StanfordLawyerSpring/Summer 1979Volume 14, ,No.1

Editor: Cheryl W. RitchieGraphic Designer: Carol Hilk-Kummer

1

2

8

13

18

23-31

23

26

30

32

39

40

63

Dean's Page

In' the Name of Justiceby The Honorable Shirley M.Hufstedler '49

The Battle of the Stanislaus: Howthe Great Federal-State WaterFight Was Wonby Roderick E. Walston '61

Bringing Legal Services to theHandicappedby Michael Gilfix '73

In Law School and Over Thirty: ALook at Stanford's Older Studentsby Cheryl W. Ritchie

F9culty Opinions

On My Teachingby Professor Paul Brest

The Hazardous Road Toward aConstitutional Conventionby Gerald Gunther, William NelsonCromwell Professor of Law

On the Devitt CommitteeRecommendationsby Charles J. Meyers, Richard E.Lang Professor and Dean

School and Faculty News

A Boon to Hiring CommitteesEverywhere!

Class Notes

In Memoriam

Stanford Lawyer is published semi-annually for alumni/ae and friendsof Stanford Law School. Materials for publication and correspondenceare welcome and should be sent to the Editor, Stanford Lawyer, Stan­ford Law School, Stanford, CA 94305.

eaage

and any person could practice law. Uni-~

versity of Chicago economists in a play­ful, or argumentative, mood can beheard to advocate this position. For themajor consumers of legal services, de­regulation would have little effect, be­cause they would still acquire the infor­mation they need about the quality of alawyer and his or her legal education.But for the consumer who uses a lawyeronly three or four times in a lifetime,the information would probably be hardto come by.

My own feeling is that the answer liesin a middle ground between these twopositions-in partial deregulation. Usingthis approach, accreditation would beabolished, but the bar exam would beretained to protect the public from in­competency. Partial deregulation wouldnecessitate changes in federal law, whichnow requires accreditation for loans tostudents, but it would also give lawschools the freedom to experiment muchmore boldly than is currently possible.

It is true that partial deregulationwould grant life to the poor-quality lawschools that abound in California todayand would probably give birth to morein other states. But it is equally true thatsuch schools provide an avenue to theprofession for a number of students whowould otherwise be excluded. Whileseventy to eighty percent of the grad­uates of unaccredited law schools failthe California bar each year, at leasttwenty to thirty percent pass and areadmitted to practice. The unaccreditedschools thus serve the function of theopen admissions policy that prevailedwhen I went to law school in 1946:virtually anybody could get in, but fortypercent usually flunked out.

In addition to the bar exam, the oneregulation that ought to be insisted onin this system of partial deregulation isa consumer protection measure: allschools, including Stanford, should berequired to disclose to all students beforeregistration and payment of fees the barresult figures, year by year, for the lastten years.

These views certainly contradict con­temporary practices and conventionalwisdom, but I believe that regulationfeeds on itself, and that if the trend isnot soon reversed, law schools in twentyyears will find themselves laced in astraightjacket of conformity by a centralaccrediting authority with broad powersand limited vision.

ttempts to regulate legaleducation seem to be on theupswing. The would-be regu­

lators include the Chief Justice of theUnited States and the two committees heinstigated: Clare, and its successor, Dev­itt; the Section on Legal Education andAdmissions to the Bar of the AmericanBar Association; several state supremecourts, including Indiana and SouthCarolina; the Association of AmericanLaw Schools; and now the State Barof California, which has recently com­menced another battle in the HundredYears War against this state's unaccred­ited law schools.

Two quite different positions on theissue of regulation have emerged. Thefirst holds that regulation assures qualityand thus protects the public. Standardsare set by an accrediting agency whichenforces them by denying, or threateningto deny, accreditation. This is the pre­vailing approach today, with the Sectionon Legal Education and Admissions tothe Bar of the A.B.A. being the tribune,backed by the full power of the A.B.A.Denial of accreditation by the A.B.A. isfatal in most states, for graduates of un­accredited schools are ineligible to sitfor the bar exam.

The contention that regulation is aguaranty of quality is, in my view, morean act of faith than an established fact.What we do know to be facts are that(1) political pressures in the A.B.A. haveat times forced accreditation of inferiorlaw schools, and (2) that there are high .costs connected with the regulation oflaw schools, including an annual reportthat requires hundreds of man-hours toprepare; an on-site inspection by a teamof three or four persons every sevenyears; and the proliferation of regula­tions, some quite blatantly self-inter­ested, as the proposed requirement advo­cated by the Young Lawyers Division ofthe A.B.A. that . law schools maintainplacement offices. But perhaps the high­est, and the most disturbing, cost is thetendency of the regulations to stifle edu­cational innovation. (I addressed thisproblem at a hearing held by a panel ofthe Devitt Committee on April 5 in SanFrancisco. The text of my testimony be­gins on page 30).

The second position on the issue ofregulation, which might be called the"libertarian model," advocates completederegulation. Under this approach anyinstitution could call itself a law school

1

ce

ustice is a blindfolded woman. Irefer, of course, to the familiarfigure of justice. Like many other

noted ladies, this one has a past. In manyrespects it is a dark past. Her age is amystery. We do know that she is olderthan she would ever admit, even toher best friends. She was known inancient Egypt, Greece, and Rome. ToOvid, she was Astrea, the daughter ofJupiter, who ascended the heavens tobecome a part of Virgo. She sat in Rome,literally. In Roman times she was por­trayed seated on a stone, headless, hold­ing the scales in one hand and a swordin the other. She apparently got tired ofthat and stood up for a seventh centurystretch, and she has been standing eversince. After she regained her head, shewas depicted as either blind, or opti­cally speaking, rather dazzling, with eyesflashing flames. The blindfold was amodish addition in about 1540. Perhapsthe blindfold was added as a fire-preven­tion device. Anyway, for more than 400years she has been. dressed in Grecian­type robes, tirelessly holding up herscales in one hand and clutching hersword in the other.

Whether in the name of justice, blindor blinding, or in the course of born-

again religious conversion, confession issupposed to be a soul cleanser. I confessthat when I agreed to speak, I had onlythe foggiest idea what I would be talk­ing about. By the time I have concludedmy remarks, you may be convinced thatmy mind has remained in a steady state.The choice of title creates a problemunder such circumstances. If one an­nounces a title like "Astonishing Devel­opments in Recombinant DNA," theaudience is likely to be edgy or evenrebellious when the text turns out to be"The Mating Habits of the CrestedThreepwhistle." The way out of thisdilemma is the creative ambiguity.

As you know, ambiguities come in avariety of shapes and sizes. The negligentambiguity is a model very different fromthe designed ambiguity. Negligent ambi­guities, rather like canned olives, aremarketed in several sizes: minuscule,standard, and colossal. A negligent am­biguity is minuscule if the dab of impre­cision causes a stranger to be fired; thesame ambiguity is standard if it causesthe draftsman's colleague to be fired; thefate of the draftsman defines colossal.

The creative ambiguity is not a blun­der, it is an art form. In this era in whichthe Freedom of Information Act sup-

2

plies a pry bar for opening personnelfiles, who can improve upon the responseof the professor to the request for aletter of recommendation by his student,Grimby-a young man well known tothe professor for his unremitting sloth:"Dear Mr. Prospective Employer: Youwill be fortunate indeed if you can getMr. Grimby to work for you."

"In the Name of Justice" is my de­servedly modest contribution to the col­lection. With only slight exertion, thetitle can be lifted and almost any non­objective work can be tucked beneath it.

The congressional school of designhas produced some masters of the am­biguity genre. Even a tyro senator, how­ever, can handle elementary ambiguities.For example, a senator sponsors a billto permit oil companies to extract andto process oil shale found in nationalparks. He knows that the proposal willproduce outcries from environmentalists.Accordingly, he recites the needs gen­erated by the energy crisis and speaksthrobbingly of our solemn obligation topreserve the great heritage of our na­tional parks for the unborn generationsof Americans. Now, here comes the ele­mentary ambiguity: "No extraction ofoil shale shall be undertaken without

appropriate regard for the preservationof the national parks."

Some picky senator may inquirewhether there might not be a little prob­lem about who will decide how muchregard is appropriate and upon whatcriteria. No senator is worthy of histoga if he can't figure out how to savehis ambiguity and thus his bill.

The sponsor will promptly amend hisbill to create the National Agency forPark Preservation and Energy Develop­ment, thereafter to be affectionatelyknown to all grant applicants as"NAPPED." Upon NAPPED is bestoweda handsome appropriation and a suitablyengraved delegation of authority to gohence into the world to save those parksand to squeeze that shale. The agency isalso given rule-making power by whichit will create standards and enforce allof the benevolent purposes that Con­gress had in mind. The sponsor must bevery careful not to be too specific aboutwhat purposes Congress had in mind orto spell out any of the standards himselfbecause, if he did, he'd blow his ambig­uity. Then, all sorts of his constituents,and, even worse, his campaign contrib­utors, would find out that he really likedoil more than parks or vice versa.

by The Honorable Shirley M.Hufstedler, u.S. Court ofAppeals, Ninth Circuit

3

large part of thegrist for our federacourt m·ls·s sup-plied by negligentand designed ambi­guities, statutoriallya d constitu ionallycreated."

With the birth of NAPPED, is oursponsor home free? No, indeed. Someother senator will be peckish enough toask: "But what happens, perish thethought, if sibling rivalry should breakout among NAPPED, NEPA, and ERDA,or (shudder) somebody thinks thatNAPPED's regard for oil or parks isn'tappropriate enough?"

The answer to those queries is, again,elementary. The sponsor simply writesanother amendment to his bill. This onespecifically confers jurisdiction on thefederal courts to resolve all controversiesarising out of the National Park Protec­tion and Energy Development Act.

When someone reminds him that thefederal courts are already swamped, heremembers to add his final amendment,"All cases arising under the NationalPark Protection and Energy Develop­ment Act shall be given first calendarpriority for trial in the federal districtcourts and on appeal in the United StatesCourts of Appeals."

It troubles the good senator not a whitthat the Speedy Trial Act has alreadyconferred strict calendar priority on allfederal criminal cases and that his fellowsenators have earlier given first ca'lendarpriority to 29 categories of other civilcases which they particularly fancied­all without any increase for many yearsin federal judges or judicial personnel totote the load. The senator's impervious­ness to the judicial plight is not simplyanother illustration of the patient endur­ance with which most of us can bear theills of others. It is also a familiar exam­ple of the congressional penchant forputting all hot potatoes where politiciansthink they clearly belong-in the be­numbed hands of federal judges whoare required to catch them and who donot have to run for office.

The old masters of the creative am­biguity however, are the draftsmen ofthe Constitution:

"The right of the people to be securein their persons, houses, papers, andeffects, against unreasonable searchesand seizures, shall not be violated, andno Warrants shall issue, but upon prob­able cause....

"[N]or shall [any person] be deprivedof life, liberty, or property, without dueprocess of law; nor shall private prop­erty be taken for public use, without justcompensation.

"No State shall ... deny to any per­son within its jurisdiction the equal pro­tection of the laws...."

The draftsmen painted these gloriousambiguities with "brushes of comets'hair" (to crib from Kipling). Volumesand volumes of constitutional law havebeen and are still being written to giveform and substance to those chimericalphrases: "unreasonable searches," "prob­able cause," "due process," "just com-pensation," and "equal protection." I in­tend no irony in describing the wordsfrom the Bill of Rights as "glorious am­biguities." The very elusiveness of theircontent has made it possible to shapeand reshape constitutional doctrine tomeet the needs of an evolving, pluralis­tic, free society. Precision has an hon­ored place in \vriting a city ordinance,but it is a death warrant for a livingconstitution.

It is wryly amusing that, during theNixon era, a prime qualification for Su­preme Court candidacy was that theprospective nominee should be a "strictconstructionist." The slogan rates an"A" in the Madison Avenue lexiconof ambiguities, on a sudsy par with"99-44/100 percent pure." How doesanybody "strictly construe" "due processof law"? What did our founding fathersthink of electronic surveillance whenthey drafted the language securing usfrom "unreasonable searches"?

A large part of the grist for our fed­eral court mills is supplied by negligentand designed ambiguities, statutoriaUyand constitutionally created. In inter­preting legislation, we are, in theory,supposed to ascertain the congressionalwill and then to carry out that intent inthe context of a particular case. Oft­times this exercise has an Alice-in-Won­derland quality about it. We may befully aware that the draftsman of thenegligent ambiguity never considered theproblem that his sloppy workmanshipcaused. Yet, we must ask ourselves, whatwould Congress have thought about itif it had thought about it? Applying ourpowers of retrospective divination, weannounce what Congress intended, andwe then apply inexorable logic to reachthe result that we preordained when weearlier announced our diagnosis of thecongressional psyche. Does this meanthat we are legislating? Of course, itdoes.

Anglo-American courts have alwaysmade law. Judicial lawmaking in thesetting of statutory interpretation is pri­marily, although not exclusively, of aninterstitial kind; we are engaged in fill­ing in the cracks that legislatures have

4

negligently or deliberately left in statu­tory schemes. In the context of consti­tutional law, however, the lawmakingfunction is quite different. It is uniqueto the United States, despite some Eng­lish flutterings in that direction as earlyas 1610. Whatever may be said aboutthe legitimacy of judicial review-thepower of the judiciary to declare legis­lative acts unconstitutional-that powerhas been firmly rooted here since Mar­bury v. Madison was decided in 1803.The lawmaking function of courts iseither wonderful or wicked depending onwhether the commentator agrees or notwith the results of the decisions.

Judicial responses to ambiguities gen­erated by others and their ambiguousanswers to congressional and constitu­tional mandates range from the absurdto the sublime. No judge has excelledMr. Justice Holmes in the upper rangesof these arts. A sample is his famousdissent in Abrams et ale v. United States.The Abrams defendants had been con­victed for "unlawfully writing and pub­lishing language 'intended to incite,provoke and encourage resistance to theUnited States' " during World War I, inviolation of the Espionage Act of 1918.The defendants were Russian Jews, self­styled revolutionaries who had emi­grated to this country. They wrote anddistributed some steamy pamphlets inti­mating that Washington was conspiring.with Berlin to crush the Russian Revolu­tion and ·calling upon fellow-Russianemigres, working in ammunition facto­ries, to strike because they were produc­ing weaponry "to murder not only theGermans, but also your dearest best whoare in Russia and are fighting for free­dom." In short, the battle was freespeech versus national security-a recur­ring dual, as recent history reminds us.Now Mr. Justice Holmes speaks:

"Persecution for the expression ofopinions seems to me perfectlylogical. If you have no doubt of yourpremises or your power and want acertain result with all your heart younaturally express your wishes in lawand sweep away all opposition. Toallow opposition by speech seems toindicate that you think the speechimpotent ... or that you do not carewhole-heartedly for the result, or thatyou doubt either your power or yourpremises. But when men have realizedthat time has upset many fightingfaiths, they may come to believe evenmore than they believe the very foun-

5

dations of their own conduct that theultimate good desired is better reachedby free trade in ideas-that the besttest of truth is the power of thethought to get itself accepted in thecompetition of the market, and thattruth is the only ground upon whichtheir wishes safely can be carried out.That at any rate is the theory of ourConstitution. It is an experiment, asall life is an experiment. Every year ifnot every day we have to wager oursalvation upon some prophecy basedupon imperfect knowledge. Whilethat experiment is part of our systemI think we should be eternallyvigilant against attempts to check theexpression of opinions we loathe andbelieve to be fraught with death,unless they so imminently threatenimmediate interference with thelawful and pressing purposes of thelaw that an immediate check isrequired to save the country.... Onlythe emergency that makes it imme­diately dangerous to leave thecorrection of evil counsels to timewarrants making any exception to thesweeping command, 'Congress shallmake no law ... abridging thefreedom of speech'."

The strength of Mr. Justice Holmeswas not in the power of his prose style,although he wrote beautifully, but ratherin his wisdom in creating breathing roomfor freedom while simultaneously con­structing lines which neither the individ­ual nor the state can cross when lockedin combat with each other.

The Constitution bristles with manda­tory protections of antagonistic rights:For example, the press has a constitu­tional right to gather and to publishnews. The individual has a constitutionalright of privacy to protect from publicview the store of information about him­self or herself that is essential to pre­serve the autonomy of one's personality.When these rights collide, neither mustbe permitted to destroy the other. Con­stitutional law must be written that per­mits compromise, whereby each protag­onist yields some ground, but no moreground than is necessary to permit aresolution of the controversy, while atthe same time doing the least injury toeither right-an application of the prin­ciple of maximizing the benefits of both.The technique is the creation of an am­biguity, like the clear and present dangertest, or the balancing tests that have beenmore recently devised.

We have 10 g hadthe litigating habit,but in recent years,the habit has be­come an add·ction."

Compromise is a shifty word. It canconnote a sellout of virtue. But in itsbetter sense it means an accommodationof conflicting interests. Artistic compro­mise is an indispensable ingredient of afree, yet ordered, society. To be sure, noone conspicuously wins a compromise,but neither does anyone conspicuouslylose. When we are dealing with interestsof great importance, we must strive forthe rational compromise because in thelong run we cannot survive a diet of de­struction. There are no real victors inmortal combat, whether the adversariesare private persons, states, or individ­uals versus the state.

Mr. Justice Holmes was exactly rightwhen he observed that "time has upsetmany fighting faiths" and that we mustalways "wager our salvation upon someprophecy based upon imperfect knowl­edge." Our knowledge changes; our per­ceptions of truth change. For instance,until very recently, sickness, pain, pov­erty, and death were thought to be in­exorable concomitants of life. They werethe harvest of mankind's sin, original orrepeated. They were the impositions ofthe Creator to test the spirit, or to burnaway the dross of earthly desire to pre­pare the soul for reincorporation intothe infinite. We had no expectation ofan equity of redemption enforceableduring our life span.

