Cover: One of the highlights of Celebration '95 (center insert) was the October 14 colloquy in Memorial Auditorium among Stanford justices of the U.S. Supreme Court and professors from Stanford's eminent constitutional law faculty. Dean Paul Brest (left) hosted the panel and wel­ comed visiting jurists (I-r) Sandra Day O'Connor (AB '50, LLB '52) and Stephen Breyer (AB '59). Law School professors Gerald Gunther, Kathleen M. Sullivan, and Gerhard Casper-better known as the president of Stanford University-were the Stanford discussants. This photo was taken by Douglas L. Peck of Palo Alto. FALL 1995 48 (VOL. 30, NO.1) 8 FROM THE DEAN 4 & Insert 2 What Makes a Law Faculty Great? Excellent teaching and scholarship, of course-but also breadth and collegiality hy Dean Paul Brest FEATURE ARTICLES 4 Amendment Fever STA FF DEPARTMENTS Where the U.S. Constitution is concerned, first, do no harm Editor-in-Chief: Constance Hellyer 16 Associate Editor: Ann Dethlefsen by Professor Kathlee11 M. Sullil'an Contributing Editors: Deborah Fife, School News Dan Pollak, Marijke Rijsberman 8 Student Intern: 32 Stacy Galiatsos, MA '95 Educating Lawyers Alumni News Designer: Ev Shiro as counselors and problem solvers­ Production: Joanna McClean Stanford's innovative curriculum in progress 34 STA FOllD L,IWYER (ISSN 0585-576) is published annually for alumni by Dean Paul Brest In Memoriam and friends of Stanford Law School. Formerly semiannual, the magazine AT ISSUE now alternates with STANFORD LAW 35 ALUM (ISSN 106'1-3447). Corre­ Alumni Gatherings spondence and material for either publication should be sent to: Com­ 14 l11unic:nions Director, Room "13, Back CUl'er Stanford Law School, Stanford, A Updating Miranda 94305-8610. E-mail: Law.Alum. Coming Events [email protected] The 1966 procedures hinder justice, Copyright 1995 by the Board of says this alum. Here's an alternative Trustees of Leland Stanford Junior Un iversity. Reproduction in whole by Paltl G. Cassell '84 or in part, without permission of the publisher, is prohibited. SPECIAL INSERT STA FORD LAWYER is listed in: Dialog's Legal Resource Index; and Current Law Index and LegalTr;Jc (1980-94). issues of the magazine Celebration '95 since 1966 are available on micro­ fiche through William S. Hein & An overview of the gala events Co., Inc., 1285 Main Street, Buffalo, surrounding the kickoff of the NY 14209-1987. Campaign for Stanford Law School WHAT MAKES A LAW FACULTY GREAT? Breadth ofinterest and collegiality-in addition to excellence in teaching and scholarship-distinguish Stanford's law faculty by Paul Brest Richard E. Lang Professor and Dean "From top to bottom, I believe the nation's strong­ introduction to law; his scholarship ranges over est law faculty is Stanford." many different fields, including the sociology of law, the legal profession, and culture and nation­ -Michigan Law Professor Richard Lempert ality; and he is a consultant for a forthcoming in UM's Law Quadrangle Notes, Fall 1990 television series on criminal justice. t is a great faculty that makes a great law A random sampling of topics in our works­ school. But what makes a great faculty? And in-progress seminars this past summer also illus­ what in particular makes Stanford's faculty trates the point. One faculty member outlined the I great? emerging legal issues of "cyberspace," drawing on insights from intellectual property law, eco­ Excellence in teaching and scholarship are nomics, jurisprudence, and high technology. necessary factors, of course. But they do not fully Another colleague drew on her expertise in textu­ account for the uniqueness of Stanford, which I al analysis in a close reading of the Armed Forces' believe is explained by three factors. One con­ "don't ask, don't tell" policy. Still another applied cerns individual faculty members' breadth of a mixture of contemporary economic theory and interests and expertise; the other two are qualities legal anthropology to understand the forms of of the faculty as a group-its diversity and its business organizations emerging in China. collegiality. Second, putting aside Roman Hruska's en­ First, many Stanford professors have intellec­ comium to mediocrity, the Stanford Law faculty tual interests that transcend conventional discipli­ is diverse in just about every way. Our faculty nary boundaries. We have an assemblage of poly­ includes doctrinalists-scholars who engage in maths-persons (according to the dictionary the kind of analysis that advocates and judges do, definition) "of much learning and acquainted and whose publications directly assist their work. with various su bjects of study." For example, one It includes those who approach scholarsnip from faculty member regularly teaches a couple of the perspectives of other disciplines-psychology, bread-and-butter courses, Criminal Law and sociology, economics, finance, philosophy, and Property; he offers advanced seminars in subjects the humanities. It includes scholars engageq in such as welfare policy and race discrimination; theoretical inquiry, empirical research, and poticy and he writes in fields as disparate as law