal is a simple busi­ the book three years ago when he was was responsible for writing a President's ness proposition which points out that with the Washington, D.C. firm of Page for the Boston Bar Journal. The law firms have a vested interest in main­ Covington & Burling specializing in articles he wrote dealt generally with taining high quality law schools. And, antitrust and international law. He found problems in what Bartlett terms, "the law while alumni giving continues to be the that he relied heavily on the book business." These ranged from the high mainstay of most law school develop­ because "it is still the best in the field ," cost of legal services to delay in the ment programs, the fact is that alumni but he also found that the recent courts and questions of legal ethics. support 'is no longer sufficient to offset proliferation of foreign antitrust law and In 1978, Bartlett spent the spring the spiraling costs of private legal edu­ the subsequent growth of "anti-antitrust" semester at the School teaching cation. statutes abroad has rendered the text Business Associations II and Securities It appears that most law fi rms recog­ inadequate in some areas. Regulation. During that time he began nize the symbiotic relationship and ac­ Atwood decided that rather than write to work seriously on the articles, knowledge the need to maintain the "just another law review article," he attempting to put them into a more quality of these law schools in order to would tackle a new edition of the text. cohesive format and relating them to sustain their own recruitment standards. He proposed the idea to Brewster, who what others had written. He also But how well this knowledge will was then President of Yale University. solicited feedback from individual translate into concrete gains for the law Brewster was receptive to the faculty members. Bartlett now feels that schools has yet to be determined. suggestion and agreed to collaborate the book is near completion. He expects At the very least, it is hoped that law on the project. that, with the help of Kevin Wiggins, a firms will view the program as an effec­ In addition to updating the existing th ird-year student who is on an tive public relations tool. As Clyde Tritt text, Atwood has added material that externship with the firm this fall, he will '49, a partner in the Los Angeles firm of deals with the philosophical changes have the book ready to submit to a O'Melveny & Myers explained it in an that have occurred over the last several university press by the end of the year. interview with The National Law Journal years in U.S. policy regarding business (June 2, 1980): "It's hard to quantify. It abroad. He anticipates that the book, won't get you more ti me or a better which will be published next spring, will schedule arrangement if you recruit be of interest not only to law schools but Judge Wisdom where you donate. But the students also to law firms and multi-national know that you have supported their companies in Europe and the United Next PhIeger school and their education. They know States. you're public minded." Professor Essays on the "law business" Judge John Minor Wisdom, U.S. Court For Joseph W. Bartlett '60 of Gaston of Appeals, Fifth Circuit, has accepted LawSehool Snow & Ely Bartlett, Boston, early an invitation from Dean Charles J. Summer thoughts about writing a book also Meyers to be the Herman Phleger Visit- Retreat James R. Atwood forAspiring Alumni Authors