But in the last hundred years in so­cieties around the world, perceptionshave changed. With the injection ofhope for earthly rewards that have comefro.m a massive, even if momentary, in­fusion of food to nourish vast popula­tions; technology that released millionsfrom the absolute necessity of grindingphysical labor to wrest subsistence fromthe land; and expanding knowledge, ourprophecies and our perceptions havechanged. Sickness, pain, and poverty areno longer seen as suffering ordained. In­stead, they are sufferings that can becured; they need not be endured. Grad­ually, health, surcease from pain, andat least mild affluence have come to beregarded as human rights. The conver­sion of a destiny of misfortune into aright of good fortune has turned misfor­tune into injustice.

Injustice, thus perceived, foments re­bellions and revolutions around theworld. In the United States, the samerise in expectations has generated de­mands, sit-ins, violence, and inevitablylawsuits. No matter how unreasonablemay be the expectation, Americans ap-

pear to have unbounded faith that ju­dicial systems can supply a hope chestfor every hope, a remedy for everywrong. Even presidents have not beenimmune from such fantasies. You mayrecall, for instance, that President Fordseriously proposed that the way out ofNew York City's financial problems wasto declare the City bankrupt and turn itover to the bankruptcy court to admin­ister. (The reaction of the bench, letalone New York, was apoplectic.)

What is the explanation for this un­ending rush to the courts? There aremyriad reasons. Here are a few: Goingto court with socio-economic problemsas well as private disputes is as oldas the republic. We have long had thelitigating habit, but in recent years, thehabit has become an addiction. Courtsare accessible. Who gets admitted tolegislative chambers or to the inner of­fices of the executive branch and howthe admission is accomplished is mys­terious-although being very rich, orvery powerful helps very much. The keyto the courtroom door is a complaint.Sophistication is required to kno~ whatkind of complaint will open which court­room, but even a novice can eventuallyfind the right key by trial and error.(I do not mean to imply that hospitalityalways awaits the litigant who hasgained admission to the courtroom.)Courts are visible. A major part of ju­dicial business is conducted in public,and a decision will eventually be madethat can be heard or seen or both. Courtsare more responsive to the needs ofthe disadvantaged, the poor, the weak,and the unpopular than are the otherbranches of government. Courts havebeen guilty of serious lapses in thesesituations, but it is fair to say that thejudicial track record has been a cutabove its governmental counterparts.People have no place else to go. Unfor­tunately, millions of Americans' encoun­ters with legislatures and bureaucracieshave left them folded, stapled, and mu­tilated - without anyone's listening totheir complaints. The courts seem tooffer to many the last hope for somekind of hearing. Both the executive andlegislative branches have suffered re­peated attacks of paralysis. Members ofboth of these branches of government,fearful of offending opposing constitu­encies and thus jeopardizing their nextelection, have failed to reach creativecompromises; instead, they have reachedstalemates. Lower courts do not have

6

the luxury of nondecision. We cannothear cases outside our jurisdiction, but,with trivial exceptions, we must hear anddecide all cases and controversies thatare brought to us. Courts of last resort,such as the United States Supreme Court,have a large measure of discretion inrefusing to hear cases, but again withtrivial exceptions, once a hearing hasbeen granted these courts also must de­cide the controversy.

The accomoaniment to all this faith.hope, and charity for courts is distrust,despair, and rage. As usual, many rea­sons exist for court loathing, some basedon fact and others on fancy : Judicialproceedings are costly and slow. Not alljudges are kind, brilliant, fair, and hand­some. They are human beings, who arenot relieved of their frailties when theydon a judicial robe.

Some of the rage is due to confusingthe cause of ills with the effect of courtsupon that sea of troubles. Courts do notcause marital disaffection, poverty, ill­ness, crime, bigotry, bankruptcy, pollu­tion, drought, or earthquakes, or any ofour other abiding afflictions. But courtsdo decide all sorts of controversies thatthese distresses and disasters breed. Theurge to kill the umpire is not confinedto baseball fans.

At least a part of the anger directedto the judiciary is a product of our suc­cesses. Expectations have been raisedthat cannot be fulfilled. Sometimes theexpectations cannot be achieved becausethe problems that courts are asked toresolve cannot be "solved" by anyone.We know that we do not "solve" racialhatreds when we compel school integra­tion, any more than we "solve" maritalproblems when we grant a divorce ordissolution. The evils do not evaporateupon the issuance of a court decree. Thedecree does no more than to reorder thecontext in which the ills must be ad­dressed while we await the changes ofmind and heart that will be required tobring about racial peace and domestictranquility.

Ofttimes expectations are based onmisunderstandings about what courtscan and cannot do. For instance, courtscan force a factory to close that is pol­luting a river, but we cannot appropriatefunds to relocate the employees of thefactory who have lost their jobs. We cancompel an institution or an administra­tive agency to exercise the discretion le­gally committed to it, but we cannotdictate how that discretion will be exer-

7

cised. We can stop American tuna fisher­men from killing porpoises in violationof federal regulations, but we cannotstop the resulting increased porpoiseslaughter by Russian tuna fishermen.

In addition to these jurisdictional lim­itations, we have other very substantialrestrictions upon how we can do ourwork. In deciding cases, courts are con­fined to the evidence that is presentedto them by the parties, together withinformation in the public domain that issufficiently reliable to permit us judici­ally to notice it. Appellate courts areeven more constrained by the recordthan trial courts because trial courts,under some circumstances on their ownmotion, can compel the production ofevidence to aid them in their decisions.With very modest exceptions, Americanappellate courts cannot take or orderadditional evidence to help them decide.If a critical piece of information is miss­ing, appellate courts, at most, can re­mand the case to trial courts to takefurther evidence. Judges, who are com­pelled to decide issues of mind-bogglingvariety, have extremely limited resourcesupon which they can draw for help. Wehave no staffs of experts, and no bureau­cracies to tap.

The resource in most critical supply istime. Appellate judges are in no senseunique in this regard. But the pressureson our time have increased over the lastdecade beyond all reason. The caseloadin my court has escalated over 400 per­cent during the years from 1966 to 1976.At the same time, the active judicialcomplement has been increased from 9to 13 judges. The end product of thislitigation explosion is not just that weare overworked, it is that the litigantsand the public are suffering. Civil liti­gants with controversies that have notbeen given statutory priority must nowwait years before we can reach theircases. Moreover, in the cases that we aredeciding, we do not have enough time todo a thoroughgoing job on each case.That means that more often than welike to admit, we draft negligent, ratherthan creative ambiguities.

I do not wish to quit on a pessimisticnote. I am not a person who believesthat the definition of a pessimist is an op­timist educated at Stanford. We can andwill redesign our litigation valves toregulate the pressures on the judicial sys­tems. We can and will find means topreserve the values and not merely thename of justice.

Judge Hufstedler was the guest speakerat Class Day, held on May 24 for mem­bers of the Class of 1979 and hosted bythe Board of Governors of the StanfordAssociates and the Council of StanfordLaw Societies. She is a graduate of theClass of 1949.

TheBattleofthe

Stanislaus:

by Roderick E.Walston

he Stanislaus River representsthe site of an historic clash be­tween federal and state power.

No shots were fired, no blood spilled.Instead the battle was waged with legalarguments in the marbled chambers ofthe u.s. Supreme Court. The issue waswhether the federal government or thestates control the water stored behindfederal dams in the West. This issue isfundamentally important in the Westwhere most of the developed water sup­ply is stored behind federal dams and isvital to the economic growth of thislargely arid region. The battle culmi­nated in a landmark decision that upheldthe states' right to control the water,thus marking an historic change in thecourse of western water law.

T e Ca eThe Stanislaus River begins in the Si­

erra mountain range in Northern Cali­fornia and flows across the sprawlingCentral Valley, eventually reaching otherrivers which carry its waters to the Pa­cific Ocean. The upper part of the Stan­islaus contains a series of whitewaterrapids that have achieved national re­nown as a recreational area. In 1962Congress decided to build the New Me­lones Dam on the upper part of the river.The dam will control floods and providewater to farmers, cities, and industries.When water is stored behind the dam,however, it will inundate the upstreamstretch of whitewater, thus destroyinga valuable environmental asset. Thusthe dam poses the kind of dilemma thatincreasingly troubles modern man: To

8

what extent, if at all, should man sacri·fice his environmental heritage for hismaterial well being?

Confrontation of the dilemma wasforestalled, however, when the u.s. Bu­reau of Reclamation, which is to operatethe dam, applied to California's WaterResources Control Board for the rightto store water behind the dam. After apublic hearing, the California agency de­cided that the federal agency should notbe allowed to store water fully at thetime. Its decision was based on thegrounds that the federal agency had notyet developed a specific plan to distributewater to farmers, cities, and industries,and that immediate storage would de­stroy the upstream stretch of whitewater.No one, the state agency concluded,

1. The conflict between California and thefederal government over the New MelonesDam is merely part of a long-standingdispute between these sovereignties over theproper scope and objectives of the federalreclamation program. The federal govern­ment, under the Secretary of the Interior,has traditionally sought to use water fromfederal dams primarily for the purpose ofstimulating economic growth by providingwater and power to farmers, cities, and in­dustries. In recent years, California hassought to use a substantial portion of thewater to protect the environment threat­ened by the dams by requiring water to bereleased to protect downstream water qual­ity, fish, and wildlife and by limiting stor­age of water to protect upstream environ­mental resources. Thus the suit not onlyraises fundamental issues of federalism withrespect to the control of water in the West;it also raises fundamental issues about theextent to which federal dams should beoperated to achieve economic growth at theexpense of environmental degradation.

9

should have the right to use California'ssparse waters for purposes that have notbeen identified, at least where the waterwill destroy an important environmentalasset; an environmental trade-off shouldnot be made at least until it is knownwhat kind of economic quid will be re­ceived for the environmental quo. Thusthe state agency did not bar the federalagency from forever obtaining water; in­stead it deferred its right to obtain thewater at least until it is known how thewater will be used. The Stanislaus thusreceived a stay of execution, not a par­don.

The United States, objecting even tothe stay of execution, brought suitagainst California.1 It argued that thefederal government has exclusive controlof water stored behind its dams, andthat California and other western statescannot limit this right; accordingly, thestorage limitations imposed by Califor­nia upon the New Melones Dam are un­lawful. This 'argument was upheld by afederal district judge in Sacramento whogranted summary judgment for theUnited States. It was also upheld onappeal by the Ninth Circuit Court ofAppeals in a decision written by JudgeBen. C. Duniway '31. As a last resort,California petitioned the Supreme Courtfor review.2 Over objection of the UnitedStates, the Court granted California'spetition and set the matter for hearingin March 1978.

The Issues

Most observers thought that Califor­nia had little chance of winning the case,

" •"'''~···Ii!e •

e herd

e

at least until the Supreme Court decidedto review it. As one distinguished lawprofessor heatedly told the author, "TheSupreme Court decided that issue longago." Indeed, the Court had often up­held the federal position. In Ivanhoe Irri­gation District v. McCracken, 357 U.S.275 (1958), the Court held that the statescannot override the controversial pro­vision of federal law that limits waterfrom federal dams to lands not exceed­ing 160 acres. The Court added the com­ment that nothing in federal law "com­pels the United States to deliver water onconditions imposed by the state." Laterthe Court held that the states cannotprevent the federal government from ac­quiring water by condemnation (Fresnov. California, 372 U.S. 627 (1963)). Stilllater, it held that the states cannot con­trol the distribution of water by the Sec­retary of the Interior from the federaldams on the Colorado River (Arizona v.California, 373 U.S. 546 (1963)). Thesecases, in their totality, formed a power­ful mosaic of federal control. Stare de­cisis was a powerful ally of the UnitedStates.

Although stare decisis was on oneside, history and tradition were on theother. The precise issue was whetherCongress had meant to provide for fed­eral or state control of water in passingthe Reclamation Act of 1902. The Act,which launched the federal dam-buildingprogram, specifically directs the Secre­tary of the Interior to "proceed in con­formity with" state laws relating to the"control, appropriation, use, or distribu­tion" of water. The congressional de­bates surrounding the Act left littledoubt that Congress, although not fullyanticipating the clash between state and

2. An amicus brief was filed on Califor­nia's behalf by Dean Charles Meyers ofStanford Law School, a widely-recognizedauthority on western water law. The u.S.Solicitor General objected to the filing of thebrief on grounds that Meyers was acting inhis personal capacity rather than on behalfof a client. The author is not aware of anyinstance in which an amicus brief has beenfiled with the Supreme Court under such cir­cumstances. However, the original conceptof an amicus, as formulated in early Englishlaw, was to allow a lawyer to advise thecourt merely in his capacity as an "officer ofthe court." Indeed, one such lawyer in anearly English case, waiting for the judge tocall his case,. was allowed to point out anerroneous legal interpretation expressed bythe judge in another case. The SupremeCourt, by allowing the Meyers brief. to befiled, might have thus revived the originalamicus tradition.

federal power, meant to generally pro­vide for state rather than federal controlof water. Indeed, at the time that the Actwas passed, the western states were tra­ditionally regarded as having primarycontrol of their waters, at least wherethe federal navigation power was notinvolved. In its decisions in Ivanhoe,Fresno, and Arizona, the Supreme Courthad paid little heed to these historicalfactors. Indeed, the Warren Court, forbetter or worse, had often expanded fed­eral power at the expense of state power,even where history and tradition stoodin the way. Conversely, the Burger Courthas shown a larger respect for our his­torical and traditional institutions; aspart of an emerging "new federalism,"it has often given new emphasis to therole of the states in our constitutionalsystem. Thus with stare decisis on oneside and history on the other, the casepresented an interesting study of the dy­namics of the judicial process.

Public policy was a coveted allyclaimed by both sides. The United Statesargued that it had made an enormousinvestment in building dams to stimulatethe economy of the West; if the stateshave absolute control of water, theymight-in fits of parochialism-dissipatethe stimulant by squandering the invest­ment. Indeed, one commentator likenedthe states' position to the interpositiontheory that lay strewn on the battlefieldsof the Civil War (Goldberg, "Interposi­tion-wild West Water Style," 17 Stan­ford Law Review 1 (1964)). Californiaargued, on the other hand, that the waterwill have a dramatic impact on the econ­omy and environment of the state inwhich the dam is located; to deprive thestate of control of the water is to denyit a voice in its own destiny.

California developed a thesis, or moreprecisely a synthesis, that it arguedwould protect both federal and state in­terests, both national and local goals forwaters stored. in federal dams. Underthis approach, the states should havethe right to control their water to theextent not inconsistent with specific na­tional goals mandated by Congress. Thisresult, it was argued, would protect vitalfederal interests by insuring that theycannot be breached by the states; itwould p.rotect vital state interests byinsuring that the states are otherwisefree to develop their own water policiesto the extent not in conflict with specificnational interests. As a practical mat­ter Congress has not adopted many spe-

10

e

••ng

oUtic

•ce"

•re:DlIDJUC

e e eponthearty tow iche ecre aryen."

•eml·,ght e e t e

ecretary of theI e rto eOwa,ter t de o·

• aMclrSnaU ,.••~

ghter ~ ..._-•enes y ..........

i 9 the SoUdtoreer I an

e or e nw;rn.B.

t ·c

I

3. The "ownership" question is irrelevantbecause, if the United States "owns" thewater, the question remains whether Con­gress turned over regulatory control to thestates in the Reclamation Act of 1902. Con­versely, if the states "own" the water, thestates are still subject to Congress's constitu­tional powers under the Commerce Clauseand Property Clause; these constitutionalpowers authorize Congress to override statelaws in acquiring and using water for com­merce and proprietary purposes. See, e.g.,Arizona v. California, 373 U.S. 546, 597-598(1963).

suit would have probably become moot.The Secretary refused to take this step.

The suit thus overcame many ob­stacles that threatened to end its exist­ence. It was fully alive when the ChiefJustice, shortly after settling in his chairon a chilly day in March 1978, called thecase for oral argument.

I the Supreme urtOral argument in the Supreme Court

is often in the highest legal tradition.Less fettered by the precedents that bindother courts, the Supreme Court hasmore freedom, which it frequently in­dulges, to focus on public policy duringoral argument. In this sense, the argu­ment in the Stanislaus case was not dis­appointing. At the outset of the argu­ment, however, many justices focused onpolicy matters that were extraneous tothe issue at hand. Some justices askedwhether the federal government has theright to condemn privately held waterrights without the payment of compen­sation, a question left unanswered bythe Court's decision in United States v.Gerlach Live Stock Co., 339 U.S. 725(1950). Some asked whether the federalgovernment or the states "own" the sur­plus waters of the western states, a ques­tion left unanswered by the Court's de­cision in Nebraska v. Wyoming, 325 U.S.589(1945). These questions, althoughraising provocative issues of federalism,failed to provide much guidance onwhether Congress had provided for fed­eral or state control of water in under­taking its dam-building program.3

However, as the argument progressed,the questions became more focused.Frowning, Mr. Justice Stevens askedwhethe-r California's view - that thestates have the right to control water tothe extent not inconsistent with specificcongressional policy-might not requirea case-by-case analysis of congressionalpolicy; uncomfortably, I assented thatthis was so. Again frowning, he asked

cHic goals under its dam-building pro­gram; instead it has allowed most suchgoals to be worked out in the administra­tive process. Thus this approach wouldallow the states to playa vital, perhapsdominant, role in setting western waterpolicy. One difficulty with the approachis that it requires a case-by-case analysisof specific congressional policies thatmight be deemed to override state laws.This analysis, however, is made in othercases to determine whether Congress has"preempted" a particular state law. Inany event, it was argued, the difficultyseems a small price to pay to give statesa voice in matters that vitally affect theireconomic and environmental interests.

