On the Strange Making, Training, and Thinking of an American Law School Dean

Transcription

1 All On Strnge Mking, Trining, Thinking of n Americn Lw School Den Gerhrd Csper* A cidte for vcnt denship recently ld serch committee tht dens re like chmp i gnons. At first impression comprison evokes ssocitions which seem plesnt enough. Chmpignons, fter ll, re- lwys hve been- rre deliccy. Indeed, se dys in prticulr, lw school dens hve become rr uncommon. About once week I m dvised of vcncy in lw school denship. However, this is not wht cidte who mde comprison hd in mind. He thought dens were like chmpignons becuse one keeps m in drk until y re redy be cnned. As my fculty students do ir best keep me in drk, I m not well positioned shed much light on present problems of legl eduction. Under se circumstnces, I thought it might be pproprite spek in not prt, bout where we re going, but where I hve come from. Permit me one prgrph bout life sttions. I born in Hmburg in I entered primry school s World Wr II ended. My lw studies were undertken t universities of Hmburg Freiburg. In 1961, I did grdute work in lw t Yle Lw School, returned Freiburg fterwrds for Ph.D. in lw in Europen fshion. My disserttion on so-clled "relist" movement in Americn In jurisprudence. 1964, I ccepted n offer from University of Cliforni t Berkeley, in 1966 I cme Chicgo. Degrees did, of course, not end my legl eduction. As those of you who prctice lw hve lerned much of your lw fter grdution from lw school, I lerned much of my lw teching (especilly Americn constitutionl lw, which used be my preoccu of this seems ption until I becme den). Den of Lw School. These remrks were originlly mde t Lw Club of Chicgo on December 6, rr strightforwrd, not even unduly exotic. However, it understtes my exposure Americn lw legl prctice. My first encounter with prcticl spects of Americn lw ok plce in 1953, when I fifteen yers old. I hd been selected go United Sttes s delegte wht known s New York Herld Tribune Forum, fourmonth progrm imed t incresing interntionl understing. The New York Herld Tribune nnully brought ger bout thirty students from s mny countries (Europen countries, Isrel, Arb sttes, old new ntions of Asi Afric). At tht time, viss for Germn citizens hd be pproved in Wshingn. A week before my scheduled deprture for United Sttes, I still did not hve vis. I went Americn Consulte Generl in Hmburg for help. A Vice-Consul sid he sorry, but re nothing he could do bout it s Wshingn probbly serching for my wr records. When I out pointed tht I hd been ll of seven yers old when Third Reich cme its end, consul simply shrugged his shoulders. The uthorities t Hmburg Bord of Eduction, whom I turned next with request for ssistnce, ld me tht y could not would not intervene. By now, re were three dys go. At this point, I remembered tht I hd previously gotten know direcr of Ameri cn Informtion Center in Hmburg. I mde n ppointment described my difficulties. He sid, "No problem t ll, Gerhrd," picked up telephone, clled consulte, spoke some person in uthority: "John, this is Bill. I hve young Csper here who needs should hve vis by morrow. Cn you plese mke rrngements?" vis lesson on The next dy I hd my equl brod sweep of dministrtive procedures 20

2 on one h, prgmtic pproches question of how del with on sngs or. As we re on subject of Immigrtion Nturliztion Service, I m reminded of nor lesson in bureucrcy, both chrming bit disconcerting. When I becme citizen, I lerned tht prt of process is n exmintion by n officer of Service in one's politicl personl bckground, covering, this dte, such s communism, dultery, prking subjects tickets. Trffic prking violtions ok t up lest five minutes of interview. I trust you will be gld lern tht, best of my knowledge, I m first den of n Americn lw school for whom United Sttes Government hs certified tht he knows how red write. To dicttion of exmining officer, I hd write sentence: "I m professor of lw t University of Chicgo." I lso hd red loud, from ctechism for citizens, something effect tht good citizen lwys puts welfre of his country first. All of tht esy. I encountered greter difficulties when I tested on my knowledge of Americn constitutionl lw, my field of expertise. While I got high mrks for my response dem tht I enumerte three brnches of federl government, exminer I did not quite gree on mening of due process cluse of Fourteenth Amendment. My first encounter with United Sttes