Stanford LawyerFall/Winter 1980 . Volume 15. NO.2

Editor: Cheryl W. RitchieAssociate Editor: Sara WoodDesigner: Jim M'Guinness

Dean's Page 2

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

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

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

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

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

1980 Kirkwood Competition Signals 22New Era for Moot Court Program

Broadway Play Brings Recognition to Alumnus 24by Sara Wood

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

School and Faculty News 30

Class Notes 35

A Tribute to Lowell Turrentine 55

In Memoriam 56

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

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Dean~sPage

Charles J. Meyers

I n looking over the contents of this issue, I wasimmediately struck by the diversity of subject matterrepresented in its pages: the interaction of psychol­

ogy and law in the jury process, the application of law tothe field of artificial intelligence, the intersection of lawand economics, and the use of a "working sabbatical" torelate practical experience to one's teaching and research.

The realization that the authors and the subjects of theirarticles are today a part of every Stanford law student'sexperience prompted me to re-read a report that I preparedin 1968 as chairman of the Curriculum Committee of theAssociation of American Law Schools. The purpose of thecommittee was to examine the basic patterns of legaleducation and to suggest some long-range proposals. Thecommittee's findings, in short, were that legal educationin the late '60S was "too rigid, too uniform, too narrow,too repetitious and too long."

With respect to its "narrowness" the report said:

Course requirements do not permit studentsto pursue avenues of intellectual interest or tocapitalize on previous academic or practicalexperiences. The enshrinement of the casemethod, a mode of instruction based largely onrigorous cross-examination over purely legalmaterials (a teaching method we curiously callSocratic), has made law teachers suspicious ofexploiting the knowledge of other disciplinesthat does not readily lend itself to "Socratic"exposition. Moreover, the very precision ofthought that the case method develops isantipathetic to the intellectual attitudes ofsome of the disciplines that could complementlaw study (e.g. sociology, psychiatry).Nevertheless law schools must accommodatethemselves to the vocabulary and thoughtprocesses of disciplines very different from ourown. However distressing it may be to listento an architect who speaks of a building "thatdoesn't sing," the lawyer concerned with urbanplanning cannot do without him, or one of hisbrethren who talks the same way. In short, thelaw schools have brought to the level of high artthe skill of precision in the use of language, butwe must, without sacrificing that skill, putmore and different substantive content at thedisposal of our students.

A glance at the courses being offered during the 1980-81academic year reveals that Stanford has come a very longway since 1968. A student entering in this law school today

will be exposed not only to the core courses that are thefoundation of every law school curriculum but also to themyriad other disciplines that intersect with law. A centralpurpose of this law school is to provide a firm under­standing of the nonlegal environment in which the lawfunctions, because every legal problem has its ownset of economic, psychological, historical, and otherconsiderations.

Law cannot be studied in a vacuum; and the first-classlawyer never loses sight of the fact that the legal process isa part of the social process. He knows when and how towork with accountants, doctors, economists, sociologists,engineers, whose expertise can help him or his client.

In 1966, Stanford made its first commitment to thedevelopment of stronger ties with other disciplines whenit established the first JD/MBA program in the country.Since that time, interdisciplinary work at the School hasgrown steadily. Joint degree programs have been formallyestablished with several other departments, includingeconomics, history and political science. Moreover, lawstudents are encouraged to develop their own programswith virtually any department on campus, subject to theapproval of both the law school and the respectivedepartment.

The composition of the faculty also reflects the growinginterest and interaction with other disciplines. In additionto teaching Trusts and Estates, Lawrence Friedman is theresident legal historian. Through his research and teaching,Lawrence has made path-breaking contributions to thefield of American Legal History. David Rosenhan holds ajoint appointment as Professor of Law and Psychology andin that capacity produces significant work in both fields.A. Mitchell Polinsky, a new member of the faculty, isProfessor of Law and Associate Professor of Economics.In addition to offering courses in law and economics(including a first-year required course in economic analysis-the first of its kind in any law school), Mitchis a resource for faculty members who are interestedin the application of economics to their courses andresearch. Finally, each year the School invites a computerspecialist to spend a year at the School as a Law and,Computer Fellow. While pursuing original research thisindividual also acts as a resource for faculty and studentsinterested in the law and computer field.

These are significant innovations that emphasize theimpact of other disciplines on law. But perhaps the mostsignificant measure is the recent funding of three majorchairs. In 1978, the Law School received funding from thefamily of an alumnus to endow a chair in law andeconomics. This gift was personally gratifying to me

because itis an area that I have worked to develop for thelast ten years.

In 1979, Kenneth F. Montgomery of Chicago, Illinois, amember of the Law School's Board of Visitors, and hiswife, Harle, A.B. '38, en'dowed the first professorship inclinical legal education in the country. The chair recognizesthe work of Professor Anthony G. Amsterdam, thecountry's foremost expert in the simulation method ofclinical education. Together with Donald T. Lunde, M.D.,Clinical Associate Professor of Psychiatry in the School ofMedicine and Senior Research Associate at the LawSchool, Professor Amsterdam is designing a basic clinicallaw course for use at Stanford as well as other law schools.It is expected that the course will revolutionize lawteaching the way the casebook did in the last century.The Montgomery Professorship will enable Stanford tospearhead this revolution.

This year, the School received yet a third monumentalgift. Through the generosity of the Ralph M. ParsonsFoundation of Los Angeles and the William RandolphHearst Foundation of New York City, Stanford LawSchool now holds the first endowed professorship in lawand business in the country.

The message is clear: solid links between the Law Schooland other disciplines now exist. And the prognosis is formore links to be formed in the future. One of the greatstrengths of the Stanford Law School in the past has beenits constant search for ways to improve every aspect of itseducational program. That has meant reaching out in newand different directions, without losing or compromisingthe fundamental goal of academic excellence. Stanford hasmaintained that excellence, while it continues to beinnovative and a leader for other law schools to follow.

What does the future hold? I foresee even greaterflexibility and diversity within the curriculum and agrowing understanding of the role of the lawyer as socialengineer, who is in most instances at the center of thecontroversy and charged with the responsibility ofassimilating all of the data, weighing all of the expertopinions, and creating the appropriate legislative andadministrative rules and procedures that allow it all towork. Stanford is committed to providing its students andfaculty with the resources and the expertise to make thatpossible.

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Creating a Role for LawandComputers at Stanfordby Joseph E. Leininger

•

0 doubt most lawyers agree with the view expressedby Holmes on page one of The Common Law (1881),that "the law...cannot be dealt with as ifit contained

only the axioms and corollaries of a book of mathematics."A modern paraphrase might say that little ofworth is discoverable in the law simply by themanipulation of data according to fixed rules.This may partly explain why the computer­the data-manipulator par excellence-has onlybelatedly won the attention of the legalprofession and the law schools.Since the late 1950's the computerhas enjoyed enthusiasticacceptance in other professionalfields, including engineering,medicine, education and businessmanagement. But it has founda firm place in law only duringthe last ten years.

". ..it may be estimated that25 American law schoolsoffer regular or occasionalinstruction in some aspectsof computer law:"

A lot has happened, however, in thoseten years. Many law firms, law schools,courts and government agencies now em­ploy LEXIS, WESTLAW or JURIS systemsto assist their legal research. Computers arewidely used for billing, book ordering andcataloging, and other administrative tasks.They are increasingly used for file man­agement in complex litigation and for thepreparation of wills, trusts and other legalinstruments. Computerized text-editing,which greatly eases the revision process, isbecoming common. Computer-aidedstatistical techniques are of growing im­portance in legal research and litigation.All of these uses are giving lawyers directexperience with the computer that servesto build their interest and confidence in it.

In recent years, too, a "law and com­puter field" has come to be recognized bythe American Bar Association and otherprofessional organizations, as well as by anumber of law schools. The field can bevariously defined, but for convenience herewe may divide its subject matter into twogroupings: applications of law tocomputer-related activities, and computerapplications to the law. The first grouping,often referred to simply as "computerlaw," embraces a congeries of substantivelegal problems associated with the mer-

chandising, ownership and use of com­puter equipment and software. A partiallist of the problem areas includes contract­ing and leasing, taxation, protection ofrights in software, privacy safeguards indatabase management, computer "abuse,"electronic funds transfer and its relatedcommericallaw issues, programmer liabil­ity for defective software, the use ofcomputer-produced materials in evidence,the computer industry and its regulationand-a recent addition to the list-regula­tion of the flow of data across inter­national borders. There is a fast-growingliterature on these subjects, and lawyersaround the country are being prompted byclient needs to gain some familiarity withthem. A still-small but growing group ofpractitioners is developing special compe­tence in the area. Three journals, one ofthem edited by law students at Rutgers,give attention to these problems, and itmay be estimated that 25 American lawschools offer regular or occasional instruc­tion in some aspects of computer law.

We have already mentioned some of theconcerns of the second branch of the field:computer applications to law. These in­clude computerized legal information re­trieval, the use of computers in pretrialdiscovery and trial presentation, text­editing and other computer-based pro­cesses in law office management, the roleof computers in law enforcement and judi­cial administration, and computer-aidedinstruction in law. Within this general cat­egory are two other concerns to which wewill return: artificial intelligence applica­tions to legal research and analysis, and theuse of quantitative methods in the law. Allof these areas have been explored at vary­ing length in books and journals, and a fewlaw schools have given them selectivetreatment in course offerings.

Computers at the Law SchoolAt the Stanford Law School we are using

the computer in a number of ways. Since1977 the Law Library has participated in acomputer-based book cataloging andinter-library loan system (created at Stan­ford as the BALLOTS system but nowknown as the Research Libraries Informa­tion Network) that provides ready accessto other collections on and off the campus.A LEXIS terminal has been in place forabout the same time, and some two-thirdsof the School's students now receive train­ing in its operation. A major part of thePlacement Office's work, including thescheduling of job interviews, has been au­tomated at a substantial saving of time toboth staff members and students. Pro­grams are being completed for the Admis­sions Office that will speed the work in­volved in assembling an entering class ofabout 168 students out of some 3,000

applicants each year. Several members ofthe faculty and staff have their own text­edi ting terminals, another terminal isavailable in the Law Library for generaluse, and students show increasing interestin building their skills in this new medium.The computer also makes possible variouskinds of statistical studies, for both schol­arly and administrative objects, that wouldnot have been conceived or attempted afew years ago.

For some time, ho\vever, the School's in­stitutional interest in the computer has ex­tended well beyond these everyday appli­cations. Through the efforts of Dean Bay­less Manning and Assistant Dean ThomesE. Headrick, the School in 1968 obtained asubstantial grant from the IBM Corpora­tion for the establishment of a Law andComputer Fellows Program. Thisenterprise was founded on the belief thatrapid advances in computer technology of­fered challenges and opportunities tolawyers that should be identified and dealtwith. To this end, the program was de­signed to support several law teachers eachyear in intensive computer science studiesat Stanford, with the hope that they wouldexplore the uses of the computer in theirown research and share their new knowl­edge - through course offerings or other­wise - on return to their own schools.

But things didn't work out quite thatway. It proved hard to find young lawteachers who could leave their jobs for afull academic year. As an interim measure,the School sponsored two summer semi­nars - in 1968 and 1969 - for selected lawstudents from schools around the countrywho had interest in and some experiencewith computers. The seminars were con­ducted by Dean Headrick with the collab-

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Creating a Role for Law andComputers at Stanford

oration of Bruce C. Buchanan, then a re­search associate (now an adjunct profes­sor) in Stanford's Department of Com­puter Science. They focused on computerapplications to law, with emphasis onproblems of information retrieval. In thatperiod, too, a grant was made to a lawschool faculty member, Professor WilliamF. Baxter, to enable him to spend anacademic year in studies of statistics, ma­trix algebra, and computer science. He hassince drawn heavily upon those studies inhis teaching and research on antitrust law,government regulation of business, andlegal economics.

"...for many it (artificial in­telligence) conjures up im­ages ofbrainy robots withdestructive tendencies."

I assumed charge of the program onDean Headrick's departure from theSchool in 1970, and in 1970 - 71 we re­ceived our first off-campus fellow, Asso­ciate Professor William E. Boyd of theUniversity of Arizona Law School. Afternine months of study in computer sciencehe wrote a perceptive piece on "Law inComputers and Computers in Law: ALawyer's View of the State of the Art,"which later appeared in 14 Arizona LawReview 267-311 (1972).

An alternative to bringing law teachersto Stanford was to award fellowships toyoung law graduates who already hadsome knowledge of computer science andwere interested in entering law teaching.After Professor Boyd, the next five of ourfellows were in this category. They in­cluded Mark J.E Fischer (1971 - 72), agraduate of the Harvard Law School whocame to us from a federal court clerkship;L. Thorne McCarty (1971 - 73), anotherHarvard Law School graduate who is nowa professor at the SUNY, Buffalo, School ofLaw; ]. Roger Hamilton (1973 - 74), agraduate of the University of OregonSchool of Law now in computer-relatedpractice; James C. Boczar (1974 - 75), aUniversity of Miami School of Law gradu­ate who went from here to the University ofArkansas School of Law as an assistantprofessor and later into private practice;and Dennis E. Burton (1976-77), a gradu­ate of the University of New MexicoSchool of Law who took a teaching posi-

tion in business adminstration at the con­clusion of his fellowship. The fellows hadvarying interests, and they wereencouraged to give those interests full play.Some attended courses in computer sci­ence, operations research or statistics,while other gave most of their time to re­search. Three of them, at our invitation,conducted seminars: Fischer on "Law,Cognition and the Computer" (1971-72),McCarty on "Decision Technology and theLaw" (1972 - 73), and Hamilton on"Computers and the Legal Process" (1973

-74)·Our most recent, and probably our last,

fellow under the IBM grant was ProfessorSpencer Neth of the Case-Western ReserveLaw School. He was with us during theSpring semester of 1979 - 80, during whichhe applied himself diligently to a heavyload of studies in programming tech­niques, the management of informationsystems, computer-aided instruction, andthe application of cognitive psychology tocomputer systems. He is planning to pre­pare a scholarly article drawing upon hisexperience here, a:ld perhaps to inauguratea course on law and computers at Case­Western Reserve.