M otness AvertedBefore the case was argued in the Su­

preme Court, a number of developmentsthreatened to end its life. In 1974, aninitiative was placed on the Californiaballot, Proposition 17, that would haveplaced the State of California on recordas opposing construction of the NewMelones Dam. The initiative, if success­ful, would likely not have had any legaleffect; although the state can arguablycontrol the water, it cannot prevent con­struction of the dam. However, the ini­tiative would have supplanted the stor­age limitations imposed by California'sWater Resources Control Board on thedam; since these storage limitations werethe subject of the suit, the suit mighthave been dismissed as moot if the initia­tive had passed. But the initiative wasnarrowly defeated. Much of the anti­initiative sentiment, as voiced by severalCalifornia newspapers, was that the damshould be built, but should be operatedaccording to the State-imposed storagelimitations.

After the initiative's defeat, a bill wasintroduced in California's Legislaturethat would have had the same effect asthe initiative in preventing constructionof the New Melones Dam. However,when the legislators learned that the billwould likely make the pending suit be­tween California and the federal govern­ment moot, and would have no legaleffect anyway, the bill was defeated.

After the Ninth Circuit rejected Cali­fornia's position, state water officials be­gan to negotiate with the Secretary ofthe Interior, hoping to secure a pledgeby the Secretary to voluntarily complywith the State-imposed storage limita­tions on the New Melones Dam. If theSecretary had voluntarily complied, the

11

Roderick E. Wal ton received a B.A. in1958 . from Colzt1'nbia and an LL.B. in1961 fr01n Stanford, luhere he u'a al'nel1zber of the Stanford La T Review. In1961-62 he served as lalU clerk to JudgeM. Oliver Koelsch, u.S. (~ourt of Ap­peals for the Ninth Circuit. }'he follow­ing year he joined the Office of the Attor­ney General for the State of California,where he is the director of the publicresources section in San Francisco. l-Iehandles litigation of the environl1lentalagellcie~ grouped under the Re oureeAgency. Mr. Walston has argued seu­eral cases before the United States Su­prenle Court.

the Solicitor General whether, under hisview, state laws would be invalid evenwhere there was no conflict with identi­fiable congressional policy; the SolicitorGeneral appeared uncomfortable in as­senting that this was so. In a similar vein,Mr. Justice Powell asked the SolicitorGeneral how the Court could determinethe validity of the storage limitationswhich California had placed on the NewMelones Dam if the lower courts hadfailed to decide how the limitationsmight affect specific national policies.Mr. Justice Marshall drew laughterfrom the galleries by asking the SolicitorGeneral in an elaborate hypotheticalquestion if his view might enable theSecretary of the Interior to sell water tp

democratic farmers or republican farm­ers, depending on the political party towhich the Secretary belongs. Mr. JusticeStewart asked whether California's viewmight result in inconsistent state lawsbeing applied to the same interstate wa­ters; I argued that this result was unlikelysince the western states had divided mostinterstate waters by negotiations or liti­gation. Mr. Justice White suggested thatCongress, by amendatory legislation,might have vested the Secretary of theInterior with broad discretionary powerto carry out the purposes of the federalreclamation program, thus negating itsgrant of state power under the originalprogram; I insisted that the amendatorylaws, if not silent on the matter, sup­ported the opposite result. The Chief Jus-tice rhetorically asked the Solicitor Gen­eral, with apparent sympathy, whetherhis view was that the federal governmentand the states are "partners," but that inthe event of conflict the federal govern­ment is the "superior partner."4 The ar-

4. The Chief Justice had asked me a simi­lar question in an earlier case, and his ques­tion formed the basis of a decision in theearlier case that limited state control offederal activities. In oral argument in En­vironmental Protection Agency v. Califor­nia, 426 U.S. 200 (1976), the Chief Justiceasked me whether it was not true that thestates cannot regulate federal activities un­less Congress provides such authority by"clear and unambiguous" legislation. TheCourt's subsequent decision held that thestates cannot regulate federal activities with­out "clear and unambiguous" congressionalauthorization, and that Congress had notclearly and unambiguously authorized thestates to control water pollution by federalagencies under the Federal Water PollutionControl Act. I experienced an uneasy senseof deja vu on hearing a similar questionasked in the Stanislaus case.

gument then ended. Most observers feltthat neither side had conclusively wonthe argument, and that the Court hadnot revealed its own view on the matter.

The Court's decision was rendered onJuly 3, 1978, little more than ten monthsafter California filed its petition for re­view (See California v. United States,438 U.S. 645 (1978)). The decision, au­thored by Justice William Rehnquist '52,strongly upheld the states' position. TheCourt ruled that under the ReclamationAct of 1902 Congress had authorizedthe states to control the acquisition anduse of water in federal dams to the ex­tent not inconsistent with "clear con­gressional directives." The case wasremanded to the lower courts for deter­mination whether the storage limitationsimposed by California on the New Me­lones Dam are within this parameter.The Court overruled the parts of itsearlier decisions in Ivanhoe, Fresno, andArizona which had held that the statesare powerless to control the water. His­tory and tradition thus prevailed overstare decisis.

In a biting dissent joined by Messrs.Justice Brennan and Marshall, Mr. Jus­tice White objected that the "currenttemporal majority" of the Court had en­gaged in "revisionary zeal" by overrulingthe Court's prior decisions. However,the dissenting opinion failed to defendthe earlier decisions on their merits, thusinviting the comment that the earlier de­cisions were not without their revision­ary effect. Whether history is being re­vised often depends on one's perceptionof history; by focusing on the history ofthe federal law rather than its own prece­dents, the majority decision might bedefended on the grounds that it followedhistory once more, rather than revisedit once again.

In any case, the Court's decision is far­reaching and historic. It sets westernwater law in a fundamentally new direc­tion by allowing the states to play animportant, perhaps dominant, role in set­ting water policy. The precise nature ofthis role is not yet clear, as the courtsmust determine the kinds of "clearcongressional directives" that will bedeemed to override state law. However,the Court's broad analysis of state powermakes it manifest that, whatever theexact limits, the states' role will be verylarge. The decision thus results in a newfederalism in western water law, onethat replaces the federal dominance ofthe recent past.

12

orne twenty years ago, Mrs.Rosa Parks, an older blackwoman in Birmingham, Ala-

bama, refused to go to the back of thebus. Her determination and subsequentarrest triggered a civil rights movementthat has changed the employment andeconomic complexion of America.

On April 5, 1977, small groups of dis­abled· persons occupied HEW offices inSan Francisco and Washington, D.C.,vowing to hold those offices until HEWSecretary Califano signed regulations im­plementing Section 504 of the Rehabili­tation Act of 1973. Weeks later, on April28, 1977, Secretary Califano signed thoseregulations.

The 504 sit-ins represented the firstaggressive, visible and concerted actionon the part of disabled persons to winrights previously denied them. Theyshattered the image of the quiet andwithdrawn disabled person who refusesto expose herself to public view. Thissuccessful action also gave a dramaticinfusion of energy and a sense of pur­pose to all disabled Americans. In short,it initiated a new civil rights movement.

This new movement is of vital signifi­cance to the 36 million disabled Ameri­cans. It is vital to a Stanford Law Schoolgraduate who found his blindness, ratherthan his legal skills, the subject of em­ployment interviews. It is vital to a Sun­nyvale, California, woman who wasdenied access to a nightclub becauseshe is in a wheelchair. It is vital to all ofus who are able-bodied but who mayfind ourselves temporarily or perma­nently disabled by accident, stroke orother physical calamity.

It is also vital because it will stimulatecommitment to the enforcement of legis­lation that addresses the needs of the dis­abled. Unfortunately, enforcement haslong been a problem in this area. The1968 Architectural Barriers Act (PublicLaw 90-480) is a case in point. It re­quires that all facilities built with fed­eral dollars be totally accessible. Not­withstanding its years on the books, ithas been virtually ignored since its pas­sage.

It is no wonder, then, that the long­subdued response of the disabled com­munity is one of militancy and imme­diacy. Political leaders have respondedwith a plethora of new laws which ad­dress the needs of the disabled. This, inturn, has radically increased the expec­tations of the disabled community for asociety that is both hospitable and re-

13

sponsive to needs of the handicapped.Such expectations are premature and

unfortunate. Resplendent rhetoric ofsupport is fast giving way to a more so­ber and cautious attitude. In part, this at­titude is stimulated by constraints newlyimposed by Proposition 13 and its ac­companying mentality. It is also stimu­lated by the increasing volubility ofpublic school and mass transit distcictadministrations who complain that ac­cessibility to the handicapped will con­sume millions upon millions of non­existent dollars. While the validity ofthese fears is suspect, as discussed below,their increasing prominence is a causeof grave concern.

What is causing this combination ofincreasing expectations on the part ofthe disabled and increasing apprehen­sion in other quarters? Primarily, it isnew (or newly discovered) and far­reaching legislation.

New Legislation, 1 A f 7

The Rehabilitation Act of 1973 (Pub­lic Law 93-112) is often referred to as the"Civil Rights Act of the Handicapped."Best known of the Rehabilitation Act'sprovisions is Section 504 which provides:

No qualified handicapped personshall, on the basis of handicap, beexcluded from participation in, bedenied the benefits of, or otherwise besubjected to discrimination under anyprogram or activity receiving federalfinancial assistance.

Omnipresent federal funding testifies tothe true breadth of this provision. Fund­ing from the Department of HEW,!for' example, touches almost all publicschools and many private schools. It in­cludes most providers of medical care,senior citizen programs, drug and alco­hol programs, and many state agencies.

c 4 Kqgulat1()nS

Because HEW's 504 regulations pro­vide real guidance in this emerging field,some discussion is warranted. Perhapsmost significant are the definitions of a"handicapped person," which includeanyone who: (1) has a physical or mentalimpairment which substantially limitsone or more of life's major activities(such as caring for oneself, walking, see-

1. HEW was the first federal agency toadopt regulations implementing Section 504.While the HEW regulations will serve as amodel to the additional 65 federal agen­cies, some differences are sure to emerge.

by Michael Gilfix

" emustr

ur

ing, hearing, speaking, breathing, work­ing); (2) has a record of such an impair­ment (even though the impairment mayno longer exist); or (3) has no substan­tially limiting impairment, but has beentreated ,or regarded by a recipient of

federal funds as if he or she had suchan impairment (emphasis added).

Included in a list of disabling condi­tions are emotional or mental illness,drug addiction or alcoholism, visual orhearing impairments and specific learn­ing disabilities.

The regulations provide that handi­capped persons must receive services andbenefits from HEW recipients on thesame basis as those provided to the non­disabled. For example, a welfare officethat uses the telephone for communicat­ing with its clients must provide alterna­tive modes of communicating with itsdeaf clients. Non-ambulatory clients maynot be denied benefits because they areunable to visit a second-story office thatis not equipped with an elevator.

The right to employment is also guar­anteed, so long as the handicapped per­son is "qualified," which means that heor she can perform the essential functionsof the job in question. For example, anemployer may not: refuse to train, hireor promote an applicant because of ahandicap; deal with a union-run trainingand apprenticeship program that dis­criminates against the handicapped; runsocial or recreation programs which dis­criminate on the basis of handicap.

Analogous to other civil rights pro­visions, employment tests must be job­related and are scrutinized if they screenout qualified handicapped applicants.Thus, an employer cannot refuse to hirea blind applicant for an assembly jobmerely because the applicant was unableto fill out a written test without assist­ance. Nor mayan employer inquire howsevere a handicap is or ask if an indi­vidual is handicapped.

Perhaps most significantly, employersmust "reasonably accommodate" theknown mental or physical limitations ofan otherwise-qualified handicapped ap­plicant or employee. This may includeshifting non-essential duties to other em­ployees, providing readers for the blind,interpreters for the deaf, or physicallymodifying or relocating working envi­ronments. An employer may be excusedfrom making reasonable accommoda­tions only if it would cause "unduehardship" to the employer's program.Whether "undue hardship" exists will

be determined on a case-by-case basis,taking into consideration the number ofemployees, the program budget, and thecost of the needed accommodations.

The requirement of equal program ac­cessibility deserves some discussion. In­tegrated settings are required wheneverpossible, and alternative facilities can beutilized only when no other alternativeexists and when the other facility pro­vides total program accessibility. Forexample, a university may not have tomake all of its classroom buildings ac­cessible, so long as some facilities areaccessible and if sufficient classes arerelocated so that all required coursesand a reasonable selection of electivesare offered in accessible facilities. 2

1 and 503 of t ee a i1· ctOther significant provisions of the Re­

habilitation Act of 1973 are Sections 501and 503. Section 501 applies the non­discriminatory provisions to federal em­ployees. Section 503 applies to federalcontractors. In addition to a prohibitionagainst discrimination, Section 503 in­cludes the affirmative action concept asa condition of obtaining and retainingfederal contracts.

e a e at"oSome of the more salient pieces of

federal legislation are the ArchitecturalBarriers Act of 1968, which was referredto above. After years of dormancy, anenforcement mechanism-the Architec­tural and Transportation Barriers Com­pliance Board3-has been created andis now implementing that far-reachingpiece of legislation.

The Education of All HandicappedChildren Act (Public Law 94-142), is asrevolutionary as it is overdue. In es­sence, it requires that all public schoolsprepare individual work plans for emo­tionally and physically disabled studentsand that they provide necessary guidanceand accommodation to implement thoseindividual work plans. Parents have aright to involvement and to appeal ifthey are dissatisfied. Perhaps more thanany other legislation, Public Law 94-142promises to achieve the objective that is

2. Tax payers should note that, under Sec­tion 2122 of the Tax Reform Act of 1976,they may be eligible to claim a tax deduc­tion of up to $25,000 for architectural andtransportation modifications made to im­prove accessibility for handicapped persons.3. Interestingly, the Board was created bySection 502 of the 1973 Rehabilitative Act.

14

Drawing by A. Deiuliis

"I•I

t

m

•I

ministrat II•

central to the entire movement: fully in­tegrating the handicapped into the main- ,stream of society.

It is the public reaction to this actand to Section 504 of the RehabilitationAct that prompts many advocates to fearthat a backlash is beginning before themovement has achieved any level of sta­bility. In many communities, accommo­dating the handicapped has become tan­tamount to bankruptcy in the minds ofadministrators. Notwithstanding the le­gitimacy or illegitimacy of this view, itis of major concern to disabled individ­uals who see their movement attackedand eroded just after it has begun.State Law

In addition to the diversity of federallegi~lation, states are passing increasingnumbers of bills that respond to theneeds of the disabled. Perhaps most sig­nificant is that legislation which adoptsthe Section 504 model. That is, manystate laws, such as Section 1135 of theCalifornia Government Code, includephysical or mental disability in the anti- .discriminatory provisions that apply toany program or activity that receives anyfinancial assistance from the state. Be­cause this brings in virtually every hu­man services organization that is notreceiving federal funds, its significancecannot be overemphasized.

o t f .JomplianceAs indicated above, the issue of the

cost of complying with these new man­dates has been raised in many sectors.While the vast majority of individualsraising this issue are sincerely supportiveof the new requirements, they are de­terred by the specter of excessive cost ina Proposition 13 world.

Indeed, disabled individuals and advo­cates have come to expect this responsefrom institutions of higher learning, mu­nicipal governments and employers. It isfor obvious reasons that a great deal ofenergy is being channelled into counter­ing this fear of the disabled movement.

To be sure, costs of accommodationscannot insulate an institution from itsresponsibility to comply with Section504. This principle was soundly rein­forced in Davis v. Southeastern Com­munity College, 46 U.S.L.W. 2556, 2557(4th Cir. 1978).

Moreover, there is some questionabout the accuracy of the multi-million­dollar speculations regarding the cost ofcompliance. But there is no doubt thatsuch speculations can raise grave anxie­ties that can be counter-productive. An

all-too-real example is the library inTiny Rudd, Iowa, which, fearing that itwould have to spend more than its an­nual book budget to comply with theaccess requirements of Section 504, re­fused federal funding.

Clearly, many fears of high costs areunfounded. They are based on a mis­understanding of what the law requiresand a lack of knowledge about how bar­riers can be economically eliminated. Forexample, a study by the National Leagueof Cities indicates that it costs only one­tenth to one-half of 1 per cent of the costof a building in the construction phaseto be barrier-free. Ramps, for example,cost less than stairs, and are not evennecessary when floors are kept on theground level.

Nor need the cost of modifying exist­ing buildings be prohibitive. The lawdoes not require the removal of everybarrier from existing buildings. As indi­cated above, Section 504 only requiresprograms to be accessible when the pro­gram is viewed as a whole. Every facilityneed not be totally accessible. AtlanticChristian College, for example, made itscampus accessible to an English teacherwith cerebral palsy by scheduling all ofthe man's classes on the same floor as hisoffice. The only cost was the installationof a handrail to assist this individual.

Moreover, it should be pointed outthat some social services providers makehome visits to handicapped individualswho would otherwise not have access toservices because of architectural barriers.

To cite another example, Mainstream,Inc., a Southern California-based con­sulting firm composed exclusively of dis­abled consultants, recently saved a WestCoast manufacturer $152,000 by pin­pointing only tho'se barriers that wouldactually impede the handicapped. Thecorporation's architect thought everybarried had to be removed at a costof $160,000. Mainstream's consultantsshowed them how to make the buildingsaccessible for $8,000.

By eliminating architectural barrierswe will be making our society accessible.Valuable employees will be attracted tothe business sector and will further stim­ulate our economy. Fewer people will besupported by public benefits. All of uswill benefit from more humane workingenvironments.

The Di ab ·Iity w CenterThe paucity of litigation and, hence,

non-enforcement of rights of the dis-

16

abled through the mid and late-1970sreflects the inattention given these issuesby the legal profession. The rare excep­tions, such as the National Center onLaw and the Handicapped, were rela­tively modest in size and defined theirareas of responsibility very narrowly. Infact, it was not until the 1977 WhiteHouse Conference on Handicapped In­dividuals that advocates for the disabledfrom throughout the nation convenedand developed coordinated strategies.