This summer the Law School was temporary quarters for two alumni who are at work on their first books. James R. Atwood '69, recently the senior deputy legal adviser at the U.S. Department of State and acting professor at the Law School during the 1980 spring term, spent most of the summer and early fall putting the finishing touches on a new edition of the Kingman Brewster classic, Antitrust and ing Professor during the Spring Term, 1982. While at the School, Judge Wis­ dom will teach a seminar and deliver FaealtyNews one or more public lectures. Judge Wisdom is a graduate of Wash­ ington and Lee University (A.B., 1925) and Tulane University School of Law (LL.B., 1929). He also holds honorary Anthony G. Amsterdam, Kenneth and law degrees from Tulane, Oberlin, and Harle Montgomery Professor of Clinical San Diego University. Prior to his ap­ Legal Education, along with alumna Don pointment to the bench in 1957, Judge Lunde (B.A. '58, M.A. '64, M.D. '66) and Wisdom was a member of the New Or­ Kathy Mack '75, is developing a basic leans firm of Wisdom, Stone, Pigman & clinical course for the Law School. The Benjamin. objective is to identify and design a The Phleger Professorship was estab­ course around the core material and lished in 1972 by Mr. and Mrs. Herman methodology which the School's experi­ Phleger. Mr. Phleger, an emeritus trustee ence with clinical legal education has of the University, is a senior partner in demonstrated can most profitably con­ the San Francisco firm of Brobeck tribute to a student's overall instruction Phleger and Harrison. ' in the law. The professorship allows ,for a leading The/ton E. Henderson person in the field of law - the judiciary, William f: Baxter, Wm. Benjamin Scott the bar, government or public affairs­ Law School staff following two years as and Luna M. Scott Professor of Law, to spend a semester at the School to directing attorney of the East Bayshore appeared on a panel in August at the teach and to provide faculty and stu­ Neighborhood Legal Center in Menlo luncheon of the Antitrust Section, ABA, dents with insights into the legal system Park. Prior to that he spent two years in in Honolulu. The topic of the panel was and its operations. private practice in Oakland and a year "Future of the FTC." Other panelists in­ Other Phleger Professors have in­ as an attorney in the Civil Rights Divi­ cluded Miles Kilpatrick, former chairman cluded U.S. District Court Judge sion of the U.S. Department of Justice. of the FTC, Philip Elman, former FTC Charles E. Wyzanski, Jr.; Simon H. Rif­ While at Stanford, Judge Henderson commissioner, and Robert Pitofsky, kind, former U.S. district court judge established and administered the Minor­ current FTC commissioner. and a partner in the New York firm of ity Admissions Program. He also acted Paul, Weiss, Rifkind, Wharton & Garri­ as adviser to nineteen student organiza­ son; and Edward H. Levi, former U.S. tions and assisted in the development of Professor Paul Brest .served as com­ Attorney General and the Glen A. Lloyd the School's clinical program. mencement speaker and received an Distinguished Service Professor at the In 1977 he left the Law School to es­ honorary degree (Doctor of Laws) from University of Chicago Law School. tablish Rosen, Remcho & Henderson, a Northeastern Law School. In addition, San Francisco firm specializing in civil he has been appointed to the Yale Uni­ litigation with an emphasis on civil versity Council on The Law School. Former rights, civil liberties and constitutional law issues. Assistant Professor William Cohen has co­ Dean authored Barrett and Cohen, Cases and Materials on Constitutional Law, to be Appointed ELSAwarded published in Spring, 1981. Professor Cohen will be on leave as Merriam Dis­ tothe U.S. I Grant tinguished Visiting Professor of Law at Arizona State University in the Spring, DistrietConrt 1981 term. The Stanford Environmental Law Society Thelton E. Henderson, assistant dean of (ELS) has been awarded a $12,827 the Law School from 1968 through 1977, grant from the Board of Directors of the Marc A. Franklin, Frederick I. Richman was inducted as a judge of the U.S. Dis­ Robert Sterling Clark Foundation. The Professor of Law, is completing work on trict Court for the Northern District of g rant is to be used to support the writ­ a study of over 500 reported defamation California on July 30 in ceremonies pre­ ing and publication of a handbook on cases decided over a 3-1/2 year period sided over by Chief Judge Robert F the selection of toxic waste disposal in the late 1970's. The cases were Peckham '45. sites. The handbook will be written by studied to identify those who sued and A graduate of the University of Cali­ three second year law students: Jeff were sued, the kinds of statements that fornia at Berkeley and its law school, Belfiglio, Steven Franklin, and Tom led to litigation, the procedural patterns Judge Henderson joined the Stanford Lippe. of the litigation, the outcomes, and the