Others participated in the program,though not as fellows. Associate ProfessorRichard K. Markovits of our faculty re­ceived support during the summer of 1972for studies in statistics and computer pro­cesses. Susan H. Nycum, now apractitioner-specialist in computer lawand past Chairperson of the ABA's Sectionof Science and Technology, was a programresearch associate in 1972-73. Colin EH.Tapper, Fellow and Tutor in Law at Mag­dalen College, Oxford, and Britain's lead­ing authority in the law and computerfield, was a visiting professor at the Schoolin 1975 - 76. During his stay he offered aseminar on "Computers and the Law" anddid most of the work on a book of the sametitle that has since been published. MiltonR. Wessel, a New York attorney of longexperience with extensive involvements inthe computer field, also conducted acourse on "Computers and the Law" in1978-79. Annev.d. L. Gardner, a graduateof the School now working toward a Ph.D.in Computer Science at Stanford, has re­ceived modest support for her past twosummers' research; she is attempting tobring computer resources to bear on ananalysis of legal reasoning, with examplesdrawn from the law of controls. TheSchool has also extended hospitality to anumber of foreign legal scholars withinterests in the computer, several of themfor extended periods.Finally, the program has sponsored occa­sional meetings of scholars and practition-

ers in the field, both to assess developmentsand to point new directions. A 1972 work­shop brought together some 30 scholarsand specialists in the law and computerfield for a general stock-taking and ap­praisal of work then being done. In thefollowing year the School sponsored a con­ference on "Computers, Society and Law:The Role of Legal Education," jointly withthe American Federation of InformationProcessing Societies. This attracted around90 legal scholars, computer scientists, andother professionals to Stanford for a two­day discussion of where, if anywhere, thelaw schools ought to be going with respectto computer-related training. No firm con­clusions were reached, but the proceedingswere duly published.

Over the years there has been recurringinterest among the fellows in the applica­tion of artificial intelligence techniques tolaw. "Artificial intelligence" is a termwidely used by computer science peoplebut disliked outside the discipline becausefor many it conjures up images of brainyrobots with destructive tendencies. It is anespecially inapt term to employ withlawyers, whose particular image is of anautomated robot-judge that dispenses un­appealable rulings at the press of a button.Other appellations have been suggested­at least for branches of the artificial intelli­gence field-including "semantic informa­tion processing," "symbolic informationprocessing" and "knowledge engineer­ing"; but none of them has caught hold. Asexplained in a recent Campus Report pro­file of Professor Edward A. Feigenbaum,Chairman of Stanford's Computer ScienceDepartment, artificial intelligence (or AI)is primarily concerned with the modelingof logical inference processes in definedproblem areas. It involves complex pro­gramming techniques that enable the com­puter to carry out a form of "reasoning"on the basis of stored knowledge. Theknowledge is of two kinds: the basic facts,rules and generally accepted procedures re­lated to the problem area under study; andthe "experiential" - or judgmental ­knowledge of experts in that area. (Com­puterized chess is a familiar example.) Pro­fessor Feigenbaum and his colleagues, in­cluding Professor John McCarthy, havebrought Stanford to world prominence inthis field. Two of the functioning systemscreated at Stanford are the DENDRALprogram, which gives "intelligent" assis­tance to chemists in the interpretation ofmolecular data produced by massspectrometry; and the MYCIN program,which advises on diagnosis and therapy forblood and meningitis infections. Threeprograms still in the preparatory stage willassist scientists working in recombinant

DNA technology, facilitate the designingof large scale integrated circuits, and assistin the analysis of data on the geology andpotential hydrocarbon content of oil fieldareas - in short, help locate new wells.Many other projects involving both facultymembers and students are in various ph­ases of development. The profile quotesProfessor Feigenbaum: "We are creatingprograms that will assist professionals.What we have succeeded in doing alreadyis to elicit and make available in programsthe knowledge and reasoning power ofsome of the finest minds in the areas wehave studied."

Our interest in artificial intelligence wasspurred by an article written jointly byDean Headrick and Bruce Buchanan on"Some Speculation About Artificial Intel­ligence and Legal Reasoning," which ap­peared in 23 Stanford Law Review 40- 62(1970). After reviewing work being done incomputerized legal information retrieval,the authors described the analytical pro­cesses involved in two common tasks of thelawyer: interpreting the facts of an occurr­ence, and the relevant law, to a client'sbenefit; and recommending actions thatsatisfy a client's goals and avoid unfavor­able legal consequences. They then ex­plored possibilities for the use of artificialintelligence methods in the performance ofthose tasks, drawing upon experience al­ready gained in the DENDRAL programand others. They concluded that the re­lationship between law and artificial intel­ligence should be seriously explored.

"The ultimate 'practical' ob­jective would be to assist alawyer in the analysis of cor­porate reorganization prob­lems under the code."

As a fellow in 1971 - 73, L. ThorneMcCarty moved the inquiry an importantstep beyond speculation. He devoted agreat deal of his time to a project that isfully described in his later article, "Reflec­tions on TAXMAN: An Experiment in Ar­tificial Intelligence and Legal Reasoning,"90 Harvard Law Review 837- 893 (1977).Very briefly, TAXMAN involved the crea­tion of computer programs intended tomodel specific concepts and processes thatoccur in the taxation of corporate reor­ganizations, with focus on the definitionalprovisions of Section 368 of the InternalRevenue Code of 1954-a very limited, and­therefore manageable, problem domain.

The ultimate, "practical" objective, whichMcCarty makes no claim to havingachieved or even approached, would be toassist a lawyer in the analysis of corporatereorganization problems under the Code.The lawyer could not expect simply to feedthe computer a set of facts concerning amerger and to receive back an opinion onthe tax consequences. But by drawingupon a database containing both statutoryand interpretive materials, the systemmight-through its specially designed pro­grams- assist the practitioner in an "inter­active" way, that is: to "talk" with thelawyer and provide help at various stagesof the analytical process. McCarty pointsout that in this project, as in other artificialintelligence undertakings, one of the mostchallenging tasks has been to articulateand "represent" in the computer the con­cepts and logical processes that must gointo the analysis. But he regards this as aworthwhile exercise in its own right, as heexplains on pages 839 - 40 of his article:

... Whatever its practical applica­tions, the TAXMAN system pro­vides, I claim, an important tool forthe development of our theoriesabout legal reasoning. A great manyof the classical jurisprudential prob­lems are tied to problems about theuses of abstract concepts in the regu­lation of human affairs. In [the] ...writings there are many illuminatingexamples and many valuable in­sights about the structure anddynamics of legal concepts. Buttaken as a whole, the jurisprudentialliterature is notoriously imprecise:the conceptual structures themselvesare only vaguely defined and vag­uely distinguished from oneanother; the dynamics of conceptualchange appear only as suggestivemetaphors ...The TAXMAN systemadds a strong dose of precision andrigor to these discl;lssions of linguis­tic and conceptual problems. Its crit­ical task is to clarify the concepts ofcorporate reorganization law insuch a way that they can be repre­sented in computer programs. Thisrequires a degree of explicitnessabout the structure of these conceptsthat has never previously been at­tempted. When we describe con­cepts in this way, we implicitly ar­ticulate theories about them; whenwe run the computer programs thatembody these concepts, we test outimplications of our theories. Used inthis fashion, the computer is themost powerful tool for expressingformal theories and spinning out

their consequences that has everbeen devised.

To our knowledge, TAXMAN is thecountry's first working experiment in arti­ficial intelligence applications to law.Other projects have been conceived, in­cluding one dealing with the rule againstperpetuities, by Susan H. Nycum here atStanford, and another focusing on assaultand battery, by Jeffrey A. Meldman ofM.LT. But no other has reached the ad­vanced programming stage. Indeed onewriter, perhaps thinking that TAXMAN iscapable of more than it really is, recentlyraised the question whether a layman's useof it would constitute the unauthorizedpractice of law. His conclusion: probablynot.

Meanwhile, McCarty is pressing on withhis research. With the help of a NationalScience Foundation grant and the collab­oration of computer scientists at Rutgers,he is engaged in an even more ambitiousundertaking, called TAXMAN II. This willrefine and extend the capabilities of theparent program.

"...the system might... 'talk.'with the lawyer and providehelp at various stages of theanalytical process."

McCarty's example has been followedby other participants in our program. TwoWest German lawyers with computer ex­perience, Walter G. Popp and BernhardSchlink, spent four months at the School asvisiting scholars in 1974. During their staythey attended courses, familiarized them­selves with artificial intelligence studiesbeing done here, and worked to perfect aprogram of their own that deals with Ger­man law. It is described in their article,"JUDITH, A Computer Program to AdviseLawyers in Reasoning a Case," 15 Jurimet­rics Journal 303 - 314 (1975). As alreadymentioned, Anne Gardner is engaged in anartificial intelligence project involving thecomputer analysis of contracts problems.Her Ph.D. dissertation, on legal reasoning,is well underway, and she is about toundertake the difficult programming tasksto which her research has led her. Herinterest, like McCarty's, is less in produc­ing a service for lawyers than in exploringthe possibilities and limits of the approach.

Headrick and Buchanan summed it up inthe conclusion to their article. Their obser­vations are still timely:

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Creating a Role for Law andComputers at Stanford

It is premature to state categoricallythat computers will be used as aidsin the process of legal reasoning, oreven that they should be. It is hardeven to imagine a consensus on theimport of the research we propose.Certainly lawyers at one extremewill already have written off com­puters as a waste of time and money,while some at another extreme willbe so convinced of the computer'spotential as to feel threatened by itsfuture encroachment upon theirwork. Between these extremes arenumerous positions, some moreplausible than others. Such a systemcould be developed only to die ofneglect; it could survive only in thecloisters of academia; it could be­come an occasional tool of a small orlarge number of lawyers; it could,conceivably, become a major influ­ence in the practice of law.

New Methods

A second, quite different, area that hasbeen of interest to several of our fellows isloosely called "quantitative methods andlaw." This is concerned with the applica­tion to legal problems (or, more precisely,to problems having legal components) of amelange of new methodologies that areheavily dependent upon the computer andare being applied to an ever-wider range ofpolicy and management problems by gov­ernment and industry. They include statis­tical inference, mathematical modelingand optimization, computer simulation,and decision analysis. The need for thiskind of study seems plain. Though increas­ing numbers of students with technicalbackgrounds are entering the law schools,most lawyers have very little competencein these new approaches to problemanalysis, planning, decision making, andmanagement. Yet many of them are beingcalled upon to exercise their professionalskills and judgment on problems that canproperly be defined and analyzed only inhighly "quantitative" terms. Such prob­lems are routinely encountered in the areasof environmental protection, nuclearpower regulation, antitrust, legislative re­districting, and school desegregation - toname a few.

The concept of "technology assess­ment," popular in government circLes,challenges lawyers both in and outside ofgovernment to involve themselves in awhole range of problems with technical

dimensions. At the same time, both Con­gress and many state legislatures are in­creasingly concerned with the optimal useof resources and are requiring executivedepartments to consider the potential eco­nomic impact of new regulation. It is safeto assume that these legislative require­ments will lead to litigation that will in­volve courts and counsel in the evaluationof complex analytical studies utilizingformal, computer-produced models. Thiswill simply add to the heavy new burdensof understanding that have already beenplaced on the courts by litigation involvingcomplex quantitative issues in the areas Ihave mentioned, and others. Chief JudgeDavid L. Bazelon of the United StatesCourt of Appeals for the District of Co­lumbia has spoken and written forcefullyon this problem.

At the Law School some of the newmethodologies have been relevant to suchregular or occasional offerings as LegalEconomics, Law and Economics, andMethodology in Social Science. But theyfirst received systematic attention inMcCarty's 1972-73 seminar on "DecisionTechnology and the Law," for which hetook time from his TAXMAN work. All ofthe student participants had a level oftechnical experience higher than the LawSchool average - in mathematics, physics,or engineering. The seminar's central focuswas on a series of readings and case studiesdemonstrating the use of optimization,simulation or gaming techniques in con­nection with environmental control, thestudy of oligopolistic markets, and urbanmanagement problems. The group also ex­amined the "global simulation" work thenbeing done at M.1.T., statistical decisiontheory and the law of evidence, and the useof computer technology in the court sys­tem. In a later paper reviewing the seminarexperience, McCarty noted that the effec-

tive use of computer models - and other ofthe new approaches - in law-related areasrequires close collaboration betweenlawyers and technicians. He said:

Part of the job of the lawyer is todesign institutional mechanismsthat will encourage ... continual re­finement of [a] ... model. Anotherpart of his job involves the setting ofsubstantive standards and guide­lines within which the modeling ef­fort will take place .... If a systemsengineer intends to address publicpolicy questions, then he will neces­sarily be working with laws and lawmakers and lawyers; conversely, ifthe lawyer intends to address a com­plex systems problem like pollutioncontrol, he will be well-advised tomake use of all the technicalmethodologies that are presentlyavailable.

After McCarty, two other fellows ­James C. Boczar and Dennis E. Burton ­pursued research in this field but did noteaching. McCarty has continued his in­volvement with the area at SUNY, Buffalo,School of Law, where he has given semi­nars on "Quantitative Methods in theLegal Process," and on "Economic Modelsin the Legal Process."

