Swarthmore College Alumni Bulletin 1980-11-01

SPECIAL I
LAW IN THE 80’s*
How to teach it
Can we survive the
litigation explosion?

What aspects of law
attract Swarthmore’s
seasoned practitioners?
Resolving the dilemmas
of professional ethics

The fledglings: What
do they think of the law
and of law schools ?
Polly Pinsker Chill ’50 pedals through Manhattan
to law school and a new career.

You may never enter a courtroom fo r
the purpose o f settling a dispute,
but if you ever buy a house, form a
company, adopt a child, draw up a contract
get a divorce, or make a
you will
need the assistance o f an attorney. As our
society becomes increasingly complex,
the law—and lawyers—are becoming more
and more a part o f our lives.
ccording to an article in N ew sw eek m agazine, the increasing
influence o f law and the legal profession on Am erican life con­
stitutes “one of the great unnoticed revolutions in U.S. history.”

A

Both elected officials and private individuals are increasingly
inclined to let the courts decide m atters th at were once settled by parents,
teachers, legislatures, or fate. The courts, rath er than custom or
com m unity leaders, have becom e the arbiters in such m atters as high
school dress code, sewage disposal, consum er rights, ecological issues, and
sports regulations.
Advances in technology provide new areas of legal controversy and in
some instances blur the distinctions between right and wrong. The case of
Karen A nn Q uinlan could never have arisen if m odern medical science had
not created nearly m iraculous life-saving tools. Sim ilar developm ents in
chem istry, m icrobiology, and genetics will surely lead to future litigation,
and the rapid progress in com puter science has already opened the do o r to
issues of corp o rate and personal privacy and secrecy.
The increasing national interest in, and aw areness of, the law is reflected
am ong Sw arthm ore graduates. W hereas in 1967 only 300 living alum ni
held law degrees, today th at num ber has risen to 841. Nineteen of these
lawyers have attained the rank of judge, and fo u r of them are women. Ju st
last year, three young g raduates served as clerks to Suprem e C ourt justices.
Eighty-five graduates are currently enrolled in law schools across the
country, and law is a p opular field with undergraduates. A surprising
num ber are entering law school three, four, ten, even thirty years after they
leave Sw arthm ore, and it is interesting to note th at last year m ore
graduates applied to law school th an did m em bers of the senior class.
Sam uel Jo h n so n , who rarely had anything good to say about anything,
w rote th at, “The law is the last result o f hum an wisdom acting upon hum an
experience for the benefit of the public.” In the following pages you will
read ab o u t the thoughts and experiences o f some Sw arthm oreans who
have chosen to w ork in the law, and som e of the issues, problem s, and
challenges they believe to be inherent in the profession.

i Po, Chinese philosopher and
one of the great drunks of his­
tory, was entranced by the stars.
Late one clear night he chanced
upon a pool reflecting the starry sky. He
laid his flagon of wine aside, tried to
em brace the entire universe, fell into the
pond, and drow ned.
The American people in a similar
manner are embracing the legal system
as a problem solver. The most trivial
and frivolous matters end up in court. A
federal prison guard filches seven packs
of cigarettes from a prisoner’s cell. The
case is tried in federal court, appealed to
the Court of Appeals, and then sent back
for retrial (at which point the trial judge
vainly tries to pay for the cigarettes
himself). A tieless California jesident
likewise sought “justice” because he was
denied entrance to a restaurant. A small
rent case is appealed to two higher
courts. Two college seniors sue the
University because the shower curtains
are substandard.
These are not isolated examples of
what might be termed legal pollution.
The fallout from the litigation “explos­
ion” is smothering both the federal and
the state court systems. In the last five
years, filings (civil and criminal) in
federal district courts have increased
over eighteen percent. Cases filed in
Indiana courts increased from 659,101
in 1976 to 815,649 in 1978. The a tto r­
ney general of Indiana was defending
forty cases in federal court in 1969 and
867 ten years later. State courts of last
resort with few exceptions show sub­
stantial increases in the number of
appeals in recent years—some well over
100 percent.
Why has all this come about? There is
no simple answer. Certainly the legal

L

Paul H. Buchanan, Jr., '39 is chief judge of the
twelve-member State Court of Appeals o f the State
o f Indiana. Before his appointment, he prac­
ticed law fo r twenty-one years in Indianapolis,
where he was well known fo r his development o f a
basic form at fo r the presentation o f judicial
opinions. Judge Buchanan writes a regular column,
"Ex Parte Line,” fo r Res Gestae, the publication
o f the Indiana State Bar Association. This article
was adapted from a column which appeared in
September, 1979.
SWARTHMORECOLLEGE BULLETIN

C an the
Judiciary Solve
Everybody^
Problem s?
“The most litigious people in the world” through their
excessive use of the courts are clogging the system to
the point where it cannot function effectively.

system has been used by one citizen, or a
class of citizens, to harass and wreak
vengeance on another. The rights of
persons accused o f crime have prolif­
erated, layer upon layer o f government
entities issue rules and regulations,
legislatures spew forth thousands of
laws annually, rights o f minority groups
have been expanded, and various
amendments to the United States Con­
stitution (the due process and equal
NOVEMBER. 1980

protection clauses, for example) have
been so liberally construed as to give
birth to new causes of actions unknown
twenty-five years ago. Justice Felix
Frankfurter observed some years ago
that “There is no legal remedy for every
wrong.” That has now been turned
around, and apparently today every
wrong does have a legal remedy, and all
problems appear on the doorstep of the
judiciary.

Paul H. Buchanan, Jr. 39

But most important o f all is the
sobering fact that no effective means
now exists to alleviate much less elimi­
nate the crushing burden on the justice
system. Excessive use of the system
clogs it to the point that it can not
function effectively. It is slow, costly,
and cumbersome. By “going to law” bur
citizens have distinguished themselves
as the most litigious people in the world.
There are no brakes, there is no
restraint.
Reform is essential because the
system is still operating as it did in
horse-and-buggy days. But perhaps
there is a cultural lag; adoption of
restraints on use o f the system have not
yet caught up with the expanded use of
the system. The lag will be overcome
when, and only when, input is reduced
and the system itself purified.
At the present time, a case coming up
through the judicial system can pass
through five or six courts. There is no
finality. In a society which has layers of
government and mountains of legisla­
tion and rules, the possibilities are
infinite for people to sue each other.
Suggestions to improve this lament­
able state o f affairs abound. One of the
most interesting is fee shifting, i.e., the
loser in civil litigation pays all costs,
including the attorney’s fees of the
winner. Other suggestions are greater
use of arbitration, limitation o f pretrial
discovery, elimination o f or limitations
on use of juries in civil cases, "limited
appeals in civil cases, a requirement that
civil litigants make a showing of
“probable merit” before the case is
cranked into the system. There are
many devices which could be employed,
such as a “show-cause” requirement
before a claimant could bring a com ­
plaint. And judges can help unclog the
system by encouraging out-of-court
settlements.
One thing is certain. Until substantial
steps are taken to preserve the integrity
of our overburdened system of justice,
we will increasingly live in a judiciarchy
. . . a system in which all society’s prob­
lems are sooner or later deposited on the
doorstep of the judiciary. Like it or not.

“I believe that new directions emerging in the lower courts
can alter the fundamental nature of these courts
making them, once again, centers of creative leadership.”
F ro m child abuse to consum er fraud,
the social and econom ic problem s of
suburbs and city streets p arade daily
before the overburdened judges o f the
lower courts.
W hether as litigants, victims of crime,
or witnesses, m illions upon m illions of
A m ericans receive their im pressions of
justice in o u r n atio n ’s first-level courts.
There, in an tiq u ated courtroom s, the
citizens find th a t inexplicable delays,
plea-bargaining, and the high costs o f a
ju ry trial have dealt crippling blows to
the adversary system o f trial by con­
frontation. F u rth erm o re, they discover
th a t the trad itio n al concept o f personal
accountability for w rongdoing has
steadily eroded. Broad judicial dis­
cretion as well as a m odern em phasis on
John C. Cratsley ’63 is a special justice o f the
Municipal Court o f the Roxbury District, Com­
monwealth o f Massachusetts. He was a teaching
fellow and lecturer in law at Harvard Law School
and a member o f the Massachusetts Parole Board
when he was named judge in 1972.

2

treatm ent have led to wide disparity
in the sentencing of m isdem eanors.
Lower court judges, like their
brethren in the federal courts, have been
pressed into challenging new areas of
social concern, such as spouse abuse,
housing code enforcem ent, and paren­
tal fitness. W ith their traditional role
changing and expanding, dem ands for
expertise in these new areas strain these
judges’ capacity for reasoned precedent
and inform ed social judgm ent.
A lthough som e fear th at these new
trends describe a regrettable and
perm anent state of affairs, I believe that
new directions em erging in the lower
courts can alter the fundam ental nature
of these courts, m aking them , once
again, centers of creative leadership
which serve the public as true com ­
m unity courts.
Som e courts and com m unities,
m oving in new directions, are develop­
ing alternative approaches to the reso­
lution of disputes such as m ediation

program s staffed by local residents.
Less threatening th an judges in black
robes, skilled com m unity m ediators
meet with the com plainants, listen to
their argum ents, and seek com prom ise
solutions. These voluntary problem
solvers are accesible, inexpensive, and
equipped to handle problem s ranging
from a tenant dispute over noisy stereos
to a battle between a divorced couple
over visitation rights.
These m ediation program s take a
variety of forms. Som e are court-related
and receive referrals directly from the
clerk’s office, prosecutor, or police
station where the com plaints are ini­
tially lodged. O thers, m ore com m unity
based, seek voluntary participation
from disputants who have not yet
decided to go to court.
As a result of the decline of church,
family, and local political organizations
as sources of stability and authority, the
angry citizen is often encouraged to take
his com plaints to the local courthouse.
C onsequently, this court is deluged with
new problem s and widely used as the
battleground of most neighborhood
grievances. The m ediation program 1
w orked m ost closely with in the Salem
C ourt had over three hundred and fifty
SWARTHMORE COLLEGE BULLETIN

for Old C ourts
cases referred to it during its first
eighteen m onths. T heir th irty citizen
m ediators report success — m utual
agreem ents — in eighty-five percent of
the disputes m ediated.
A lthough the burgeoning m ediation
program s are capable o f resolving m any
local disputes w ithout trial, a signifi­
cant num ber o f cases will proceed via
guilty pleas o r trials. If a trial results in a
conviction in a lower court, w hat
sentence is then appropriate?
Traditionally, the guilty person was
given a fine or a jail sentence. Two new
trend s—restitution and com m unity
work-service-B-are em erging as altern a­
tives to these trad itio n al sentences.
R estitution, dating back to Biblical
days, basically requires the offender to
repay the victim in either m oney or
work. At its core is the belief th at the
guilty party recognizes m isconduct
most clearly when directly com pen­
sating the victim for the harm inflicted.
The theory is sim ple—accountability,
responsibility, and p articipation w ith­
out the burdens o f separation, isolation,
and rejection.
C om m unity-w ork service, the second
new response to crim inal behavior, is
also based on this theory. However, by
requiring the offender to w ork at
socially constructive projects, this form
of restitution is directed to the com ­
m unity at large rath er th an to the indi­
vidual. A ccording to this view, by
helping to rebuild the com m unity, the
offender learns to appreciate the im por­
tance of his responsibilities to society.
C rucial to the effectiveness of these
re-em erging form s o f punishm ent is the
provision o f the legal structure and staff
needed for im plem entation.
P robation is the legal tool which has
been custom arily used. Now th at resti­
tution and com m unity-w ork service are
som etim es conditions of p ro b atio n , the
role o f the prob atio n officer is changing.