33 SehoolOOFaeulty ne~s

legal ru les that seemed most important. and Airline Clerks. He is currently at legal systems, California is the only The results are being published in the work on a book, The Labor Arbitration state to have enacted such a law. American Bar Foundation Research System, which will ,be published by Journal, which, along with the Law Macmillan in 1982. A. Mitchell Polinsky, Professor of Law School, helped finance the study. He is and Associate Professor of Economics, also completing work on the second Professor Thomas C. Heller gave a gave lectures on nuisance law at New edition of The First Amendment and the six-week series of lectures at Free Uni­ York University Law School in March Fourth Estate -a book for undergradu­ versity in West Berlin during the sum­ and at the University of Southern Cali­ ates on newspaper and broadcasting mer. He spoke about the emerging role fornia Law Center in April. He attended law. of law and economics, as part of a gen­ a conference on evolutionary theories in eral program on "Legal Theory in West­ law and economics at the University of Lawrence M. Friedman, Marion Rice ern Europe and the United States." Miami Law and Economics Center in Kirkwood Professor of Law, was a guest May. He also published the following speaker at the Vilith International Sym­ Professor John Kaplan flew to Taiwan papers in 1980: "Private Versus Public posium sponsored by the National this past spring as observer for the Enforcement of Fines" in the January Academy of Sciences, Republic of International League for Human Rights issue of the Journal of Legal Studies; Korea this year. In addition, Professor and the Lawyers' Committee for Inter­ "On the Choice Between Property Rules Friedman has coauthored The Roots of national Human Rights. He attended the and Liability Rules" in the April issue of Justice with Robert V Percival, a Stan­ two-week court martial of eight promi­ Economic Inquiry; "Strict Liability Vs. ford law graduate now clerking for U.S. nent Taiwanese political figures on Negligence in a Market Setting" in the Supreme Court Justice Byron White. charges of sedition. Thereafter, he spent May issue of the American Economic The book, which is due to be published the remainder of the spring and summer Review; "The Efficiency of Paying Com­ this year, is the culmination of research on the report, which has received wide pensation in the Pigovian Solution to Ex­ into the court records and newspapers publicity on Taiwan and among ternality Problems" in the June issue of of Alameda County from 1870 to 1910. Taiwanese residing outside that island. the Journal of Environmental Economics and Management; and "Resolving Nui­ Professor Paul Goldstein's book Real J. Keith Mann, Professor and Associate sance Disputes: The Simple Economics Estate Transactions: Cases and Mate­ Dean for Academic Affairs, again of Injunctive and Damage Remedies" in rials on Land Transfer, Development and served in the spring as salary arbitrator the July issue of the Stanford Law Re­ Finance, together with a Statute, Form by agreement between the Major view. and Problem Supplement was pub­ lished in April by Foundation Press. The League Baseball Players Association and the Major League Baseball Player casebook and supplement, designed to David Rosenhan, Professor of Law and Relations Committee. After hearings, the introduce law students to both basic Psychology, has been elected President decision consists of awarding either the and sophisticated techniques of land of the American Board of Forensic salary figure submitted by the club (or) transfer and finance, covers, among Psychology. The Board establishes the player's figure and inserting the other topics, title insurance, mortgage, standards of competence for psycholo­ awarded salary in the player's contract. trust and deed and leasehold financing, gists who contribute to the legal pro­ federal income taxation, bankruptcy and cess, and evaluates candidates' against shopping center development. Profes­ John Henry Merryman, Nelson Bow­ those standards. Those who pass Board sor Goldstein is currently at work on the man Sweitzer and Marie B. Sweitzer examinations become Diplomates of the second edition of his casebook, Professor of Law, lectured at the Faculty Board and members of the American Academy of Forensic Psychology. Copyright, Patent, Trademark and Re­ of Law, University of Zurich in June and lated State Doctrines: Cases and Mate­ at UNAM (the Autonomous National rials, and on a casebook for the first­ University of Mexico, in Mexico City) in Professor Kenneth E. Scott has year Property course, both also to be July. He has also coauthored a new coauthored Economics of Corporation published by Foundation Press. In addi­ book published in January: Merryman, Law and Securities Regulation with tion, Professor Goldstein recently pre­ Clark and Friedman, Law and Social Richard Posner. The book is scheduled sented a talk to the San Francisco Pa­ Change in Mediterranean Europe and to be published in October. tent Law Soci ety on recent develop­ Latin America: A Handbook of Legal ments in copyright law. and Social Indicators for Comparative Professor Michael S. Wald has served Study. In addition, an "artists' moral on the State Advisory Committee on Professor William B. Gould was right" statute he helped draft and pro­ Child Abuse. He recently completed elected secretary of the Labor and Em­ mote was recently enacted as California writing several chapters for a new CEB ployment Section of the ABA for 1980­ Civil Code S987. Known as the 'f\rt (Continuing Education of the Bar) book 81. He will deliver a paper next summer Preservation Act," it prohibits the "physi­ on Juvenile Court Practice. In April, Pro­ at the ABA convention on "The Supreme cal defacement, mutilation, alteration, or fessor Wald delivered a series of lec­ Court and Labor Law: The October 1980 destruction of a work of fine art." While tures on the juvenile justice system at Term." Professor Gould has also been the right of artists to present such mis­ the University of New Mexico Confer­ named a member of the Public Review treatment of their work already exists in ence on the International Year of the Board of the Brotherhood of Railway most European and Latin American Child in New Mexico.

34 A Tr-ibutetu Luwell Tur-r-entine

The annual Law Alumni/ae Banquet to be held November 7, 1980 will honor Lowell Turrentine, Marion Rice Kirkwood Professor of Law, Emeritus. Professor Turrentine served on the Stan­ ford law faculty from 1929 until his re­ tirement in 1961. Turrentine, fondly re­ ferred to during his teaching days as "Tut," received an A.B. (1917) from Princeton University, an LL.B. (1922) and an S.].D. (1929) from Harvard University.. A vast number of Law School alumni/ae have studied under him.

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