in 1954 bewildering, intriguing, obviously sufficiently fscinting me bring bck. If sixteenyer-old cn survive living with six different host fmilies in New York metropolitn re, from Msspequ, Long Isl, Bronx over threemonth period, he cn survive lmost ny cross-culturl chllenge. The first months of 1954, if you recll, were crucil period in fll of Senr Joe McCrthy. Wtching debte-indeed, being mde prt of it by tht very Americn notion of hospitlity which embrces s foreigner discussnt- specil kind of introduction first fifth mendments complex interply of public opinion politicl processes. Nothing ever quite mtched those three months in my informl eduction, with possible excep seven-week "legl" journey through tion of South West, which I underok with Scots fellow student in 1962 fter grduting from Yle. For instnce, we cme motel t outskirts of Birminghm, Albm, driving friend's old cr with Connecticut license plte. The mnger reserve. We hd not treted us with formlity even reched our room when she cme rushing fter us with huge bowl of ice cubes. "Oh, I pologize," she sid. "I just red your registrtion crd [on which we hd our re innocently given spective home ddresses in Europe]. I thought you were Ynkees, but now I see you re foreigners. Welcome Albm. I hope you will hve wonderful time." During tht Sourn trip, my friend, Rnld McLen, I erned our wy-s I still do-with fter-dinner speeches. We got smll wn in South Crolin. The president of locl Rotry Club ok us round wn out pointed which white school which blck school. At lw school, we hd, of course, studied Brown v. Bord of Eduction. Since this wn hd mde no ttempt desegregte its schools, inclined interpret community's we were ttitude s ' violtion of Constitution. Our host ld us tht Yle hd filed tech us ' fundmentls of Article III federl jurisdiction. Supreme Court decisions interpreting Constitution, he sid, hd no generl effect or ppliction. As long s re no specific court order desegregte se very schools, re no legl obligtion As Cooper dy, this t lest do so. v. Aron remins controversil this debter's point. or for worse, our exchnge lso cpsuled difference between Europen modes of legl eduction. For better Americn views of lw lw school curriculum The typicl Europen covers most res importnt of lw from civil code criminl lw, mode of instruc dministrtive constitutionl lw. The predominnt tion is lecture method (you must keep in mind tht lw schools hve thouss of students professoril stff not substntilly lrger thn tht of n verge Americn lw school). The subject mtter is positive lw-conceptulized, systemtized, occsionlly even problemtized, be sure -but emphsis is on somewht bstrct informtion bout generl rules principles of lw, supplemented by prctice exercises in ir ppliction. Even those lw professors who pride mselves on being "progressive" find ir progressive solutions usully by vigorous, if not rigorous, deductive resoning. For instnce, in postwr Germny, lw professors courts hve been busily engged in turning constitution in coherent comprehensive ideology which provides nswers for most difficult socil politicl questions. We in United Sttes, on or h, remin preoccupied This hs led with cses court decisions. stte of ffirs where Americn 21

3 Den Gerhrd Csper legl eduction hs, for instnce, substntilly neglected institutionl rrngements of govern bound over ment, though uncertinties incresingly question of who governs in wht respect on bsis of wht uthority. Both Europen Americn pproches my be wrong. While I hve little ptience for Europen tendency engge in excessively bstrct deductive resoning, exceedingly nrrow-minded question "But is re court decision on point?" -often leds Americn lwyers ignore systemic context implictions of legl institutions. Unfortuntely, Americn lwyer's predilection for specific hs not protected us ginst highly specultive mnipultion. In constitutionl lw, in prticulr, combintion of cse method with d hoc ideologicl specultion hs mde us ll but forget dmonition of Joseph Sry, two-hundredth nniversry of whose birth this yer nobody seems be celebrting: "Upon subjects of government it hs lwys ppered me tht metphysicl refinements re out of plce. A constitution of government is ddressed common sense of people; never designed for trils of logicl skill, or visionry specultion." My collegue, Philip Kurl, my hve hd point when he suggested or dy tht we found " Society for Prevention of Cruelty Constitution Lws of United