Sometime earlier, in late 1976, theconcept of a legal services program forthe disabled was born at Senior AdultsLegal Assistance (SALA). In serving theelderly population, it was becoming clearthat a large proportion of clients wereturning to SALA because of issues relat­ing to their physical and mental condi­tions as much as their age. It was thenthat Assistance in the Law to PhysicallyHandicapped Elders (ALPHE) was born,as was the Law and Handicapped News­letter. In late 1977, the project maturedinto the Disability Law Center (DLC),when the decision was made to expandservices to younger disabled persons.

The development of the DLC has notproven easy in these days of Proposition13 and budget-tightening inflation. Theseconcerns notwithstanding, it was in thespring of 1978 that fundraising for theDLC began in earnest.

The first four staff members were ob~

tained through a Public Service Employ­ment (PSE) grant from the Compre­hensive Employment and Training Act(CETA) Board of Santa Clara County.Initiated in October of 1978 as a one­year project, it is designed to deliverboth community education and directlegal service efforts in three areas: em­ployment discrimination, architecturalbarriers, and public benefits such as Sup­plemental Security Income (SSI) and So­cial Security. Notably, this grant enabledthe DLC to open its doors in Campbell,California. Serving the 90,000 physi­cally disabled population of Santa ClaraCounty, it is located in the same facilityof the Adult Independence Development(AID) Center, which is Santa Clara's"ILP" or Independent Living Project.Almost simultaneously, a grant was ob­tained from the San Mateo Foundation-a particularly responsive communityfoundation-for a community educationproject that is focusing on employers andservice providers as well as the disabled.

The next major development occurredin November of 1978, when SALA ob-

17

tained nine VISTA volunteers for itscommunity organization project. Threeof these volunteers were assigned to theDLC, thereby increasing the staff toeight. Phil Sonenschein, a 1978 graduateof the Stanford Law School, is one ofthose VISTA volunteers.

Most exciting to those of us at theDLC was receiving the first grant of theStanford Public Interest Law Foundation(SPILF).4 Awarded to Debbie Cauble, a1978 graduate of the Stanford LawSchool, as the DLC's coordinating attor­ney, the grant is enabling Ms. Cauble toundertake various organizational andoperational tasks. It is fully expectedthat her efforts will make the DisabilityLaw Center a more efficient, professionaland stable legal services program.

With its combination of funding, andnotwithstanding its precarious nature,the DLC is providing services in severalareas. In addition to direct legal services,it is providing legal and support assist­ance to community organizations of thedisabled, undertaking a variety of com­munity education efforts, and publishingthe Law and Handicapped Newsletter.

It is our hope that stable sources offunding will be obtained and that theDLC will continue to serve the disabledpopulation of Santa Clara County andwill serve as a model to other serviceprograms throughout the nation.

I

We must recognize that the problemsof the disabled, like the problems of theelderly, are our problems.

We must use our legal and personalskills to eliminate the barriers of isola­tion and segregation that have barredmillions of disabled Americans fromthe mainstream of our society.

We must respond to ignorance andfears about the disabled with opennessand community education.

We must respond to the waveringcommitment to the disabled with tenac­ity and with a recognition that a freesociety is an accessible society.

Only then will the human potential ofmillions of Americans be realized. Onlythen will the promise of equal oppor­tunity be made a reality.

4. In the opinion of this writer, SPILF is tobe acknowledged for its present and futurecontributions to public interest law. Its ex­istence and efforts are particularly appre­ciated by those of us in public interest lawbecause of decreased funding opportunitiesfrom some of the more traditional sources.

A Lookat Stanford'sOlder Students

n English professor, a com­mercial pilot, a housewife, anexpert in Slavic linguistics, a

probation officer, a doctor of physicsand founder of an industrial microbiol­ogy firm, a public administrator, a ten­ured associate professor of philosophy,a psychologist, a mathematician andcomputer specialist, a journalist-theseare just a few of the students currentlyenrolled at Stanford Law School. Theyrepresent a growing number of "drop­ins," individuals over thirty who haveleft well-established professional careersto come to law school.

Though their numbers are still quitesmall, the proportion of older studentsin each class has steadily increased overthe past few years. For example, in thethird-year class, Class of 1979, there areten students over thirty, while the first­year class contains fifteen. Each classnumbers about 165.

The increase, according to the admis­sions committee, can be attributed pri­marily to the fact that more older stu­dents are applying to law school thesedays. People in general seem to be lessconcerned about job security than jobsatisfaction and are more inclined tochange careers when they find their jobsno longer challenging or stimulating. Formany the study of law offers intellectualexcitement combined with the prospectof an interesting and financially reward­ing career.

A second reason for the increase atStanford is the preference for greaterdiversity within each class, a preferenceexpressed by the current chairman of theadmissions committee, Professor Wil­liam Cohen. Though age alone does notimprove an applicant's chance of admis­sion, the current committee's desire toadmit candidates who have had intel­lectually challenging experiences outsideof college tends to favor students whohave had more opportunity to gain theseexperiences. But such a factor, ProfessorCohen explains, only affects "choices atthe margin." Hundreds of applicants tothe School each year possess virtuallyindistinguishable academic credentials,

19

and only a fraction of these people canbe admitted. It is at this point that di­versity factors are taken into considera­tion.

Moreover, while the older student'sability to add diversity and perspectiveis desirable, this must be coupled withthe same intellectually high standardsdemonstrated by the more typical 22­year-old admittee. Aware that older stu­dents could find the return to a rigorousacademic routine a difficult one, the ad­missions committee carefully examinesgrades and LSAT scores to be certainthat these applicants have the ability andthe potential to succeed in law school.

Once admitted to the Law School,older students experience the same prob­lems and frustrations their youngerclassmates often experience-the traumaof first year, the pressures of interview­ing for summer and permanent jobs, theanxieties of deciding what career pathto follow, i.e. private practice vs. publicinterest or governnlent work, small firmvs. large firm, major city vs. small town.And added to these can be other prob­lems more peculiar to the older student.There can be a sense of isolation, of be­ing different from the other students.One older female student recalls a con­versation with a younger student, inwhich he exclaimed, "My gosh, thereare people in my dorm who are 28!"But some older students see this problemless as one of years and more as a hickof similar interests, of having things incommon to talk about.

Occasionally, interviewing for a jobcan prove difficult for the older student.Sometimes interviewers are suspiciousof the student's motives for leaving agood job to start a new career; they mayquestion the student's feelings about be­ing supervised by attorneys who will beyounger. Some older students have evenfound interviewers concerned about theeffect of a middleaged new associate onthe firm's retirement structure.

On balance, however, most older stu­dents have found law firms generally re­ceptive to hiring them. Often, they say,firms feel older students have something

by Cheryl W. Ritchie

graduating from Brandeis, Marjorie didgraduate work in philosophy at Harvardand Berkeley, where she received herPh.D. While at Berkeley, she becameinvolved with the civil rights and anti­war movements and her interest in lawbegan to develop. Now a tenured mem­ber of the Philosophy Department at CalState, Fullerton, and mother of two uni­versity students, Marjorie is taking asabbatical to complete her first year oflaw school. Her situation is further com­plicated by the fact that her husband isliving in Los Angeles, so weekends arespent commuting. Admitting that goingto UCLA Law School would have beenthe most practical thing to do, Marjorieobserves, "I wanted to go to the best."

If someone had asked Bill Chapman'79 in 1956 what he planned to do aftergraduating from Swarthmore, he wouldhave answered, "Teach engineering."But after a brief stint at Columbia, wherehe did some graduate work that includedteaching, Bill was sidetracked into ad­vertising. After six years on MadisonAvenue working in radio and television,Bill became executive director of theAmerican Institute of Architects. Fromthere he was recruited by the Universityof Hawaii, where he held several admin­istrative positions, including vice presi­dent for administration. In this post, Billgained first-hand knowledge of the legis­lative process and developed an appre­ciation of "how the law can be an effec­tive problem-solving tool." After sevenyears at the university, Bill felt he neededsome "mind expansion." Law school, hedecided, was the place to find it.

For Bill the highlight of his three yearsat Stanford has been the course in Juve­nile Law, a clinical seminar taught byProfessor Michael Wald and AdjunctProfessor William Keogh. The course hasallowed Bill to represent minors in juve­nile court and has consequently devel­oped a keen interest in litigation, aninterest he will pursue with the SanFrancisco firm of Pettit & Martin.

For some older students law school isa natural "next step" in careers that in­tersect with law. Calvin Ward '81 holdsa Ph.D. in physics, and after four yearsof post-doctoral work in molecular biol­ogy at UC Berkeley, he, along with fourothers, founded CETUS, an industrialmicrobiology firm in Berkeley. In sixyears the firm grew from the originalfive founders to 150 employees. At thatpoint, Calvin decided the work "was nolonger exciting" and left the company

extra to offer in terms of professionaland social polish, and in being able toestablish an immediate rapport withclients.

In addition to the academic pressures,older students may have to contend withspecial personal problems, not the leastof which is attempting to raise smallchildren or teenagers while going to lawschool. In most cases, the older studenthas had to uproot his or her family,leaving home and friends behind, tosettle in campus housing, where childrenand parents alike must develop new re­lationships and restructure the familyroutine to accommodate the demands oflaw school.

...lawGiven the sacrifices and problems the

older student is likely to encounter, whydo these individuals make the decisionto come to law school?

Of the dozen students interviewed forthis article, the majority cited the needto do something else as their primarymotivation. Bob Weisberg '79, presidentof the Law Review for Volume 31, lefta tenured position in the English depart­ment at Skidmore College to enter lawschool. For him, law offered an escapefrom the "financial and emotional de­pression" he found in liberal arts aca­demia. :H;e saw the study of law as "amixture of intellectual interests with thepossibility of satisfying employment."

Mary G. Swift '80 echoed Weisberg'ssentiment, explaining that as a proba­tion officer for Marin County she hadgone as far as she could with the joband was "tired of working for a bu­reaucracy." While considering variouspossibilities, she read an article in theStanford Observer about Rita Giles, asingle mother of two who had decidedto go back to school and had been ad­mitted to the Law School. (Rita grad­uated in 1977.) Mary remembers think­ing, "She did it; maybe I can do it, too."While talking about her decision to studylaw, Mary reminisced about the highschool vocation tests she had taken inthe '50s and the counsellor who told her,"Too bad you're not a boy; you'd makea great lawyer."

Like Mary, Marjorie Weinzweig '81graduated from high school in the days"when women were expected to beteachers, nurses, or social workers." Inher hometown of Calgary in WesternCanada, there was one female lawyer"who didn't get many clients." After

M ryremtn ceaboutt hi h

a · n tehad fa n theand the cou elorwho to her:'bad)Ji u re nnyou'd make a 'Catla 'Cr:' ~

20

to do full-time consulting in computers.Calvin's interest in computers led himto think about law, specifically patentlaw, which he sees as "a good way tostay on top of lots of technologies." Aprofessional student at heart, Calvin isalso considering combining courses ineconomics with his law school work.

Lynda McNeive '80, a graduate ofMarymount College, held a variety ofinteresting' jobs before coming to lawschool. They included high school Eng­lish and journalism teacher, counsellorin a home for disturbed adolescents,newspaper reporter, continuity writerand legislative repQrter for a radio sta­tion, freelance editor and writer. Thoughshe enjoyed each of her jobs, she foundthat none seemed to offer long-termgrowth and flexibility. Feeling that grad­uate study might be the answer, she de­cided to choose a field that used thecommunications and counselling skillsshe had already developed. Law was theobvious choice.

With two years of law school behindher, Lynda is looking forward to a ca­reer in private practice in the Bay Area.While at Stanford, she has continued todevelop her counselling skills throughvolunteer work at Senior Adults LegalAssistance and as a member of the ClientCounseling Society. This summer shewill work for a firm in San Jose.

Often the decision to study law is therealization of a long-standing interest inthe field. Frank Plewes '80, who holdsa Ph.D. in Slavic linguistics from Prince­ton and speaks six Slavic languages,describes his initial decision to studylinguistics as "a toss up between lawschool and graduate school." Frank hasnow pursued both interests and hopes tosustain both by finding a job that com­bines the practice of law with his lan­guage skills.

Kristi Cotton Spence '81 has wantedto be a lawyer "for almost as long as Ican remember." Though it has takensixteen years since graduation from col­lege for Kristi to realize her goal, muchof that time has been spent working inthe area of law that will soon becomeher career, juvenile law. Kristi receivedher A.B. from Stanford in 1963. A weekafter graduation she married; and by1970 she was the mother of four chil­dren, two of whom were adopted.

While she and her husband were go­ing through the adoption process, Kristibecame interested in the legal rights ofchildren and the related fields of inter-

21

national adoption, child welfare, andchild advocacy. For the last ten years,she has volunteered her time and ener­gies to serve on a number of boards andcommittees at both the local and statelevel to improve adoption services andfoster care.

Kristi's decision to go to law schooldeveloped from a growing sense that she"could do more as a professional than asa volunteer." Her decision was rein­forced when she attended "Creative Al­ternatives for the Educated Woman," acourse offered by the Stanford AlumniAssociation. Through a number of voca­tional tests administered during thecourse, Kristi discovered that her naturaltalents and interests were in law andpolitics.

For Kristi the return to school hasbeen a difficult adjustment, which hasreinforced for her the value of "makingevery minute count." To allow time tospend with her children, who range inage from 14 to 8, she rises every morn­ing at 4 a.m. "to get a few hours ofstudying in." In addition to self-disci­pline, Kristi credits her ability to com­bine law school with her family obliga­tions to "a very supportive husband,"and a deep awareness of the need thatexists in the area of juvenile law andhow she might help to fill that need: "Iwant to know how to use the law forthe benefit of children and to explorethose areas where their rights have notyet been defined or even recognized."

As the son and grandson of Phila­delphia lawyers, Peter Stern '81 comesquite naturally to the study of law, thatis, after a few detours along the way.Following graduate work in French his­tory at Princeton, Peter taught in theWestern Civilization program at Stan­ford, and later at the University of SantaClara. He then left teaching to try hishand at a variety of jobs, including edit­ing and working for the State Depart­ment. Though unsure at this point wherehis law school training will lead, Peteris fully enjoying the intellectual chal­lenge of the first year: "Every aspect ofit has been fascinating. It's like being ina candy store and helping yourself to allkinds of goodies." And, to add evenfurther to his enjoyment of the first year,Peter won the Faerie Mallory EnglePrize for outstanding performance in theSchool's Client Counseling Competition.He shared the first-place prize with histeammate, Thomas Camp '79.

When Waymon Henry '81 first thought

,

areh

eenrecognized.

e

or even

"Thatfir. t year, Ikept thinking I wasthe biggest mistakethe admis IOnscommittee had evermade, Wltil I begantalking to otherpeople andfourulthat theyfelt theamewajJ."

about law school, he was a freshman incollege. He didn't think about it againuntil fourteen years later when he grad~

uated from San Jose State with a degreein accounting. During those fourteenyears Waymon was involved in a varietyof careers, beginning with five years ofmilitary service that included stints inTurkey, Spain, Italy, and Vietnam, wherehe was an interpreter. After finishing hismilitary duty, he went to barber schooland subsequently opened four barber­shops in Sunnyvale and San Jose. At thesame time, he became interested in flyingand obtained a commercial pilot's li­cense, which led to several interestingjobs, including training commercial pi­lots in Mexico, transporting personneland testing aircraft for NASA, and fire­fighting for the u.S. Forest Service.

A Native American, Waymon is ac­tively involved in helping the School re­cruit Native American applicants. Whilehis plans beyond law school are not yetdefinite, they do include obtaining aMaster's degree in tax from NYU, andpossibly a Ph.D. in philosophy.

Michael Singer '80 first articulated hisown interest in law when he persuadeda close friend to apply to law school.Educated at Cambridge, Michael de­cided to become a professor of mathe­matics. After receiving his Ph.D. fromKing's College, London, Michael taughtat universities in West Germany, Swe­den, and Israel. He then came to theUnited States on a research fellowshipfrom Ohio State. An interval teaching atCal Tech introduced Michael to thecharms of California, and after a year'ssabbatical during which he wrote a bookon computer organization and machinelanguage, he made the decision to go tolaw school. When asked how he feltabout the study of law, Michael enthu­siastically replied, "It's fun. And that'sthe way it should be; scholarship shouldbe fun." How Michael will use his legaltraining is not certain, but he is contem­plating a career in international law. Heis also contemplating writing anotherbook. Since he has already finished asequel to his computer book, he's con­sidering one he's tentatively titled, HowTo Think Like a Lawyer!

y Stanford?In response to the question, "Why did

you choose Stanford Law School?," themajority indicated that the small size ofthe student body and the opportunityfor close student/faculty interaction were

the primary reasons. In some instancesthe student visited the School and ob­served some first-year classes beforemaking his or her decision. Some of thewomen were personally contacted bymembers of the student organization,Women of Stanford Law, who talkedinformally about life at the School andprovided information about child carefacili ties, housing, etc.

In general, most felt the School coulddo more to recruit older students oncethey are admitted, particularly by em­phasizing what those interviewed per­ceive to be Stanford's most distinctivequalities: a superior faculty and a per­sonal educational environment that pro­motes interaction between students andfaculty.

Hard Work But Worth ItFor most of the students interviewed

for this article, law school has proven tobe more difficult and time-consumingthan they had expected. Recalling hisfirst months at the School, one studentobserved, "That first year, I kept think­ing I was the biggest mistake the admis­sions committee had ever made, until Ibegan talking to other people and foundthat they felt the same way."