What does this total experience of a dec­ade and more suggest for the future? Wehave seen the birth and early developmentof the law and computer field, and with theimportant help of the IBM grant we havedone a few things to help nurture it. Shouldthe institutional effort now continue, orhas enough momentum been built to insurethat important matters in the law­computer relationship will be addressedwithout that effort?

The answer depends, I believe, uponwhich activities within the field we aretalking about. Probably as good a case canbe made for ongoing teaching and researchin computer law-as we have defined it, thebranch that embraces the substantive legalproblems associated with computers andtheir use - as for continuing work inenvironmental law, mass media law orurban law, as examples. Each of these in­volves the application of at least severalbodies of existing or emerging law, includ­ing some specific legislation, to problemsthat are related only by a common, non­legal element-in our case the computer. Acourse or seminar on computer law, regu­larly offered, would have the obvious valueof informing students and encouraging re­search on the distinctive issues that increas­ingly confront lawyers, legislators, admin­istrative agencies and courts in the area.More, it would provide a needed forum for

the study and discussion of more general,but at least equally urgent, questions con­cerning the accommodation of rapidtechnological change in our country andthe world.

Yet I am not sure that this deserves prior­ity over other needed teaching and re­search, especially if it would substantiallyburden the School's budget. A number ofthe continuing issues in computer law canarguably be treated as effectively, perhapsmore effectively, in existing courses andseminars taught by faculty members withspecial competence in the relevant fields.Among the continuing issues I have inmind are the protection of rights insoftware, the taxation of computer salesand services, the use of computer­produced materials in evidence, and theprotection of privacy. It seems fair to saythat a teacher of computer law does notneed an extensive background in computerscience, though he or she should of coursehave basic "literacy" in computer pro­cesses and a good understanding of theindustry and its practices. The emphasismust be - or usually is - on instruction inlaw. But the "smorgasbord" approach, assome call it, places a heavy burden on bothinstructor and student if it is to afford morethan a sampling of the fare.

Thus we must weigh the benefits of asingle, coherent offering in computer lawagainst the difficulties of the "pervasive"method, whereby computer-related mate­rials would be incorporated with others inexisting courses and seminars. If they havenot yet done so, the teachers of these offer­ings - patent and copyright law, taxation,administrative law, evidence, etc. - willpredictably turn their attention tocomputer-related issues as they are at­tracted by the novelty or importance ofthose issues. This is .a familiar pattern inlaw teaching and research.

One problem with the "pervasive" ap­proach is that it tends to be haphazard andslow-moving if sole initiative is left to indi­vidual instructors, for they must oftenmake difficult choices among new mate­rials for their courses. It can be made to

work, however, with encouragement andsome coordination from the faculty andthe Dean's office. It offers at least two ad­vantages: a fair assurance that the issuesselected will be treated carefully, and inappropriate depth; and second, a means ofacquainting more students with at least afew of the issues in the problem area - herecomputer law-than would otherwise gainany formal exposure to them. It leaves gapsin the coverage, to be sure. But perhaps wecan invoke a Darwinian principle to sup­port the idea that this might not be all bad.On balance, I am of the view that weshould seek to engage as many facultymembers and students as possible in theexamination of computer law problemswithin the framework of standard offer­ings, and not commit Law School resourcesto regular teaching and research in com­puter law as a separate effort.

The other branch of the field-computerapplications to law - needs some separateanalysis to provide a basis for answeringour question. I doubt that any law school isable to contribute very much of worth tothe development of computerized legal in­formation retrieval systems as such, eventhough they are becoming increasingly im­portant in legal research. This also appliesto the use of computers in discovery andtrial preparation, in law enforcement andjudicial administration, and in other rela­tively straightforward tasks. All of thesematters are better addressed, and are beingaddressed, by others. Some imaginativeand useful programs for computer-aidedinstruction in law have been developed at anumber of law schools, notably Min­nesota, Harvard and Illinois; this workshould doubtless continue.

In my view, however, the two problemareas that concern the application of arti­ficial intelligence methods to law and theuse of quantitative methods in legal prob­lem solving offer the most promise andopportunity for distinctive contributionsby law schools. They are both truly "inter­disciplinary," in that the problems they en­compass are amenable to productive studyonly through the collaboration of two ormore persons well-schooled in the disci­plines relevant to those problems, orthrough the efforts of one person well­schooled in all of the pertinent disciplines.They can best be studied in an academic~etting. They are still quite esoteric, com­pared to other fields of law-related teach­ing and research. But they challenge inves­tigation by persons with the necessarycompetencies whose efforts, over time,might well harness the computer to thelaws in ways that will significantlyenhance lawyer's capabilities to do theirjobs as counselors, advocates, adminis-

They (artificial intelligenceand law) are still quiteesoteric, compared to otherfields of law-related teachingand research."

trators, or judges. Those efforts might alsocast important new light on the legalreasoning and research processes - nowunderstood largely through intuition- andassist the development of those processesto meet the needs of an increasingly com­plex society, made so in large part by itsgrowing reliance upon technology.There are already opportunities at Stan­ford for law students and faculty membersto acquaint themselves with these twoproblem areas through cross­registration, joint degree programs, or col­laborative teaching or research. The Grad­uate School of Business, the Department ofEconomics, and the .Department ofEngineering/Economic Systems - in addi­tion to the Department of Computer Sci­ence - offer courses in computer-relatedfields including mathematical modelingand optimization, simulation, and deci­sion theory. Students in the law-businessprogram, some twenty each year, gain ex­posure to some of these methods as a mat­ter of course.

But more is appropriate, and needed. Inmy opinion there is a clear place for a pro­gram sponsored by the Law School, prefer­ably with outside funding, that will giveopportunity and direction to a few personseach year - faculty members, students, fel­lows - for intensive work in these twoareas. The cooperation of other Stanforddepartments, particularly the Departmentof Computer Science, is assured. Uniquescholarly and technical resources are avail­able to support the effort. Through theLaw and Computer Fellows Program theLaw School has already taken what somehave called an "institutional initiative" inthese areas. It should not be abandoned.

Associate Dean Leininger was graduated fromthe University of California at Berkeley inI95 I, receiving an A.A. in anthropology andFar Eastern studies, and from Harvard, withan LL.B., in I959. He was secretary of Inter­national Legal Studies, I962 -66, and vice­dean, I966 -69, ofHarvard Law School be­fore coming to Stanford.

9

LAWAND ECONOMICSAT STANFORD:A PROGRESS REPORTby A. Mitchell Polinsky

10

E conomists don't know limits.They have undertaken (serious)economic analyses of marriage,

religion, and even suicide. It is thereforenot entirely surprising that economistsfound their way to law. What may be sur­prising is the welcome they have receivedfrom lawyers. Just within the past decade,the law schools at Berkeley, Chicago, Har­vard, Michigan, N.Y.U., Penn, and Yale, aswell as Stanford, have appointed at leastone economist. Two academic journalsnow exist - the Journal of Law and Eco­nomics and the Journal of Legal Studies­which specialize in publishing articlesanalyzing legal issues from an economicperspective. Practically every month atleast one of the law reviews at Chicago,Harvard, Stanford, and Yale contains anarticle or student note using economicanalysis. And during the past few years anumber of consulting firms which spe­cialize in providing economic support inlitigation have been created.

Why have economists been so warmlyreceived by lawyers? On the academicfront, economic analysis has been founduseful by both law teachers and law stu­dents becau.se it helps them to understandbetter the relationships among differentareas of law. For example, in a section ofStanford Law School's first-yearcurriculum, a short course in the springterm uses the same basic principles of eco­nomics to analyze common law remediesfor breach of contract and for automobileaccidents. From an economics perspective,contract and tort remedies face similarproblems: How can incentives be createdwhich will lead parties to take the correctamount of care and thereby appropriatelyreduce the probability of a breach or of anaccident? Given that some breaches andaccidents are inevitable, how should theresulting risks be allocated among the af­fected parties? In addition to common lawtopic, economic analysis helps lawteachers and law students understand thecosts and benefits of statutory law and

government regulation. In brief, econom­ics provides a unifying framework forthinking about legal rules and institutions.

On the practicing front, economists areused in a variety of legal matters. Forexample, they are regularly called upon byboth plaintiffs and defendants in antitrustcases to testify on such issues as predatorypricing, price discritnination, market de­finition, and market concentration.Economists are also frequently involved inother legal problems such as the determi­nation of damages in personal injury cases,the calculation of fair rates of return inpublic utility proceedings, and the assess­ment of environmental policy. Whenever alegal argument or policy depends in parton an economic argument or policy ­which is often - economic expertise is es­sential. As a result, a greater number ofpracticing lawyers are finding that theymust learn how to communicate with anduse economists.

Stanfords ActivitiesStanford Law School has long been

known for its interest in "law and econom­ics." William Baxter in antitrust law andregulated industries and Kenneth Scott inbanking regulation and corporation lawhave probably been the most active earlyusers of economics at the Law School.When Charles Meyers became Dean in1976, he announced an even greater com­mitment to the subject. Within the lastthree years, a number of new faculty mem­bers have been appointed with researchinterests in law and economics. They in­clude Robert Ellickson (whose appoint­ment takes effect_next year) in land use andproperty, Thomas Heller in legal theoryand tax policy, Thomas Jackson in com­mercial law, and Mark Kelman in legaltheory. (My being brought to Stanford lastyear was also a direct result of DeanMeyers' commitment and the generosity ofa donor very close to the Law School.) Inaddition to the above, many other Law

School faculty members have an interest inthe economic approach to law. They in­clude John Barton in contracts and inter­national law, Lawrence Friedman in lawand soci~ty, Thomas Grey in legalphilosophy, and Robert Rabin in adminis­trative and tort law. Also to be includedthis year is Robert Mnookin (visiting fromBerkeley) in family law and personal fi­nancial counseling.

Besides the Law School faculty, there area number of other persons around Stanfordwith law and economics interests. Theseinclude Michael Block, Aaron Director,and Thomas Moore at the Hoover Institu­tion, Michael Boskin and William Roger­son in the Economics Department, andGerald Meier at the Business School. Shortand long term visitors to the Hoover In­stitution are also a source of interested par­ticipants. Recent visitors have includedThomas Borcherding from Simon Fraser,Patricia Munch from the RAND Corpora­tion, and George Stigler from Chicago.

Also within the past couple of years, anumber of new Law School courses havebeen developed that involve the use of eco­nomic analysis. Last year (and continuingthis year), an alternative first-yearcurriculum was used for a third of theentering class. This program, developed inlarge part by Paul Brest, has a substantialsocial science component. Perhaps for thefirst time at any American law school, anintroduction to "law and economics" be­came an integral part of the first-yearcurriculum. This introduction consisted oftwo "minicourses," one on "EconomicAnalysis of Law" that I taught and theother on "Liberal Theory" that MarkKelman taught. In addition, I was broughtinto regular Property, Contracts, and Tortsclasses to discuss the economic approachto such topics as products liability and nui­sance law.

In the second and third years at the LawSchool, there are a number of courseswhich use economic analysis. These in­clude Baxter's courses on economics for

"In addition to common lawtopics, economic analysishelps law teachers and lawstudents understand the costsand benefits ofstatutory lawand government regulation. "

lawyers, antitrust and regulated industries,Heller's tax policy seminar, Rabin'senvironmental law course, Scott's courseson banking institutions, securities regula­tion, and business associations, and myown law and economics seminar.

The Law and Economics Seminar, whichis jointly offered with the Economics De­partment, is the focal point for student andfaculty research at Stanford on this subject.Each meeting of the seminar consists of apresentation by an invited academiclawyer or economist, frequently fromanother university, on a topic of currentinterest. For example, last year ProfessorRichard Posner of the University ofChicago Law School spoke on contribu­tion among joint tort-feasors; ProfessorJerry Mashaw of Yale Law School dis­cussed errors in the administrative provi­sion of welfare benefits; and Professor Ste­ven Shavell of the Harvard Economics De­partment lectured on causation. Studentswho enroll in the seminar undertakesupervised writing on the application ofeconomics to a particular legal problem.Student topics last year included analysesof a taking case, of employment termina­tion contracts, and of the choice betweenfines and imprisonment as criminal sanc­tions.

The Economics Department at Stanfordalso offers a course, which I teach, for ad­vanced undergraduates and graduate stu­dents on the economic analysis of law. Thiscourse covers such topics as nuisance rem­edies, criminal sanctions, antitrustenforcement, breach of contract remedies,land use control, products liability andmedical malpractice.

The FutureThe Law School is presently considering

the development of a new course on the useby lawyers of economic experts and ofstatistical/econometric methods. (Such acourse could be broadened to include theuse of other kinds of experts as well ­psychiatrists, engineers, accountants, etc.)This course would be based on a series ofcase studies in which economic or statisti­cal analysis has played an important role inlegal proceedings. Two examples would in­clude the use by the Federal Communica­tions Commission of an economic analysisof the effect of cable television on the prof­its and growth of broadcast television sta­tions, and the consideration by the Su­preme Court of econometric evidence on

A. Mitchell Polinsky

the deterrent effect of capital punishment.Staffing for such a course might also in­volve Stanford professors from the Busi­ness School and the Departments of Eco­nomics, Engineering-Economic Systems,and Statistics.

The Law School is also planning a majorresearch conference on law and economicsduring the summer of 1981. This confer­ence, which is co-sponsored by the Inter­national Seminar in Public Economics,will bring leading scholars in law and eco­nomics from the United States, Canada,Great Bri tain, and Western Europe to Stan­ford to hear "state of the art" researchpapers. Law School faculty and selectedstudents will have an opportunity to par­ticipate.

Although the Law School has alreadyaccomplished a great deal in terms of ap­plying economics to legal problems, thereare many other activities that could beundertaken as financial support becomesavailable. Besides the development of thenew course mentioned earlier, it would bedesirable to have more active joint degreeprograms with the Economics Departmentand the Business School, to make researchsupport available to a greater number ofinterested faculty, and to bring legal prac­titioners and policymakers who use eco­nomic analysis to Stanford for a semesteror two. I hope to be able to describe someof these developments in more detail inanother progress report.