Sttes which shll be mde in Pursunce reof; ll Treties mde or which shll be mde, under uthority of United Sttes." In 1964, I returned United Sttes, mostly becuse of my respect for Americn universities, which hs since developed in n dmirtion, especilly for eductionl mircles performed by privte universities with scrce resources. extremely Their unomy is one of most glorious spects of Americ's contribution higher eduction. To very lrge extent, this unomy hs been mde possible by biding devotion of outsting lwyers such s your decesed President our lumnus, Jerry Weiss, who pplied his prodigious energies support of his lm mter. I m, neverless, worried bout future on two counts. First, cost of running gret privte lw schools is growing fster thn income cn y rise from trditionl sources. t My collegues Columbi, Hrvrd, Northwestern, Pennsylvni, Stnford, Yle- mention but few-gree tht this stte of ffirs hs dngerous implictions not just for lw schools but for legl profession s well. Lw schools serve profession public not only through eduction of future lwyers but lso through reserch writing of fculty members who, in mny instnces, now find mselves with lower rel incomes thn y level of hd ten yers go. More importntly, lw fculty slries, by comprison with lw prctice, is extremely unfvorble our ttrct young techers. In ddition, we find it difficult cope with cost bility extrordinry rises in such res s librry cquisitions. One of unfortunte spects of this sitution, ggrvted by ideologicl trends I referred erlier, is tht lw some of 22

4 schools my be losing ir moorings in profession. It hs become pprent tht substntilly incresed privte support is essentil if we re c.ontinue mintin institutions for high qulity teching reserch. Secondly, we re being regulted deth. Since becoming den on Jnury 1, 1979, I hve been tken bck by volume of regultions, proposed regultions, guidelines, so on, issuing from Section of Legl Eduction of Americn Br Assocition similr bodies. The irony of se regulry efforts is fct tht it is lrgely privte secr which does regulting. Its volume does not lg behind governmentl regultion. It is sd indeed tht Americn Br Assocition, of ll orgniztions, is beginning pose thret cdemic freedom. The ABA eir tells us or would like tell us how govern our lw schools, wht students dmit, whom give scholrships, wht tech, how tech, wht resources we should llocte our librry, so forth. The federl government concerns itself with whom we should hire s fculty. The Supreme Court of South Crolin recently ttempted prescribe college curriculum be followed by prospective lwyers including, mong or things, courses in speech. When I child, I ld tht Prussin version of sry in Genesis bout why Adm Eve were driven out of Prdise tht tree of knowledge from which Eve picked pple sod in center of lwn which bore sign "Do not wlk on lwn." This sry cn soon be ld bout United Sttes with equl justifiction. In course of cdemic yer , Section of Legl Eduction Admission Br issued bout sixty memor (tht is better thn one week), often lengthy, dens of ABA-pproved lw schools. I should like provide one exmple which is quite trivil on one h on pernicious or. The Section of Legl Eduction hs recently n proposed mendment ccredittion strd 201 which would require us engge in periodic "self-study." The fct tht its prentge includes U.S. Deprtment of Helth, Eduction, Welfre tht requirement of this nture is lredy prt of ccredittion reinspection processes offers little comfort. On bsis of my knowledge experience, I think tht I cn sfely ssert tht no country in Western Europe, where legl eduction is very tightly controlled by stte, would impose s requirement intrusive of cdemic freedom s teful s this one. Requirements of this type re open-ended invittions indirect regultion. The ltter point is illustrted by Recommendtion 13 in recent report of so-clled Tsk Force on Lwyer Competency: The Role of Lw Schools, for which Section of Legl Eduction is lso responsible. Recommendtion 13 pro tht self-study requirement "should be poses exped include specific considertion of responsibility of school ensure tht its grdutes meet dequte fundmentl lwyer skills" which include "orl communiction, interviewing, counseling, negotition." find s One is surprised not prt of list recommendtion pro of posed by most immedite pst president ABA tht lw schools should "encourge teching of lw office mngement skills." About this suggestion, Judge McGown, in