43 FALL 1990 Inside Poland The Changing World of Law Board of Visitors Cover: Detail ofillustration for "Thinking about Tort La~' the interview beginning on page 4. Oil pastel, by Jim M'Guinness. FALL 1990 43 (VOL. 25, NO.1) FROM THE DEAN 2 A Community ofDiscourse We are learning how to talk and work with people of different views and backgrounds. By Paul Brest FEATURE ARTICLES 4 Thinking aboutTort Law The current system doesn't seem to do a very good job ofpromoting either compensation or deterrence. STAFF An interview with Robert Rabin DEPARTMENTS Editor: Constance Hellyer Associate Editor: Ann Dethlefsen 18 Contributing Editors: 10 School News Mary Spletter Ruth Welch Into the Future Designers: Ev Shiro How will the legal environment and practice 54 Jim M'Guinness change over the next twenty years? Class Notes Nancy Singer Some informed predictions. Production artists: Roberta Smigel 115 Joanna McClean By Denis Hayes '85, Thomas C. Heller, Elizabeth Fischbach In Memoriam Student interns: Lewis H. Butler'51 and Lawrence M. Friedman Helen Surh, AB/MA '90 Susan Infantino (AB '91) 118 IN THE FIELD Alumni/ae Gatherings STANFORD LAWYER (ISSN 0585-0576) is published semi-annually for alumni/ae and friends of Stanford Law School. Inside Back Cover Correspondence and materials for 16 publication are welcome and should be Letters sent to: Editor, Stanford Lawyer, Warsaw Spring Stanford Law School, Stanford, CA A professor finds both promise and paradox 943°5-8610. Back Cover Copyright 1990 by the Board of in Solidarity-led Poland. Trustees of the Leland Stanford Junior Coming Events University. Reproduction in whole or in By William B. Gould IV part, without permission of the publisher, is prohibited. Indices: Articles published since 1980 are listed in Current Law Index, BOARD OF VISITORS LegalTrac, and Dialog's Legal Resource Index. Issues of the magazine since 1966 are available on microfiche through William S. Hein & Co., Inc., 1285 Main 40 Street, Buffalo, NY 14209. A.D. 2010 A progress report on the undertaking to help the School prepare for the future. A COMMUNITY OF DISCOURSE LSA, BLSA, NALSA, SLLSA. These are acronyms for student groups at Stan­ ford Law School that are organized around the race and ethnicity of their members-the Asian, Black, Native American, and Latino Law Students Associations. Does the proliferation ofthese so­ called "alphabet organizations" reflect a frag­ mentation ofstudentlife along racial andethnic lines? Or does it have a positive value? I'd like to talk can­ Understanding diverse perspectives didly about this ques­ tion and the broader issues ofintergroup rela­ is essential to the education tions it represents. The dangers of racial divi- oflawyers for the complex society siveness certainly are no greater at Stanford than in which they will practice elsewhere in the country. But this is our commu­ nity, and it is up to us to make it a good place to live and work. Moreover, because ofStanford's strong traditions of fair play and tolerance, we have a good chance of dealing construc­ tively with our differences-perhaps even in a way that serves as a model for others. Thus, we are presented with both an opportunity and a responsibility. In my view, the key to a vibrant and joyful community-andlaw school should be a joyful experience-lies in mutual respect and con­ tinual interchange among its members. I shall 2 STANFORD LAWYER Fall I990 call this a "communityofdiscourse"- perhaps, in view of our considerable diversity, a "multi­ cultural community of discourse~' This phrase captures the idea that, whatever our differ­ ences, we are engaged in a common venture­ a venture characterized by conversation and interaction. Our common venture is education and, as MariMatsudahas noted, "Humanbeings learn and grow through interaction with difference, not by reproducing what they already know~'l Although the members ofour community hold many values in common, our diversity makes it Paul Brest Whatever Richard E. Lang Professor and Dean our differences j to our own understanding of the legal system we are engaged in and informs our aspirations for it. A multi­ cultural community of discourse is essential the common venture to training lawyers who will work with clients and communities, and wield power, in an increasingly diverse societ): ofeducation-a A community ofdiscourse must have at least four ingredients. First, its members must be venture characterized fully welcome and equal citizens of the com­ munit): Second, they must be free to express by conversation and their views, without censorship or censure, on the many controversial and sometimes highly interaction charged issues that are discussed in a university and law school. Third, while the community's members may identify with various ethnic, political, cultural, and other such groups, we must recognize each other's