R SPRING 1986 VOL. 20, NO.2 WHY IS THIS MAN SMILING? Because he finally found someoneto laugh atone of his jokes? Because he thinks he may at last have found an appropriate mascot for Stanford? (See Stanford Lawyer, Vol. 19, No.1, at 91, for an earlier effort along these lines.) Neither of the above. Instead, it's because the Law Fund has finally bro­ ken the elusive $1,000,000 barrier! Total gifts were up from $854,274 in 1984 to $1,009,548 in 1985. (If you don't have your calculator handy, that's a rise of18 percent - in a year when most Stanfordfunds simply held theirground.) You'll find the details in the Fund annual report published in the next (Fall) issue of the Lawyer. Special thanks are due not only to our new Law Fund Director, Elizabeth Lucchesi (who took overin Octoberand virtually sprintedto the endofthe year), her predecessor Kate Godfrey, and the rest of the Law Fund staff - but in equal measure to Law Fund President George Sears, his loyal crew of alumni/ae volunteers, and last, buthardly least, to eachofyou who donated a portion ofyour well-got gains to the School. This may notbe a veryprofound Dean's message, butit's certainlya happy one. I scarcely need add that I hope this upward trend continues. ~U; STANFORD LAWYER SPRING 1986 VOL. 20, NO.2 Editor: Constance Hellyer Associate Editor: 10 Ann Coupal Graphic Design: Barbara Mendelsohn, Nancy Singer Production Art: Linda Ruiz Stanford Lawyer is published semiannually for alumni/ae and friends of Stanford Law School. Correspon­ dence and materials for publication are welcome and should be sent to: Editor, Stanford Lawyer, Stanford Page 2 Page 14 Page 22 Law School, Crown Quadrangle, Stan­ ford, CA 94305. Copyright 1986 by the Board of Trustees of the Leland Stan­ ford junior University. Reproduction in whole or in part, without permission FEATURE ARTICLES of the publisher, is prohibited. The Pursuit of Total justice 2 Lawrence M. Friedman The Making of a Community Law Project 8 Steven Dinkelspiel '85 and Peggy Russell '84 Child Advocacy: A Look at Test-Case Litigation 14 Robert H. Mnookin ALUMNI/AE WEEKEND 1985 20 Warren Christopher, Award of Merit 22 AT ISSUE Child Abuse and Neglect: The High Cost of Confidentiality 24 Robert Weisberg '79 Taking a Walk: The U.S. and the World Court 26 Judith C. Appelbaum '77 SCHOOL NEWS 28 Faculty Notes 35 ALUMNI/AE NEWS Class Notes 37 In Memoriam 71 Alumni/ae Gatherings 72 Cover: The neighborhood law office of Coming Events Back Cover the student-initiated EastPalo Alto Com­ munity Law Project (see pages 8-). In the foreground are students Leon Bloomfield '86 and Teresa Leger-Lucero '87. Execu­ tive DirectorSusanBalliet and clientjones Paige are at rear. Coverphoto by Tim Holt. The Pursuit Criticisms of this sort are not new in by Lawrence M. Friedman American history, but they do seem to The Birth of Our Modern Marion Rice Kirkwood have gained force in recent years. The Legal Culture Professor ofLaw "litigation explosion;' however, may be largely mythical- if the rate oflitigation Recall, if you will, the "good old days" of NA HORROR MOVIE popular a per1000 population has gone up since the the early Republic. People thenexpected while back, the world was invaded nineteenth century, nobody has yet little from the public sector. The genera­ by some sort of living goo from shown this to be a fact (though the lack tion ofGeorge Washington, JohnAdams, outer space that relentlessly gob­ of hard evidence does not seem to and Thomas Jefferson believed, to be bledup everythingin its path. Some dissuade thecritics). On theotherhand, sure, in ajust society and was willing to critics of the American legal system the so-called "law explosion" is indeed a fight for it. The difference lies in the depict it as a phenomenonvery like that reality, whether you look at the growth precise conception of justice, and the cosmic blob - swallowing up billions of in the numberoflawyers, the increasing expectation that flowed from it. dollars and whole social institutions as it volume oflaws, statutes, and regulations, What people expected from govern­ grows. There is a serious "litigation or at the reach of law and legal activity. mentwas a degree ofphysical protection, explosion;'itis said. Everybodyis suing As comparedto a centuryago, no areaof a certain amount of subsidy for the everybody else. The machinery oflaw is life seemscompletelybeyond thepoten­ economy (especially in transport and breaking down. We have a "crisis" onour tial reach of law. finance), a criminal justice system, a hands. What the crisis consists of, and But it is not right to focus too much framework oflaw, a courtsystem, a post why it is a crisis, is never made entirely attention on courts, litigation, and office, defense againstforeign enemies, clear; but that a crisis exists - of lawyers. These legal actors and institu­ and not much else. They got what they legitimacy and in the operating system ­ tions merelyreflect whatis happeningin askedfor - no more and sometimesless. is a point onwhich scholars tend to agree, society as a whole. To understand