and studies-on issues ranging from criminal justice economics, critical legal studies, and learning dis­ to the flat tax, the regulation of tobacco products, abilities. Another teaches Trusts & Estates and securities class actions, and marketable emissions History of American Law, and an undergraduate permits. Many of these faculty members are rec- 2 STANFORD LAWYER FAl.L 1995 ognized as intellectual colleagues by their peers in action that enriches both the students' education other parts of the University. Indeed, several hold and the faculty's own scholarship. joint appointments in other departments. Over the past few years alone, Stanford facul­ Consistent with our willful disregard of disci­ ty members have collaborated on innovative plinary boundaries, the Stanford faculty resists courses on such varied topics as the sociology of drawing lines between professional training and the legal profession, an economic analysis of busi­ interdisciplinary perspectives. We believe that a ness deals, property theory, international develop­ broad, liberal education in the law is an essential ment, nationality, and biotechnology. They have part of a professional education. Exposure to legal collaborated in writing works too numerous to history and jurisprudence and a multifaceted and catalog. Beyond joint teaching and joint author­ critical understanding of legal institutions provide ship, they have influenced and enriched each oth­ the wisdom, judgment, and values essential to a er's work immeasurably. Turn to the first footnote satisfactory and satisfying professional life. This of almost any article by a Stanford professor, and has been repeatedly confirmed by some of Stan­ you will notice acknowledgments of assistance ford's most successful alumni, who appreciate how from colleagues whose own writings have no professors like Herbert Packer and Lawrence apparent relationship to the author's field. Friedman, in courses entirely unrelated to the graduates' practice, not only provided foundations Each time we add a polymath to Stanford's for a balanced and ethical approach to their work, academic community, we obtain not only needed but also have helped keep alive their intellectual curricular coverage, but also what economists call and cultural interests away from the office. an external benefit by adding to the value of those of us who are already here. This is what is One could imagine a school whose faculty so special about Stanford Law School's faculty, worked largely in isolation from one another­ individually and collectively, and why continuing where students, Iike guests at a wonderful smor­ to build and strengthen this faculty is a central gasbord, created a varied meal by choosing the goal of the Campaign on which we have now courses or professors that particularly engaged embarked. _ them. That institution would not be nearly as dynamic, interesting, or productive as one where the faculty also interacted among themselves. What ultimately gives the Stanford Law faculty its unique quality is the interaction among its diverse group of polymath professors-an inter- FALL 199.1 STANFORD LAWYER 3 Proposals to amend the U.S. Constitution are rampant. Here are some reasons for doing so only reluctantly and as a last resort by Kathleen M. Sullivan Professor of Law ®Rost things Congress might do this yeat can be undone by the next election. Amendments to the United States Constitution cannot. Yet more constitutional amendment proposals are undergoing serious consideration in Congress than at any time in recent memory. Among these are . ~"~~M.i~ , amendments that would impose congressional term ~PW'i?,/A~"'". limits, authorize laws against flag burning, give the .~ ...#~Nr"'~~ .." president a line-item veto, abolish the electoral college, ~~W;f\lI~1 outlaw abortion, prohibit remedial school busing, and authorize school prayer, to name a few. • ~f,/"A'//A;'~""" ~iN~A#~~~~?'~-*'~. ~,~~~AlN~~ ~h~~~~"~~~"~~/AIf,~ Taken together, the proposed Other proposed constitutional Constitution. Without such respect amendments add up to the biggest amendments are in the pipeline, for the constitutional framework, call for constitutional revisionism including a "religious equality" the peaceful operation of ordinary since opponents of abortion, school amendment on which a House politics would degenerate into frac­ busing, and restrictions on school Judiciary subcommittee has held tious war. prayer tried to launch a constitu­ hearings. The leading draft of that Frequent constitutional amend­ tional convention back in the 1970s amendment would require greater ment can be expected to undermine and 1980s. inclusion of religious expression in this respect by breaking down the Our Constitution is extraordi­ public settings and allow "public or boundary between law and politics. narily difficult to amend. Article V ceremonial accommodation of reli­ The more you amend the Consti­ of the Constitution provides two gious heritage, beliefs, or tradi­ tution, the more it seems like ordi­ routes, but both require large tions." nary legislation. And the more the supermajorities.