Mr. Polinsky is a Professor of Law in the LawSchool and an Associate Professor ofEconomicsin the Economics Department. Before comingto Stanford, he held a similar appointment atHarvard. He has an A.B. in Economics fromHarvard, a Ph.D. in Economics from M.I.Y.,and an M.S.L. from Yale.

II

OnCarefullyEducatinga Juryby David L. Rosenhan

O n June 13, 1980, a FederalDistrict Court jury rendered its

judgment in Mel Industries v.AT&T. Guilty, it said, and under thetreble-damages provisions of theSherman Antitrust Act, confrontedAT&T with a 1.8 billion dollar penalty,the largest ever accorded in anantitrust litigation. The outcome ofthis very complex litigation will beappealed of course. But the verdictitself raised again a question thatcontinues to trouble manyobservers of such trials: can thejury, that hallowed bastion ofjudicial democracy, be countedupon to render justice in casesthat are as complicated as thisone was?

The question is not new by any means,nor is its implied distrust of the jury sys­tem for such cases. As early as 1921,Learned Hand indicated that he was "byno means enamored of jury trials, at leastin civil cases." More recently, Carl Becker,that eminent historian of American law,put the matter very clearly:

"Trial by jury ... is antiquated ... andinherently absurd - so much so that nolawyer, judge, scholar, prescription-clerk,cook, or mechanic in a garage would everthink for a moment of employing thatmethod for determining the facts in anysituation that concerned him." 1

The question of jury competence incomplex questions gained impetus from afootnote in the Supreme Court's decisionin Ross v. Bernhard. 2 There, the Courtupheld the right to a jury trial in a share­holder action but indicated that that rightwas not to be construed universally.Rather, on a case-by-case basis, "the 'le­gal' nature of 'an issue is determined byconsidering ... the practical abilities and

"... can the jury, that hal­lowed bastion of judicialdemocracy, be countedupon to render justice incases that are as compli­cated as this one was?"

limitations of juries." Subsequently, lowercourts have debated the intent of thatfootnote. One court wrote that "Afteremploying an historical test for almosttwo hundred years, it is doubtful that theSupreme Court would attempt to makesuch a radical departure from its prior in­terpretation of a constitutional provisionin a footnote" (609 F. 2d 411 at 425). Butthe matter will not rest. Recently, ChiefJustice Warren Burger continued to ex­press reservations about the present func­tion of juries in complex civil actions. "Itborders on cruelty to draft people to sitfor long periods trying to cope with issueslargely beyond their grasp .... Even Jeffer-

son would be appalled at the prospect of adozen of his yeomen and artisans trying tocope with some of today's complex litiga­tion in a trial lasting many weeks ormonths."3

Are the issues involved in litigation in­volving corporate securities and finance,patents, advanced technology and in an­titrust simply too complicated for the or­dinary juror? If one is to infer from thebehavior of many attorneys, they areoft~n ambivalent about the matter. At theoutset, they may feel that justice can bedone in these cases by the jury, thoughoften they rue that decision. According toAT&T's lead attorney, AT&T chose a trialby jury because "we were worried aboutthe attention we would get from judges inthis district because they're so overbur­dened with cases. It seemed to us wewould get the undivided attention of ajury. Looking back, we would have done itdifferently. I would be less than candid if Ididn't say that anything would have beenbetter than this. We were absolutely flab-

On Carefully Educating a Jury

bergasted. It's the size of the verdict that'sobscene." At another point, the same at­torney was quoted as saying, "In my mindthere's no way the verdict will be upheld,and it's going to make the jury systemlook bad."4

The question of jury competence isoften put less well than it might be. Thequestion is not whether the jury is compe­tent to decide in such cases, but underwhat conditions is it likely to render betterdecisions or worse ones? Moreover,granted that the jury does occasionallydecide without fully considering all of therelevant issues, is that the jury's fault, ordoes the problem rather lie elsewhere withthe nature of the trial itself, or with thecapacities of the attorneys or judges tomotivate and educate?

Sound answers to these questions are.hard to come by. Like jury selection andtrial tactics, jury comprehension is a richtopic for research collaboration betweenlawyers and psychologists. But the issuesinvolved here should not be avoidedmerely by asserting the need for furtherresearch. In the first place, there aresources of information that should beruled out at the outset. One such source isthe impressions of judges and attorneysbased on their· post-trial interviews ofjurors. Such interviews tend to be briefencounters, conducted en masse, justmoments after the jury has emerged. Thejury in Memorex v. IBM, for example, wasinterviewed by the judge immediatelyafter it had deadlocked. Based partly onhis observations, he later wrote that the"magnitude and complexity of the presentlawsuit render it, as a whole, beyond theability and competency of any jury tounderstand and decide rationally." Butlike a school principal who interviews agroup of boys about their drug habits, ajudge may not be well positioned to getthe facts. His stature, knowledge andcommitment to the case may well intimi­date the jury, and lead them to revealmuch less than they understand.Moreover, with a deadlocked jury, theirimmediate frustration and fatigue mayinhibit responsiveness. In this particularcase, later depth interviews with individ­ual jurors by relatively neutral parties re­vealed that many jurors had a remarkablydeep understanding of many of the issues,so deep in fact, that one wondered

"... does the problem lieelsewhere with the natureof the trial itself, or with thecapacities of the attorneysor judges to motivate andeducate?" .

whether any random judge would haveachieved such depths of understanding inso complicated a matter.

Fundamentally then, the question is:under what conditions will a jury meet itsobligation to carefully weigh all of the is­sues, and under what conditions is it likelyto fail? On the latter matter, there is noquestion but that juries occasionally failto meet the standard. My colleagues and Ihave encountered jurors in antitrust cases,for example, who never deliberated fun­damental questions of market share, orindeed, had no idea that the fundamentalissue was antitrust. It would be an error,however, to make inferences about jurycapacity from such tragedies. For there isequally compelling evidence that juriescan and do have a much deeper apprecia­tion of these complex issues than is widelyimagined.

Evidence on this matter comes fromtwo sources: the first relatively narrow

but well controlled; the second, broader,closer to the real-life of the jury, but lessfocal. The first source of evidence arisesfrom a study that was conducted by my­self and a group of colleagues which in­cluded both attorneys and psychologists.In the course of preparing for an upcom­ing Ii tigation, we videotaped a lengthytrial simulation which dealt with the fi­nancial aspects of the dispute.

In this simulation, the judge opened thetrial, instructed the jurors regarding theirtask, and presented a brief overview of thelitigation, in much the manner that judgescommonly employ. Subsequently, withoutopening remarks by either side (which ab­sence clearly made comprehension moredifficult) the jurors listened to the presi­dent and CEO of each of the litigant firmsdescribe the issues from his point of view.The full technical jargon dealing with thefinancial aspects of the case was em­ployed, with care taken by the respectiveattorneys to define particularly arcaneterms. Charts and graphs were used wherenecessary. After each witness was exam­ined and cross-examined, the attorneysproceeded to their summations. Thatdone, the jury deliberated.

The "jury," in this study, was carefullyselected to match closely the characteris­tics of federal jurors on five crucial di­mensions: age, gender, race, income andeducation. 40% had a mere high schooleducation or less. Additionally, 37% wereeither unemployed, retired or housewives.In fact, the bulk of these "jurors" wereprecisely the venire about which one hearsnumerous complaints: that they were toouneducated, too unskilled and too un­motivated to provide a real hearing forcomplex civil complaints.

All told, 35 jurors heard the "case,"which was tried four times: twice beforejuries of twelve, once before a six-personjury and once before a jury of five. Thejurors viewed the five-hour videotape andcommenced deliberations on the secondday. Their deliberations were tape­recorded and subsequently analyzed.After they finished deliberating, the jurorswere intensively interviewed by a team ofsocial scientists to determine, amongother things, how much they understoodabout the case, and how involved theywere in the deliberations.

What was remarkable about the find-

ings was in fact, the degree to which thejurors understood the issues of the case,and more significantly, how their under­standing enabled them to overcome thebiases and predispositions that they hadregarding the litigants before they actuallyheard the case. This is not to say thateveryone on the jury had a complete com­prehension of all of the issues. Far from it.There were some, as there are on everyjury, whose understanding was dim andwhose grasp tenuous. But on the whole,the degree of understanding was remarka­ble, and only minimally correlated witheducational or vocational achievement.Gaps in an individual juror's understand­ing of either the facts or the relevant dis­tinctions that needed to be made (forexample, mere adverse effects that arisefrom ordinary competition, from thosethat arose from illegal competition) werefilled in by other jurors during the delib­eration process - a process, we should re­call, that judges sitting as sole arbiters insuch cases are not exposed to. The resultwas that 40 % of the jurors had an excel­lent appreciation of the issues in the case,and were clearly able to come to termswith them. Another 20% would be de­scribed as having a good, though not ex­cellent, comprehension of the issues.

Equally remarkable was the degree ofenergy and argument that was brought tobear in the deliberations by these jurors.For the issues in the case were far removedfrom the experience of all of them. Nonehad had experience in high finance, in thekinds of competition that characterizeslarge corporate enterprises, and in thekinds of decisions that are made by corpo­rate executives. They were, to a person,middle America whose contact with bigbusiness, where it existed at all, was at thelower echelons. Nevertheless, they reso­hated to these issues, debated themfiercely, often continuing those debatesinto lunch and coffee breaks, and evenafter the jury had rendered a decision.Once again, it should be noted, somejurors were relatively passive, relying onothers to press the issues home. But over­all, we were quite surprised at the vigor ofthe deliberations and the seriousness withwhich jurors took their task.

It can be said, of course, that these "ex­periments" - one hesitates to use thatformal word - were mere shadows of the

"...we were quite surprisedat the vigor of the delibera­tions and the seriousnesswith which jurors took theirtask."

real thing whose findings were as artifac­tual as such experimental simulationstend to be artificial. Perhaps so. But thatview does not accord with our experienceinterviewing real jurors from real complextrials, which is our second source of in­formation on these matters. By now, wehave observed nearly a dozen trials, all ofthem involving litigation in technological,financial and antitrust arenas in both stateand federal courts. The trials have beenlengthy, ranging in time from one tonearly eight months - presumably asexhausting for the jurors as they were forthe judge and attorneys (and us). Shortlyafter each of these trials were completed,we interviewed individually all of thejurors who consented to meet with us,often as many as three quarters of themembers of each jury. These interviewswere quite lengthy, never less than 90minutes, and sometimes as long as fourhours. Our consistent observations havebeen these:

- Whether, as Chief Justice Berger ob­served, it was "cruel" to draft thesepeople to sit for long periods of time can-not, of course, be determined long afterthe fact. But it is remarkably the case thatevidence on the effects of such cruelty hasyet to be located after the jury had sat fora long time. Quite the contrary, jurors areoverwhelmingly pleased with their work,delighted to have been of service, andaware that they have contributed much tothe justice process. Moreover, they com­monly feel that they have learned a gooddeal, often in the tutelage of expert attor­neys and judges. "You couldn't get aneducation like this for any amount ofmoney," one of them remarked, and hewas not alone. Perhaps this is but anotherinstance of the old adage that men anddogs come to love the things they've suf­fered for. But regardless" their near­unanimity on this matter is striking. Onlywhen the jury is unable to arrive at aunanimous verdict are these feelings di­minished to some extent. Then, jurorsoften feel that their efforts were tonought. Clearly, the presiding judge cando a good deal to alleviate these feelings,if only by pointing out that reasonablepeople will often disagree on complicatedmatters and that justice is being servedeven under such conditions.

- On the whole, jurors understandmuch more about such cases than is oftenassumed. This is not to say, as I indicatedearlier, that they understand all of the is­sues, nor even that they can recall all ofthe issues that others - attorneys, forexample - might find significant. Butwhen some care is taken to educate them,terms such as convertible debentures,debt/equity ratios, and demand curves donot defeat them, even though these termsare quite remote from their everyday ex­perience. The intricacies of the marketshare concept, mysteries of moderntechnological innovations and "whodun­its" of patent theft allegations all pene­trate the sensoria of unemployed people,many of whom barely have a high schooleducation, and housewives. Again they donot retain and understand everything:given the relatively low level of agreementabout what is central in a complex litiga­tion, that would be too much to expect.But by reasonable standards, it is perfectlyclear that ordinary jurors have the ca-

On Carefully Educating a Jury

r6

pacity to understand many of these mat­ters.

What then regulates their understand-ing? Under what conditions will they meettheir obligations, and what conditions,encourage failure? It is a commonplace tosay that their understanding will be facili­tated to the extent that attorneys andjudges patiently and provocatively teach,but it is a commonplace that nonethelessneeds to be said. Increasingly such trialsare coming to be seen as educational ven­tures, and increasingly attorneys are turn­ing for counsel to educators and social sci­entists who are experienced in presentingcomplicated information to innocentminds and enabling them to learn. Theevidence suggests to us that this kind ofcollaboration can be enormously fruitful.

Taking note of the length and complex­ity of these trials, and in recognition of theburdens these issues place on humanmemory, a number of federal courts haverecently allowed jurors to take notes dur­ing the trial and to refer to their notesduring the deliberation process. This in­novation, in our experience, has been veryconstructive, though not entirely success­ful. Jurors frequently complain that whilethey have it all written down, they arehard pressed to retrieve information fromtheir bulky notebooks, or to separate sig­nificant facts from trivial ones. One de­voted juror was halfway through a trialbefore she understood the significance ofexhibit numbers, and how the informa­tion in exhibits could later be retrieved.Clearly, more can be done here, by in­structing jurors at the outset in simplecoding and retrieval techniques, byencouraging and giving them time to ex­amine their notes at the end of each day,and perhaps to summarize them.