individuality at the likely that we approach at least some aspects of same time as we work to understand the par­ law and policy from different perspectives. We ticular histories and values of these groups. therefore have a lot to offer to and learn from Finally, we must engage in continual conversa­ one another. To quote from the Report of the tion with each other. University Committee on Minority Issues: Let me bring these general principles down to earth by giving you an example that captures Gender, racial, ethnic, cultural, religious, and the flavor of our current concerns, and then. other individual orgroup differences enrich the describe measures we are taking to foster dis­ educational and social environment where we course within the Law School. In recent years teach and learn, live and work. These differ­ students have sometimes talked about feeling ences, rather than inhibiting communication "silenced." This terrn first entered our language and concord, should present us opportunities at the School in a moving and thought­ to find mutual understanding and respect in a provoking panel presented a few years ago by heterogeneous community.2 some students who described how they-as Maintaining a community of discourse is women, people of color, and gay and lesbian especially crucial to our enterprise as a school people- felt excluded, sometimes to the extent of law. The legal system is situated ina multi­ of feeling voiceless, in law school. At that same cultural society; its dynamics, tensions, and panel, a white male student in the audience said outcomes reflect the interplay-often the thathe, too, felt silenced because other students struggle - amongdiverse interests andcultures. shunned him when he expressed conservative The interaction of these interests and cultures within the walls of the Law School contributes Continued on page 49 Fall I990 STANFORD LAWYER 3 ""There'is reason to question the tort system does a very goodJj,@~, in promoting .the goals of either compensation or deterrence~ The cost of delivering a dollar to a tort victim is enormous that sounds like negligence. But this doesn't loose framework for reaching decisions, negate the shift in mentality to claiming for rather than a set ofspecific rules indicating kinds of injuries that were just accepted at an when liability will be assigned. A manufac­ earlier point in time. turer who scans state reports trying to figure For example, the whole notion that a car­ out what changes ought to be made in prod­ even though it is a standardized model­ uct design isn't going to get much help. may result in legally actionable post-collision injuries to the person inside the car, is recent. Does this uncertainty have a chilling effect­ Today, the car must be designed not just to for example, in medicine? avoid accidents, but also to avoid injuries People in the medical field are convinced that to someone inside the car after the accident it does, and I'm sure to some extent they are occurs. This kind ofheightened liability is right. The question is whether some ofthe true oflots ofproducts today. chilling effect is in fact beneficial, and what balance is struck. That's hard to say. Do you see problems with today's tort Most doctors who are candid will tell you system? that even today -let alone fifteen or twenty I think there are very real problems, begin­ years ago - a great deal of medical negligence ning with the expense of the system. The goes unaccounted for. To the extent that the administrative costs involved in delivering tort system is narrowing the gap between a dollar of compensation to a tort victim how much negligence is out there and how are enormous and growing. Studies by the much is being picked up, and providing sig­ Institute for Civil Justice at Rand show dra­ nals and incentives to safer conduct-I sup­ matic increases in the cost ofpersonal injury pose tort law is having a salutary effect. litigation, with a very large proportion ofthe The same goes for"defensive medicine": total dollars expended going to lawyers' fees, some ofit may be socially wasteful, but some insurance costs, and expert witness fees. In of it may in fact be beneficial. It's a compli­ the principal injury categories, more than cated issue. half the money expended goes to various administrative costs. So, expense is a major Are there other areas oftort law that cause cause for concern. concern? More generally, there is reason to question You could look at each ofthe major areas whether the tort system does a very good and find some problems. The one I've been job in promoting the goals ofeither compen­ writing about lately is the handling of mass sation or deterrence. It is certainly a very tort claims like asbestos, the Dalkon Shield, expensive way to generate compensation for Agent Orange, and DES. The courts seem accident victims.