The Swarthmore College Bulletin (USPS 530-620), o f which this
Volume LXXVI I number 7 is published in September, November,
December, February, May, and August by Swarthmore College,
Swarthmore, PA 19081. Second-class postage paid by Swarth­
more, PA 19081 and additional mailing offices. Postmaster: Send
address changes to Swarthmore College Bulletin, Swarthmore, PA
19081.

NOVEMBER. 1980

P ro b atio n w ork has become m ore th an
checking to see if the client has a steady
jo b o r has been re-arrested. It involves
understanding and im plem enting an
integrative, healing ap p roach which
tries to reconcile the offender with the
com m unity.
A nother new trend in the lower court
system involves increasing public aw are­
ness and understanding of the uses of
these courts.
The dram atic rise in the num ber of
cases stem m ing from interpersonal,
family, and social issues poses a
dilem ma. Either the lower courts can
resist these new dem ands by sending
such cases elsewhere and otherwise
acting in a non-responsive m anner, or
the courts can em brace these new chal­
lenges within a jurisprudence of full
com m unity service.
F o r instance, rather than posing pro­
cedural barriers at the clerk’s office to
those attem pting to use new consum er
protection statutes, trained clerks and
court officers could politely answ er citi­
zens’ questions. R ather than refusing to
hold S aturday or evening small claims
sessions as required by a new law, the
lower courts could establish a small
claims advisory service to teach citizens
how to use this speedy, inform al type of
proceeding.
O bserving frightened citizens feeling
intim idated in the halls of justice, I
became concerned th at the small claims
court was being underutilized by people
with real com plaints. Therefore, several
years ago, I helped establish a voluntary
program , the Small Claims Advisory
Service, in the R oxbury C ourt.
G roups such as M assachusetts P IR G
(Public Interest Research G roup) have
created sim ilar devices in various com ­
m unities, but the R oxbury Office is the
only one in the state located in a
courthouse.
Staffed by H arvard and Radcliffe
students w orking in an office at the
R oxbury courthouse, the Service pro­
vides inform ation to individuals who
are suing or being sued for sums up to
$750. Helping the citizen to handle his
or her case includes preparation for the
courtroom appearance.

John C. Cratsley ’63

The student volunteers explain how
to gather the necessary resources like
docum ents, letters, bills, and witnesses.
Som etim es, to reduce their anxiety,
nervous citizens are invited to attend a
small claims court session. A lthough
the volunteers do not actually enter the
court with the small-claims litigant,
they do follow up on the action taken.
The cost of such a service is nom inal
—office space, phone bills, and mimeo
expenses. A nd yet the value of this
service is being proven by the increasing
num bers of cases being brought by local
citizens. A fter w orking with the volun­
teers, the clients arrive better prepared
for their court appearances.
To keep up with the increased public
utilization of the lower courts, the
court’s internal operations m ust also
adapt. M odern m anagem ent tech­
niques like pretrial conferences, indi­
vidual case scheduling, daily docket
quotas, and probation reviews are
necessary steps in the efficient handling
of this volum e of work.
n this effort to m ake the court’s
m ultiple roles m eaningful and
available to all, judges, too, will
have to become m anagers, and
problem -solvers. A long with presiding
over trials, they will need to spend tim e
presiding over meetings of court
personnel and related groups like the
bar associations, the prosecutors, the
public defenders, and various social
agencies.
Will these prom ising developm ents in
the lower courts survive and grow? Only
their continued availability and the
public’s evaluation will tell. The success
of program s like m ediation and com ­
m unity work-service depends on the
public’s acceptance of these alternative
approaches.
One of the special virtues of com ­
m unity courts is the capacity for experi­
m entation. Because of creative leader­
ship in certain lower courts in this
country, som e of the program s de­
scribed exist already.
Their philosophies and successes,
however, require public attention and
support in order to prosper.

I

3

Struggling to Reconcile (
Neighbors draped their doorways with black crepe to
protest construction of low-income public rental housing
in Whitman Park. Meanwhile, elsewhere in Philadelphia
overcrowded residents press for more government
subsidized housing and court battles flare.
mam

1

I l i
't

i

11

In 1956 a site was cleared in Philadelphia
for the construction o f 476 units o f lowincome public rental housing next door
to a moderate-income neighborhood of
owner-occupied rowhouses. In 1980,
twenty-four years later, as construction
of 120 low-income rowhouses finally
began on the Whitman Park site, neigh­
boring homeowners draped their door­
ways with black crepe in protest. The
event marked the end o f eight years o f
litigation, including two trips to the
Supreme Court, during which the city
and the community fought to prevent
the planned development. Meanwhile,
elsewhere in the city, in “impacted”
areas (those with high concentrations of
minority and low-income families) resi­
dents press for more assisted housing.

Jane Lang McGrew ’67 is now the general counsel
o f the Department o f Housing and Urban Devel­
opment. Prior to her H UD appointment, McGrew
was a partner in the Washington, D.C., law firm
o f Steptoe and Johnson.

The Whitman Park case is unique
only because o f the length o f the strug­
gle. The selection o f suitable locations
for assisted housing has become a
source of conflict and litigation in com ­
munities across the country. The
Department o f Housing and Urban
Development (H U D ), as the conduit of
federal housing subsidies, is the usual
target of the contests. In about half of
the pending site selection suits against
H U D, the plaintiffs seek to compel
construction of housing outside im­
pacted areas. In the rest, plantiffs seek
to stop construction in non-impacted
areas. But as site selection cases
are passed down from one H U D secre­
tary to the next, we seem no closer to a
formula to resolve the issue.
Once the cases are in court, it is easy
to lose sight o f the socio-econom ic
origins o f the issue. The lawsuits are
propelled not by objections to specific
statutes and regulations, but by com ­
munity attitudes shaped by econom ic as
well as racial factors. Today, when 64
percent o f federally-assisted tenant
families are minorities whose incomes
average less than 25 percent of median
income, it is often difficult to sort out
those factors. The housing question is
further complicated by environmental
concerns about traffic, schools, and
recreational areas, as well as political
fears and ambitions. In short, there is no
one reason why communities resist sub­
sidized housing.
Choosing appropriate sites for sub­
sidized housing compels us to focus
again and again on the future of the
urban poor. While we cannot perpetu­
ate ghettos, we must recognize that dis­
persal or integration of low-income,
minority families presents its own set of
social, political, and ethical challenges.

In the sixties integration emerged as a
major social goal. In 1980, the. goal of
integration is tempered with a desire for
choice—a choice that offers decent
housing opportunities in revitalized
minority neighborhoods as well as in
integrated communities.
It is virtually impossible to reconcile
these competing values in the context of
a particular site decision. We look to the
law, therefore, for guidance— but we
find, instead, that it only mirrors our
dilemma.
Several laws frame the issues involved
in site selection. For prohibitions
against discrimination in federally sub­
sidized housing, we look to the Consti­
tution, the Civil Rights Act of 1964, and
Executive Order 11063. To that bundle
of proscriptions, add the Civil Rights
Act of 1968 which directs H U D to
promote “affirmatively” the Act’s fair
housing policy. As construed by the
courts, these mandates mean that
assisted housing cannot be restricted to
minority neighborhoods and, further,
that H U D has an affirmative duty to
expand the opportunities of minorities
to live outside impacted areas.
This set of fair housing mandates is
further complicated by the Housing and
Community Development Act, which
has as its objectives “the reduction of
isolation of income groups” as well as
the revitalization of neighborhoods.
From this statute comes the concept of
“spatial déconcentration” of low-in­
come families, and grant applications
are obliged to design a housing assis­
tance plan with this objective in mind.
Economic integration o f assisted hous­
ing is also an express objective o f the
United States Housing Act, which is the
main source of direct housing subsidies.
It is difficult for a site selection
decision to bear all these statutory
burdens. The courts seem to recognize
this problem and have focused on ques­
tions of process rather than substance.
A critical appellate court decision in
1970 set the stage by directing H U D to
institutionalize a method considering
the socio-econom ic information neces­
sary to assess the impact o f each site
selection decision. The case does not
SWARTHMORE COLLEGE BULLETIN

4*9

" C om peting Values
purport to provide substantive guide­
lines. Instead it leaves to administrative
discretion the decision to rehabilitate a
minority neighborhood at the cost o f in­
creased racial concentration, or to
promote racial déconcentration by
building outside impacted areas. What­
ever the decision, H U D must take racial
concentration affirmatively into ac­
count in determining whether or not to
approve a proposed project site and
must be prepared to justify the decision
with an adequate administrative record.
H U D did, in fact, develop the method
called for. In 1972 the Department first
promulgated a set o f “project selection
criteria” for certain assisted housing
programs. Proposed sites for new
construction are rated according to
these criteria, which include consi­
deration o f the range of minority hous­
ing opportunities available in the com ­
munity. A site will ordinarily fail if it is
within an “area o f minority concentra­
tion” unless “sufficient and comparable”
housing opportunities exist outside
minority areas, or there is an “over­
riding need.” This standard embodies

both the prohibitory and affirmative
mandates of the Civil Rights Act. It
underscores the Department’s dilemma,
however, for the result is often to deny
construction in neighborhoods which
crave it, until neighborhoods which
resist it acquiesce. The poor, the blacks,
and the Hispanics are the short-term
losers in this conflict.
This conflict has been unintentionally
heightened by the administrative pro­
cess which has gradually rigidified the
format and narrowed the focus of the
site selection decision. Once again this
year H U D is struggling to make the
process more flexible, responsive, and
comprehensive. For instance, existing
procedures and standards can be
adapted to involve cities more fully and
earlier in the planning process to
expand the concept o f “sufficient and
comparable” opportunities and to
promote the revitalization o f minority
low-income neighborhoods. Such ad­
justments could slow the deterioration
o f impacted areas and perhaps accel­
erate construction of low-income hous­
ing. But in other ways these same adjust­

Jane Lang McGrew 67

ments will make choices more difficult
as we try to integrate more considera­
tions into the decision-making process.
We must be cautious in the reassess­
ment because we are dealing with high
stakes which are as concrete as people’s
homes and as intangible as the concept
of fairness. Reassessment also must be
coldly realistic because litigation over
site selection will continue no matter
what adjustments are made. This is not
necessarily regrettable, however. The
courts have provided a well-mannered
alternative to the streets for resolving
social conflict, an invaluable function in
this context.
O f course, the courts cannot, by inter­
preting the laws, dispel the concerns and
prejudices that generate conflict over
locating subsidized housing. This task is
beyond both lawmakers and policy­
makers: Ultimately, it rests with the
people who live in the Whitman Parks
of our cities.
Protesting construction o f low-income govern­
ment subsidized housing, Whitman Park residents
keep out trucks and workmen by blockading the
construction site gates in their neighborhood.

AU TO

sm

H H mL

Kt
&
mm

m
mi
NOVEMBER. 1980

Www»

m

5

Teaching Law
I teach law. Teaching is my second legal
career. The first was appellate advocacy.
I spent five years in the Solicitor Gen­
eral’s office, briefing and arguing cases
for the federal government in the
Supreme Court. Many lawyers think
the Solicitor General’s staff has the
most interesting legal job in the country.
They are right. So why did I leave?
Teaching provides time to think, to
study legal questions and find the flaws
in your own arguments. An advocate’s
job is reactive, a teacher’s contempla­
tive. As a scholar, I can contribute to
legal thought.
But w hat is legal thought? Surely it is
not simply what a lawyer thinks. That is
circular. Good lawyers, like good w ood­
workers, are skilled craftsmen; the tech­
nical skills can be taught. Lawyers also
probe for ambiguities, treat facts (and
received wisdom) skeptically, and are
aware that their intuitions and first
reactions may be misleading. A good
undergraduate education teaches this
much, though, and I have little interest
in providing a series o f examples to
reinforce the message (or, worse, to help
repair the damage done by poor under­
graduate educations).
The law itself is or can be a discipline
marked by more than the close exam i­
nation o f statutes and judicial opinions.
If the existence o f a subject were enough
to create an intellectual discipline, the
University o f Chicago would have a
School o f Rodent Control. Is there
greater justification for having a School
of Law?
Law school often masquerades as a
school for linguistic detectives. The
usual method o f legal analysis, as prac­
ticed in law reviews and—too frequently
—in classes, is this: The teacher takes a
case (or any other writing) and, by
looking at the facts and the outcome,
extracts a set o f “values” (such as

Frank H. Easterbrook 7 0 is an assistant professor
o f law at the University o f Chicago Law School,
where he teaches Corporations, Antitrust Law,
Securities, Criminal Procedures, and a seminar on
the Supreme Court. He form erly had served as
deputy solicitor general o f the United States.