Since most older students hold ad­vanced degrees and many have extensiveteaching experience, a common reactionto the study of law is one of surprise athow different it is from other academicdisciplines. "After teaching for so manyyears," admitted one student, "I reallydidn't think going to law school wouldbe that difficult, but I have found thatI have had to develop new work habitsand worry about exams, so there hasbeen a lot more anxiety than I had an­ticipated."

Yet, despite the economic and per­sonal sacrifices connected with the returnto school, each student interviewed wasconfident that he or she had made theright decision. As one student explainedit, "Sure, sometimes I get discouraged,but when I do, I think to myself, 'Waita minute, you used to get discouragedthen, too.'"

Whatever their reasons for coming tolaw school it is clear older students con­tribute a great deal in terms of enthu­siasm, motivation, and diversity of ex­perience. And just as their decision tostudy law has benefitted the Law School,their decision to practice law will doubt­less greatly benefit the legal professionand the society it serves.

22

am teaching differently this year.The impetus for change is a feelingwhich has grown over several years

that something was lacking in my ownteaching and perhaps in legal educationmore generally. At different times 1 haveunderstood the problems to be intellec­tual or political or methodological orinterpersonal. Right now 1perceive themas a complex interweaving of all of these,and I'm not ready to untangle thestrands. Nonetheless, 1 do have two no­tions which capture my concerns andobjectives.

The first is that a legal education, be­sides imparting substantive knowledgeand technical skills, should be centrallyconcerned with how lawyers can usetheir skills thoughtfully, morally, andhumanely. This might be characterizedas an education for "professional respon­sibility," but 1 don't mean learning theABA Code. 1 mean an education thatinduces us continually to question ourown values and those implicit in the legalsystem and to take personal responsibil­ity for our professional conduct. (I talkabout "us" rather than "you" here be­cause 1 think the issues of professionalresponsibility are no less relevant to lawteachers than to practitioners, and thatin the process of helping you to educateyourselves 1 will also educate myself.)

Second, law school is a place whereall of us-students, faculty, teaching fel­lows, and staff-spend a lot of time, andfor this reason alone it should allow for

23

intrinsically fulfilling experiences and re- EICI[JYIPIIIIIIIlationships. This is no less true for stu- 11dents, whose stay at the school is de-signedly transient, than for the rest of by Paul Brestus. Three years-let alone the quarter ofa lifetime you have been in school-istoo long to subordinate the richness ofbeing to a purely instrumental notion ofbecoming.

To give you a fuller idea of my con­cerns and how 1 am responding to them,let me describe my most vivid teachingexperience this year-vivid because ofits process and content, and also becauseit was new and 1 was scared. This wasthe first meeting of my Civil Procedureclass last fall. 1 asked the students to di­vide into groups of three or four and in­troduce themselves. After a while 1askedthem to form new groups and invitedthem to share their feelings about beingat Stanford. The students expressedfeelings that ranged from great excite­ment to anticipatory boredom, ambiva­lence, and fear. Some were apprehensivethat in learning to "think like lawyers"they would cease being whole persons.As one student put it, she feared that shemight "lose her soul." Another feelingwas also abroad in the room, althoughno one mentioned it to me until later inthe term: some students were uncom­fortable with the exercise-which cer­tainly did not conform to the paradigmof a law school class.

My student's concern that she mightlose her soul expresses one of my cen-

tral concerns as well. The modes of legaldiscourse invite us to put distance be­tween "the law" and our own feelingsand ideals-an invitation we are ofteneager to accept. There is a danger-Iknow there is because I have succumbedto it-that we become so attracted bythe supposed rigor and objectivity oflegal analysis that it dominates most as­pects of our lives. In that first civil pro­cedure class, several students who fore­saw the danger disclosed their strategyfor guarding against it. Beginning withlaw school, they would draw a boun­dary between their personal and profes­sionallives.

I imagine that this preemptive moveusually fails. First, we can't compart­mentalize our lives so neatly. We cannotsuppress our humanity at the office or ina classroom and just switch it back onwhen we come home at the end of theday. The way we treat our colleagues,clients, students, teachers, and others­including adversaries-in our "profes­sional" roles affects our whole being. Asif by analogue to Gresham's law, Mr.Hyde tends eventually to invade the per­sonality of Dr. Jekyll.

Second, to the extent that we actuallysucceed in alienating ourselves from ourwork we cease to treat those we dealwith as whole persons and lose sight ofthe moral dimensions of the work itself.Our feelings about a legal matter are nota substitute for analysis. But our analysiswill surely be distorted if we cannot re­late the issues it involves to our ownvalues. Only in this way, I think, canwe assume personal responsibility forour professional judgments and actions.

My teaching has begun to reflect theseconcerns. For example, the core of theCivil Procedure course was a simulatedlitigation problem in which class mem­bers handled a case from the initial clientinterviews through a hearing and nego­tiated settlement. The exercise was de­signed both to introduce a system ofprocedure and to allow the students togain a base of personal experience foraddressing issues of professional respon­sibility. After completing the six-weeksimulation, we spent almost two moreweeks examining the conflicts that hadarisen between the students' personalvalues and their roles as lawyers. Thepoint was not that our own values aresuperior or inferior to professionalnorms, but that if we subject both toscrutiny we may discover where theCode embodies our own ideals and

where it is in tension with them; and thispermits us to confront difficult moralchoices rather than let them go by de­fault.

In my second term Constitutional Lawcourse I have also tried to integrate legalanalysis with our subjective experiences.For example, class discussion of theBakke case was preceded by an exercisein which the students, in groups of three,took turns assuming the roles of a mi­nority applicant seeking preferential ad­mission, a competing nonminority ap­plicant, and a university official whomboth attempted to persuade. I and thestudents who helped plan the exercisedid not think that a few minutes of play­ing a role would significantly change per­ceptions that have evolved over twentyor more years. We did hope that it mightjog us out of familiar mindsets, and itseemed to work to some extent.

I started out talking about the waysin which we distance ourselves from ourwork and, indeed, from ourselves. Manyof us also tend to maintain distance fromother participants in the life of the LawSchool-distance among and betweenstudents, faculty, teaching fellows, andstaff. This manifests itself in variousways, such as a reluctance to expose ourfeelings, or even unpopular ideas, out ofthe fear of being ridiculed or rejected.For example, in Constitutional Law Ihave often been struck by the nearunanimity of the class about social andmoral issues that divide the rest of oursociety, such as affirmative action, thedeath penalty, and abortion. Who wantsto be branded the class racist, sexist, orfascist by sticking his neck out?

sense of trust and acceptance byothers-and the concomitant senseof community-is a good in itself.

It also facilitates a full and honest dis­cussion of many of the difficult issueswe encounter. It allows us to let downdefenses, which is often a preconditionfor becoming open to ourselves. Theintroductory meeting of Civil Procedurewas one of a number of ways that Itried to encourage the growth of mutualtrust in our class. Throughout the termthe course was structured to allow stu­dents to work cooperatively in differentgroups and settings. Many of us becamemore open and accepting than is typicalwithin the Law School-with both edu-

cational and personal rewards.The problem of distance is related to

the allocation of authority and responsi­bility. Let me get at these issues some­what indirectly by describing a phenom­enon that particularly concerns me. Afterthe first term, quite a few students stopputting energy into the Law School."Laid back" is the current term for thisantiwork ethic, but the phrase does notcapture the frustration, anger, and anxi­ety that often accompanies it. There arelots of accusatory and self-justifying ex­planations for this endemic condition: Sothe students are lazy or anti-intellectualor expect law school to be all thrillswhen there's lots of hard work. Or thefaculty doesn't care or is too academicor just plain boring. These partial andhostile visions obscure the truth and thepossibility of solutions. To put it morebluntly, they are cop-outs-facile waysfor all of us to avoid responsibility forthe situation.

Having said this, I don't have a "truevision." I do have ideas about whatmight be done. I imagine that we wouldlearn and feel better if authority and re­sponsibility were more widely sharedwithin the law school. Some of the au­thority that we, the faculty, exerciseseems functional. And some seems in­appropriate and counterproductive. Thethoughtless exercise of authority tendsto make us unresponsive and to con­tribute to your frustration and disaffec­tion. It invites you to cede responsibilityfor choosing what you want the Schoolto be. And it tends to expand the dis­tance, not just between students and fac­ulty, but among the students themselves.

We can begin to deal with these prob­lems if we are explicit about our expec­tations of ourselves and each other, ifwe try to understand what underlies theother's different expectations, and if weare open to reconsidering our demandsand behavior. To these ends, I startedConstitutional Law this term by suggest­ing that we draft a constitution to governthe course. Although the exercise wasattended by some discord (which I willmention below), it resulted in severaluseful practices. For example, I consultwith a different group of students eachweek to get feedback on the precedingclass sessions. We have also given upone class a week to allow students toengage in supervised independent studyin small groups. The groups have formedaround topics ranging from eminent do­main to gay rights, and most students

24

are devoting at least as much time tothese projects as they would to an ordi­nary class hour. The members of eachgroup have decided to submit a jointpaper which will count for one-third oftheir final grade.

In sum, I think there are compellingreasons mutually to address questionsof authority and responsibility and towork toward removing barriers to open­ness and community within the LawSchool. Not only are the issues impor­tant in themselves, but the very processof mutual inquiry and decision could bea valuable part of an education for pro­fessional responsibility. For I imaginethat the way in which we address, oravoid, these issues in one situation ishow we tend to deal with them in mostothers. And I fear that a student whopasses through law school disengagedfrom the experience is all the more likelyto pass through each stage of her pro­fessional career in the same way-post­poning the hard issues until she finallyputs them out of mind altogether. Lawschool provides an important opportu­nity to choose what we shall be in thefuture by choosing what we are now.

Even if you agree with these aims youmay doubt that they are realistic or thatthey can be achieved through legitimatemeans.

My experiences so far leav.e me cau­tiously optimistic. I have mentionedsome of the year's more successful ven­tures, but I should disclose that almostevery success has been mitigated bydifficulties. For example, while manystudents found both the introductorymeeting of Civil Procedure and the sub­sequent examination of personal andprofessional conflicts to be valuable ex­periences, others found them threateningor irrelevant. And although the Consti­tutional Law class constitution producedsome good results, the "convention" it­self was a disaster. About a third of theclass opposed the exercise: Some saidthat they had previously participated in"experimental education" and found ita waste of time; others objected to theirclassmates exercising any power overthem. We reached a compromise andproceeded. But I did not stay sufficientlyaware of the students' anxieties or ofmy own authority. Moreover, some ofthe students were insensitive to eachother and used their collective power soas to give substance to the opponents'concerns. I had hoped that we wouldgain some insights into constitutional

25

law, but I had not thought that wewould experience so vividly the centralconstitutional problem of protecting mi­nority rights in a majoritarian polity.The exercise brought to the surface andperhaps exacerbated negative feelingswhich we did not deal with with pro-'ductively.

Some of these difficulties resultedfrom my and my students' unfamiliaritywith nontraditional modes of learning.Through trial and error I am discover­ing what, works and what doesn't (andwhy), and how better to integrate per­sonal values and subjective experienceswith theoretical aspects of the curricu­lum.

here are more troubling problems,however, which implicate the verypremises of my teaching. I some-

times wonder whether there isn't an in­herent contradiction in trying to pursuesome of my objectives in a law school.My recurring doubt is whether, withoutabusing my authority, I can engage youin a broader vision of what law schooland legal education might be. For I offera compound of discomforts. The dis­tance mandated by conventional roleswithin the School, as elsewhere, is de­signed to avoid personal unease; theprospect of "unconventional" behaviorproduces anxiety. My introduction ofsubjective approaches to the law vio­lates expectations about legal education,which are further frustrated when weexamine our own "professional" rela­tionships within the Law School. Mostfundamentally, perhaps, some of our in­quiries bring to consciousness suppresseddoubts about our choice of a career inlaw. So, if against a background of ratherclear contrary expectations and conven­tions, someone "accepts" my invitationto participate in these manifold discom­forts, you may rightly ask in what sensethe acceptance was free.

I have no ready answers. I believe,however, that I may legitimately seek toengage students in the ways I have de­scribed without violating their autonomyor the implicit contract between us, eventhough every step involves discomfort­providing that I stay responsive. The bestway for me to stay responsive is to par­ticipate myself and to be at least as openas I invite you to be.

It is, of course, easier to recognize theneed for safeguards than to implement

them. The size of even our smallestclasses makes it difficult to be responsiveto each student. More difficult yet isstaying aware .of my own purposes andexercising authority responsibly. Myteaching has been more erratic this yearthan in some time. But on the whole Ihave taught better, and I am learning tobe more sensitive to my students' needswhile also demanding more of my classesthan I have before. In short, I feel goodabout the year's experience-about my­self and my students.

Throughout this essay I have sug­gested that if the experience of being inlaw school were intrinsically fulfillingthe school's educational mission wouldbe served as well. Let me conclude bymaking this connection more explicitand even stronger. We often talk aboutourselves as "professionals" and as "peo­ple," as if each of us had a double iden­tity. Sometimes this reflects my ownsense of reality. Yet there is a deeperplace where I-as teacher, lawyer,scholar, friend, husband, father-cometogether. To be aware of myself on thislevel is not easy. It is sometimes painful,because the awareness illuminates con­tradictions that aren't manifest when Iregard myself merely in one role or an­other. Yet when I am there I sense awholeness; my experiences and actionshave coherence and feel authentic; andmy understanding of myself, of you, andof the law is enriched. The other timesseem cloudy and impoverished by com­parison.

Earlier I said that something was lack­ing in my own teaching and in legal edu­cation more generally: I think it is thisintegration of the subjective and externalaspects of our existence. My sense isthat if we can touch and hold onto whatis deepest within us, we will discovercommon ideals and Imore likely commitourselves to work toward a just and hu­mane society. This is itself an ideal, andsometimes it seems embarrassingly ro­mantic. Increasingly it feels right to me.I don't want to impose this ideal on you,and I couldn't if I wanted to. But I dowant the Law School to be a place whereyou are free to consider it for yourselfand pursue it with me if you will.

This essay addresses the students ofStanford Law School. It appeared in theMay 18, 1979 issue of the Stanford LawSchool Journal, the School newspaper.

Professor Brest has been a member ofthe faculty since 1969.

FII:IlTYIPII.by Gerald Gunther

he current drive to call a consti­tutional convention to proposea balanced budget amendment

raises important unresolved questionswhich have prompted me to do somereading and thinking and talking in re­cent weeks in the unaccustomed and re­freshing realm of constitutional inter­pretation unguided (and unobscured) byjudicial pronouncements.

A discussion of this issue should, Ithink, begin with the u.s. Constitutionitself. Article V states:

"The Congress, whenever two thirdsof both Houses shall deem it neces­sary, shall propose Amendments tothis Constitution, or, on the Applica­tion of the Legislatures'of two thirdsof the several States, shall call aConvention for proposing Amend­ments, which, in either Case, shall bevalid to all Intents and Purposes, asPart of this Constitution, whenratified by the Legislatures of threefourths of the several States, or byConventions in three fourths thereof,as the one or the other Mode ofRatification may be proposed 'by theCongress· ...."In our nearly 200 years of constitu­

tional existence, we have had only 26amendments to our remarkably briefConstitution. All of them have been pro­posed through the first of the two meth­ods provided by Article V: two-thirds ofCongress has proposed the amendments,and they have been ratified by three­fourths of the states. The ongoing bal­anced budget campaign is a threat to usethe other method: application by thelegislatures of two-thirds of the statesfor a convention to propose amend-

ments, for ultimate ratification by thestates.

The fact that we haven't used the con­vention route does not make it illegiti­mate, of course: it is there in the Con­stitution, and it is there to be used whenappropriate. But it is an uncertain routebecause it hasn't been tried, because itraises a lot of questions, and becausethose questions haven't begun to be re­solved. If 34 state legislatures deliber­ately and thoughtfully want to take thisuncertain course, with adequate aware­ness and consideration of the risksahead, so be it. But the ongoing cam­paign has in fact largely been an exercisein constitutional irresponsibility - con­stitutional roulette, or brinksmanship ifyou will, a stumbling toward a constitu­tional convention which more resemblesblindman's buff than serious attention todeliberate revision of our basic law.

When California Governor Brown an­nounced his support of the campaign atthe beginning of this year, about twodozen state legislatures had alreadyasked Congress to call a constitutionalconvention, yet the public was largelyunaware that we were already well onthe way towards a convention. Mostastoundingly, the campaign had got­ten that much support with the mostremarkable inattention in those statelegislatures to what they were reallydoing. I gather that not a single one ofthem had even held a committee hearingon the unresolved questions of Article V.Typically, the debates in the state legis­latures were brief and perfunctory-es­sentially up-and-down votes on whetherone was for or against a balancedbudget. Yet what was adopted, typically,

26

was a resolution which said that, unlessCongress submitted a balanced budgetamendment of its own, the state was ap­plying under Article V for a constitu­tional convention. I think it is fair to saythat the questions of what such a con­vention might do, and especially whethersuch a convention could and would belimited to the balanced budget issue,were simply ignored.

When Governor Brown joined thecampaign in January, the public beganto take it more seriously. In February, acommittee of the California Assemblybecame the first state legislative body tohold formal hearings on what this con­vention process really might look like.California rejected the convention pro­posal after those hearings. A good manypeople then assumed that the drive wasdead. But it continues: only last week,the lower house of the New Hampshirelegislature came on board, and NewHampshire will very probably becomethe 30th state to ask for a convention.And the issue is pending in several otherlegislatures now in session. If four morestates join the campaign, I suppose every-one will become aware that a truly majorconstitutional issue confronts us, forCongress will then have to decidewhether 34 valid applications are onhand; and if there are, Congress will be..under a duty to call a convention-aconvention for which there are no guide­lines regarding what its scope shall be,how the delegates are to be selected, howlong it shall meet, and so forth.