Yet, even after care has attended theeducation 'of the jury in both substantiveand retrieval issues, one senses a deeperproblem which is occasioned by the psy­chological incompatibility of the twingoals of a jury trial: to convince the jury,and to make a trial record. That incom­patibility arises from the ordinary limitsof the human mind, which can retain andassimilate seven issues, plus or minus two,and no more. Even devoted jurors who re­ligiously take notes are overwhelmed bythe large corpus of information that arisesin such trials, not because it is likely to

"The problem of informa­tion overload is a seriousone, one that needs to begiven considerably morethought."

convince a jury, but because it needs to bepart of the trial record. Such fragmentedinformation (from the juror's perspective)is dangerous. The typical juror lacks a"cognitive tree" on which to post such in­formation, and as a result, merely hearsdistracting "noise." The confusion andfrustration that so arises can easily oozeto other issues in the trial, leading them todesignate these issues, too, as incom­prehensible or insignificant.

The problem of information overload isa serious one, one that needs to be givenconsiderably more thought. Two admit­tedly partial solutions come to mind.First, overload is not nearly so dangerouswhen people are prepared for it. At theoutset of the trial, the judge might simplywarn the jury that it will be inundatedwith information that is occasionally un­codable. That is the natural course ofthese trials, and a "good juror" oughtneither to be upset by that fact nor allow

that overload to infect his or her motiva­tion to understand the case. Forewarnedin this instance, is forearmed. Second, theeffects of information overload can be re­duced when attorneys take care especiallyduring summation, to collect the manyfacts around a few significant issues, tohighlight those issues and to enable thejurors to retrieve from their notes infor­mation that is relevant to those issues.Such summations require considerablethought- and advance planning, and oftena good deal of time to present. The courthas often been helpful here, in bothencouraging attorneys to plan their pre­sentations carefully (if they do not alreadycomprehend the advantages of such plan­ning) and in giving them sufficient time tosummarIze.

The standard closing remark regardingthe need for further investigation and re­search applies here. It is important tolearn more about the conditions underwhich juries understand the issues of acomplicated case, and how their under­standing can be maximized. Over the pastdecade, the very nature of the civil jurytrial has changed dramatically, from onethat was mainly a legal ceremony to onethat is increasingly an educational processin which judges and attorneys activelyparticipate. Further changes in this direc­tion are likely to occur, and will be facili­tated by greater insight into the capacitiesof jurors and the conditons that maximizetheir learning.

Footnotes

1. Quoted in In Re U.S. Financial SecuritiesLitigation, 609 F.2d 4 I I at 429, fn 66.

2.396 U.S. at 538, fn 10.3. Quoted in The National Law Journal, Aug.

13, 1979 at 21.4. New York Times, June IS, 1980.

Professor Rosenhan holds a joint appointmentin the Law School and department of Psychol­ogy. His principal subjects are Mental HealthLaw and Psychology and Law. He received anA.B. in Mathematics (I95I) from Yeshiva Col­lege, and an M.A. (I953) in Economics andPh.D. (I958) in Psychology from ColumbiaUniversity.

VIBWING TlfB ADMINIS.TRATIVB PROCBSS FIRSF-lfAND:

TbougbtsonaYears LeaveattbeEPAby Robert L. Rabin

D uring the summer of 1978, mygrowing feel ing that it was time.to spend a year outside the

academic environment ripened into a deci­sion to look for an interesting way of utiliz­ing my professional skills. My impulse tospend a year doing something differentwas largely attributable to the path mycareer had taken since I completed my owneducation. While I had engaged in someoutside consulting, my principal activitiesin recent years were teaching and research.Although my work was diverse in charac­ter, it had been largely grounded in anacademic perspective. I wanted a tempo­rary change that might prove useful uponmy return.

Most of my writing, as well as a substan­tial amount of my teaching, has been in theadministrative law field. As a result, Igravitated naturally towards the idea ofspending a year at an administrativeagency. Under the right circumstances,such an arrangement seemed promising fora number of reasons. Ideally, my teaching

"The percentage ofsingle-minded work­aholics was at least ashigh as I have observed inlaw firm and law schoolsettings."

would benefit from a year of experience atan agency, viewing the administrative pro­cess in action. My research would be chan­neled into new directions by the projectsthat I worked on. And finally, my horizonswould be expanded by the very process ofacquiring a great deal of substantive in­formation about a relatively discrete set ofpolicy issues.

All of this was very abstract, of course.The threshold questions remained: (a)

which agency should I approach, and (b)what kind of position should I seek. Asmight be expected, I narrowed the list ofprospective agencies by reference to bothmy own subject matter interests and mysense of where I would find the moststimulating work environment. A fortui­tous set of circumstances led me in thedirection of the Environmental ProtectionAgency. First, while I was by no means anexpert on environmental law, I had done a

sufficient amount of consulting for theFord Foundation Division of Environmen­tal Affairs to have developed an interest inthe area. Second, I knew enough about theEPA to be convinced that its mandate in­cluded a wide range of complex, vital pol­icy issues which the agency was making aconscientious effort to approach in an in­novative way. Finally, I had the good for­tune to have a close friend and former col­league among the agency's top officials-

Thoughts on a Year's Leave at the EPA

r8

"...my colleagues werelargely public sector typeswho felt more comfortablefashioning pUblic policythan reacting to it."

~'One aspect of the groupdynamic is that everythinghas to be cleared witheveryone."

"The technology, scien­tific understanding andeconomic projections reston very uneasy foun­dations, not of the EPA'smaking."

creating, I surmised, the maximumlikelihood that any arrangement I workedout would lead to interesting work.

Still, I had to face the second question:What type of position was I seeking? Thisissue was actually relatively simple for meto resolve. I had done a sufficient amountof empirical work on agency processes, in­volving interviewing and data collection,to feel certain that a year as a somewhatisolated "scholar in residence" would yieldrelatively little in the way of new experi­ence. Rather, I wanted to be on the firingline if possible, treated as a workingmember of a policymaking group ­treated, in other words, as though I would'be around for an indefinite period of time.Only in such a position, I thought, would Ibe likely to have a year that was genuinelydifferent from my ordinary range of re­search, consulting and writing activities.

After some exploration, it proved possi­ble to work out in general terms a positionat the EPA which seemed to match my de­sires to their needs. As Senior Environmen­tal Fellow, a newly established position, Iwould work in the Office of Planning andManagement (OPM) on projects that in­volved cooperative work with the "sub­stantive" program offices - the Office ofAir, Noise and Radiation, the Office ofWater and Waste Management, and theOffice of Toxic Substances-as well as withthe Office of Enforcement. Having agreedon the position, met my future colleaguesand discussed a range of available projects,the inevitable doubt remained: Would theyear, in fact, turn out to be what it prom­ised? One never knows in advance.

A little over a year after my initial explo­rations, on the first of September, 1979, mythree-year-old daughter asked, "Daddy,why are you dressed so pretty today?" Andmy wife queried, "When you get in there,what happens? Will you just sit there untilsomeone shows up with some work?" Aptquestions. I was feeling a bit uncomfort­able in a business suit - more formal thanmy daily teaching attire. And, I was experi­encing just a bit of apprehension aboutwhether there really would be work for"the professor." But all of my concernswere very quickly put to rest. I arrived tofind that meetings had already been sched­uled for later that day on two of my princi­pal projects. On my desk was an itinerary

for the week that involved discussions withthe top officials' in the Office of Planningand Management. Before I knew it, I had asmuch as I could handle. I was off and run­nIng.

Three Major ProjectsI worked on three major projects during

the year, which I will describe briefly inorder to give some sense of what I wasdoing, as well as a wide variety of smallerassignments. Before arriving, I was toldabout OPM's continuing efforts to assistthe Office of Enforcement in bringing ahigher degree of efficiency to the handlingof civil penalty enforcement cases. Theproblem is many-faceted. Civil enforce­ment cases are investigated and prepared inthe EPA regional offices. The cases are thensent to EPA headquarters for review andapproval. Headquarters, in turn, sends theapproved cases to the Pollution ControlSection of the Lands Division in the De­partment of Justice where another roundof review takes place, leading to initiationof action either by the local U.S. Attorneyor a DOJ headquarters attorney.

At each stage there is a delay, and fre­quently strong disagreement about theadequacy of case preparation. Our job wasto see if we could find ways to assist theregional EPA offices in preparing cases thatwould withstand scrutiny. We also wereasked to suggest ways in which the reviewprocess itself might be streamlined. Work­ing with an interdisciplinary team, I wasinvolved in the preparation of a case devel­opment manual for regional attorneys anda set of proposed case review and auditprocedures for headquarters' attorneys.

My other major projects were more sub­stantive in nature, dealing directly withcentral problems of health and safety.About two years ago the governmentbanned the production of aerosol spraycans charged with chlorofluorocarbons(CFC's), a chemical compound that ap­pears from the available evidence to bedepleting the ozone layers 'in the strato­sphere. Such depletion could lead to severehuman and biological damage through in­creased ultraviolet radiation. Unfortu­nately, other major uses of CFC's - princi­pally as a refrigerant, insulator and solvent

- have more than made up for the aerosolban, and those uses are steadily growing.The issue on the table was whether furtherregulatory action was required, and if so,the form it ought to take. [In passing, Ishould mention that the problem has a verycomplicated international dimension,since the impact of United States cutbackscould easily be undermined by continuinggrowth abroad.]

An EPA work group, principally staffedout of OPM and the Office of Toxic Sub­stances, spent many months fashioning astrategy to deal with both the domestic andinternational issues created by CFC use.Before my term ended, we succeeded indevising a scheme that will put a cap ondomestic CFC production at current levelsand allow trading among producers undera marketable permits system. The latterstep will be a highly significant move forthe EPA, indicating its willingness to tryout a new economic incentives approach toregulatory control.

The third project that I spent consider­able time on also involved an economicincentives approach. Under the Clean AirAct, air quality standards establish theupper limits on allowable emissions forcertain pollutants. Recently, there has beenmuch discussion and some agency actionaimed at creating incentives for least-costachievement of these limits. One strategy isto allow pollutants to "bank" any emis­sion reductions they achieve beyond theestablished limits, and either use or sellthese excess reductions at a later point intime. During the latter half of my stay, Iworked with a group from OPM that wasgiven the task of translating this conceptinto a limited property right via a com­prehensive set of regulations.

"Window Into AnotherWorld"Let me turn to a few general observationsabout a year in the bureaucracy - based onmy involvement in these and a wide varietyof less time-consuming projects. First, asociological observation. In sharp contrastto the academic setting, virtually every­thing accomplished at the agency resultsfrom a group decisionmaking process. Iwas struck by this contrast on my very first

day, when I was intiated into the world of"meetings." Collaboration and com­promise are the essence of the process. Inthe academic sphere, most of the importantwork I do is accomplished in relative isola­tion-class preparation, research and writ­ing, and so forth. Assuredly, I gain a greatdeal from collegial discussion, and obvi­ously classroom teaching involves con­stant interchange with students. Nonethe­less, when it comes down to it, I resolvemost of the tough intellectual problems Iconfront - whether before class or in myresearch - on my own. Putting aside com­parative judgments of merit, I did find thesharp difference in process an interestingchange of pace.

Secondly, let me address some stereo­types, not necessarily shared by me, whichwere quickly dispatched by observing theagency from the inside. To begin with, mostof the people in OPM worked very longhours by any standard, and were extremelyconscientious. The percentage of single­minded workaholics was at least as high asI have observed in law firm and law schoolsettings. And, the overall quality of thepersonnel at OPM was similarly very high.Moreover, it was soon evident that, for themost part, my colleagues there were notdramatically "pro-environment" or proanything else; they were professionals witha job to do, trying their best within theexisting constraints. Most of them couldalmost as easily have been working at theSEC or FCC, as far as subject matter orien­tation was concerned.

On the other hand, at a more subtle levelthere were some characteristics thatmarked off these professionals - whetherlawyers, economists, or management types- from their counterparts in private prac­tice. First of all, in most cases they simplywould not have been as comfortable on thebusiness side of the table. To put it anotherway, while they may not have demon­strated a burning allegiance to the envi­ronment, my colleagues were largely pub­lic sector types who felt more comfortablefashioning public policy than reacting toit. Secondly, and perhaps related, I didsense a pervasive restlessness. Unlikeacademics and private sector profession­als, most of them did not regard the EPAas their long-term hotTIe. Rather, theywere concerned about "advancement" in

some rather elusive sense - often superfi­cially grounded in more prestigious titlesor higher government service classifica­tions - which led to a preoccupation withjob prospects in other agencies or in otherprograms within the EPA itself.

Finally, a word about process. Gettingthings done at the agency is no easy matter.One aspect of the group dynamic is thateverything has to be cleared with everyone.And often the established procedures arearchaic or meaningless, or the channels ofcommunication are clogged. Here, then,we do find some confirmation of receivedwisdom about bureaucratic processes inaction.

Still, my impression was that the majorobstacles to significant advances in agencyperformance lie elsewhere. The problemsof modeling, monitoring and enforcementunder the Clean Air Act, as well as relatedproblems under some of the other principalenvironmental statutes - the basic deter­minations of magnitude of harm and exis­tence of unlawful action - are staggeringlycomplicated to resolve. The technology,scientific understanding and economicprojections rest on very uneasy foun­dations, not of the EPA's making. To makematters worse, the statutes are poorlydrafted and the Congressional "support"given the agency often borders on uncons­cionable behavior (committee grandstand­ing about travel expense items for t:ips thatin fact are the bane of the typical agencyofficial's existence; committee indifferenceand/or ignorance about substantivestatutory issues that need to be addressed).