6

Frank H. Easterbrook ’70

“Law school often masquerades as a school for linguistic
detectives,” says this professor. “I prefer a different
approach, one more in the nature of scientific inquiry.”
“privacy,” “autonom y,” or the like)
advanced by the decision. (If, in the
process, he can argue that the court
reached the “right” result for the wrong
reason, or for a hidden reason, he is
gleeful.) With values in hand, he poses a
different problem in which some o f the
values seem to cut one way and some the
other. He totes up the values: F o u r
values seem to favor outcome X and
three outcome Y. Because four is more
than three, he concludes that the case he
has dissected compels outcome X. If,
however, one o f the three values in the
lists for Y is very important (he will call
it “fundamental”), he concludes that
three is more than four and that out­
come Y is proper. If he can adduce some
casual empirical evidence in support of
his preferred outcome, he will rest at
peace, secure that law is a liberal art
worth studying.

private houses, bans superhighways.
What “values,” after all, does the anti­
quartering rule serve? It secures the
peace and quiet of homeowners; it also
ensures property against arbitrary
diminution at the hands of the state.
Superhighways disturb the peace and
quiet of homeowners and may reduce
property values. If the highways are
used by military vehicles, the case for
unconstitutionality is complete.
An academic lawyer need not be con­
tent with an approach that concentrates
on manipulating vaguely-defined values.
I prefer a different approach, one more
in the nature of scientific inquiry. An
academic lawyer can search out abstract
but powerful rules that yield testable
predictions about the nature of legal
doctrine. An example of such a rule is
the proposition that people are (or act
like) rational wealth maximizers. The
world of law is full of uncertainties,
ractitioners of this m ethod (the
risks, constraints. The legal scholar, like
Suprem e C ourt is am ong them )
the economist, can study how people
find th at it can be used to solve
maximize their well-being or their
alm ost any problem . Does the
wealth subject to these risks and con­
C onstitution require the statestraints.
to
This seems an especially apt
give an indigent defendant a free
task for the academ ic lawyer, for the
transcript of his trial? The C onsti­ laws themselves are constraints designed
tution says not a word about tran­
to alter risks or reallocate wealth.
scripts, but the Due Process Clause of
Working through the system using
the Fourteenth Amendment has led to
simple premises and deductive logic, the
rules having as a “value” the promotion
academic lawyer can pare away the
of accuracy in fact-finding. The use of
apparently mystifying details of both
legal doctrine and the conduct it
transcripts prom otes accurate fact-find­
regulates; if his predictions are sup­
ing. Therefore the Constitution re­
quires the provision of transcripts.
ported by tests, he will have a claim to
I have never been comfortable with
success. (The method doubtless requires
a level of abstraction so great that it
this approach. It mistakes the rule for its
by-products. Any rule was designed to
appears unreal, but that is no detriment.
O ccam ’s R azor is the m axim th at sug­
achieve some effects, but if all of these
effects are translated into broader
gests th at the best explanation is the
“values,” and value transmuted into
simplest. M ost scientific inquiries as­
other rules, then any document is
sume certain unreal conditions. New­
to n ’s laws hold only in a vacuum th at
infinitely malleable. For example, I can
show that the Third Amendment, which
cannot be m aintained; relativity m odi­
forbids the quartering of troops in
fies those laws in interesting ways, but

P

SWARTHMORE COLLEGE BULLETIN

only at speeds beyond our compre­
hension.)
This econom ic approach to law is not
new. Jeremy Bentham suggested it long
ago, but Bentham’s style is so turgid
that few could bear to read what he
wrote. Works by Gary Becker, Ronald
Coase, and Guido Calabresi in the early
sixties revived the approach and estab­
lished its considerable power. Practi­
tioners now use econom ic analysis of
law positively (i.e., to understand
existing rules) as well as normatively
(i.e., to suggest changes in the rules).
Is the econom ic approach to law
useful to students learning how to prac­
tice a new discipline? Practical lawyer­
ing calls for the ability to negotiate, to
draft, to recognize the limits o f the
plausible; the advocate must know how
to turn debatable inferences to his
advantage and how to appeal to a
court’s sense o f fair play. A law school,
on the other hand, has but a limited
ability to teach these things. They are
developed by practice, and lawyers have
established an apprentice system fol­
lowing law school during which experi­
enced attorneys attempt to pass on their
skills. The comparative advantage o f a
law school lies elsewhere, in the realm of
theory. A school can convey a way of
looking at problems so that lawyers will
be able to deal effectively with issues
that could not be covered in school or
that were not even perceived as
problems when they were students.
NOVEMBER, 1980

An illustration from one of my courses
may show what I mean. Evidence (such
as a gun) seized by the police during
a criminal investigation can be used
against a defendant at trial unless
the defendant shows that, more likely
than not, the police violated the Con­
stitution in making the seizure. But the
facts about seizures often are disputed;
inferences may be unclear. As a result,
the police win almost all contested cases,
for the judge will conclude that the
defendant did not carry his burden of
persuasion. Several groups accordingly
argue that the burden should be higher—
courts should require the police to show
by especially convincing proof that the
seizure was lawful. Otherwise, the argu­
ment concludes, the police will have too
little incentive to obey the Constitution
in making searches.
s this persuasive? It is difficult
to see how the matter can be re­
solved by toting up values, by
inspecting earlier cases, or by
poring over the debates of 1789-91.
economic analysis, however, provides
tentative answers:
Assume that police and prosecutors
have limited budgets. The new standard
o f proof requires the police to be more
careful in order to obtain useful evi­
dence; the higher “cost” of a search
means that the police can buy fewer
searches with their budgets. Fewer
searches mean that the probability of

I

convicting any given criminal is lower.
But does this mean more crime? Not
necessarily. Prospective criminals look
at the anticipated penalties in deciding
whether to commit crimes. Assuming a
conviction, anticipated penalty is the
sentence times the probability of con­
viction. The new rule of evidence would
decrease the probability o f conviction,
but judges could increase the sentences
for those convicted. The result may be
the same deterrence, but a system that is
less fair because it heaps larger penalties
on a smaller number of criminals. (It is
no accident that the United States has
both the largest number of procedural
safeguards and the highest penalties of
any western country.)
And for all of this, are searches more
likely to be lawful? N ot at all; the ratio
of lawful to unlawful searches should
decrease. In deciding how to conduct a
search, the police will try to determine
whether they can avoid costs by be­
having lawfully. A standard th^t places
a heavy burden on the prosecution
means that many lawful searches will
erroneously be labeled unlawful. The
new standard thus reduces what the
police have to gain by obeying the rules.
The prospective difference between the
results of lawful conduct and those of
unlawful conduct has shrunk. It is as if
the police sought to deter bank robbery
by rounding up bank patrons at random
and forcing them to prove they were not
robbers. Such a rule would reduce the
number of people who walk into banks,
but of those actually found in banks a
greater percentage would be robbers.
The same holds with the rule on
searches: There will be fewer searches,
but a greater percentage o f the searches
that actually occur will be unlawful.
An
It is easy to multiply the examples of
insights provided by an economic
approach to law. The implications of
the argument I have just given are
testable. But whether the implications
are testable or not, similar arguments
provide powerful insights into how
rules are created, evolve, and survive—
and that should be the first task of an
academic lawyer.
7

Law and the Life ^
Many ethical questions which were once resolved by
medical experts are now being relegated to the courts:
When does life begin? What is the legal definition of death?
What are our obligations to the unborn child? the dying?
The decision to go to professional ra­
ther than graduate school came late in
my time at Swarthmore. I hoped that I
would find in the law a means by which
the basic concerns—about fairness, the
allocation o f scarce resources, the
struggle for freedom and personal selfdetermination, and the like—that had so
fascinated me in the study o f history and
economics could be brought to bear on
contemporary problems. I have not
been disappointed.
When I entered law school in 1966,
the passionate concerns o f the civil
rights and anti-war movements that had
characterized my years at Swarthmore
were pulsing also through Yale’s more
somber halls. Work with teachers and
fellow students on civil rights in the
South, resistance to the draft, and
urban problems (such as those on our
doorstep in New Haven) showed me
that even the skills o f a legal apprentice
could be useful to people. I frequently
found myself equally caught up in
subjects for their intellectual stimula­
tion or simply because o f the masterly
way they were taught.
One area that I found particularly
fascinating was the intersection o f law
and the other professions. The issues of
personal responsibility and the limits of
professional expertise which confront
society as a result o f the use o f psychia­
tric concepts and findings in the legal
process are examples. An interest in this
subject led me to a clerkship after grad­
uation with Chief Judge David Bazelon
of the U .S. Court o f Appeals for the
District o f Columbia Circuit, who has
Alexander Capron ’66 is a professor o f law at the
University o f Pennsylvania. He recently began a
two-year leave o f absence to direct the President’s
Commission fo r the Study o f Ethical Problems o f
Medicine and Biomedical and Behavioral Re­
search in Washington, D.C.

8

pioneered in this field for nearly three
decades. The experience in his chambers
provided constant reminders about the
important roles played in determining
people’s welfare by things as abstract as
theories of human behavior. Judgments
about freedom for mental patients, ar­
rangements for families experiencing
disputes, and the responsibility of crim­
inal defendants for their acts often seem
to turn more on the wizardry of mental
health experts than on the usual
controls of law in a free society.
Since I went from the clerkship to
teaching and research, I have been for­
tunate always to have the freedom to
explore those issues that arise on the
frontier of law and the life sciences, to
which I was first introduced by my
teachers at Yale and Judge Bazelon.
he area that interests me is un­
usually suited for exploration in
a university, although it part of
lawyers’ work in other settings
as well. Some of the issues
of course, arise in a law practice
that handled health law and medical
malpractice litigation. In the past few
years, for example, claims for com ­
pensation have been presented—and
are now being recognized—by the
parents of children (and now on behalf
o f the children themselves) born with
genetic diseases that could have been
diagnosed before birth. These cases
present challenging philosophical issues,
since the only way most inborn condi­
tions can be “prevented” at present is
through abortion or pregnancy avoid­
ance. Should a child, whose birth is
ineluctably linked to the suffering for
which he or she seeks redress from the
professionals who failed to warn the
child’s parents of the risk, be precluded
from recovering damages because

T

avoidance of the harm would have
meant that the child would not exist? I
happen to think that the law provides
good analytical tools for deciding such
questions, but several courts confronted
with such cases threw up their hands
and declared the question too “meta­
physical” for judicial decision.
Other issues on the law and life
sciences frontier appear in the legislative
process. In the early 1970’s, for instance,
when the drama of heart transplanta­
tion focused a spotlight of attention on
patients whose heart and lung functions
were artificially maintained so that they
could become organ donors, a new defi­
nition of death became necessary. A l­
though ventilators and other means of
support might mask the absence of
spontaneous heart and lung action, the
common law held that a person is alive
as long as respiration and circulation
continue. In 1972, Dr. Leon Kass and I
proposed a model statute that recog­
nized the irreversible cessation of total
brain functioning as an alternative basis
for determining that death has occurred
when artificial means of support pre­
clude reliance on the traditional bases
for diagnosing death. Legislation on
“brain death” has been adopted in
twenty-five states, and courts in four
jurisdictions have updated their com ­
mon law definitions to the same effect.
would,
People who “make law” in admini­
strative departments and agencies and
quasi-governmental bodies are also
faced with an increasing number of
difficult and important questions which
are as new as recombinant D N A and as
old as the natural cycle of life and death.
Though the process of experimentation
with human subjects has received much
scholarly and public attention since the
revelations at Nuremberg, it has been
subjected in the past decade to a virtual
explosion of governmental regulation.
At the heart of this is an issue that is
basic to society: When may we collec­
tively expose a few people to risks and
burdens to benefit themselves, the
larger society, or “knowledge” itself?
Are there times when such exposure is
acceptable although the individuals at
SWARTHMORE COLLEGE BULLETIN