One way of looking at the problemsthe convention route poses is to examinethe assurances by the advocates of thebalanced budget amendment - assur­ances that the convention process won'tget out of hand. In my view there is noadequate basis for those assurances, andcertainly not for the confidence withwhich they are presented. I believe thatthe convention route promises uncer­tainty, controversy, and divisiveness atevery turn. With respect to the centralconstitutional question-whether a con­stitutional convention could and wouldbe limited to a single subject-I am con­vinced that there is a serious risk that itwould not in fact be so limited.

I perceive three major recurrent themesin those assurances. First, we are prom­ised that a constitutional convention isnot likely to come about, since the realaim of this drive is to spur Congress intoproposing a balanced budget amendmentof its own. That claim seems to me the

27

simplest to challenge: I take it that ifthe movement is to be a threat to inducecongressional action, it needs to be acredible threat. I take it, too, that onedoes not adequately answer questionsabout the lethal nature of a weapon byresponding that the weapon will neverbe used if the other side surrenders.Moreover, one of the very few issuesabout the convention route on whichthere is full agreement among consti­tutional scholars is that, once properapplications for a convention are beforeCongress, Congress is under a duty tocall a convention and does not have alegitimate discretion to ignore the appli­cations. In short, a strategy that rests onthe threat of a convention must surelytake account of the possibility that aconvention will actually convene.

Second, we are assured that any con­stitutional convention would be limitedto the subject matter of the state appli­cations. That is, of course, the centralconstitutional problem, and it raises anumber of questions for which there areno authoritative answers. I will touch onjust a few of the issues that raise doubtabout the possibility of truly limiting aconvention.

et me begin by recalling the varioussteps spelled out for the conventionroute in Article V of the Constitu-

tion. The first step is "the Applicationof the Legislatures of two thirds of theseveral States" for a convention. Afterproper "Applications" are received, Con­gress, as the second step, "shall calla Convention for proposing Amend­ments." (Note that Congress "shall" calla convention, and that, in this context,"shall" surely means "must." And whatis "called" is a "Convention for propos­ing Amendments," in the plural.) Then,as the third step, the convention meets.After the convention reports its proposedamendments to Congress, Congress iscalled upon to take the fourth step: tochoose the "Mode of Ratification"-rati­fication either by the "Legislatures ofthree fourths of the several States" or byratifying conventions in three-fourths ofthe states. The fifth and final step is theactual consideration of ratification bythe states.

Now, with respect to the first step,there are some scholars who believe thatthe only valid "Application" is one call­ing for a general, unlimited convention.

A larger number of scholars believe thatsome limited applications could be con­sidered valid-so long as they are not sonarrowly circumscribed as to deprive theconvention of a real opportunity to de­liberate, to debate alternatives, and tocompromise among measures. I do notknow of any scholar who believes that avery specific application-e.g., to voteup or down on the text of a particularamendment-is the kind of "Applica­tion" contemplated by Article V. Thetypical amendment proposals adoptedby the states so far strike me as quitespecific; I accordingly think that it isquestionable that they are proper "Ap­plications" in the Article V sense.

But the uncertainty about what con­stitutes a proper "Application" is only apreliminary phase of the problem. Themain difficulties lie in what Congresscould and would do, and what a consti­tutional convention could and would do.First, as to Congress, in the second stepof the convention route: If Congressadopted the position that only unlimitedapplications are proper, it could simplyignore the limited ones and the processwould stop right there, at least for now.Or, Congress, still acting on the beliefthat all conventions had to be generalones, might disregard the specification ofthe subject matter in the applications assurplusage and issue a call for a generalconvention.

I suspect that Congress would adoptneither one of those alternatives. I thinkthat Congress would first of all turn tothe question of whether the applicationsat hand were valid ones. They are notidentical in text. They are not all prop­erly addressed to the proper recipient inWashington, according to some mem­bers of Congress. They typically containconditions-for example, that the appli­cations for a convention are to be con­sidered only if Congress fails to act, andthat they are to be viewed only as ap­plications for a convention with limitedscope. Some have suggested that the ju­diciary committees of Congress shouldhold hearings narrowly limited to thequestion of the validity of the applica­tions. If those plans materialize, we maysee a process in which members of Con­gress find flaws in most of the applica­tions submitted. I certainly hope that thejudiciary committees do not take thatroute: What could do more to reinforcethe feelings of distrust and lack of confi­dence in Washington that underlie thebalanced budget campaign in the first

place than to have Congress strike, oneby one, the applications before it, onvarious technicalities?

I suppose that the most probable ac­tion by Congress if 34 applications areadopted (and if Congress doesn't pro­pose an amendment of its own) is this:Congress would attempt to heed thelimited concern that stirred the applica­tions and call a convention purported tobe confined enough to still the qualmsabout excessively narrow conventions.

Congress thus might call a conventionpurported to be limited to the issue offiscal responsibility-a convention whichcould, for example, consider the spend­ing amendment supported by MiltonFriedman as well as the balanced budgetproposal supported by Governor Brown.And if Congress took that route, it wouldpresumably enact (at last) some legis­lation which would set up the machineryfor a convention-legislation similar tothat proposed by Senator Sam Ervin adecade ago.

But all that takes us only through thefirst two steps of the convention route.The uncertainties at those stages aregrave enough, but they are as nothingcompared to what confronts us at theall-important third stage, the conventionitself. Even if Congress were satisfiedthat the quite specific balanced budgetapplications constituted valid "Applica­tions," and even if Congress were satis­fied that it had the power to confine aconvention to the subject matter it de­fined (both debatable assumptions), thatwould not resolve the question of whatmight take place at the convention itself.

The convention delegates wouldgather after popular elections-electionswhere the platforms and debates wouldbe outside of congressional control,where some interest groups would prob­ably seek to raise issues other than thebudget, and where some successful can­didate would no doubt respond to thosepressures. Those convention delegatescould legitimately speak as representa­tives of the people, elected after the mostrecent nationwide elections. And thedelegates could make a quite plausiblecase, on the basis of the historical dataand the commentaries, that a conventionis entitled to set its own agenda. Con­vention delegates, noting that they werethe first convention we have had innearly 200 years, could make a respect­able argument that the limitations in the"Applications" and the limitations in thecongressional "call" were to be taken as

a moral exhortation to the conventiondelegates, but not as binding restrictionson the convention's discussion. Theycould argue that they were charged withconsidering all those constitutional is­sues perceived as of major concern tothe American people who elected them.And, acting on those premises, the con­vention might well propose a number ofamendments - amendments addressingnot only fiscal responsibility but alsosuch issues as nuclear power or abortionor women's rights or defense spendingor mandatory health insurance or schoolprayers.

True, if the conventioll were to reportproposals such as those to Congress forsubmission to the ratification process,the argument would of course be madethat the convention had gone beyond thebounds set by Congress. And I haveheard it said recently that Congresswould easily invalidate the efforts ofany such "runaway" convention: allthat Congress would have to do wouldbe to "simply ignore" the proposedamendments on issues exceeding thelimits. I do not doubt that Congresscould make a plausible constitutionalcase for refusing to submit the conven­tion's "unauthorized" proposals to rati­fication. But any such congressional vetoeffort would, I believe, run into substan­tial constitutional counterarguments andequally substantial political restraints.

orisider the possible context-thelegal and political dynamics-inwhich congressional consideration

of a veto of the convention's effortswould arise. The delegates elected toserve at "a Convention for proposingAmendments" (in the words of Article V)could surely make a plausible -constitu­tional argument that they acted with jus­tification, despite the congressional effortto impose a limit. They could make evenmore powerful arguments that a con­gressional refusal to submit the proposedamendments to ratification would thwartthe opportunity of the people to be heardthrough the ratification process. In theface of such arguments, might not Con­gress find it impolitic to refuse to submitthe convention's proposals to ratifica­tion? Indeed, one of the "safeguards"heralded by advocates of the conventionroute-the requirement of ratification bythree-fourths of the states-could wellbecome the instrument which wouldquell any congressional inclination to

bury any so-called "unauthorized" pro­posals by the convention. I suggest, then,that it is not at all inconceivable thatCongress-despite its initial belief thatit could impose limits in the conven­tion, and despite its effort to impose lim­its-would find it to be the course ofleast resistance after a convention hadmet to submit all of the proposals em­anating from a convention of delegateselected by the people to the ratificationprocess, where the people would haveanother say.

I am not reassured by the argumentsometimes heard that if Congress at­tempted to submit such allegedly "un­authorized" proposals to the ratificationprocess, a lawsuit would stop the effortin its tracks. There is a real question asto whether the courts would considerthis an area in which they could inter­vene: other aspects of the amendmentprocess have been held by the courts toraise nonjusticiable questions. And, evenif the courts decided to rule, there is theadditional question of whether theywould agree with the constitutional chal­lenge. In any event, the prospect of sucha lawsuit simply adds to the potentialconfrontations along the conventionroad-this, a confrontation betweenCourt and Congress, to go with the pos­sible other confrontations between Con­gress and the convention, and Congressand the states, and perhaps the SupremeCourt and the states.

That brings me to the third reassur­ance about the low-risk nature of theconvention route. We are told that evenif the convention were to become a "run­away" convention (as the one in 1787,of course, was) and even if it were topropose amendments going beyond thebudget issue, those proposals .wouldnever become part of the Constitutionbecause three-fourths of the states wouldnever ratify them.

I think there is a fatal flaw in thatargument as well. It assumes that a con­vention would either limit itself to anarrow subject or "run amok" in thesense of making wild-eyed proposalslacking any substantial support in thecountry. But that overlooks a large partof the spectrum in between. Can therereally be confidence that there are noissues of constitution~ldimensions otherthan a balanced budget that could con­ceivably elicit the support of the con­vention delegates, and, ultimately, therequisite support in three-fourths of thestates? (I might add that support in three-

28

fourths of the states may reflect approvalof less than half of our population.)

True, it can be argued that one shouldnot worry about a method of produc­ing constitutional amendments if three­fourths of the states are ultimately pre­pared to ratify. But I am concernedabout the process-a process in whichserious focus on a broad range of pos­sible constitutional amendments doesnot emerge until quite late in the process,not until some time in the conventionand ratification stages. Is it really delib­erate, conscientious constitution-makingto add potentially major amendmentsthrough a process that begins with anarrow, single-issue focus and inatten­tion and ignorance, that does not expandto a broader focus until the campaignsfor electing convention delegates are un­der way, and that does not mushroominto broad constitutional revision untilthe convention and ratification stages?

I confess that it is a good deal easierto challenge the reassurances of the pro­ponents of the convention route than toarrive at my own understanding of howthe process should work. I have exam­ined the relevant materials with care,but neither I nor anyone else can makeabsolutely confident assertions aboutwhat the convention process was in­tended to look like. My own best judg­ment is that "Applications" from thestates can be limited in subject matter,so long as they are not too specific. Ibelieve, moreover, that Congress canspecify the subject for discussion at theconvention in its "call." But I also be­lieve that such a specification should beviewed as essentially a moral exhorta­tion to the convention and as largely aninformational device, telling the conven­tion delegates what issues prompted theinitiation of the convention process.Most important, I do not think that theconvention can be effectively limitedto that subject, by Congress or by thecourts; instead, I think that if a conven­tion chooses to pursue a broader agenda,it has a persuasive claim to have its pro­posals submitted to ratification.

Now, that understanding can be at­tacked as making the convention routeterribly difficult to use, because singleissue applications may mushroom intomulti-issue convention proposals. Theunderstanding can be attacked, more­over, as construing the state-initiatedamendment route as different from (aswell as more difficult than) the tradi­tionally used congressionally-initiated

29

amendment process. I think those criti­cisms overlook important historical les­sons. It is true that the 1787 conventiondeliberately gave the states an opportu­nity to initiate the amendment process.It is not true, however, that the 1787 con­vention made the state-initiated processparallel or nearly identical to the con­gressionally-initiated one. The recordsof the 1787 convention are really quiteilluminating on this: the convention didnot accept a proposal by James Madisonto make two-thirds of the states co-equalwith Congress in proposing amend­ments; instead, it limited the states'initiative to one of applying for a con­vention~ and it inserted the conventionas the institution that would undertakethe actual proposing. That conventionstep inevitably makes the state-initiatedroute a different, not a synonymous oreven closely parallel alternative.

hat I think the Framers had inmind was that the states shouldhave an opportunity to initiate

revisions of the Constitution if Congressbecame wholly unresponsive and tyran­nical. But that was viewed as a lastresort opportunity, for truly major con­stitutional crises. The notion of a con­vention most familiar to the Framersin 1787 was precisely the kind of con­vention they were then attending inPhiladelphia-one that undertook a ma­jor overhaul of an unsatisfactory basicdocument. That does not mean thatany convention called under Article Vmust be as far-reaching as the one in1787. But I believe that the conventioncontemplated was one that consideredall major constitutional issues of con­cern to the country. True, if the balancedbudget were the only major issue ofconcern today, a single issue balancedbudget convention might be entirelyfeasible. But the actual, unavoidableproblem today is that there are otherconstitutional issues of concern; and ifthey are of concern, in my view theconvention may consider them.

Still relying on what data we haveabout the Framers' intent, I might addthat a congressional claim to play amajor role in setting the agenda of theconvention is especially questionable. Ifthe state-initiated alternative was de­signed for anything, it was designed tominimize the role of Congress. Congresshas only two respo,nsibilities under Ar­ticle V, and I think properly construed

they are extremely narrow responsibili­ties. First, Congress must call the con­vention when 34 valid applications areat hand (and it is of course a necessarypart of that task to consider the validityof the applications and to set up themachinery for selecting delegates and or­ganizing the convention). Second, Con­gress has the responsibility for choosinga method of ratification once the con­vention submits proposals. I think thatis all that Congress can properly do; andI think that seriously undercuts theclaims (based on McCulloch v. Mary­land and the broad discretionary powersof Congress that we are used to in othercircumstances) that Congress has thepower to set time limits and requireoaths of delegates and govern the scopeof the deliberations at the convention.

That is my best judgment about theconvention process; but, as I said, it isby no means an authoritative one, nomore so than that of anyone else whohas made an effort to make sense ofArticle V. The ultimate reality is thatthere are many questions, many uncer­tainties, and no authoritative answers.

Let me conclude with this: If the na­tion, with open eyes and after more care­ful attention than we have so far had inmost state legislatures, considers a bal­anced budget amendment so importantas to justify the risks of the conventionroute, that path ought to be taken; butsurely it ought not to be taken withoutthe most serious consideration of thefoggy, treacherous road ahead. It is aroad that promises controversy and con­fusion and confrontation at every turn.It is a road that may lead to a generalconvention able to consider a wide rangeof constitutional controversies. My ma­jor concern in all this is simply to arguethat as we proceed along this road, weshould comprehend the full dimensionsof the risks ahead. It is that convictionwhich leads me to urge that state legis­latures not endorse the balanced budget­constitutional convention campaign onthe basis of overconfident answers to un­answered and unanswerable questions,or of blithe statements that inadvert­ently or intentionally blind us to thegenuine hazards.

Professor Gunther delivered these re­marks at the 21 st annual meeting of theStanford Law School Board of Visitors,held on April 26 and 27 at the School.

Mr. Gunther is William Nelson Crom­well Professor of Law.

ITHE

lEVITTelllnTEE

IEeIIIEIby Charles J. Meyers

he Devitt Committee hasmade ten recommendations,but I address myself to three

only-numbers 1, 5, and 6-which arethe ones that would have the greatestimpact on legal education. If the firstrecommendation is adopted, studentswho wish to be admitted to the federalbar must have four trial experiences,two of which must be actual trials andtwo of which may be simulated trials.Recommendation 5 specifically pro­poses a student practice rule whichwould allow second- and third-year lawstudents to satisfy part of the require­ment by participating in actual caseswhile in law school; Recommendation6 would allow law students to sat­isfy another part of the requirement byparticipating in simulated trials in lawschool. The effect of the three recom­mendations, taken together, would be toincrease greatly the demand for trial ad­vocacy instruction in law schools.

I shall direct most of my remarks tothe costs that these recommendationswould impose on law schools in generaland on Stanford Law School in particu­lar. But before doing so, I should like to

make several preliminary observations.First, I do not deny that bench and

bar should be concerned with the qualityof trial -advocacy; they, therefore, areproperly concerned with legal education.Second, I have no doubt that, with ade­quate resources, law schools couldproduce better advocates. I would note,however, that the demands on lawyerstoday, and those demands are ever in­creasing, go far beyond trial advocacy.A well-trained law graduate shouldknow basic economics and its applica­tion to law; should know statistics andquantitative methodology, includingsome decision theory and optimizationmodeling; and should, of course, havesome familiarity with such proliferatingnew fields of law as environmental law,federal regulatory law, welfare law, andother subjects too numerous to men­tion here. Any licensing requirement thatemphasizes one area of training over an­other tends to allocate resources to therequired subject area and hence reducesthe resources available for other areas ofstudy. I would therefore urge you toconsider with great care and particular­ity the need to impose a licensing re-

30

quirement on law students in order toremedy the perceived problem of inade­quate trial advocacy, when other de­mands on legal education are growingand resources are static if not declining.