tlk t University of Chicgo Lw School lst com yer, mented, "Surely ttendnce t one lw school fculty meeting, followed by visit few lw professors' offices should be enough demonstrte tht this is hollow drem t best." If Americn Br Assocition continues go down rod of forcing ll of us in procrusten beds, I think it will become bsolutely mry for mjor lw schools in this country seriously consider mking concerted effort chnge regulry system. Incresingly, orgnized br seems be sking question: "Wht cn we mke lw schools do get us out of trouble with Chief Justice, President, public?" Obviously, questions we sk determine nswers we get. I m reminded of one of my fvorite sries, which I lerned my first yer of lw school in Hmburg, when I viled myself of opportunity sit in on courses in or deprtments. One such course in Divinity School, instrucr described debte between Jesuit Benedictine monk s wher one is permitted smoke while prying. The Jesuit thought it permissible smoke while prying. The Benedictine ok opposite position. They referred mtter ir respective superiors. When y got ger gin, ech hd been confirmed in his views. The Jesuit could not underst stubbornness of order of St. Benedict. Wht question did you sk, he interrogted his bror. "Are you permitted smoke while prying?" "No wonder," Jesuit responded. "I sked wher you my pry while smoking." I sometimes wonder wher gretest issues in Americn legl eduction dy ppropriteness of questions lw lw schools nswer. do not turn on we wnt 23

5 Erl B. Dickerson t 88 Kren Grdner* To her Erl B. Dickerson one spek, might be chrmed in believing tht his remrkble creer just series of fortuius coincidences. To follow his creer, however, from time of his grdution in 1920 s first blck ern J.D. degree from University of Chicgo Lw School, soon leds one reliztion tht he is n extrordinry mn. A distinguished trney, Mr. Dickerson former president of Supreme Life Insurnce Compny of Americ; founder of Americn Legion; former president of Ntionl Lwyer's Guild, Ntionl Br Assocition, Chicgo Urbn Legue; civil rights ctivist; Frnklin D. Roosevelt's ppointee first Fir Employment Prctice Commission- nme but few of his mny ccomplishments. A converstion with Erl Dickerson, 88, is hisry lesson ld with wit humor. Not only hs he known such gret public figures s Frnklin Roosevelt, Mrtin Lur King, Pul Robeson, but he fondly remembers former Lw School professors, Ernst Freund, Hrry Bigelow, Ernst Puttkmmer, Jmes Prker Hll, Floyd Russell Mechem. Dickerson hs lso prticipted in importnt hisricl events, prticulrly civil rights movement. He sys tht he hs lwys "qurrelled with ny vestige of inequlity tht mkes distinctions on bsis of rce," he chose fight through N courts through orgniztions such s tionl Lwyers Guild, NAACP, Democrtic prty in Chicgo politics. His most celebrted legl cse, rgued before U.S. Supreme Court won in November, 1940, Hnsberry v. Lee, '" Edir of The Lw School Record. et l. This lmrk cse broke down use of rcil restrictive covennts in Hyde Prk-Kenwood community of Chicgo, opening up twenty-six city blocks for occupncy by blcks or minorities. During Depression, Mr. Dickerson instrumentl in sving Supreme Life Insurnce Compny of Americ, second lrgest blck-owned insurnce compny in this country, from finncil ruin. Dickerson hs stted tht, "When most of life insurnce compnies in Stte of Illinois were Direc going in insolvency declred so by r of Insurnce, I prepred [s Generl Counsel compny] policy lien for execution by policy holders of compny. By this mens, we were ble rise more thn one-hlf million dollrs in compny ssets. This lien tested in Supreme Court of Illinois found vlid." The importnce cnnot be of this compny millions of people overstted, s blcks hd been consistently denied insurnce by white-owned compnies. A fighter, considered some by in 1950's be "subversive," Dickerson inherited this spirit from his fmily, who trditionlly resented indignity of rcil discrimintion. Born in Cnn, Mississippi, in 1891, Dickerson left South t ge of fifteen cme Chicgo vi Illinois Centrl Rilrod. In Chicgo, he encourged ttend Evnsn Acdemy, former preprry division of Northwestern University, University of IllinOIS. Becuse blcks hd not been llowed prctice lw in South when Dickerson growing up, s youth he never gve much thought legl profession. However, while in college, Dickerson quick see tht through lw he might contribute socil chnge. Dickerson explined tht he 24