Alexander Capron ’66

risk have not consented? If they do
consent, what are our obligations if they
are injured in the very ways that were
anticipated? Or in ways that no one
could have foreseen?
The need to ration scarce resources is
familiar to us all in many contexts, but
in few is it as pressing as in the life-anddeath choices presented by the life
sciences. Society often turns to the law
for ways o f mediating and resolving
such problems. Similarly, basic ques­
tions about self-determination are mani­
fested in relationships between health
NOVEMBER. 1980

professionals and patients (and, one
might add, those between lawyers and
clients). This facet of the life sciences
leads one to examine freedom and its
limits and to ponder the possibilities
for, and barriers to, communication
between those who possess expert
knowledge and those who may need it.
I find great excitement in exploring
problems such as these at a university—
working closely with physicians, psy­
chologists, sociologists, and philoso­
phers, and with students from a variety
o f disciplines, some seeking ideas to

guide their own behavior as future pro­
fessionals, others thinking o f the ways
in which these issues should be reflected
in the rules by which our country chooses
to govern itself, and still others inter­
ested in the illumination these real and
vivid problems cast on timeless ques­
tions about human nature and society.
Right now all of these concerns are part
of my life as I shed my academic mantle
to play a role (albeit a small one) in for­
mulating governmental policy on a
broad range of issues arising from
developments in biology and medicine.
9

Establishing a new code of
ethics may help resolve
moral dilemmas confronting
lawyers every day.
The legal profession has an ambigu­
ous ethical reputation. In one part of
folklore, lawyers are duplicitous and
tricky—“hired guns” who act as “mouth­
pieces” or seek out “loopholes.” In
another part o f folklore lawyers are
better regarded. Lawyers act on behalf
o f unpopular clients and causes when
no one else will speak for them. Lawyers
will insist that the law be observed to the
letter and not merely in spirit.
Both parts o f folklore are in some
sense true. A lawyer retained to repre­
sent a cause he does not personally
believe in is a hired spokesman. A
lawyer who insists that his client get full
technical measure o f his legal rights
does open and close legal loopholes.
One client’s champion is the other
client’s adversary.
By its nature, the practice o f law thus
involves profound conflicts. As an ad­
vocate a lawyer represents a client but
also is an officer o f the court. The theory
of the adversary system o f trial is rather
like the theory o f the market in Adam
Smith’s formulation: Through the inter­
action o f selfish purposes o f private
parties, a com m on good will emerge.
However, just as there is market failure,
so is there failure o f the adversary
system. What should a lawyer do, as
officer o f the court, when he discovers
that his efforts as advocate will almost
certainly yield an unjust result—for
example, if his client is bent upon
perjury that probably will not be de­
tected? An extreme variation o f this
dilemma is the question that is put to
every student by his non-lawyer friends:
How could you defend a person you
know to be a murderer?
Geoffrey C. Hazard, Jr. ’53, professor o f law at
Yale Law School, was recently appointed associate
dean o f the Yale School o f Organization and
Management.

10

Lawyers perform functions other than
that o f advocate, and these other func­
tions can involve other conflicts. As a
negotiator, for example, a lawyer is
bound to avoid making misrepresenta­
tions but he or she is not ordinarily
responsible for seeing that the result of
the negotiations is “fair” or “just.” The
theory of negotiations assumes that the
other party can look after his or her own
interests and can decide what the deal is
worth personally. Yet it can be evident
to a lawyer that the other side has
gravely misapprehended the implica­
tions of a particular term of a proposed
contract. If that happens, what should
the lawyer do, especially if alerting the
other side will impose a heavy cost on
his own client?
Still other conflicts arise from the
lawyer-client relationship. What is a
reasonable fee for a given professional
service, especially if the lawyer was
uniquely qualified and has achieved a
very favorable result? (It is no easier to
answer this question than to state what
is a reasonable fee for brain surgery.)
What if the client wants to carry out a
grossly unfair tactic against a third
person whom the lawyer knows and
respects? Or wants advice that could
assist in cheating the government? What
if the lawyer is in a situation with con­
flicting obligations to two different
clients, for example where he has repre­
sented a partnership and the partners
then suffer a falling-out?
These and many other similar ques­
tions confront lawyers every day in the
practice o f their profession. The ques­
tions have to be resolved one way or
another, for a lawyer once committed to
representing a client cannot simply stop
the music and leave the dance. Yet the
questions rarely admit of a clear-cut
answer. Lurking in all such questions
are the risk of betraying the client (or at
least of defeating his expectations) and
the risk of befouling the system of
justice or damaging the legitimate inter­
ests of others.
It is the function of the lawyers’ rules
o f professional ethics to help resolve
these questions—to state appropriate

points of balance between the competing
interests at stake. For the last two years,
as consultant to a special committee of
the American Bar Association, I have
been involved in redrafting those rules.
The drafting project will continue for
another year or so, at which time a pro­
posed code of rules will be offered for
adoption.
The rules of professional ethics are
not the only norms relevant to a
lawyer’s professional conduct. A lawyer,
like all citizens, is governed by the law at
large, including criminal law and the
law of contracts. A lawyer is legally
answerable for malpractice and abuse
of process. Special statutes govern the
conduct o f lawyers; for example, regu­
lation of the circumstances in which a
former government lawyer may repre­
sent private clients against the govern­
ment. Equally important, a lawyer may
use a large measure of discretion in the
extent to which a client is to be served.
Personal morality is, therefore, a major
ingredient in professional ethics. All
this said, however, the rul&> of profes­
sional ethics are a large part of the nor­
mative framework within which a lawyer
practices.
riginally the rules of professional
ethics in the law were a m atter
of custom in the legal fraternity.
Occasionally courts referred to
these conventions or stated
authoritatively as law. F or exam ple,
there was an elaborate English de­
cision in 1742 dealing with whether a
lawyer could or should reveal a client’s
plot to defraud the client’s nephew out
o f his patrimony—facts that could well
have inspired Dickens. In the middle of
the nineteenth century there was a cause
célèbre involving the question of whether
a lawyer could argue for the innocence
o f a defendant (a butler) accused of
murder, after the defendant had con­
fessed his guilt to the lawyer. The deci­
sions in these cases were pivotal in the
evolution o f legal ethics. However, such
formal pronouncements were few and
far between. Legal ethics was mostly an
oral tradition.

O

SWARTHMORE COLLEGE BULLETIN

them

Geoffrey C. Hazard, Jr. ;’53
This tradition was transformed in
1908. In that year the American Bar
Association promulgated a set o f writ­
ten precepts known as the Canons of
Legal Ethics. With some revisions these
precepts stood until 1969 as the more or
less official rules o f ethics o f the legal
profession—“more or less” because the
Canons were technically only by-laws o f
the American Bar Association, which
was and is simply a private association
of lawyers. The Canons had the force o f
law only as and because they were relied
on by courts.
In 1969 the American Bar Association

NOVEMBER. 1980

adopted a new Code of Professional
Responsibility to replace the Canons.
This Code represented a major revision
in many substantive respects; for ex­
ample, on such subjects as the con­
tingent fee, advertising by lawyers, and
the rules governing client confidentiality.
The Code represented also a major
change in the legal status of the rules of
ethics. Written as a statute rather than
as a body of precepts, the code was in­
tended for adoption as legislation in the
fifty states. This intention was substan­
tially fulfilled in that the ABA Code of
Professional Responsibility has been
adopted, often with some important
emendations, in virtually all the states.
Nevertheless, only ten years after this
major change in lawyers’ ethics, a new
code is being drafted. Given the con­
servativeness o f the bar, many people
may wonder how such a major reform
effort came to be undertaken. Indeed,
there is strong resistance to the new pro­
posal precisely on the ground that it
comes too soon. (O f course, if we waited
another ten years, the present rules
would achieve further respectability
through increased familiarity. There is
never a good time for major reform.)
The answer to the question “Why
now?” is complicated. A simple answer
is that the present Code of Professional
Responsibility was obsolete when
drafted. Its provisions were contrary to
the plainly foreseeable import of Su­
preme Court decisions on the right of
access to counsel. Astonishingly, the
1969 Code said virtually nothing about
the special problems facing a lawyer
whose client is not an individual but an
organization—such as a corporation or
a government department. Another
simple fact is that the 1969 Code evaded
certain questions—most of the ques­
tions posed at the beginning o f this
article, for example. The explanation
for these obsolescences and evasions
seems obvious: The 1969 Code was
drafted with the primary aim of making
it acceptable to predominant sentiment
in the bar.
Times have now changed, or rather
the changes already in motion in 1969

have overtaken us. Lawyers can no
longer take refuge in rules of ethics that
fudge on vital issues. That refuge is
being destroyed by regulatory authori­
ties such as the Securities and Exchange
Commission (whose regulations affect
corporate lawyers); by intensification of
conflicts with clients that require en­
lightenment by coherent rules; and by
burgeoning malpractice and abuse of
process liability, which lawyers can
minimize only with the help of more
definitive ethical guidance.

ore important, new voices
are being heard in the legal
profession itself. The voices
are those of lawyers genuinely
concerned about wider public access to
legal services and to legal aid for the
indigent; of lawyers for corporations
who are genuinely concerned about
where their loyalties should lie when
conflict arises with corporate manage­
ment; o f lawyers who believe the proper
service of a client does not necessarily
entail exacting every possible advantage
from another party; o f lawyers who
acknowledge that practicing law in­
volves not simply service to clients but
also direct dedication to justice and the
public good.
These concerns, as well as traditional
loyalty to clients, have informed the
new proposed Model Rules of Profes­
sional Conduct. A discussion draft was
published in January o f 1980 and will be
on the table until at least August of
1981. Whether the proposed Rules will
be adopted by the ABA remains to be
seen. If they are adopted by the ABA, it
remains to be seen whether they will be
adopted by the states to replace the
existing Code. As consultant and drafts­
man, given the difficulty of getting
assent to rules on such a delicate and
complex subject, I think the proposed
Rules are extraordinarily good. At the
least they will change the dialogue over
professional ethics in the law. At best
they could change law practice itself, if
not into a Platonic ideal then into a
closer approximation of its ethical
ambition.