All in all, it was an interesting,. some­times frustrating and at other times re­warding place to spend a year. A windowinto another world. It certainly deepenedmy understanding of the adminstrativeprocess - which was a basic reason forundertaking the venture in the first place.

Professor Rabin teaches Administrative Law,Torts and Environmental Law at Stanford. Heearned a B.S. (1960), aj.D. (1963), and a Ph.D.(1967) from Northwestern University.

On"Interpolating Little Personal Recipes"by Charles J. Meyers

20

Dean Meyers delivered these remarks onMarch 29, I980, upon accepting the St.Thomas More Award from St. Mary:Js Uni­versity School of Law in San Antonio,Texas, at their annual Law Day cere­monies. The award was made in recogni­tion of Dean Meyers:J many contributions"to the law and legal education as anationally recognized author, scholar;teacher and admi nistrator. :J:J

]

he honor that you have so gen­erously given me is named for one ofthe greatest figures in English his-

tory. I should suppose that most educatedpeople have some knowledge of the lifeand times of Saint Thomas More and knewabout him before Robert Bolt wrote theplay, A Man For All Seasons. More was,after all, the author of a book that addedthe word "utopia" to the English language.And More was a prominent figure in thereign of Henry the Eighth: a Lord Chancel­lor of England-not that we know them all- but a Lord Chancellor who lost his officeand then his head, over a matter of con­SCIence.

But for me at least, until I prepared forthis occasion, the issues that led to More'scondemnation and death remainedobscure. Public television's "MasterpieceTheatre" had informed me amply aboutHenry's six wives, but it was the librarythat helped me to understand the funda­mental conflicts of the time.

Henry was not only a bad husband, but abad king. And the issue that divided Henryand More was deeper than the Act ofSupremacy, which separated the Englishpeople from the Catholic Church, morefundamental, even, than the power of themonarch to dictate the religion of his sub-

jects. The conflict, as I understand it, wasbetween limited government and tyranny.The point is put succinctly by the best ofMore's biographers, R.W. Chambers, whowrites: "Henry succeeded in establishing adictatorship, which he maintained for theremaining years of his life. But at whatcost? Whether we think of the explorationof distant seas, of English poetry, ofEnglish prose, of English scholarship, ofEnglish education, of the material pros­perity of the English people (apart from asmall body of profiteers), of finance, ofcraftmanship, of architecture, of freedom,of justice, Henry's tyranny marks a set­back. Everything had to pass through thebottle-neck of one man's mind, and Henry,though able, was not equal to the task.Henry's dictatorship was bound to fail inthe long run, because it revolted the con­sciences of his subjects. The resistance todespotism which More began was boundto be carried on, from opposite sides bothby Catholic and Puritan."l

Henry failed and tyranny receded. Asbiographer Chambers writes, " ... Parlia­ment, which Henry had fostered as an in­strument of his despotism, ... became aninstrument of freedom. Yet we must notforget ... those who, in the darkest hour ofEnglish liberty, dared to say "NO" to thefiat of despotism, and who neverthelesskept their loyalty unimpaired .... "2 Theone we remember best is, of course,Thomas More.

I do not wish to be misunderstood: Moredid not die for parliamentry rule; its timehad not yet come. But he did die for free­dom of conscience. As he mounted theblock on July 6, 1535, to speak his lastwords, he said to those around him, "Thatthey should pray for him in this world, andhe would pray for them elsewhere, protest­ing that he died the King's good servant,but God's first."3

I believe he died for a principle evengreater than freedom of conscience; he ac­cepted martyrdom as the price a principledman will pay to place limits on the powerof the state; he died for liberty.

There are broad lessons for us in More's

life and times-lessons about social justice,about individual liberties, and aboutstatecraft. I shall not attempt to deal withall of these grand themes but will limitmyself to a single, yet vital, lesson to belearned from the failure of Henry's tyrannyand the triumph of representative govern­ment. Broadly stated, that lesson is that thelegitimacy of a ruler, and of the ruler'slaws, derives from the people, speakingthrough their elected representatives. Ifcourts usurp the legislative function andflout the legislative will without a clearcommand from the Constitution, they ex­ceed their prerogative and lose their legiti­macy.

These are strong words but I believe theyare warranted. In my state of California,the people are losing faith in judges. Whenthe Chief Justice ran against her record forconfirmation, she gained a bare 520/0 ofthe vote, the lowest percentage in such anelection in the history of the state. And thatwas before the discreditable story ofPeoplev. Tanner 4 unfolded. That story, in brief, isthis: On Election Day, 1978, the LosAngeles Times reported that the CaliforniaSupreme Court had refused to enforce the"use-a-gun, go-to-prison" law recentlyenacted by the legislature, but had with­held its decision until after the election toprotect the Chief Justice. Thereafter, theChief Justice called for an investigation,which was arranged, but on terms unac­ceptable to her and some of the other jus­tices. The investigating commission de­cided the hearings should be open to thepublic, and they began that way. JusticeMosk brought suit to close the hearings; onappeal Justice Newman (formerly a lawprofessor and dean of a law school) refusedto disqualify himself and had to be re­moved; the pro tempore court closed thecommission hearings, and that body wasconfined to issuing to the public a briefstatement that it had conducted its investi­gation and had found no wrongdoing, andregretted that it could say no more.

The suspicion of whitewash still lingers;and the harm to the California judiciary isincalculable. But in the long run the deci-

sions in People v. Tanner may do moreharm than the investigation itself. In Tan­ner 1 three members of the court held thatthe statute did not mean what it said whenit denied probation for certain crimes in­volving use of a gun. In a separate opinionthe Chief Justice disagreed with those Jus­tices on the meaning of the statute, but readthe state constitution as forbidding thelegislature to enact such a law, because ofseparation of powers.

I believe that constitutional position isuntenable. The proposition that must bemaintained is that the judicial branch hasthe exclusive power to fix criminal penal­ties and to determine when to imposethem. One looks in vain for authority de­nying these powers to the legislature. Thelegislature promptly repassed the law, theCourt granted a rehearing, and becauseone justice switched his vote on the in­terpretation question, the statute wasenforced, according to its terms. Three jus­tices dissented, including the Chief Justice,who adhered to the view that separation ofpowers invalidated the act.

Could there be a more graphic illustra­tion of the ultimate power of the judiciary?And, in the case of the three dissentingjudges, could there be a more evident abuseof judicial power in the attempt to substi­tute their preferences for the manifest willof the legislature?

What comes from such grasping forpower?

Judge Learned Hand raised the ques­tion, and suggested an answer over fiftyyears ago. Speaking of judges, he said, "YetI must confess to wonder whether in theend our prerogative will survive the start­ling frankness of our modern Rousseaus. IfDemos should awake to the disparity be­tween our profession and our perfor­mance, if he should find that, behind anobsequious protestation of docility to hissupposed will, we have all along been in­terpolating little personal recipes of ourown, who shall say that he will not ariseand strip us of our powers?"5

Demos is rising in California. Specialinterest groups, on both the right and left,

are running candidates of their persuasionfor the bench. And even when an unpopu­lar judge is not up for election, a recallpetition can be circulated against him, aswas successfully done in Berkeley thisyear. 6 The grievance against the Berkeleyjudge was that he had issued an evictionorder to squatters on the plaintiff's land.

I ponder these events with a growingsense of dismay, for at risk is the very exis­tence of the rule of law. A central functionof courts - not their only function but anelemental one - is to resolve civil disputesand to enforce the criminal law. When alitigant or an accused faces a judge whohas been elected on one campaign plat­form or another, where is the appearanceof fairness and impartiali ty? Indeed, whereis the fact?

Yet I cannot wholeheartedly fall intostep with those leaders of the bar whocome automatically and uncritically to thedefense of the bench. I do not believe thatthe people will be content to be governedby an autocrat in a black robe. The disguisehas worn too thin.

It is not too late to alter course. Thejudges themselves, indeed the judges alone,can salvage the institution. If they wouldreturn to the classic model of the judge,they could regain respect and avoid theshoals of politics. By their behavior wemust judge them. We must demand as thenorm the judge who at least begins with theprecedents; the judge who appreciates andpractices craftmanship; the judge whoemploys reason and eschews slogans; thejudge who conscientiously seeks andenforces the legislative will; and above all,the judge who has self-doubt, who is in­fused with the spirit of liberty, "the spirit"to quote Learned Hand again, "which isnot too sure that it is right."

Some will regard this view as hopelesslyold-fashioned, indeed simplistic. But toscorn the legislative will, to interpolate"little personal recipes," invites disaster.The winds of rebellion are rising in Cali­fornia, and, politically as well as atmos­pherically, California winds generallymove east.

In "A Man For All Seasons," Robert Boltportrays a scene in which More is urged byhis son-in-law, William Roper; hisdaughter, Margaret; and his wife, Alice, tohave a man arrested. The man, RichardRich, eventually betrays More throughperjury. The scene goes like this: *"Roper Arrest him.Alice Yes!More For what?Alice He's dangerous!Roper For libel; he's a spy!Alice He is! Arrest him!Margaret Father, that man's bad.More There is no law against that.Roper There is! God's law!More Then God can arrest him.Roper Sophistication upon

sophistication!More No, sheer simplicity. The

law, Roper, the law. I knowwhat's legal not what's right.And I'll stick to what's legal.

Roper Then you set man's lawabove God's!

More No, far below; but let medraw your attention to a fact-I'm not God. The currentsand eddies of right andwrong, which you find suchplain sailing, I can'tnavigate. I'm no voyager.But in the thickets of the law,oh, there I'm a forester .... "

The currents and eddies are becoming amaelstrom which will wreck the judiciaryunless the judges acknowledge the limits oftheir power.

*Copyright by permission of Robert Bolt.All rights reserved.

I. R. W. Chambers, Thomas More (HarcourtBrace & Co., New York, 1935) p. 382.

2. Id., at 382 - 3.3. Id., at 400.4. Peoplev. Tanner, 23 C'3d 16, 587 ~ 2d 1112,

151 Cal Rptr 299 (Dec. 22, 1978), on rehear­ing 24 C3d 514, 596 ~ 2d 328, 156 Cal Rptr45 0 (June 14,1979).

5. L. Hand, Have the Bench and Bar Anythingto Contribute to the Teaching of Law, Am.Law School Rev 621, at 624 (1926).

6. San Francisco Chronicle, March 7, 1980.

21

1980 Kirkwood CODlpetition SignalsNew Era for Moot Court PrograDl

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

22

Following several years of declining stu­dent interest and participation, theSchool's Moot Court Program has under­gone an impressive revitalization, thanksto the combined efforts of the CurriculumCommittee and the 1979 - 80 Moot CourtBoard.

Once a significant part of every law stu­dent's experience, the Moot Court Pro­gram began to lose some of its appeal whenmembership on the Law Review becameelective. This fact, coupled with insuffi­cient faculty and administrative supervi­sion, brought the program to the brink ofextinction; during 1979 - 80 only 22 stu­dents participated in the program.

Faced with the possibility of losing whathas always been regarded as a vital part ofa law school education, the Curriculum

Committee, last fall, agreed to institutesome fundamental changes on an exper­imental basis. Among the most significantwere the allocation of two units of writingcredit for participation in the program andthe involvement of Ezra Hendon of theState Public Defender's Office. Mr. Hen­don was hired to provide parttime supervi­sion to the participants and the MootCourt Board.

The effect of these changes on studentparticipation was immediate and veryencouraging. In early December, second­and third-year students were given the de­tails of the 1980 Kirkwood Moot CourtCompetition and were invited to partici­pate. Seventy-two students signed up. Sincethe program was experimental, the deci­sion was made to limit participation to 24

teams of two students each. A randomdrawing was held to select 48 participantsfrom the 72 who signed up.

At the end of January, the problem andthe competition rules were distributed tothe participants. The first drafts of thebriefs were due five weeks later. Duringthis period, Mr. Hendon gave three lectures(on appeals generally, on brief writing, andon oral advocacy) and held regular officehours to consult with the participants.

The first drafts were submitted onMarch 7 and Mr. Hendon critiqued themand held conferences with each team. Re­vised briefs were turned in on March 21.

During the next ten days, each brief wasread and critiqued by six members of theMoot Court Board. A preliminary roundof oral arguments was then held, in which

each team argued the case twice - once forpetitioners and once for respondents - be­fore panels of local attorneys, judges, pro­fessors and Board members.

The top eight teams advanced to thequarter-finals. Four teams were selectedfor the semi-finals, which were viqeo­taped for later review with the participantsby Mr. Hendon and the Moot Court Boardofficers.

In preparation for the final round, thetwo top teams were allowed to revise theirbriefs once again and to take part in severalmock arguments before members of theBoard. These sessions provided both sub­stantive and stylistic critiques.

The finals were held on May 2, before acapacity audience in Kresge Auditorium.Sitting as the Supreme Court of the UnitedStates were Justice Byron R. White, U.S.Supreme Court; Judge Patricia M. Wald,U.S. Court of Appeals, D.C. Circuit; andChief Justice Robert F. Utter, SupremeCourt of Washington. The team of John W.Phillips '81 and Marilyn O. Tesauro '81was selected as the overall winner, over theteam of Ronald N. Beck '80 and John V.Roos '80. The Phillips/Tesauro team wasalso awarded the prize for the best wri ttenbrief, while Ms. Tesauro was chosen as thecompetition's best oral advocate.

Commenting generally on the perfor­mances of the finalists, Judge Wald ob­served that all four performances were ofconsistently high quality.