I turn now to the question of costs. Ibelieve that the figures I am about togive you demonstrate a genuine commit­ment on the part of Stanford Law Schoolto improve the education of our studentsin trial advocacy. We now have the ca­pacity to give 60 students-about one­third of the graduating class-six semes­ter hours of trial advocacy instruction.Six semester hours would ordinarily per­mit the students to engage in two trialexperiences-either actual trials, usuallyin juvenile court, or simulated trials. Weare working very hard to extend thebenefits of that education to more stu­dents. For example, in academic year1969-70 we had one course in trial ad­vocacy. Ten years later, in 1978-79, wehave seven. In 1969-70 we devotedabout one-third of one professor's timeto the subject. We now allocate theequivalent of the full time of nearlyfour professors to training in trial ad­vocacy. That represents about a twelve­fold increase in the resources allocatedto this kind of training. Moreover, I amnow seeking to raise $250,000 to funda major project, to be headed by Profes­sor Anthony G. Amsterdam, to developclinical teaching materials for use byteachers not specializing in trial advo­cacy, so that more students, not only atStanford but in other law schools, canhave the benefit of training in theseskills. Stanford Law School has donethis of its own volition and with itsown funds; we have received no supportfrom such organizations as the Councilon Legal Education for Professional Re­sponsibility. And I wish to emphasizethat we have proceeded cautiously andexperimentally, for we refuse to reducequality in this portion of our educationalprogram. But innovation with qualitywill end if the Devitt Committee recom­mendations are implemented. Our stu­dents will demand at least two and prob­ably four trial experiences while still inschool. That demand cannot be met atthe level of quality that now character­izes our trial advocacy courses. The rea­son is found in the costs of first-rate trialadvocacy instruction.

Our studies show that the averagedirect cost of trial advocacy instructionat Stanford Law School last fall wasabout $7,800 per semester hour. (By di-

31

rect cost I mean faculty salaries andother direct instructional charges; thecost of administrative support and over­head is not included.) The comparablefigure for conventional instruction wasabout $5,000. The difference, $2,800,which represents a 56% increase in costs;is explained by three facts:

(1) Trial advocacy instruction takesmore professorial time;

(2) Effective trial advocacy instructionrequires limited class enrollment. Con­ventional classes at Stanford Law Schoolhave an average enrollment of 40; trialadvocacy classes of 16;

(3) The hardware is expensive; video­tape recording costs are $20 an hour;hour-length tapes cost $25 each.

f we assume that all Stanford LawSchool students will desire to qual­ify for admission to the federal

bar upon graduation, that would meanthat 165 students per year, on the aver­age, would desire trial advocacy instruc­tion. Let us further assume that theSchool attempts to satisfy only two ofthe four trial requirements-the twosimulated trial experiences. If we tryto give these students the same kindof trial advocacy training that we arenow offering, we would divide theminto 11 groups of about 15 studentseach. In general, we find that only onefull trial can be conducted in a three­hour course. Thus to accommodate 165students in two trial experiences, Stan­ford Law School would have to offertwenty-two courses-or sixty-six semes­ter hours-of trial advocacy instruction.Since we now offer about 24 hourseach year, the additional offering wouldbe 42 hours. Multiply 42 semester hourstimes the hourly cost of trial advo­cacy instruction-$7,800-and the ad­ditional cost to the School is $327,600per year. Part of the new cost could con­ceivably be absorbed by shifting some·faculty resources from conventionalteaching to trial advocacy instruction,but law professors are not fungible andin any event we would be most hesitantto take that step because of its debilitat­ing effect on the remainder of the aca­demic program. Obviously the assump­tions may vary-perhaps only half ourstudents will want to qualify for thefederal bar. The more likely variation isthat most of our students will wantall four trial experiences while in lawschool. Certainly Recommendations 5

and 6 encourage them in that desire.Stanford Law School cannot afford

those incremental costs. Nor can otherlaw schools, either public or private. Ifwe should require the 165 students tak­ing the trial advocacy courses to pay theadditional costs themselves, the tuitionfor each of them would increase, usingthe conservative additional cost figureof $327,000, by $2,000 per year. If thecost were spread over the entire stu­dent body, the tuition increase would beabout $655 per year.

There being no source of money forthese added costs-not from endow­ments, not from the legislature, not fromthe bar-not even from the JudicialConference of the United States-othersolutions must be found. The most likelyis large classes in which the students sitpassively as they observe a videotape ofa trial, while an instructor points outwhat someone else is doing. I'm surethat this kind of instruction won't hurtthe students, but we do not regard it asgood education at Stanford, and I won­der if it is an appropriate remedy forthe problem perceived-assuming thereis a problem. Additional instruction intrial advocacy to reach all students­even in large classes-will add incre­mental costs which I fear will take awayfrom the innovative efforts now under­way at Stanford and elsewhere to givethe students truly meaningful instructionin trial advocacy. I also fear that trialadvocacy instruction will capture a dis­proportionate share of law school re­sources, to the detriment of the devel­opment of other fields of law equallyimportant to the practitioner and society.It would be unfortunate if we shouldlook back on the Devitt Committee re­port twenty years from now to discoverthat implementing its recommendationshad weakened the profession overall be­cause lawyers had not been adequatelytrained to deal with problems other thanconducting trials.

Dean Meyers made these remarks to apanel of the Devitt Committee at a hear­ing held 011 April) in San Francisco. Thepanel consisted of judge Charles B. Ren­frelu, U.s. District Court for the North­ern District of California; judge j. Clif­ford Wallace, U.S. Court of Appeals,Ninth Circuit· judge Sherman G. Fine­silver U.S. District Court for Colorado;and Gordon Gee, A sociate Dean, j.Reuben Clark LalU School, BrighamYoung University.

-q e•sesl

e ad oalLawAdd ewD·mens·onstot eCurriculum

With the support of the AndrewNorman Fund for Innovations inLegal Education, the School hasexpanded significantly its work inthe area of international law, asevidenced by two highly innova­tive courses, Law in RadicallyDifferent Cultures and ArmsControl.

L w in Radically Differ ntC I ur

In the early Seventies, a fewfaculty members, troubled by thenotion that most comparative lawcourses deal only with legal sys­tems within the Western tradition,began to develop a cou rse thatfocused on legal systems in"radically different cultures."

The course became a realitylast fall when Professors JohnBarton, Victor Li, and John HenryMerryman of the Law School, andProfessor James Gibbs of theDepartment of Anthropology of­fered a course entitled, Law inRadically Different Cultures.

The central objective of thecourse was to explore the ques­tions: What do legal systems looklike in radically different cultures?Is it possible to identify legal con­stants running through such so­cieties? . . . What kinds of socialdifferences are correlated withsignificant differences in legalsystems?

The course was characterizedas a research seminar in whichstudents were invited to join theprofessors in "thinking throughthese questions and developing

materials for a new course."Using American law as the

benchmark, the seminar examinedthe law of the Peoples Republic ofChina (Eastern law), the ArabRepublic of Egypt (religious law),and the Republic of Botswana(traditional law). Four basic issueswere chosen for comparativestudy: an inheritance problem toexamine the passing on of statusand property rights; a breach ofcontract problem to look at thehandling of promises and con­tracts; an embezzlement problemto examfne the treatment of anti­social or "criminal" behavior; anda family planning decision-makingproblem to examine the role oflegal institutions in effectingsocial change.

Each of the students in theseminar was assigned to studyone problem in one country.Meeting in both culture groupsand problem groups, the studentsresearched their particular prob­lem and drafted materials whichformed the basis for the newteaching materials for the course.

In the spring, the seminar helda closed working conference towhich several experts, includingIslamic law specialists, a sociolo­gist specializing in China, and alegal anth ropologist specializi ngin African culture, were invited toreview the materials and offersuggestions for improving thecourse.

Rikki Quintana '80, a participantin the seminar, who also workedas a research assistant during thespring term, praised the coursefor its interdisciplinary approach,which she felt enabled the stu­dents to study the role of a legalsystem within each society, ratherthan merely as an entity unto it­self: "We also found that whatconstitutes a legal issue differsfrom culture to culture. Moreover,the course provided a unique op­portunity to look at the Americanlegal system from a foreign per­spective, and thus allowed us to

make a more critical evaluationof it."

This summer the four facultymembers, along with a researchassistant, will refine the materialsfurther for use in the fall, when thecourse will be offered again. Thistime it will be designed for a muchlarger group of students and willbe open to graduate studentsoutside the Law School, as wellas upperclass undergraduates.

A casebook for the course isplanned for 1981.

Arm ~v ~ v

Although Professor John Bartonhas taught a seminar on ArmsControl several times, examiningthe legal institutions that shapeand restrict the use of armed force,in the 1978 course description hewrote, IITentatively, the 1978 semi­nar will be a group research pro­ject focusing either on internationalarrangements for the nuclear in­dustry or on the role of the UnitedNations in arms controL"

What Professor Barton envi­sioned for the course, and whatactually transpired, represents animportant innovation in teaching,one that emphasized a new depthin interaction among students, andbetween students and experts.

The course brought studentsface to face with experts from theUniversity, the nuclear industry,and government, as they examinedcurrent controls on nuclear ma­terials to determine whether moreeffective controls could bedeveloped.

IIEach student," according toProfessor Barton, Ilbecame an ex­pert on part of the problem. Onestudent set herself the task of be­coming an expert in the buyingand selling of fuel for nuclearpower purposes.

IIA second steeped himself inmethods of processing that ore.

IIA third devoted himself to thesecurity problems involved."

Out of their investigationsevolved a proposal calling for the

32

JACo

establishment of a new interna­tional organization, "InternationalNuclear Fuel Authority (INFA)," tocontrol the allocation of nuclearfuel, waste disposal and repro­cessing. The proposal has beenset forth in a 96-page book, Evalu­ation of an Integrated InternationalNuclear Fuel Authority, recentlypublished by the Stanford Institutefor Energy Studies.

Calling themselves the StanfordLaw School International NuclearFuel Cycle Working Group, thetwelve student authors point outthat the primary objective of INFAwould be to reduce the probabilityof nuclear weapons being used bynations or "subnational entities."To accomplish this end, the or­ganization "would have controlover uranium ore supplies, enrich­ment, fuel fabrication and repro­cessing facilities, research anddevelopment, transportation, andwaste disposal. ...

"In return for relinquishing na­tional control over fuel cycle ac­tivities, members of INFA wouldobtain assurance of a continuoussupply of nuclear fuel for theirelectrical generating plants.

"Membership would be open toall nations, and sanctions wouldbe applied only upon violations ofagreed-upon standards."

The book has been circulatedto experts who were involved inthe seminar, many of whom are inWashington, and it is the hope ofthe authors that it wi II encou rageserious discussion and perhapsprovide a model for the evaluationof urgently needed reforms withinthe international nuclear fuelsystem.

The course represents the firstattempt to integrate clinical com­ponents into the study of inter­national law. It brought togethertwelve students with diverse per­spectives and gave them the jobof finding a common solution to acomplicated problem. The stu­dents divided the problem into itscomponent parts, thoroughly re-

33

searched each part, met with ex­perts from the nuclear industryand the non-proliferation field, ne­gotiated points' of difference, andprepared and integrated succes­sive drafts to arrive at the finalproposal.

Student reaction to the seminarhas been very positive. As oneparticipant, Jon Schwartz '79,points out: "The course providedan opportunity for students towork closely together toward acommon goal-something tradi­tional law courses can't provide.And the emphasis on writing andediting helped develop our writingskills. Moreover, the coursetaught us that there are un resolvedproblems that even professorsdon't know the answers to!"

For Professor Barton, the semi­nar was "the course I have mostenjoyed teaching." He is hopingto use the basic format of theseminar to teach a second course.Among the topics he is consider­ing are U.S. conventional armslegislation and internationalcommodity arrangements.

Evaluation of an Integrated In­ternational Nuclear Fuel Authorityis available upon request fromPublication Distribution, StanfordInstitute for Energy Studies, 500 A,Stanford, CA 94305. The cost is$4.00, including tax, postage,and handling.

r a1WinsA vison

pen onThe Stanford Law School

Journal has won first place in theninth circuit division of the nationallaw school newspaper competi­tion sponsored by the Law StudentDivision of the American BarAssociation.

The competition is held annu­ally to recognize the outstandingefforts of law school journalists.All law school newspapers that are

sponsored or pUblished by stu­dent bar associations or other lawschool groups of ABA-approvedlaw schools are eligible There areseventeen eligible law schools inthe ninth circuit division, whichincludes California, Nevada andHawaii.

JUdges for this year's competi­tion included Ron Copperud,Professor of Journalism at USCand faculty advisor to USC's news­paper, The Daily Trojan; MaryAnnGalante, news and copy editor forThe Daily Journal, one of LosAngeles' two legal newspapers;and Matthew S1. George, ABA/LSD governor for the ninth ci rcui1.

The Journal will now be en­tered in the national finals to beheld in August during the annualmeeting of the ABA in Dallas.

Editor-in-chief of the Journal for1978-79 was Jeff Klein '80.

c tycreases

ByFourDean Charles J. Meyers has

announced four new appointmentsto the faculty. They are Ronald J.Gilson, a San Francisco attorney;Thomas C. Heller, Associate Pro­fessor of Law at the University ofWisconsin; A. Mitchell Polinsky,Assistant Professor of Economicsand Law at Harvard Law School;and Deborah L. Rhode, a 1977graduate of Yale Law School.

Associate Pro­fessor Ronald J.Gilson is a grad­uate of Washing­ton University,S1. Louis, (A.B.,summa cumlaude, 1968) andYale (J.D., 1971),

, where he wasnote and comment editor of theYale Law Journal. Following lawschool he served as law clerk tothe Honorable David L. Bazelon,

The final round of the 27thAnnual Marion Rice KirkwoodMoot Court Competition was heldon April 6 in Kresge Auditorium.Sitting as the United States Su­preme Court were Judge ShirleyM. Hufstedler '49 and Judge Jo-

are interested in the applicabilityof economics to their courses andresearch. In addition to offeringinstruction on economic founda­tions of law in the EconomicsDepartment, it is expected thatProfessor Polinsky will activelypromote interest in law and eco­nomics by offering seminars andworkshops for faculty membersand graduate students in SUbjectsof interest to the two disciplines.

Assistant Pro­fessor Deborah L.Rhode receiveda B.A., summacum laude in po­litical science in1974, and a J.D.in 1977 fromYale, where shewas editor of the

Yale Law Journal. In 1977-78 sheserved as law clerk to JUdgeMurray Gurfein, U.S. Court ofAppeals, Second Circuit; during1978-79 she was law clerk to Mr.Justice Marshall of the SupremeCourt of the United States. Ms.Rhode will teach courses in con­tracts, the legal profession, andprofessional responsibility.

Cory Streisinger Alan Pfeffer

ing expertise is in taxation, hisscholarly interests center on legaltheory. He is currently at work ona book, Reading Easy Cases,which draws on anthropology andstructuralist-linguistic methods todemonstrate that easy cases, towhich we refer to make sense ofour legal order, do not, in fact,exist.

A. MitchellPolinsky, who willhold a joint ap­pointment as pro­fessor of law andassociate pro­fessor of eco­nomics, receivedan A.B., magnacum laude with

highest honors in economics in1970 from Harvard; a Ph.D. in eco­nomics from MIT in 1973; and anM.S.L. (Master of Studies in Law)from Yale in 1976. Since 1973 hehas been an assistant professor ofeconomics at Harvard in the Eco­nomics Department; while onleave from 1975 to 1977, he wasa Russell Sage Foundation resi­dent in Law and Social Science,spending 1975-76 at Yale LawSchool and 1976-77 at. HarvardLaw School. From 1977.until com­ing to Stanford, he also helda joint appointment as assistantprofessor of economics and law atHarvard Law School.

He is currently a member of TheUrban Institute's Committee onUrban Public Economics and ofthe executive committee of theInternational Seminar in PublicEconomics. He is also a researchassociate in the Law and Eco­nomics Program of the NationalBureau of Economic Research,and a principal investigator undera grant awarded by the NationalScience Foundation.

In the Law School, where hewill spend most of his time,Professor Polinsky will offer in­troductory and advanced coursesin law and economics and be aresource for faculty members who

Associate Pro­fessor Thomas C.Heller, who vis­ited at the Schoolduring the 1978­79 academicyear, received anA.B. (1965) from

, Princeton and anLL.B. (1968) from

Yale. Between 1968 and 1970he was a fellow at the Interna­tional Legal Center in Bogota,Columbia. He then returned toYale as a Fellow in Law and Mod­ernization. In 1971 he joined thelaw faculty at the University ofWisconsin. He was a visiting pro­fessor at the University of MiamiLaw School and its Center forLaw and Economics in 1977-78.

He has been a member of theInstitute of Environmental Studies,and a fellow of the Poverty Re­search Institute at the University ofWisconsin. From September 1976to September 1977, he served asco-di rector of the Center forPublic Representation, a publicinterest law firm, in Madison. Atpresent, he is an associate of theInstitute for Social and PolicyStudies at Yale University.

Whi Ie Professor Heller's teach-

Chief Judge, U.S. Court of Ap­peals, D.C. Circuit. In 1972 hejoined the San Francisco firm ofSteinhart, Goldberg, Feigenbaum& Ladar, where he specialized incorporate and securities law. Hebecame a partner in the firm in1978. During 1976 Mr. GlIson wasa lecturer at Boalt Hall. In 1977 hewas a visiting lecturer at the Uni­versity of Michigan Law School.He has also been a lecturer forCEB in San Francisco and thePracticing Law Institute in LosAngeles.

During the 1979 spring term,Professor Gilson taught a seminarin the regulation of tender offersat the School. He also will teachcorporations, business planning,and securities regulation during1979-80.

34

seph T. Sneed, both of the U.S.Court of Appeals, Ninth Circuit,and JUdge Charles B. Renfrew ofthe U.S. District Court, NorthernDistrict of California.

The two teams of finalists ar­gued the case of California Ath­letic Association, et al. v. BettyKing, et al., which dealt with thescope of the prohibition of sexdiscrimination of Title IX and theEqual Protection Clause whenapplied to high school athletics.

Top honors went to the team ofAlan Pfeffer '80 and Cory Streis­inger '80, who was also selectedas "Best Advocate." The otherfinalists were Ronald Beck '80 andCynthia Lewis '80, who went onto represent the School in theRoger Traynor state competition.