M

Schroeder, Shea, Peters, Grant
\

JUDGES
What used to be novel is
quickly becoming old hat as
women break into the maledominated world of judges.
During the seventies, female attorneys
became relatively commonplace, but very
few women managed to break into the
male-dominated world of judges. In 1975,
years after the dawn of equal opportunity
employment in other professions, judges at
the appellate level in both state and federal
courts numbered 921 men and eleven
women. That year Mary Murphy
Schroeder ’62 became the twelfth. She and
Felice Klau Shea ’43, who became a judge
in New York City’s Civil Court in 1975,
share the honor of being the first Swarthmore women on the bench. In 1978 Ellen
Ash Peters Blumberg ’51 was appointed to
Connecticut’s Supreme Court, and in 1979
Isabella Horton Grant ’44 was appointed to
San Francisco’s Municipal Court. How did
these pioneers reach the bench? With
daring, persistence, hard work, and good
timing.
Judge Schroeder says: “I did not enter
Swarthmore with any notion of becoming a
lawyer, much less a judge. My first pro­
fessional goal was to be a journalist, but I
gave up that ambition because I did not like
to interview people or to write under
pressure. (It was with some chagrin that I
discovered, following my graduation from
law school, that lawyers do just those
things.)
“The first appellate court opinions I ever
read were in Professor Pennock’s course in
constitutional law. The law was not so
popular a field then as it has become in
recent years, and it was a particularly
unusual choice for women. In my class of
150 students at the University of Chicago
Law School, there were six women.”
After law school, Mary Schroeder joined
the Civil Division of the U.S. Department
of Justice and proceeded to win twenty
consecutive cases.
She moved to Phoenix with her husband,
Milton Schroeder, who taught law at the
Arizona State University Law School. At
first she had a difficult time finding a job,
but finally she joined Lewis & Roca, a large
Phoenix firm. Her practice thrived. In 1973
she argued before the U.S. Supreme Court
12

(Memorial Hospital v. Maricopa County)
and won. As a result, the Court forced
Arizona to drop its residency requirement
for health care and make services available
to all its poor people.
The next year, when she was 34 and had
been out of Swarthmore for thirteen years,
she was appointed to the Arizona Court of
Appeals as the youngest appellate judge in
the nation. In 1979, President Carter
appointed her to the United States Court of
Appeals for the Ninth Circuit. She hears
appeals from federal courts throughout the
western Rocky Mountain States, the West
Coast, Hawaii, and Alaska. She notes with
pleasure that her days as a novelty “lady
judge” are just about over: “I’m one of three
women on the bench of the Ninth Circuit
and one of eleven women in federal appel­
late courts alone.
“My Swarthmore experiences taught me
that we should not be afraid to follow
unusual paths. Because of that experience,
and a large helping of good fortune, I have
been in the right place at the right time. The
relatively few women who came to the law
in the mid-sixties came after the worst of
the discrimination and ahead of the crowd.
As a result, many of us seem to have shot
up like corks in a bottle. It is up to us to
make things better for those who come
after.”
Unlike the other Swarthmoreans, Felice
Shea was not appointed to a judgeship; she

Felice Klau Shea '43: She had to run for the job

ran for election. She submitted an appli­
cation to a non-partisan screening com­
mittee which subsequently investigated her.
She survived the screening and was one of
three attorneys recommended by the com­
mittee. The Democratic Party in New York
City chose her as its candidate in 1974 and
the New York Times, the New York Post,
and the New York City Central Labor
Council (AFL-CIO) supported her. The
Citizen’s Union rated her “Highly Qualified
and Preferred,” and she was the only candi­
date not already a sitting judge to receive
the highest rating from the Association of
the Bar of the City of New York.
Because of New York’s strict election
laws, she had to campaign in a style that
could throw a regular politician into a
tongue-tied blither. In New York, the law
forbids candidates for judgeships to know
who contributes to their campaigns. Can­
didates are also prohibited by law from dis­
cussing issues that might come before them.
At least she could talk about her back­
ground. She graduated from Swarthmore

Mary Murphy Schroeder '62: “As a result, many o f us seem to have shot up like corks in a bottle.”
SWARTHMORE COLLEGE BULLETIN

Ellen Ash Peters ’51: from a chair to the bench.

Isabella Horton Grant ’44: “It’s never boring.”

as a political science major, took her law
degree at Columbia, and spent eleven years
working for the Harlem Branch of the
Legal Aid Society in New York. She
handled all kinds of cases for people who
couldn’t afford lawyers-ffiand spent many
long hours in courtrooms.
Judge Shea started with an assignment to
sit in Family Court, where she dealt with
problems like spouse and child abuse,
neglect, juvenile delinquency, and paternity.
Later, as an Acting Justice of the Supreme
Court, she tried personal injury, contract,
and matrimonial cases. Among the most
difficult cases, she found, were those of
child custody, and she has heard other
judges agree. As one of several experts
interviewed by the N ew York Tim es about
the child custody case in the movie Kramer
vs. Kramer, she said, “It’s too bad that the
legal profession was portrayed as fifty years
behind the times.” Most judges no longer
assume automatically that a child is better
off with its mother, she explained, and they
never assign custody without talking to the
child.
Judge Shea had made news before, on
the first page of the T im es metropolitan
section when she presided over a case in
which a wife agreed to pay $ 1,600 per
month alimony to her husband, the first
such award in New York State. (Two months
before her decision, the U.S. Supreme
Court struck down all state laws prohibiting
alimony payments for men because the
Court decided such laws violated the 14thamendment guarantee of equal protection
under the law.)
Judge Shea has been transferred among
courts frequently and thus far has sat on
four. Since June, 1980, she has been trying
felony cases in the Criminal Term of New
York State’s Supreme Court. To the non­
professional, her courtroom sounds full of
tension and heartbreak, and she says this
can be true. Because it deals with the
problems of people—marriage, divorce,
child custody, injury, money, and crime-^
“law is very close to the heartstrings.”
In 1974, while Felice Shea was gearing up
her campaign, William O. Douglas resigned

from the Supreme Court. Would President
Ford appoint a woman to replace him on
the Supreme Court? The legal community
buzzed with speculation and one name
mentioned frequently was that of Ellen Ash
Peters, then a law professor at Yale. Ford
appointed John Paul Stevens, however, and
Ellen Ash Peters, now Ellen Ash Blumberg
in private life, missed that particular chance
to be the first woman on the U.S. Supreme
Court.
She has been the first woman elsewhere
often enough. She graduated from Swarthmore with Honors, was elected to Phi Beta
Kappa, and won the Oak Leaf Award.
Three years later she finished first in her
class at Yale Law School. She clerked in the
Second Circuit U.S. Court of Appeals,
taught for a year at Berkeley, and in 1956,
only two years after she had been a student
herself, she started teaching law as an
assistant professor at Yale. In 1964 she
became the first woman to hold a full pro­
fessorship at the law school, and, in 1975,
she became the first woman to hold an
endowed chair in the law school and only
the third woman to hold an endowed chair
in the history of the university. In 1978,
after Governor Ella Grasso nominated her
for the Connecticut Supreme Court, she
was confirmed by the State Legislature and
sworn in as the first woman on its bench.
As both a judge and a scholar, Peters is
intrigued by some of the ethical problems of
the law, such as when a judge can interpret
a law beyond its specific wording. In the
U.S., she explains, courts have the option
of going beyond, or “ignoring”—depending
on your point of view-jgthe letter of the law,
and deciding a case according to their view
of the law’s purpose. For example, her
court heard the case of a man suing the
employer who had fired him. The Connec­
ticut Legislature had recently passed a law
describing procedures for firing some
employees, but the law did not specifically
apply to this employer. The employee
wanted to prove that the real reason he had
been fired was that he had reported the
company’s violations of local food and drug
statutes. Although the statute said nothing

NOVEMBER. 1980

about such a situation, the court decided
that the law’s overall purpose was to protect
employees, not to allow employers to fire
them for blowing the whistle, so they
affirmed the man’s right to sue for his job
and back wages. Just how much of this kind
of interpretation should the courts do?
“We seem to be moving into a more con­
servative period than we’ve known for a
while,” says Peters. “Will the Supreme
Court uphold what we now consider to be
basic civil liberties if the mood of the
country swings so that the majority of
Americans believe its policies in that area
are too liberal?”
Another ethical question strikes the judge
right where she lives—literally. Her husand,
Phillip Blumberg, is dean of the law school
of the University of Connecticut, and she
finds it terribly frustrating to sit across the
dinner table from one of the best legal
minds in the state, knowing that it would be
a breach of professional ethics for her to
utter one word about a present or
upcoming case. “It was difficult at first, but
then we managed to fall into a pattern of
conscious avoidance of almost anything
before the court.”
The newest woman judge in the Swarthmore family is Isabella Horton Grant ’44,
who went through Swarthmore without
much interest in attending law school. She
graduated Phi Beta Kappa with High
Honors in history, earned a master’s in
economics from U.C.L.A., and went to
work for the Institute of Industrial
Relations at U.C.L.A. There she began
toying with the idea of going to law school.
She resigned after a year and drove her
uncle, the actor Edward Everett Horton, to
New York where he was to begin a tour in
his perennial role in the play Springtime for
Henry. Grant went on to spend the summer
studying political theory at Oxford. In the
fall she returned to New York to enter
Columbia Law School. (A Swarthmore
classmate there was Felice Shea.)
After graduation she returned to Los
Angeles and worked for the Office of Price
Stabilization.She wanted to be on the legal
staff, but the agency was more interested in
her economics background. In her spare
time she studied for the California bar
exam. When Uncle Edward went to San
Francisco to play in Nina, she joined him
and finally began her legal career in that
city with the firm of Livingston and
Feldman. Ten years later she was made a
partner and, by 1979, she was the senior
partner of Livingston, Stone, Kay, and
McGowan. It was a comfortable life. “Then

Shechtm an, A m stutz, Cooper
I had some choice as to my schedule.”
Her lifestyle changed when she came on
the bench. “Your goal becomes to get
through the calendar,” she explains. She is
seated by 8:30 in the morning and must
arraign about 150 people—before she can
break for lunch. In spite of the pressure for
speed, she has to give each person a lot of
individual attention, and sometimes
language barriers make the process even
more cumbersome. Judge Grant recalls one
morning when she had to use three different
interpreters—Spanish, Chinese, and
Vietnamese.
California law puts an additional con­
straint upon her. She will not be paid, and
under some circumstances her staff will not
be paid, unless she decides all her cases
within ninety days. Fortunately, she has not
had trouble meeting the deadline.
Becoming a judge meant changing more
than lifestyle. She had to change her think­
ing, stop calculating like an advocate, and
start weighing arguments to make decisions.
California eases the transition by sending
its judges to a judges college during the
summer. Not everyone can make the
change, but Judge Grant is managing grace­
fully and is very glad she accepted the
appointment. “It’s never boring.” She finds
that the hardest cases to decide are unlawful
detainers, a kind of landlord-tenant
dispute. Housing is scarce in San Francisco
and penalties for not paying rent are severe.
Judge Grant sometimes finds herself
picking her way through the unusually
tangled intricate law facing the possibility
that she may have to turn a family out into
the street. The first case she heard as a new
judge was such a case. The tenant, however,
showed up in court with the rent money; the
landlord accepted it; the case was dismissed
—and Judge Grant admits she was very
relieved.
It can be a lonely life, she says. She’s
alone at the bench all day and she misses
the hallway chats with colleagues which she
enjoyed as an attorney. She tries to have
lunch with other judges, but their schedules
make arrangements difficult. Sometimes
they’ll peek into her courtroom, take one
look, and just leave a message.
Judge Grant is part of a tide of women
reaching the bench at last. Of the twenty
municipal judges in San Francisco today
four are women, and another woman is
running for election to a fifth judgeship.
The women pioneers on the bench couldn’t
put their goals less glamorously, or more
precisely, than Judge Grant’s summary of
her situation: “Here, having a woman judge
is very old hat.”
14