In a memorandum to Dean Meyers andthe Curriculum Committee following thecompetition, the Moot Court Board ex­pressed its satisfaction with the exper­imental program and urged that it be con­tinued next year:

"In general, we feel that the Kirkwoodexperiment has been an unequivocalsuccess. We were continually impressedby the quality of the briefs and oralarguments, and we share with many ofthe participants a belief that Kirkwoodcan provide one of the most valuablelearning experiences in law schooL"

Moot Court Board officers for 1979- 80included President Russell F. Sauer '80, andVice-Presidents Frank E. Melton '80, JohnW. Phillips '81, and Cory Streisinger '80.

18 Grads Fill JudieialClerkships for 1980-81

One member of the Class of 1979 and17 members of the Class of 1980 have ac­cepted judicial clerkships for the 1980- 81term.

United States Supreme Court

Associate Justice Potter StewartRobert Weisberg '79

United States Court of Appeals

District of Columbia:

Judge Carl McGowanJane M. Graffeo

Fifth Circuit:

Judge Robert A. Ainsworth, Jr.Mark R. Spradling

Judge Thomas G. GeeBrian E. Lebowitz

Judge Robert S. VanceAlan Pfeffer

Ninth Circuit:

Judge Ben C. Duniway '31David F. Levi

Judge Betty B. FletcherCory Streisinger

Judge Dorothy NelsonGeoffrey L. Bryan

Judge Joseph T. SneedChristopher J. WrightKenneth G. Whyburn

United States District Court

California, Northern District:

Judge Thelton E. HendersonJoshua B. Bolten

Judge William IngramGraeme E.M. Hancock

California, Southern District:

Judge William B. EnrightNorman J. Blears

District of Columbia:

Judge Thomas A. FlanneryRobert B. Bell II

Florida, Northern District:

Chief Judge Winston ArnowCharles M. Gale

Louisiana:

Judge Fred J. CassibryNorman M. Hirsh

Chief Judge Frederick J.R. HeebePaul J. Larkin

State Courts:

Supreme Court, Alaska:

Justice Roger ConnorJoan M. Travostino

Supreme Court, Minnesota:

Chief Justice Robert SheranJanice A. Rhodes

23

ljr-uadwaY Vlay Ijr-ino~

l2e£uonitiun tuAlumnu~by Sara Wood

[Editor's note: A Law School reunion questionnaire completed by GeorgeShibley '34 brought to our attention Shibley's involvement as defense counselin a widely publicized criminal trial held some 38 years ago, People v:Zammora, 66 Cal. App. 2d (1944), also known as "The Sleepy LagoonMurder Case." In the case, 22 Mexican-American teenagers were charged withmurder, but their convictions were later overturned on appeal. In 1978 Shibleyagain received widespread publicity because of the production of a play called"Zoot Suit," based loosely on that case and on the "Zoot Suit Riots" thatoccured during and after the trial. The riots were between Mexican-Americanyouths on one side and sailors and Los Angeles police on the other. "ZootSuit" was produced first at the Mark Taper Forum in Los Angeles and latersimultaneously at the Aquarius Theatre in Hollywood and the Winter Gardenin New York City. In its 1980-81 season, CBS is planning a 9-hour specialabout "The Sleepy Lagoon Murder Case" and Shibley has been asked to be atechnical advisor. We thought our readers would be interested in Shibley'srecollections of the case and the circumstances surrounding it.]

The Sleepy Lagoon case set off many"Zoot Suit Riots" between Mexican­American youths - sporting pleated,high-waisted pants, or zoot suits - andsailors and Los Angeles police. To theMexican kids (kids from about 14 to 20years old), the zoot suit meant style,class, excitement and acceptance.

he play "Zoot Suit" was writ-ten by Luis Valdez. Much of

the material for the play wasdrawn from court records,

documents, transcripts, letters and news­paper articles of the period. The term"zoot suit" was coined during thatperiod to refer to the pleated, high­waisted pants worn by Mexican­American teenagers at that time. To theteenagers, the zoot suit seemed to meanstyle, class, excitement and acceptance.But to others it meant gang violence, forthose who wore zoot suits were identifiedwith the young defendants in "The SleepyLagoon Murder Case" who had receivedwidespread and unfair publicity bothduring and after the trial.

In a Los Angeles Times article dated8/13/78, "Once Again, Meet the ZootSuiters," playwright Valdez wrote:

Sleepy Lagoon was an irrigation ditchin Montebello where Mexican­American youths, who were allowedonly occasional, restricted access topublic pools, went to swim. The areaalso served as the local lovers' lane.

On August 2, 1942, the body ofJose Diaz, 22, was found near thepond; his skull had been fractured. Al­though what happened to Diaz neverbecame clear, either during or afterthe trial, 22 Mexican-Americans werearrested and charged with his murder.The prosecution charged that the de­fendants, members of a group calling

(Continued)

26

itself the "38th Street Gan'g," had be­aten Diaz to death after crashing abirthday party he was attending.

Throughout the 13-week trial news­papers and commentators took thesame prejudicial tone as did the judge.An anti-youth, anti-Mexican hysteriadominated press coverage. Individualtrials were so outrageously mishan­dled that the convictions were lateroverturned.

During the Sleepy Lagoon murdertflal th - word HMe- i~' n" W S f_=

placed by both "Zoot Suiter" and"pachuco." And so it was in relationto "gang violence" that most Anglonewspaper readers became familiarwith these terms."

Particular reference to the judicial mis­conduct of the case was made in an arti­cle written by Paul Fitzgerald, a formerCAJC (California Attorney for CriminalJustice) President. (The following mate­rial first appeared in the July/August1979 issue of FORUM, the bi-monthlymagazine of California Attorneys forCriminal Justice, 6430 Sunset Boulevard,No. 521) Los Angeles 90028):

Over the years, right and wrong havecome to light about the Sleepy Lagooncase. It is now widely recognized thatthe young Chicanos who were broughtto trial were innocent of any crime;and that the guilty parties were the"neutral" judges, prosecutors, policeofficials, and press who promotedsensationalized prejudice at everyturn. The success and popularity ofLuis Valdez' recent play, "Zoot Suit,"is a reflection of this recognition.

DeanMannAppointedSpecial Master inU.S.v.Alaska

The Supreme Court of the United Stateshas appointed Professor J. Keith Mann,Associate Dean for Academic Affairs, toserve as Special Master in the case ofUnited States v. Alaska. The case arose inthe Supreme Court of the United States asan original action pursuant to Article III,Section 2, Clause 2, of the United StatesConstitution.

As Special Master, Dean Mann is re­sponsible for conducting a trial on the is­sues of the case and then submitting hisfindings and recommendations in a reportto the Court.

The case involves the boundary betweenareas of state and federal interest along thenorthern coast of Alaska from Icy Capeeast to the Canadian border, a distance ofapproximately 500 miles. The Court isbeing asked to rule on several issues offirst impression in making seawardboundary determinations. The outcomewill determine title to lands containing oilreserves amounting to as much as two bil­lion dollars.

The disputed areas are submerged landsseaward of the mainland and, in most in­stances, landward of offshore barrier is­lands. The issues arise in three separatecontexts.

The first issue concerns the northernboundary of National Petroleum Reserve­Alaska, located in the western region ofthe north coast of Alaska. This reservewas established by President Harding in I

1923 to assure that the extensive oilsupplies known to exist there would bepreserved and available to the Navy in anational emergency. The State of Alaska,through its Statehood Act and the Sub­merged Lands Act, acquired rights to min­erals seaward of the Reserve. The north­ern boundary of the Reserve, and specifi­cally where the boundary lies in relationto Harrison, Smith, and Peard Bays, mustbe determined to establish the dividingline between these state and federal rights.

Next, to the east, is an area of extensivepetroleum development, including Prud-

Special Master Mann resides during two days of hearings held near the end ofJuly inthe Law School's Moot Court Room.

Special Master Mann on Cross Island, Prudhoe Bay, Alaska. After the hearings in thecase were held at the Law School, Special Master Mann and Counsel for the UnitedStates and Alaska flew to Prudhoe Bay for an inspection tour. They landed on thebarrier islands from a helicopter (shown) and were taken by a United StatesGeological Survey research vessel, the Karluk, to a disputed formation known as"Dinkum Sands."

On board Karluk, Special Master Mann (left), discusses disputed areas with Louis F.Claiborne, Deputy Solicitor General of the u.S. (center) and (right) G. ThomasKoester, Assistant Attorney General, State of Alaska, en route to "Dinkum Sands,"Prudhoe Bay.

The skipper of Karluk, Peter W Barnes, a marine geologist, in skiff (off Karluk) near"Dinkum Sands," Prudhoe Bay.

Charles W Findlay, III, Land and Natural Resources Division, U.S. Department ofJustice (left) and Special Master Mann in Fairbanks, Alaska, en route to Prudhoe Bay.

hoe Bay. There is no Reserve involved hereand the State is acknowledged to have ex­clusive mineral rights beneath inland wat­ers and within 3 miles of the coast. Thereis disagreement as to whether waters be­tween the mainland and a series ofoffshore islands, but more than 3 milesfrom either, belong to the State. There isalso disagreement as to whether one ofthese "islands" even exists. (In this par­ticular region, it is anticipated that datawill be collected by monitoring tidalgauges for a year before the facts are pre­sented.) The disputed submerged landshave already been leased in a jointfederal/state lease sale. Oil companiespaid "bonuses" of some $400,000,000 forthe right to obtain leases in these disputedareas. It is expected that royalties of 3 or 4times that much will accrue from oil andgas production. Distribution of thesesums must await the outcome of this liti­gation.

The third region lies further east. Here,the Court is being asked to determine theboundary of another federal reserve, theArctic National Wildlife Range, and todetermine whether the submerged landswithin the Reserve, if any, were excludedfrom the Submerged Lands Act's grant tothe State. Like the Petroleum Reserve, theWildlife Range is a vast land area whosenorthern boundary approximates thenorth coast of Alaska. The Federal Gov­ernment contends that the Range includeswater areas between the mainland andbarrier islands and that these areas arenecessary to the purpose of the Range.The State disagrees.

In July, two days of hearings in the casewere held in the Moot Court Room at theLaw School. Afterward, Special MasterMann and Counsel for the United Statesand Alaska flew to Prudhoe Bay for aninspection tour. The case is still underwayand additional hearings are anticipated inthe late summer of 1981.

LawSehoolCommeneementExereises

More than 1,000 parents and friends at­tended commencement exercises forthe Class of 1980, the Law School's 87thgraduating class.

Following opening remarks by DeanCharles J. Meyers, John S. Shaw III ofBirmingham, Ala., a member of theClass, presented the 1980 John Bing­ham Hurlbut Award for Excellence inTeaching to Professor John H. Barton. A1968 graduate of the Law School and amember of the faculty since 1969, Pro­fessor Barton is an expert in Arms Con­trol, Contracts, and International Busi­ness Transactions. Following the presen­tation, Professor Barton gave the com­mencement address.

Michael A. Wisnev of St. Louis, Mo.was named Nathan Abbott Scholar forhighest cumulative grade point averagein the Class. The Urban A. SontheimerPrize for second highest cumulativegrade average went to Cory Streisingerof Eugene, Ore.

The Frank Baker Belcher Award forbest academic work in Evidence went toJane M. Graffeo of Richardson, Tex.Susan L. Gaylord of Claremont andRikki L. Quintana of Santa Fe, N. Mex.shared the honors for the Carl MasonFranklin Prize, awarded annually for themost outstanding paper in InternationalLaw.

The Olaus and Adolph Murie Awardfor the most thoughtful written work inEnvironmental Law went to Lisa M. andRobert B. Bell II of Washington D.C.

Stanford Law Review awards weregiven to Norman M. Hirsch of Waco,Tex., for outstanding editorial contribu­tions to the Review; Joshua B. Bolten ofWashington, D.C. and Graeme E.M.Hancock of Palo Alto, for outstandingstudent notes published in the Review;

and Mark R. Spradling of OklahomaCity, Okla., for outstanding service to theReview.

This year special Merit Awards werepresented by Dean Meyers to three stu­dent organization leaders who havemade outstanding contributions to theirorganizations. They included David FLevi of Libertyville, III., president of theStanford Law Review,' Cory Streisingerof Eugene, Ore., vice-president of theMoot Cou rt Board; and Pau I L. Saffo ofRolling Hills, president of the StanfordJournal of International Law.

Following the class response, givenby Class President Mari C..Bush, achampagne reception for the graduateswas held in Crocker Garden.

Professor John H. Barton (left) ispresented 1980 John Bingham HurlbutAward for Excellence in Teaching fromJohn Sherman Shaw III (right) during1980 Law School Commencement.

Stanford JoinsOtherttbp LawSehools in LawFirmAppeaI

The skyrocketing costs of educatinglawyers has prompted the deans of sixof the nation's top law schools to takeunprecedented steps to alleviate what isregarded by many to be a potentiallydangerous situation.

In May, the deans of Chicago, Co­lumbia, Harvard, Pennsylvania, Stan­ford, and Yale sent a letter to the manag­ing partners at 200 of the country'slargest law firms. The two-page jointappeal stated, "Simply put, the cost ofrunning a great private law school isg rowing faster than the income it canraise from normal sources." The letterurged each firm to establish a matchinggift program whereby the firm wouldmatch all contributions by its individualmembers.

The idea of a matching gift program isnot new to law firms. Over the past fewyears at least ten fi rms have adoptedsuch prog rams. Stanford has receivedmatching gifts from several of thesefirms, including Covington & Burling,Cravath, Swain & Moore, Donovan Lei­sure Newton & Irvine, Kirkland & Ellis,Lawler, Felix & Hall, Morgan, Lewis &

Sehool~Faeulty

ne~s

Bockius, O'Melveny & Myers, andWilmer & Pickering.

From the perspective of the lawschools, the appeal is a simple busi­ness proposition which points out thatlaw firms have a vested interest in main­taining high quality law schools. And,while alumni giving continues to be themainstay of most law school develop­ment programs, the fact is that alumnisupport 'is no longer sufficient to offsetthe spiraling costs of private legal edu­cation.