what People faced enormous uncertainty right, left, and center. is happeninginside thelegal system, one even as to life itself. Little could then be This was the import ofHarvard presi­ must start from the outside, by looking done about the diseases and other dent Derek Bok's much-quoted March at great general movements of social maladies that made early death a com­ 1983 speech. Bok, a lawyer and former forces. America has made the legal mon event. In economic affairs as well, law schooldean, excoriated not only the systemwhatit is; thelegal systemhas not catastrophe could strike the unlucky. entire American legal system ("among made America. Ofcourse there is mutual Unemploymentinsurance, pensions, and the mostexpensive and leastefficient in influence, butthe main lines ofcause run insurance for bank deposits did not exist. the world"), butalso thelegal profession. from societyto the law, not the otherway. Farmers had no buffers against crop Too many "able" college graduates were Briefly stated, my central proposition failure from drought, frost, or other going to law school, he complained, is that social change leads to changes in plagues ofnature. The death ordisability resultingin a"massive diversion ofexcep­ legal culture, which in turnproduce legal of a worker could plunge a family into tional talent" into pursuits that were, change. The key concept here is legal poverty. There was no workers' compen­ frankly, parasitic. Lawyers and lawsuits culture: the ideas, attitudes, values, and sation, and only a remote chance of col­ produce nothing; instead, they strewthe opinions about law held by people in a lecting money from the employer. scene with social wreckage: conflict, society. What has happened, in the last There was, in fact, no general expec­ complexity, and confusion. centuryorso, to Americanlegal culture? tation of liability. People did not expect Spring 1986 Stanford Lawyer 3 TOTAL JUSTICE "If there is a breakdown of trust in society, if social cohesion has eroded, this is not to be laid at the lawyers' doors:' Such laws changed the legal landscape legal system, surfacing in many branches and set new forces in motion. of law and in many forms and disguises. More important, perhaps, they The modernlaw ofbankruptcy is only changed the very definition of "legal" in one example. Our society is structured people's minds, changed the level and to allow many kinds ofsecond, third, even shape ofpublic expectations, ideas about fourth chances. Juvenile records are compensation from anyone - not the what was possible, what was natural, sealed, thenwiped outwhenthejuvenile employer, and not the state. In a well­ what was feasible through law. This in turns eighteen. Oureducational system known passage in Mark Twain and turn encouraged a fresh round of is generally reluctant to close the doors Dudley Warner's novel, The Gilded Age, demands. Reduction of uncertainty in of opportunity; people who flunk out of the authors describe aterrible steamboat one areaoflife led to demandsfor reduc­ school can usually try again. And there disaster. Twenty-two people died, and tion ofuncertaintyin others. Theprocess are no be-all and end-all exams, as there scores were missing or injured. But on spiraledin the direction ofmore law, more are (for example) in France. investigation, the "verdict" was the state intervention. Anotherimplicit principle is what one "familiar" one, heard "all the days of our This lies at the root ofthe development might call tenure: the legal protection of lives - 'NOBODY TO BLAME.' " of the "social" part of the welfare state, long-term relationships. We see this in Life, in sum, was filled with cosmic with its disasterrelief, workers'compen­ the law of landlord and tenant, where unfairness, or, if you will, injustice. The sation, unemployment insurance, pen­ sharplimits are now placed onlandlords' facts of life were reflected in the legal sions, and soforth. Thewelfare state has rights, especially those of residential culture. In both, there was no general in effect become an insurance state in a landlords. The tenure principle can also expectation of justice, no norms that "no-risk" society. The state has learned be seen in the employment of teachers promisedjustice in everycircumstance, how to spread risks through a system of and othercivil servants. In fact, laborlaw and no rules that generally promised taxation and welfare. Theinsurance men­ in general has moved toward greaterjob compensation. Thatwas reservedfor the tality spills overinto the private sectoras protection. The same normmay evenbe next world, if anywhere. well, including the law of torts. seen in the famous Marvin v. Marvin Whether public or private, these "palimony" decision. Societyin general, developments, taken together, have and judges and legislators in particular, New Levels of Expectation radically transformed society - so have beenshowinganunmistakable sen­ deeply and fundamentally that people sitivity to tenure, that is, to long-term What has happened since the nineteenth take the changes for granted.