CLERKS
Last term ten percent of the
Supreme Court clerks were
Swarthmore graduates.
In December 1978, Paul L. Shechtman ’71
received one of those breathtaking phone
calls most of us know only from fantasies:
“The Chief Justice of the United States
Supreme Court would like to speak to
you.”
Paul was stunned. He had applied to
clerk for the Chief Justice but the appli­
cation process had dragged on for more
than a year and he was far from expecting a
call. On the phone Chief Justice Burger
offered him the clerkship and Shechtman
accepted immediately. The conversation
lasted only a minute, and after it
Shechtman was a member of one of the
most exclusive legal societies in the country
—the thirty-two young attorneys picked
from hundreds of applicants to spend
twelve months in the Supreme Court.
In 1979-80 the clerks included two other
Swarthmoreans, Eric B. Amstutz’75, who
clerked for Justice Potter Stewart, and
Janet M. Cooper ’68, who clerked for
Justice Thurgood Marshall. Three out of
thirty-two clerks is an impressive presence,
especially for a school as small as
Swarthmore. (Harvard and Yale each con­
tributed five alumni, Princeton two, and
seventeen other schools—including
Amherst, Brown, and Radcliffe—sent one
graduate each.)
Paul’s career had taken a round-about
path to the Court. After graduating from
Swarthmore with High Honors, he studied
economics at Oxford for two years as a
Rhodes Scholar. He returned to Pennsyl­
vania to the Glen Mills School, a private
institution for delinquent boys, where he
taught remedial math, remedial reading,
and fishing. A year and a half later he went
to work as a staff economist at the Senate
Budget Office and commuted from
Washington to Swarthmore twice a week to
teach macroeconomics. He was torn
between economics and law but entered
Harvard Law School in the fall of 1975. At
the end of his second year, as is the custom
in law schools, he applied for clerkships in
lower courts. He was accepted by Judge
Marvin Frankel, whom he describes as a
“wonderful trial judge,” as a clerk in the
Southern District of New York during

the 1978-1979 term.
Paul had never set foot in the ornate
Supreme Court building until he arrived for
work. Bonnie Yochelson ’74, his wife, liked
to walk with him to the Court. (She works
at the National Gallery of Art and is com­
pleting her Ph.D. in art history.) Early in the
term, a Court guard advised her, “Say good­
bye to him now. You won’t see him for the
rest of the year.” His hours turned out to be
not that bad. “I worked hard, but nothing
unbearable,” says Paul. By working hard,
he means staying at the office until seven,
putting in another hour at home, and
working a total of a day in bits and pieces
over the weekend. “But 1 did see Bonnie,”
he says.
Paul happened to arrive during Justice
Burger’s vacation. After a couple of days,
when he still had never seen his boss, the
suspense drove him to the Court’s
information film for tourists to watch the
sequences on the Chief Justice.
Now Paul remembers his first memo with
amusement. It was intimidating to be only a
year out of law school addressing a memo
to the Chief Justice of the United States and
four of his distinguished colleagues. “I must
have spent twenty hours working on what
would later take me about half an hour to
write.”
It was difficult also, says Paul, to know
what to do the first time the Chief Justice
called him in and said he’d read Paul’s
memo but did not agree with it. Soon Paul
discovered that Chief Justice Burger makes
no effort to pick clerks who share his
philosophy and that he thrives on arguing
with them about legal issues. “It was like a
really good Swarthmore seminar,” Paul
says, “except that at the end, he votes.”
While Paul worked at the Court, the con­
troversial book, The Brethren: Inside the
Supreme Court, appeared. This portrait of
the Court had been assembled by journa­
lists Bob Woodward and Scott Armstrong
from interviews with former clerks and staff
members; the Justices themselves had
declined to be interviewed. In the storm
following publication, no journalist made
any attempt to talk to Paul. The only
person who called to talk about the book
was his mother.
Compared to Paul, Eric Amstutz made a
more direct trip to the Court. After gradu­
ating from Swarthmore with Highest
Honors in political science, he went directly
to Yale Law School. At the end of his
second year, he was accepted as a clerk by
Judge Gerhard Gesell of the United States
District Court for the District of Columbia
for the 1978-79 academic year. After his
SWARTHMORE COLLEGE BULLETIN

From the top: Paul L. Shechtman ’71, Eric B.
Am stutz ’75, and Janet M. Cooper ’68. A fter the
furor over The Brethren, all are guarded in
discussing their experiences in the Supreme Court.

last year of law school he applied to all nine
Justices of the Supreme Court: Justice
Stewart called him in for an interview and
hired him about a week afterwards. The
experience was almost a shock to him. “In
law school we developed such a great awe
and respect for the Supreme Court, I just
couldn’t believe 1 was there.”
He spent a large part of his time reading
over the requests for the Court to hear a
case, called petitions for certiorari. More
than three thousand of these flood the
Court every year, but it has time to hear
fewer than ten percent. Eric and his fellow
clerks sorted the petitions and wrote memos
summarizing and outlining them for
Justice Stewart, who reviewed the
NOVEMBER. 1980

memos, looked over each of the petitions
himself, and personally decided which he
would vote to accept.
The Justice talked extensively to his
clerks, bouncing ideas off them. “One of the
pleasures of the job was Justice Stewart’s
openness,” Eric says. “Unless he was
extraordinarily busy, we could step into his
office and ask him a question.”
After watching Justice Stewart at work
for a year, Eric warns against under­
estimating the task of a Supreme Court
Justice. Although the general public may
think of the Supreme Court as a serene
refuge for meditation, Eric says, “It’s a hard
job—there’s just so much work.” Eric
himself rarely left before 8:30 or 9:00 p.m.
when the Court was in session, but in spite
of the long hours, he enjoyed the work.
“You couldn’t believe the time had gone,”
he says.
Janet Cooper arrived at the Court with
an unorthodox background, which she
thinks may be one of the reasons she was
selected. After graduating with Distinction
from Swarthmore, she earned an M. A. in
English literature from Stanford and went
to work on the assembly line of an elec­
tronics factory in Santa Clara County,
California. Next she took an office job
where her co-workers were already
members of the unresponsive Office and
Professional Workers Union. She and some
other dissatisfied employees formed a rankand-file caucus that became powerful
enough to change union policies and struc­
ture. She was eventually elected shop
steward and vice-president of Local 29.
In her union work she encountered many
lawyers and watched much legal
negotiation. Most of the labor lawyers she
encountered did not have backgrounds as
union members, a deficiency she considered
a handicap. Realizing she was a union
member who could go to law school, she
entered the University of California at
Berkeley in 1975. There she discovered
other areas of law that interested her and
decided not to specialize exclusively in
labor law.
After law school she spent an extremely
productive year clerking for Judge Shirley
Hufstedler at the United States Court of
Appeals for the Ninth Circuit. (Judge
Hufstedler is now Secretary of Education.)
The Judge took seriously her responsibility
to teach clerks and, in spite of a demanding
schedule, she discussed Janet’s first memos
line by line, suggesting refinements. Janet
then went to clerk for Supreme Court
Justice Marshall, whose work as the chief
lawyer for the NAACP and the architect of

its strategy to desegregate schools she
admired. When she arrived at the Court,
she was suprised to hear of his other
accomplishments, such as helping several
African countries gain independence.
Because the Court must keep its inner
workings confidential, the Justices discuss
cases only with each other and with their
clerks. While Janet had the privilege of
many hours of discussion with Justice
Marshall, the confidentiality of the Court
cramped her social life. Although she
explained to her friends that she could not
discuss how a decision was reached, what
any of the Justices said about a case, or
even whether she as a clerk had worked on
a particular case, some acquaintances kept
pressing her for details until she had to
avoid seeing them.
She felt an awesome pressure to work
carefully. Part of this sense of responsi­
bility came from reading the pounds of peti­
tions that arrived in each day’s mail. “You
see again and again that people believe that
if only the Supreme Court would hear their
problem, justice would be done at last and
everything would be all right.”
In some ways, the clerkship proved to be
a rare intellectual luxury, says Janet. She
was able to spend as much time on a case as
it took to make the best possible opinion.
“As a clerk you can exhaustively research
every possible angle and you can prepare
endless drafts. As a lawyer in private
practice you can’t always do that because
you have a responsibility to your client who
is paying for your time; you have to be
ruthlessly efficient.”
After her years of clerking, Janet does not
aspire to be a judge. “You can’t choose what
you do; you have to hear the cases that
come before you. And you have to make
some unpleasant decisions. Even though
your heart may go out to the people before
you, you have to make some decisions that
aren’t ‘fair’ in a humane sense, but are
legally right.”
As the term for the three clerks ended in
the summer of 1980, they came down from
the Olympus of American justice. Paul
became an assistant to the head of the
criminal division of the Department of
Justice, and arranged to join the Southern
District of New York U.S. Attorney’s office
in 1981. Eric will join a private firm, and
Janet became an associate in the new D.C.
law firm of Califano, Ross & Heineman.
They are all guarded in discussing their
experiences on the Court, especially after
the furor over The Brethren, but all agree
that the year was a remarkable opportunity
for post-graduate education.
15

HURON
Changing the discriminatory
hiring policies of Alabama
state troopers was a tall
order for a fledgling lawyer.
Douglas B. Huron ’67 was young when he
clashed with the state troopers of Alabama.
He had been out of law school only
eighteen months, had just turned 26, and
was holding his first job as a lawyer. It was
the winter of 1972, and the U.S. Depart­
ment of Justice sent Doug into Alabama to
prosecute the troopers for racism.
“For decades the state troopers were the
most visible symbol of white supremacy in
Alabama,” Doug reminisces. “In the 1960’s
George Wallace deployed them from the
schoolhouse door to the Selma bridge to try
to halt the forces of change. Given this
history, the notion of becoming a trooper
was simply alien to most blacks in Alabama.
To change this, the system needed a jolt.”
The Justice Department intended that
part of the jolt would come from Doug. He
had majored in political science at
Swarthmore, graduated from the University
of Chicago law school in 1970, and gone to
work for the Civil Rights Division at
Justice. As his first big case, the Depart­
ment assigned him to the Alabama dispute.
The suit began on January 3, when the
NAACP filed a complaint accusing the
troopers of discriminating against blacks in
hiring. Ten days later the judge ordered the
Federal government to participate, and
Justice immediately joined ranks with the
NAACP.
What Doug needed was more than a
courtroom victory. “It matters little
whether a judge says you are right or
wrong; what is critical is what the judge
orders the other side to do.”
The case was to be tried before the legen­
dary Judge Frank Johnson. “He was
George Wallace’s longtime nemesis and the
author of more progressive civil rights
opinions than any judge in the country, but
he had a reputation as a demanding judge,
even an intimidating one.” Johnson justified
his reputation at the outset, setting the trial
date for February 7, which gave Doug
barely three weeks to prepare.
“Fortunately help was at hand,” Doug
remembers. Representing the NAACP was
Morris Dees, founder of the Southern
Poverty Law Center, a man with a “fertile
16

and creative mind” whom Doug describes
as a “charming millionaire.”
“By the trial date, Dees and I were
ready.” Or so Doug thought. “I was for­
mally introduced to Judge Johnson in his
ornate courtroom. We submitted our docu­
ments and I began to question our research
analyst who had studied the troopers’ hiring
statistics. Suddenly the judge interrupted.
He demanded his copy of the exhibit under
consideration. I stammered that I thought
we had provided a copy to his clerk. ‘Well, I
don’t have it, and I want it nowV he
bellowed. I described an erratic pirouette
around the courtroom, searching for the
document. In desperation I snatched Dees’s
copy and presented it to the judge’s clerk.
My introduction to Judge Johnson was
now complete.”
Sobered, Doug went back to presenting
his case. To him it looked clear enough. Of
the 650 Alabama state troopers and officers,
650 were white. The force had never hired a
black trooper in its thirty-seven-year
history. Of the 300 support personnel, such
as radio operators, secretaries, computer
specialists, and so on, all were white and no
black had ever held one of those jobs.
Not many blacks had applied for state
trooper jobs. Most of those who had were
screened out by a written test. The few who
squeaked by the test had been eliminated
during an oral interview before an all-white
panel. Doug and the NAACP argued that
the tests should not be used because they
did not measure the abilities needed by
troopers.
Judge Johnson kept the trial moving
rapidly, and Doug and Morris Dees
finished their arguments by early afternoon.
The State of Alabama offered only one
witness.
“Ordinarily, judges take weeks, even
months, to decide important cases and they
require volumes of papers to be filed by
both sides. To speed things up, I volun­
teered that we could have our post-trial
brief ready in a week. To my surprise Judge
Johnson said he did not need one. Then the
lawyer for the state said that a quick ruling
would be helpful; Alabama needed new
troopers but the judge had forbidden any
hiring until his decision.
“T can tell you what I’m going to do,’
said Judge Johnson. And he did—right on
the spot. He found the Alabama state
troopers guilty of systematic racial discrim­
ination in employment. The remedy? John­
son ordered the state to employ one
qualified black for each white hired until
the force was 25% black, like Alabama’s
population.