It appears that most law fi rms recog­nize the symbiotic relationship and ac­knowledge the need to maintain thequality of these law schools in order tosustain their own recruitment standards.But how well this knowledge willtranslate into concrete gains for the lawschools has yet to be determined.

At the very least, it is hoped that lawfirms will view the program as an effec­tive public relations tool. As Clyde Tritt'49, a partner in the Los Angeles firm ofO'Melveny & Myers explained it in aninterview with The National Law Journal(June 2, 1980): "It's hard to quantify. Itwon't get you more ti me or a betterschedule arrangement if you recruitwhere you donate. But the studentsknow that you have supported theirschool and their education. They knowyou're public minded."

LawSehoolSummerRetreatfor AspiringAlumniAuthors

This summer the Law School wastemporary quarters for two alumni whoare at work on their first books.

James R. Atwood '69, recently thesenior deputy legal adviser at the U.S.Department of State and actingprofessor at the Law School during the1980 spring term, spent most of thesummer and early fall putting thefinishing touches on a new edition of theKingman Brewster classic, Antitrust and

American Business Abroad (McGrawHill, 1958).

Atwood first thought about updatingthe book three years ago when he waswith the Washington, D.C. firm ofCovington & Burling specializing inantitrust and international law. He foundthat he relied heavily on the bookbecause "it is still the best in the field ,"but he also found that the recentproliferation of foreign antitrust law andthe subsequent growth of "anti-antitrust"statutes abroad has rendered the textinadequate in some areas.

Atwood decided that rather than write"just another law review article," hewould tackle a new edition of the text.He proposed the idea to Brewster, whowas then President of Yale University.Brewster was receptive to thesuggestion and agreed to collaborateon the project.

In addition to updating the existingtext, Atwood has added material thatdeals with the philosophical changesthat have occurred over the last severalyears in U.S. policy regarding businessabroad. He anticipates that the book,which will be published next spring, willbe of interest not only to law schools butalso to law firms and multi-nationalcompanies in Europe and the UnitedStates.

Essays on the "law business"

For Joseph W. Bartlett '60 of GastonSnow & Ely Bartlett, Boston, earlythoughts about writing a book also

James R. Atwood

surfaced about three years ago whenhe was serving as president of theBoston Bar Association. As president hewas responsible for writing a President'sPage for the Boston Bar Journal. Thearticles he wrote dealt generally withproblems in what Bartlett terms, "the lawbusiness." These ranged from the highcost of legal services to delay in thecourts and questions of legal ethics.

In 1978, Bartlett spent the springsemester at the School teachingBusiness Associations II and SecuritiesRegulation. During that time he beganto work seriously on the articles,attempting to put them into a morecohesive format and relating them towhat others had written. He alsosolicited feedback from individualfaculty members. Bartlett now feels thatthe book is near completion. He expectsthat, with the help of Kevin Wiggins, ath ird-year student who is on anexternship with the firm this fall, he willhave the book ready to submit to auniversity press by the end of the year.

Judge WisdomNext PhIegerProfessor

Judge John Minor Wisdom, U.S. Courtof Appeals, Fifth Circuit, has acceptedan invitation from Dean Charles J.Meyers to be the Herman Phleger Visit-

ing Professor during the Spring Term,1982. While at the School, Judge Wis­dom will teach a seminar and deliverone or more public lectures.

Judge Wisdom is a graduate of Wash­ington and Lee University (A.B., 1925)and Tulane University School of Law(LL.B., 1929). He also holds honorarylaw degrees from Tulane, Oberlin, andSan Diego University. Prior to his ap­pointment to the bench in 1957, JudgeWisdom was a member of the New Or­leans firm of Wisdom, Stone, Pigman &Benjamin.

The Phleger Professorship was estab­lished in 1972 by Mr. and Mrs. HermanPhleger. Mr. Phleger, an emeritus trusteeof the University, is a senior partner inthe San Francisco firm of BrobeckPhleger and Harrison. '

The professorship allows ,for a leadingperson in the field of law - the judiciary,the bar, government or public affairs­to spend a semester at the School toteach and to provide faculty and stu­dents with insights into the legal systemand its operations.

Other Phleger Professors have in­cluded U.S. District Court JudgeCharles E. Wyzanski, Jr.; Simon H. Rif­kind, former U.S. district court judgeand a partner in the New York firm ofPaul, Weiss, Rifkind, Wharton & Garri­son; and Edward H. Levi, former U.S.Attorney General and the Glen A. LloydDistinguished Service Professor at theUniversity of Chicago Law School.

FormerAssistantDeanAppointedto the U.S.Distriet ConrtThelton E. Henderson, assistant dean ofthe Law School from 1968 through 1977,was inducted as a judge of the U.S. Dis­trict Court for the Northern District ofCalifornia on July 30 in ceremonies pre­sided over by Chief Judge Robert FPeckham '45.

A graduate of the University of Cali­fornia at Berkeley and its law school,Judge Henderson joined the Stanford

The/ton E. Henderson

Law School staff following two years asdirecting attorney of the East BayshoreNeighborhood Legal Center in MenloPark. Prior to that he spent two years inprivate practice in Oakland and a yearas an attorney in the Civil Rights Divi­sion of the U.S. Department of Justice.

While at Stanford, Judge Hendersonestablished and administered the Minor­ity Admissions Program. He also actedas adviser to nineteen student organiza­tions and assisted in the development ofthe School's clinical program.

In 1977 he left the Law School to es­tablish Rosen, Remcho & Henderson, aSan Francisco firm specializing in civillitigation with an emphasis on civilrights, civil liberties and constitutionallaw issues.

ELSAwardedI Grant

The Stanford Environmental Law Society(ELS) has been awarded a $12,827grant from the Board of Directors of theRobert Sterling Clark Foundation. Theg rant is to be used to support the writ­ing and publication of a handbook onthe selection of toxic waste disposalsites. The handbook will be written bythree second year law students: JeffBelfiglio, Steven Franklin, and TomLippe.

FaealtyNews

Anthony G. Amsterdam, Kenneth andHarle Montgomery Professor of ClinicalLegal Education, along with alumna DonLunde (B.A. '58, M.A. '64, M.D. '66) andKathy Mack '75, is developing a basicclinical course for the Law School. Theobjective is to identify and design acourse around the core material andmethodology which the School's experi­ence with clinical legal education hasdemonstrated can most profitably con­tribute to a student's overall instructionin the law.

William f: Baxter, Wm. Benjamin Scottand Luna M. Scott Professor of Law,appeared on a panel in August at theluncheon of the Antitrust Section, ABA,in Honolulu. The topic of the panel was"Future of the FTC." Other panelists in­cluded Miles Kilpatrick, former chairmanof the FTC, Philip Elman, former FTCcommissioner, and Robert Pitofsky,current FTC commissioner.

Professor Paul Brest .served as com­mencement speaker and received anhonorary degree (Doctor of Laws) fromNortheastern Law School. In addition,he has been appointed to the Yale Uni­versity Council on The Law School.

Professor William Cohen has co­authored Barrett and Cohen, Cases andMaterials on Constitutional Law, to bepublished in Spring, 1981. ProfessorCohen will be on leave as Merriam Dis­tinguished Visiting Professor of Law atArizona State University in the Spring,1981 term.

Marc A. Franklin, Frederick I. RichmanProfessor of Law, is completing work ona study of over 500 reported defamationcases decided over a 3-1/2 year periodin the late 1970's. The cases werestudied to identify those who sued andwere sued, the kinds of statements thatled to litigation, the procedural patternsof the litigation, the outcomes, and the

33

34

SehoolOOFaeulty

ne~s

legal ru les that seemed most important.The results are being published in theAmerican Bar Foundation ResearchJournal, which, along with the LawSchool, helped finance the study. He isalso completing work on the secondedition of The First Amendment and theFourth Estate -a book for undergradu­ates on newspaper and broadcastinglaw.

Lawrence M. Friedman, Marion RiceKirkwood Professor of Law, was a guestspeaker at the Vilith International Sym­posium sponsored by the NationalAcademy of Sciences, Republic ofKorea this year. In addition, ProfessorFriedman has coauthored The Roots ofJustice with Robert V Percival, a Stan­ford law graduate now clerking for U.S.Supreme Court Justice Byron White.The book, which is due to be publishedthis year, is the culmination of researchinto the court records and newspapersof Alameda County from 1870 to 1910.

Professor Paul Goldstein's book RealEstate Transactions: Cases and Mate­rials on Land Transfer, Development andFinance, together with a Statute, Formand Problem Supplement was pub­lished in April by Foundation Press. Thecasebook and supplement, designed tointroduce law students to both basicand sophisticated techniques of landtransfer and finance, covers, amongother topics, title insurance, mortgage,trust and deed and leasehold financing,federal income taxation, bankruptcy andshopping center development. Profes­sor Goldstein is currently at work on thesecond edition of his casebook,Copyright, Patent, Trademark and Re­lated State Doctrines: Cases and Mate­rials, and on a casebook for the first­year Property course, both also to bepublished by Foundation Press. In addi­tion, Professor Goldstein recently pre­sented a talk to the San Francisco Pa­tent Law Soci ety on recent develop­ments in copyright law.

Professor William B. Gould waselected secretary of the Labor and Em­ployment Section of the ABA for 1980­81. He will deliver a paper next summerat the ABA convention on "The SupremeCourt and Labor Law: The October 1980Term." Professor Gould has also beennamed a member of the Public ReviewBoard of the Brotherhood of Railway

and Airline Clerks. He is currently atwork on a book, The Labor ArbitrationSystem, which will ,be published byMacmillan in 1982.

Professor Thomas C. Heller gave asix-week series of lectures at Free Uni­versity in West Berlin during the sum­mer. He spoke about the emerging roleof law and economics, as part of a gen­eral program on "Legal Theory in West­ern Europe and the United States."

Professor John Kaplan flew to Taiwanthis past spring as observer for theInternational League for Human Rightsand the Lawyers' Committee for Inter­national Human Rights. He attended thetwo-week court martial of eight promi­nent Taiwanese political figures oncharges of sedition. Thereafter, he spentthe remainder of the spring and summeron the report, which has received widepublicity on Taiwan and amongTaiwanese residing outside that island.

J. Keith Mann, Professor and AssociateDean for Academic Affairs, againserved in the spring as salary arbitratorby agreement between the MajorLeague Baseball Players Associationand the Major League Baseball PlayerRelations Committee. After hearings, thedecision consists of awarding either thesalary figure submitted by the club (or)the player's figure and inserting theawarded salary in the player's contract.

John Henry Merryman, Nelson Bow­man Sweitzer and Marie B. SweitzerProfessor of Law, lectured at the Facultyof Law, University of Zurich in June andat UNAM (the Autonomous NationalUniversity of Mexico, in Mexico City) inJuly. He has also coauthored a newbook published in January: Merryman,Clark and Friedman, Law and SocialChange in Mediterranean Europe andLatin America: A Handbook of Legaland Social Indicators for ComparativeStudy. In addition, an "artists' moralright" statute he helped draft and pro­mote was recently enacted as CaliforniaCivil Code S987. Known as the 'f\rtPreservation Act," it prohibits the "physi­cal defacement, mutilation, alteration, ordestruction of a work of fine art." Whilethe right of artists to present such mis­treatment of their work already exists inmost European and Latin American

legal systems, California is the onlystate to have enacted such a law.

A. Mitchell Polinsky, Professor of Lawand Associate Professor of Economics,gave lectures on nuisance law at NewYork University Law School in Marchand at the University of Southern Cali­fornia Law Center in April. He attendeda conference on evolutionary theories inlaw and economics at the University ofMiami Law and Economics Center inMay. He also published the followingpapers in 1980: "Private Versus PublicEnforcement of Fines" in the Januaryissue of the Journal of Legal Studies;"On the Choice Between Property Rulesand Liability Rules" in the April issue ofEconomic Inquiry; "Strict Liability Vs.Negligence in a Market Setting" in theMay issue of the American EconomicReview; "The Efficiency of Paying Com­pensation in the Pigovian Solution to Ex­ternality Problems" in the June issue ofthe Journal of Environmental Economicsand Management; and "Resolving Nui­sance Disputes: The Simple Economicsof Injunctive and Damage Remedies" inthe July issue of the Stanford Law Re­view.

David Rosenhan, Professor of Law andPsychology, has been elected Presidentof the American Board of ForensicPsychology. The Board establishesstandards of competence for psycholo­gists who contribute to the legal pro­cess, and evaluates candidates' againstthose standards. Those who pass Boardexaminations become Diplomates of theBoard and members of the AmericanAcademy of Forensic Psychology.

Professor Kenneth E. Scott hascoauthored Economics of CorporationLaw and Securities Regulation withRichard Posner. The book is scheduledto be published in October.

Professor Michael S. Wald has servedon the State Advisory Committee onChild Abuse. He recently completedwriting several chapters for a new CEB(Continuing Education of the Bar) bookon Juvenile Court Practice. In April, Pro­fessor Wald delivered a series of lec­tures on the juvenile justice system atthe University of New Mexico Confer­ence on the International Year of theChild in New Mexico.

A Tr-ibute tuLuwell Tur-r-entineThe annual Law Alumni/ae Banquet tobe held November 7, 1980 will honorLowell Turrentine, Marion RiceKirkwood Professor of Law, Emeritus.Professor Turrentine served on the Stan­ford law faculty from 1929 until his re­tirement in 1961. Turrentine, fondly re­ferred to during his teaching days as"Tut," received an A.B. (1917) fromPrinceton University, an LL.B. (1922) andan S.].D. (1929) from Harvard University..A vast number of Law School alumni/aehave studied under him.

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