Tr ofTwo weeks later, on April 20

and 21, the School hosted the an­nual Roger Traynor Moot CourtCompetition, the nation's largeststatewide moot court competition.This year twenty- one law schoolscompeted in two days of elimina­tion rounds, with the University ofSanta Clara taking first place.

Several Stanford alumni/aeparticipated as judges in the pre­liminary, quarter-final and semi­final rounds, including Debra S.Belaga '78, James T. Danaher '58,Marjorie W. Evans '72, Robin D.Faisant '58, F. Kinsey Haffner '74,Gerald Z. Marer '63, John Mc­Bride '64, W. Robert Morgan, '48,Archie S. Robinson '63, Paul C.Valentine '61, and Richard J.Wylie '58.

Pamela Prickett '79, presidentof the Stanford Moot Court Boardfor 1978-79, coordinated bothcompetitions.

acemU e

Computerization has finallycome to the Placement Office andthe anticipated result is increased

35

efficiency in the student sign-upprocess, in the assignment ofstudents to interview slots, and inthe clerical effort expended bymembers of the placement staff.

However, the employers shouldnot expect the system to alter inany way thei r contacts with thestudents or placement staff. Infact, Gloria Pyszka, director ofplacement, says, "We hope thatthe computerization will give usthe best of both worlds in con­tinued, personal attention to em­ployer needs and in time savingsfor ourselves and the students."

This fall, the program will haveits fi rst real test when the com­puter will assign interview slots forall scheduled employers. Thetotal number of interviews is ex­pected to number around 7,000.

The computer will take thenames of the employers whomeach student wishes to interview,the student's class schedule, andinformation supplied by the em­ployer. It will then print out two ormore end-products, including alisting by employer of all studentssigned up to interview and a list­ing for each student for a two­week period of each employerwith time and date of interviews,pius a listing of employers for thatperiod who still have availableinterviewing slots on theirschedules.

Last fall, 434 employers visitedthe School to interview second­year students for summer clerk­ships and third-year students forpermanent positions. Ms. Pyszkaestimates that 2,800 student hourswere saved in the computerizationof part of the process last fall, andeven more hours will be savedwith the second step of theprocess computerized for thecoming fall.

With the sharp rise in the num­ber of employers visiting the cam­pus (434 in 1978, compared to265 in 1975), a necessary buttroublesome result has been asignificant rise in class interrup-

tions and absences by students asthey interview with the visitingemployers. Several options aimedat offsetting the class/ interviewconflict are currently under con­sideration at the School, includingthe use of Saturdays for inter­viewing, scheduling interviewsearlier and later each day, andstarting the interview season be­fore the fall term begins.

"Our goal," according to Ms.Pyszka, "is to develop a systemthat achieves a balance betweenthe educational and career con­cerns of the students, while satis­fying the needs and concerns ofthe employers and the faculty aswell. Computerization is the firststep in reaching that goal."

Peter Morrison '53 has estab­lished the Stanley Morrison Mem­orial Book Fund at the School tohonor the memory of his father, adistinguished member of the facul­ty from 1924 until his death in 1955.

Stanley Morrison graduatedfrom Yale in 1915. Following twoyears at Harvard Law School,where he was elected an editor ofthe Harvard Law Review, heserved as first lieutenant in thefield artillery during World War I.He received his degree from Har­vard in 1919, and went on to serveas law clerk to Mr. Justice OliverWendell Holmes of the SupremeCourt of the United States, anexperience that instilled in him alifelong interest in ConstitutionalLaw.

Following three years in privatepractice in San Francisco, hejoined the Stanford law faCUlty in

1924. Though Professor Morrison'sprimary interests were in the fieldsof Taxation, Constitutional Lawand Admiralty, he also taughtMunicipal Corporations, CriminalLaw, Public Utilities and Interna­tional Law. His skill as a.teacherwas equalled only by his scholar­ship. Among his most notableworks are his article, "Does theFourteenth Amendment Incorpo­rate the Bill of Rights?" 2 Stan. L.Rev. 140, 159 (1949), and hisbook, Cases and Materials onAdmiralty.

Dean Charles J. Meyers praisedthe Fund as "an important addi­tion to the School's library re­sources, and one that most appro­priately acknowledges StanleyMorrison's lasting contributions tolegal scholarship."

Memorial gifts from others tothe Stanley Morrison MemorialBook Fund will be gratefullyreceived.

Cerks1979

nit d States upreme CourtAssociate Justice William J.BrennanFredric C. Woocher '78Associate Justice Lewis F. PowellMary Ellen Richey '77

Associate Justice Byron R. WhiteRobert V. Percival '78

United State Court of AppealsDistrict of Columbia:Judge David L. BazelonJonathan B. SchwartzJudge J. Skelly WrightRobert WeisbergFifth Circuit:Judge John M. WisdomRobert G. PughNinth Circuit:Judge Ben. C. Duniway '31Lynne B. Parshall

Judge Shirley M. Hufstedler '49Douglas G. Baird

U ited States Dist(ct CourtArizona:Judge Walter E. Craig '34David J. CantelmeCalifornia, Southern District:JUdge William B. EnrightLeonard J. Lewis, Jr.Judge Howard B. TurrentineJames E. King

District of Columbia:Judge Barrington D. ParkerJeffrey B. Maletta

Chief Judge William B. BryantDonald J. Koblitz

Texas:Judge William W. JusticeMichael R. Smith

a e C ur sCourt of Appeals, California:Judge F. Douglas McDanielNancy N. PotterSuperior Court, Massachusetts:Jonathan L. KravetzSupreme Court, Missouri:Judge Albert L. RendlenLewis S. Goldblatt

Supreme Court, Oregon:JUdge Hans A. LindeJoshua D. KadishSupreme Court, South Carolina:Judge Julius B. NessMark McKnight

Supreme Court, Washington:Judge Robert F. UtterRandy A. Hertz

The Dallas firm of Hewett, John­son, Swanson & Barbee has es­tablished the HJSB Law ReviewAward at the School.

Commencing with the Class of1980, the award will be madeannually to the third-year memberof the Law Review staff who hasmade the greatest overall contri-

bution to the Review during his orher second year. Selection wi II bemade by the outgoing Board ofEditors who will consider "thequantity and quality of each staffmember's work, the results ob­tained, and his or her willingnessto assist in accomplishing themany tasks facing Law Reviewleadership." Though financialneed may be considered as asecondary factor, the quality ofthe member's work and the depthof his or her commitment will beparamount.

The recipient will receive anamount equal to one-half of thetuition and fee requirements duringhis or her third year. A similaramount will be available, at therequest of the recipient, in theform of an unsecured loan madeby the Law School.

The award, the first of its kindestablished at Stanford, reflectsthe strong belief at Hewett John­son Swanson & Barbee in theimportance of the Law Review, abelief that is further demonstratedby the fact that several membersof the firm were editors of lawreviews, including the four found­ing partners and three memberswho were officers of the StanfordLaw Review. It is the firm's hopethat the award will "encouragemembership on the Law Reviewand will serve as an incentive forexcellence in its publication."

First recipient of the award isBruce A. Machmeier of Minne­apolis, who will be managingeditor of the Review for 1979-80.

Co e ce-ment 1979

Commencement exercises forthe Class of 1979 were held onJune 17 at the School.

Dean Charles J. Meyers openedthe program with the announce­ment of the top academic awardrecipients. Jonathan B. Schwartzof Pacific Palisades was named

36

Nathan Abbott Scholar for highestcumulative grade point average inthe class. Gary M. Cohen of NewYork City received the Urban A.Sontheimer Honor for secondhighest cumulative grade pointaverage.

Dean Meyers then revealedthose members of the class whowere elected to the national lawschool honor society, Order of theCoif. They include Michael T. An­drew, John D. Arnold, David W.Bagley II, Douglas G. Baird,Thomas R. Camp, Gary M. Cohen,Peter J. Courture, Christopher W.Hornig, Robert L. Jones, James E.King, Teresa M. Lobdell, M. Jeff­rey Morris, Kenneth A. Rubin,Jonathan B. Schwartz, Richard B.Van Duyne, Robert Weisberg, andMitchell H. Zimmerman.

The John Bingham HurlbutAward for Excellence in Teachingwas presented to Assistant Pro­fessor David L. Engel, who gavethe commencement address. Fol­lowing the conferral of the de­grees, Class President Clarence L.Irving, Jr. gave the class response.

A champagne reception washeld in Crocker Garden.

L w Grad Top a GSaGraduation was a particularly

important event for Robert L.Jones, a graduate of the JD/MBAprogram. In addition to beingelected to the Order of the Coif atthe Law School, Mr. Jones wasnamed top student in a class of236 men and 64 women at theGraduate School of Business. Hiscumulative academic record atthe Business School placed him atthe top of a list of 31 students(the top ten percent of the class),who were designated Arjay MillerScholars.

Top student status also earnedMr. Jones the Henry Ford IIScholar award, which carries acash prize of $5,000.

A public management studentwho concentrated his studies incorporate regulation, finance,

37

securities, and government ad­ministration, Mr. Jones will bejoining the San Francisco firm ofCooley, Godward, Castro, Huddle­son & Tatum.

Profes orHa cock

on reOn May 18, Moffatt Hancock,

Marion Rice Kirkwood Professor,Emeritus, received the honorarydegree of Doctor of Laws fromDalhousie University Law Schoolin Halifax, Nova Scotia.

The degree, which was con­ferred during commencement ex­ercises at the school, was awardedin recognition of Professor Han­cock's "outstanding work as astudent of the law, and his contri­butions as a teacher to severaluniversities. "

Professor Hancock also deliv­ered the law school's commence­ment address entitled, "EnglishLawyers in the 17th Century: TheDuchess of Norfolk's Divorce,"which deals with England's firstdivorce case.

An expert in conflict of laws andreal property, Professor Hancocktaught at Dalhousie from 1945 to1949. In 1946, at the age of 34, hewas named Viscount Bennett Pro­fessor of Law. He joined the lawfaculty at the University of South­ern California in 1949. Four yearslater he became a member of theStanford law faculty. In 1962 hewas named Marion Rice KirkwoodProfessor of Law. He retired fromthe Stanford faculty in 1976, whenhe joined 'the faculty at HastingsCollege of the Law.

He is the author of Torts in theConflict of Laws (1942) and nu­merous papers, including his fa­mous "Conflict Drama and Magicin Early English Law" (1953),entries in the Encyclopedia Britan­nica, and a series of articles deal­ing with conflict of laws in land

title litigation, for which he re­ceived a Guggenheim Fellowshipin 1963.

Professor Hancock was joinedat the commencement by his wife,Eileen, who is the West Coastrepresentative for the AmericanFoundation for the Blind; hisdaughter, Catherine, who "is anassociate professor of law atTulane University; and his son,Graeme '80, who is an associatemanaging editor of the StanfordLaw Review.

Faculty eProfessor a A lec-

tured on "The Misconceived Questfor the Original Understanding" atBoston University Law School inFebruary. The topic is part of alarger project Professor Brest isworking on in constitutionaltheory.

Professor a k F ie trecently completed the manuscriptfor a second edition of Sum andSubstance of Civil Procedure, co­authored with Professor Arthur R.Miller of Harvard Law School. Heis currently working on a thirdedition of Civil Procedure, Casesand Materials with co-authors,Arthur Miller and John J. Cound,Professor of Law, University ofMinnesota.

wrenc rna MarionRice Kirkwood Professor of Law,acted as moderator for a panel on"Legal History: The Courts inHistorical Perspective," held onMay 12 in San Francisco, duringthe annual meeting of the Law andSociety Association in SanFrancisco.

Professor illiarn ouladdressed an International Con­ference on Human Rights at theUniversity of Cape Town, SouthAfrica, on January 23.

ra d , William NelsonCromwell Professor of Law, ismaking a number of pUblic ap­pearances pertaining'to the on­going campaign to call a consti-

tutional convention to compel abalanced federal budget. He isemphasizing the uncertainties andrisks of the convention route foramending the Constitution. In con­nection with the convention, hetestified at a California legislativehearing in February; he addressedthe Commonwealth Club of Cali­fornia in May; he spoke to anational conference on the Con­stitution and the Budget in Wash­ington and to a gathering of statelegislative leaders in Colorado,also in May; and he spoke andwrote about the subject for tele­vision and newspapers.

In April, Professor Gunther andformer Solicitor General ArchibaldCox were the speakers at the finalsession of a year-long series ofdiscussions on ClThe Quest forEquality," at Washington Univer­sity School of Law, St. Louis.Professor Gunther also deliveredthe John A. Sibley Lecture in Lawat the University of Georgia inMay. And, in December, he was acommentator in an American En­terprise Institute Conference onthe changing role of the federaljudiciary.

After preparing the annual sup­plement of his constitutional lawcasebooks early this summer,Professor Gunther will preparenew editions of the books beforereturning to his biography ofJudge Learned Hand.

Assistant Professor TJa«:t<s;on presented a paper en­titled ClSecurity Financing andPriorities Among Creditors" (withAssistant Professor Anthony Kron­man of the University of ChicagoLaw School) during the fall at aLaw and Economics Workshop atthe University of Chicago and,during January, at the meeting ofthe Contracts and CommercialLaw Sections of the Associationof American Law Schools. Thepaper appears in the May issue ofthe Yale Law Journal.

During 1978-79 ProfessorJat~ot)stleln is serving as

president of the American Associ­ation of Law Libraries, a profes­sional association of nearly 3,000law libraries throughout theUnited States and Canada.

, Jackson Eli Rey­nolds Professor of Law, gave the14th Cleveland-Marshall FundLecture at Cleveland-MarshallCollege of Law, Cleveland StateUniversity, on April 10. The topicof his talk was "ControllingFirearms."

Assistant Professorn.t::IIIJIC:III wrote a review of CriminalViolence, Criminal Justice byCharles E. Silberman for the Feb­ruary 1979 issue of the StanfordLaw Review. An article by Profes­sor Kelman on personal deduc­tions and tax jurisprudence isscheduled for publication in theMay issue of the Review. Pro­fessor Kelman is also awaitingpUblication of an article on theCoase Theorem in the University ofSouthern California Law Review.

Professor ( iscurrently writing a chapter onilLegal and Institutional Aspects"of ocean disposal of municipalwaste, for a book to be pUblishedunder the auspices of a committeeof the National Oceanic and At­mospheric Administration. He isalso at work on a series of articlesabout ClZero-infinity" problems inenvironmental law, and on acourse book on property, which isscheduled for pUblication byLittle-Brown in the summer of1980..

r . Lewis Talbot andNadine Hearn Shelton Professor ofInternational Legal Studies, parti­cipated in a panel discussion of"U.S.-China Relations: The Impactof Normalization" on February 15in Palo Alto. The program wassponsored by the PeninsulaChapter of the World AffairsCouncil.

In January, r r y-Sweitzer Professor of Law,

lectured on "Comparative Lawand Social Change" at the law

faculties of the European Univer­sity Institute, Florence; the Uni­versity of Siena; and the Universityof Rome. The Spanish translationof Professor Merryman's book,The Civil Law Tradition, was re­cently republished by EI Fondode Cultura Economica in Mexico.His latest book, Law, Ethics andthe Visual Arts, written with AlbertE. Elsen, Walter A. Haas Professorof Art History and CooperatingProfessor of Art and the Law atStanford, has just been publishedby Matthew Bender and Co. Theirinnovative course, Art and the Law,which has been offered eighttimes at the School, has nowbeen adopted by several lawschools around the country, in­cluding Harvard, UCLA, andIndiana.

Professor wasrecently named chai rman of thesection on Administrative Law ofthe Association of American LawSchools, for the 1979-80 academicyear. He was also appointed tothe Law and Governmental StudiesGroup at the National Institute ofEducation, which will be makingfunding decisions on educationaladministration research. He hasalso been appointed to serve onthe advisory board of the Law andSociety Review. Professor Rabinwill be spending the 1979-80 aca­demic year at the EnvironmentalProtection Agency, working in theoffice of Planning and Manage­ment. Earlier this year, ProfessorRabin gave the closing address atthe special program for adminis­trative law judges given by theNational Judicial College.

Professor cotmoderated a panel discussion onClThe Future of Nuclear Power" onApril 18 at the School. The panel,sponsored by the EnvironmentalLaw Society, the Energy Informa­tion Center, and the Speaker'sBureau, was part of a series ofevents held at the University inconjunction with ClEnvironmentMonth."

38

s most attorneys know, evaluating summer clerks for the purpose of making an offer ofpermanent employment can sometimes be a difficult task. At least it used to be....Stanford Lawyer is pleased to reveal the first fool-proof guide for assessing a clerk's

performance. Our thanks to John J. O'Connor III '53 of the Phoenix firm of Fennemore, Craig,vonAmmon and Udall, for bringing this remarkable innovation to our attention.

Performance Far Exceeds Exceeds Meets Needs Fails to MeetFactors Requirements Requirements Requirements Improvement Minimum

Requirements

Quality Leaps tall Leaps tall Leaps only short Crashes into Needs help inbuildings in a buildings only buildings buildings finding buildingssingle bound with a running

start

Timeliness Faster than a As fast as a· Not quite as fast Barely keeps up Wounds himselfspeeding bullet speeding bullet as a speeding with BBs while attempting

bullet to shoot

Initiative Stronger than As strong as a As strong as Shoots the bull Smells like aa locomotive bull elephant a bull bull

Adaptability Walks on water Walks on water Washes with Drinks water Passes waterconsistently in emergencies water in emergencies

Communication Talks with God Talks with Talks with Argues with Loses thoseSkills the angels himself himself arguments

39 Drawings by Benjamin W. Hahn '79

"

Cover: Commencement 1979. Photos byJoseph E. Leininger, Associate Dean,and Cheryl W. Ritchie.

STANFORD UNIVERSITYStanford Law SchoolStanford, California 94305

Nonprofit Organization

U.S. Postage

PAIDPalo Alto, California

Permit No. 28

/