Douglas B. Huron ’67: "The system needed a jolt. ”

“The state officials were stunned. But
then so was I. Judges virtually never rule
from the bench in important cases. A bench
order requiring strong, affirmative relief
was even more extraordinary. It will not
happen to me again.
“Today the Alabama troopers—formerly
all white—employ more blacks in both
absolute and percentage terms than any
force in the country. The new troopers are
qualified and perform well, as the head of
the Department of Public Safety testified a
few years ago. And the process is irreversi­
ble: Black kids see black troopers and can
imagine themselves in the job. I went on to
bigger cases at the Justice Department, but
none more satisfying.”
* * *
What has become of Doug Huron? “In
early 1976,” he says, “I heard that Morris
Dees had become chief fundraiser for
Carter’s presidential campaign, so I gave
Morris a call. The campaign hired me, and
nine months later I was working in the
White House Counsel’s office, where I
spent three and a half years.
“Then last summer I took a leave from
the White House to work for the President’s
reelection committee.
“Now the campaign is over, the right has
won big, so I’ll be leaving the Federal
government for the first time in my legal
career. It should be interesting to find out
what private practice is like—and to jab
occasionally at the new regime.”
SWARTHMORE COLLEGE BULLETIN

“It’s a life o f contention, detail, and long hours ”
LEWIS C. BOSE ’39

BOSE
What started as an offer to
draft a legal memo for his
community turned into a
career in education law and
legislation.

Lewis C. Bose ’39, a practicing lawyer in
Indianapolis, Indiana, since 1945, is
married to Charlotte Hofmann, Swarthmore
’42. They have five children—two of them
engineers, one a doctor, one a graduate of
Harvard Business School in production
management, and a daughter, married to a
career Army officer. Has he encouraged
any of them to become lawyers? “No, I
didn’t recommend the law to any of them,”
says Bose. “It’s a life of contention, detail,
and long hours—a choice not to be forced
on anyone.”
Bose, himself, is one of the most
w/7Contentious-seeming men in the world.
Soft-spoken, easy-going, and eventempered, he radiates an air of unhurried
calm. According to one of his partners,
William Evans, Bose’s professional style is
ultrarelaxed. “He’s renowned around here
for always getting started on a legal brief at
the last minute, but he always turns out
excellent work. We refer to him as the
‘Sundown Express’ because he doesn’t
really get rolling until after 4:00 o’clock.”
“Lew is never a hardliner about
anything,” Evans continues. “He uses a
great deal of imagination in trying to
resolve litigation out of court.”
The firm of Bose, McKinney & Evans is
the fourth largest in Indianapolis, and one
of the busiest. Bose himself is a specialist in
education law and in legislation. The
Indianapolis News once described him as
“the best school lawyer in the state.” Bose
deprecates this mildly, noting, “Well, at the
time, there were only about six lawyers in
the state knowledgeable about school law,
and, like many other lawyers, I am involved
in other areas—both legislative and
private.”
He became involved with school law in
1955 when he was living in an expanding
suburban township. The community was
then debating whether to merge with the
Indianapolis Public Schools or create its
own school system with an independent
board free of political control. Bose offered
to draft a legal memorandum on the issue
NOVEMBER, 1980

and discovered that there was very little in
the way of state law governing district
school reorganization. So he drafted and
helped lobby legislation permitting the
création of independent “metropolitan”
township school districts. Since that time,
he has been involved in the drafting (and
often in the initiation) of legislation
concerning such matters as pupil
reassignment, school reorganization,
changes in school district powers, board
structure and boundaries, student due
process guarantees, and education finance.
During a period of fifteen years of
substantial educational changes, he had a
hand in drafting nearly every major Indiana
school statute.
The lasting imprint he has left on state
education was recognized officially in 1973
when he was named Outstanding Indiana
Educator of the Year by the Indiana School
Boards Association.
Whether he’s coping with rifts between a

Lewis C. Bose ’39: “In drafting legislation
you are also affecting public policy. You should
always try to anticipate tom orrow’s problem s
as well as try to solve those o f today!”

school board and the many persons with
whom it deals, a contract between private
parties, or the processes of the Indiana
General assembly, Bose is regarded as a
master of compromise and conciliation.
“Particularly in public law areas, you
usually find that there is a way to give both
sides what they want. You try to reach
results that are practical.” One of the most
important elements in dealing in the public
service arena, he believes, is “establishing a
sense of credibility. If you want to sell an
idea, or even a bill of goods, be sure you are
knowledgeable. Your credibility is the most
important thing you sell.”
Bose was born and grew up in
Indianapolis. At Swarthmore, he majored
in economics, minored in political science,
and ran on the track team. He went on to
Yale Law School. World War II broke out
during his final year at Yale and he joined
the Navy where he served variously as
officer on a cruiser, skipper of a submarine
chaser and, eventually, attorney in the
Navy’s office of general counsel. After his
discharge, he returned to Indianapolis
where, in 1953, he established his own firm
with, among others, his Swarthmore class­
mate Paul Buchanan.
In recent years, Bose has been asked to
appear on local television news and talk
shows on public matters in which he is
involved. Bose doesn’t care for it much but,
he says, “The public generally wants and, in
a practical political sense, has a right to
know what is going to happen to them in a
public lawsuit or any other public matter of
immediate direct impact. Good P.R. isn’t
window dressing, but a major part of good
public administration.”
How would he compare the legislative
and other parts of his professional life?
“The function of the lawyer,” says Bose, “is
to be a problem-solver, an expediter. In
private and many public matters, you’re
trying to get your client out of or through a
problem (perhaps a mess) with the least
possible fuss in the shortest feasible time.
You take the facts, sort out the alternatives,
and try to work out a solution most
acceptable to the parties and their needs.
But in drafting legislation, you are also
affecting public policy, in many cases with a
far-reaching effect. This requires a look
down the road to see what’s coming, and
who is or can be affected. You should
always try to anticipate tomorrow’s
problems, as well as try to solve those of
today.”
“Whatever the arena,” says Bose, “public
or private, the thing I like about the law is
getting something done!”
17

ENTERTAINMENT
For entertainment lawyers,
the flip side of the profes­
sion often means providing
encouragement, support,
and a shoulder to cry on.
Lights flashing, a police cruiser doubleparks on a quiet street of residences and
discreet offices in central Philadelphia.
Leaving the engine running, a young cop
walks briskly into a law office and asks to
speak to the attorney. When the lawyer
appears, the policeman quickly reaches into
a pocket and pulls out—a cassette tape.
This is not an uncommon occurrence in
the life of Alan L. Spielman ’64. Spielman is
one of a fairly new breed of lawyers who
specialize in entertainment law. Because he
is in constant contact with major record
companies and works closely with many
recognized recording artists, he receives
four or five unsolicited tapes every week. “I
am besieged by performers intent on
‘making it.’ One composer called me at the
office recently and, as soon as I picked up
the phone, he played a tape of his latest
song into it. I was forced either to hang up
or to listen to three minutes o,f misguided
effort. Hit with a stroke of compassion, I
listened. Another would-be virtuoso forced
his way into my office and confronted me
with an unscheduled performance of his
vocal talent.”
Spielman’s anecdotes make him sound a
little callous, which is a false impression. He
is a musician himself and has great com­
passion for those people who are trying so
desperately to break into a tough market.
He spends a great deal of his time audition­
ing solicited tapes as well because, in
addition to his law practice, he is a partner
in a small theatrical management company,
City Lights Management.
Entertainment law involves a knowledge
of copyrights, negotiation, and drafting of
contracts. But many entertainers can be
high-strung and combustible and they
demand of their attorneys more than simple
legal knowledge. Frequently they require
support, encouragement, and a shoulder to
cry on.
Spielman, who heads a small firm in
Philadelphia, “fell into” entertainment law
when he was asked to look over a recording
contract (drawn up by another lawyer) for a
18

friend. “When I read the twenty-seven page,
single-spaced contract, I realized that I
lacked the expertise necessary to review it.
But my friend was adamant, so I
persevered.” The result was a completely
rewritten, renegotiated contract—and the
firing of the original lawyer. Spielman went
on to learn everything he could about the
legal and business problems of the
recording industry, and his practice grew.
The entertainment industry is inter­
national and Spielman has an international
practice. In the music field he represents
performers, managers, publishers, song­
writers, and record companies. During the
past year he has represented also the
producers of a feature-length film and a
documentary film. And there are a few sur­
prises: “Former Governor Milton J. Shapp
wrote the music and book for a Broadway
musical and retained me to handle all legal
work for the project,” says Spielman, who
notes that although the show isn’t off the
ground yet, the former governor has reason
to be hopeful. In a tangenital area,

Alan L. Spielman ’64: “Contrary to popular belief,
my clients tend to be rational and stable people. ”

Spielman notes: “We also find negotiating
contracts for authors and book publishers
raises issues similar to those we face
representing clients in the music industry.”
Spielman always knew that he wanted to
be a lawyer and, fascinated by the image of
Clarence Darrow, directed himself to trial
work during and after law school. He did
not, in the end, specialize as a trial attorney:
“It was too all-encompassing; I needed time
for other pursuits both in and out of the
legal profession.” His ultimate decision to
avoid the arenas of trial law and large-firm
practice has allowed him to become
involved in other areas. For many years he
has represented numerous nonprofit
organizations on a pro bono basis, and
from 1972 to 1979 he was special counsel to
the Pennsylvania Council on the Arts and
the Pennsylvania Historical and Museum
Commission. He has also been a board
member and counsel to the Concerto
Soloists of Philadelphia, giving him an
opportunity to exercise his preference for
baroque music over the popular tunes
which tend to occupy the major portion of
his listening time. This fall Spielman is
teaching an experimental course in enter­
tainment law at his alma mater, the
University of Pennsylvania Law School.
Another lawyer passing along his exper­
tise in entertainment law to a new genera­
tion of students is Paul A. Baumgarten ’55,
who last year taught a course at Hofstra
University. “It’s a little difficult to define
entertainment law exactly,” he says. “It’s
a subject combining contract and copyright
law; it doesn’t exist as a discipline. You
have to use your knowledge from other
branches of law. Since copyright law was
being taught at Hofstra, I taught my course
as a drafting course.”
Baumgarten, who describes himself as “a
traditional lawyer in an untraditional
business,” is a partner in the prestigious
New York law firm of Rosenman Colin
Freund Lewis & Cohen. The firm consists
of 150 lawyers and occupies seven floors of
a towering building on Madison Avenue.
Baumgarten’s office faces the avenue, and
the subdued but eternal cacaphony from
the street below, mixed with the thumping
noises from a construction site across the
way, provides a rumbling continuo to his
deliberations. Color photographs of his
wife and four children adorn the walls,
along with large watercolor paintings of
nautical subjects and an original Walt Kelly
“Pogo” cartoon strip, attesting to the
attorney’s strong interest in his family,
sailing, and art.
“One marvellous aspect of being involved
SWARTHMORE COLLEGE BULLETIN

Spielman, Baumgarten, Fairbank
mm from several sources is intellectually very
satisfying. There have been new techno­
logical developments in the industry, such
as videodiscs and satellite transmissions,
and as a result transactions become more
and more involved because of the impact of
those developments and the complexity of
financing and tax considerations.”
But dealing with entertainers is not like
dealing with corporations, and testimonials
on his office walls attest to the affection
Baumgarten’s clients feel for him. “Of
course, you have to relate to clients. There
are times when you have to give them
backbone as well as advice.”
Paul Baumgarten feels that his greatest
value to his clients is his network of friends
in the industry and the information he is
able to supply through it. There is a brief
phone call from an attorney in California.
Baumgarten in turn makes a quick call to
someone in Georgia to check on a point.
Who can be trusted in making the deal?
Where is the money coming from? Is the
source of the funding sound? What do
references sound like? Little by little the
information accumulates, and the scene is
set for making a policy decision.
According to Baumgarten, when people
Paul A. Baumgarten ’55: ‘‘The words ‘what i f are essentially what the legal profession is all about.”
set out to negotiate, they are often afraid to
discuss ticklish points for fear of
jeopardizing the deal. Important issues,
therefore, frequently get buried in
Has the excitement and magic of the
with entertainment law,” says Baumgarten,
camaraderie and goodwill until someone—
theatrical world captivated him at all? “I
“is that you can see and understand the end
usually the poor lawyer—starts to ask hard
don’t see the glamorous side of show
product. It’s very different from negotiating
questions that usually begin with the words
business people. I see them as hardworking
leases for shopping centers, where you
“what if?” “The words ‘what if’ are essen­
individuals with legal problems. Some
negotiate the lease but never see the
tially what the legal profession is all about, at
attorneys become ‘personal’ lawyers to big
shopping center. I’ve been involved with
least for contract laywers,” he says. “But the
stars, combination psychiatrists and agents,
companies when I didn’t know what they
fun of the entertainment business is the
always at the beck and call of their clients.
did or what their product was.”
ability not only to raise problems but to
That’s not my style. I don’t mind going to
His firm handles cases for producers,
resolve them in a way that makes the deals
occasional black-tie openings, or staying in
distributors, and financiers of motion
work, and to deal with friends. There is a
the city sometimes for a party, but I don’t
pictures, television programs, Broadway
limited number of specialists in the field,
want to feel obligated to stay in town every
shows, and classical music concerts (the
and most practitioners in the industry know
night entertaining.”
latter is Baumgarten’s special field of
each other.”
There is some danger, Baumgarten feels,
interest), so the end product is very visible
That number of practitioners is growing.
if entertainment lawyers become involved
around the Big Apple.
Today, Baumgarten believes that there are
in making aesthetic decisions. “I’m fre­
“One facet of the entertainment industry,”
between 300 and 400 entertainment lawyers
quently asked to read scripts,” he says, “but
he continues, “is that it is very easy for
in New York City. “And that isn’t really a
I don’t like to do it. I’m afraid that my
anyone to appreciate and voice opinions
heavy concentration. Probably more enter­
knowledge of the script—and my opinion
about the end product, whether it be a book,
tainment lawyers are located on the west
of it—could affect the way I direct my
show, movie, or concert. It has been said
coast.”
negotiations.” Baumgarten worked with
that everybody has two businesses—his
Across the country on the west coast,
Joe Levine when that energetic producer
own business and the entertainment
Karen Genkins Fairbank ’74 has been prac­
was making The Graduate. “I told Levine
business. Lots of people tell me how they
ticing law for the past three years with Loeb
then that I had doubts about the script. I
would go about making a movie or a
and Loeb, a ninety-lawyer firm in Los
haven’t read any since.”
television series. Actually, producing a film
Angeles that deals in most civil areas of the
Over the years, Baumgarten has tended
or play or television show is enormously
legal profession including litigation, cor­
to become more involved in the area of
difficult. It is amazing to me that movies
porate, real estate, tax, probate, and enter­
financing. It is the most complex part of the
made by groups of talented people—all
tainment law.
business, and, says Baumgarten, “working
with strong opinions—turn out as well as
Fairbank started in the litigation departout complicated deals involving financing
they do.”
NOVEMBER. 1980

19

Working wi/h people o f wit, intelligence, and style.
ment but, after a year and a half, decided
that it was not the right field for her. “I
worked on all types of cases, both very large
and very small. I felt that I was spending
lots of time on cases that never went to trial
and that were ultimately settled after
hundreds of depositions were taken,
summarized, and indexed, and thousands
of documents were produced, copied, and
examined, and thousands of dollars spent
on attorneys’ fees. It seemed to me that I
was involved in a destructive rather than a
creative process.”
She switched to the entertainment
department in 1978 and feels that she has
found her niche in the legal profession. Her
firm represents all varieties of people in the
entertainment industry: musicians,
recording artists, actors, songwriters,
writers, directors, music publishers,
comedians, and film and television pro­
ducers. “Our clients are all at different

m oron

W
Sik
SÉMI
m

Karen Genkins Fairbank ’74: “ When your client
has a hit record, everyone will return your phone
calls, but when your client does not—forget it!”

20

stages of their careers. Some are superstars-,
some are on their way up; others are on
their way down. My favorites are those at
all stages of their careers who still appre­
ciate the work that is done for them.”
Fairbank notes that this particular kind
of practice can be great fun when she is
representing a client with clout, and very
discouraging when she is representing a
client with none. “When your client has a
hit record, everyone will return your phone
calls, but when your client does not—forget
it! The highest points of my career so far
have been when I was able to make a good
deal for a client with little or no clout.”
An enjoyable fringe benefit of being an
entertainment lawyer, she finds, is socializ­
ing with clients and attending screenings,
previews, concerts, and shows. At times,
however, such social obligations can be
overwhelming, especially after a full work
day.
Have there been low points? Not related
to entertainment, she says, but definitely
related to the law. “Some of the lowest
moments of my career have resulted from
the fact that I am a woman and that the
legal profession is still a male-dominated
world. On the other hand, I have many
clients, both male and female, who enjoy
having a woman attorney, including some
who affectionately refer to me as their
iawyerette.’ I think it would be extremely
unrealistic for any woman planning to
practice law to assume that discrimination
against women attorneys is a thing of the
past.”
Why specialize in entertainment law? AH
three attorneys agree that there is something
special about this branch of the profession.
Perhaps it is the nature of the clientele, but
lawyers in this field are expected to be more
than mere legal technicians: They are asked
to be friends. Karen Fairbank believes that
the most intriguing aspect is that the
lawyer’s role is an expanded one: “Instead
of solely giving legal advice, entertainment
lawyers are often involved in the manage­
ment of the client’s career and business, and
in some cases in the management of his or
her personal life as well.” For Paul
Baumgarten, much of the fascination lies in
working with people of wit, intelligence,
and style, and in the knowledge that,
through his expertise, he is helping them
achieve their goals. Alan Spielman finds his
practice “unique and rewarding. I enjoy
working with creative people, but perhaps
what is most gratifying is that my entertain­
ment clients, more than any others, seem to
appreciate my efforts on their behalf.”

PICKER
This practitioner specializes
in international law and
sex discrimination suits
and teaches law as well.
Law professor Jane Moody Picker ’57 spent
last spring and summer in South Africa
lecturing to law students about fantasy land.
That’s how a member of her audience
described her talks on legal curbs on sex
discrimination in the United States. Picker
could understand the reaction. In a country
where no law prohibits sex discrimination
and where many types of racial discrimina­
tion are mandated by law, it did seem
dreamlike to talk about statistical analyses
of promotion patterns by sex. Groups at
law schools listened to her eagerly, how­
ever, as she explains, because “students are
always interested in novelty.”
She was on professional leave from The
Cleveland-Marshall College of Law (a
college of Cleveland State University). She
traveled through South Africa with her
husband, Sidney Picker, who was on sab­
batical from Case Western Reserve’s law
school. In South Africa she found informa­
tion about sex discrimination difficult to
collect, but watched race-related trials that
she says at first she just couldn’t believe.
One such case involved a young black
cleaning woman who was walking from one
building she had cleaned to the next
building on her schedule. The police
stopped her and asked to see her passbook,
an identification document South African
blacks must carry at all times. The woman
told the police that her employer had taken
it so he could change her work classifica­
tion from temporary to permanent. The
employer’s office was only a few blocks
away and she could retrieve her book, she
told them, if they would wait a few minutes.
The police ignored the offer and took her to
prison. Later the employer verified the
woman’s story and arranged for her release,
but it took him four days. Even though her
story was true, charges against her were not
dropped. She was tried, and eventually
acquitted, in an erractic trial that dragged
on for five days.
Many South African whites talk about
the passbook arrests as if they were no more
serious than traffic tickets. The offenses
may be trivial, but the penalty is harsh; an
SWARTHMORE COLLEGE BULLETIN

offender can go to prison. Sometimes the
pass offender does not go to prison but pays
a fine of about forty dollars, almost a
month’s wages for the average black South
African. In spite of the penalties, hardly
anyone charged with a pass offense appears
in court with a lawyer. Judges usually
dispose of one of these cases in about two
minutes.
Picker’s interest and expertise in law and
discrimination, particularly sex discrimina­
tion, comes in part from her involvement in
American court battles. One of her most
notable cases was Cleveland Board o f Edu­
cation v. La Fleur, in which the school board’s
mandatory maternity leave regulation was
challenged. Jo Carol LaFleur was a school
teacher in Cleveland who was forced by the
school board to take a maternity leave even
though she wanted to keep teaching. With
help from The Women’s Law Fund, Inc.,
LaFleur sued for her job. The case reached
the Supreme Court and Picker argued it
there in October, 1973. “It was very
strange,” she says. “For one thing you have
to stand so close to the Justices that you see
only seven of them at once.” Each side was
given half an hour to make a presentation
which the Justices interrupted frequently
with questions. She smouldered when one
asked how her arguments applied to laws
allowing employers to regulate the hair
length of employees, a question she
considered irrelevant and feared was a bad
sign. When the arguments ended, a veteran
Supreme Courtwatcher came up to her and
predicted that the vote would be 7-2. “But
which way?” she asked him. “Oh, your way,
of course.” Three months later, she heard
that he was right. Only Justices Rehnquist
and Burger had voted against LaFleur’s
right to continue teaching while pregnant.
An unexpected result of the outcome of the
case was LaFleur’s decision to quit teaching
and become a lawyer.
Sex discrimination has not always been
Picker’s specialty. She began her career in
quite another field—international law. Her
first job after law school was with the firm of
Tilleke & Gibbons. The name is unfamiliar?
It would be recognized in Bangkok.
When Picker graduated from Yale Law
School in 1960, her parents gave her a roundtrip plane ticket to visit them. They were
living in Bangkok at the time, and Picker was
immediately entranced by the “magnificent
city.” To prolong her stay, she found a job.
Although she was not licensed to practice in
Thailand, Tilleke and Gibbons hired her to
do research because French, English, and
American law was the basis of much of
NOVEMBER, 1980

Jane M oody Picker ’57 specializes in sex discrimination cases, class action suits, and outer space law.

modern Thai statutory law. She knew
French, Russian, German, and Spanish, but
alas, no Thai or Chinese. Fortunately the
firm supplied translators. While her class­
mates from Yale slaved twelve-plus hours a
day in American firms, Picker’s Thai firm
worked only six hours a day. She was able to
take a second job, teaching English to Thais.
Her work with the Thai law firm was inter­
rupted by a letter from one of her professors
at Yale, who suggested that she might want to
apply for a job at the RAND think tank,
which was looking for an attorney to work on
a new field of international law pouter space
law. “I was astonished,” Picker says.
Outer space law was still in its infancy in
1961, when she went to work in the social
sciences division of the RAND Corporation.
One of her first projects at RAND concerned
the legality of satellites launched to fly over
countries. The U.S. at that time hotly
disputed the legality of Soviet reconnaisance
satellitesB-until it began launching its own,
called “observation satellites.”
In 1962 Jane Picker took a five-month
leave from RAND to go to Moscow and Kiev
as a Russian-speaking guide for the United
States Information Service’s exhibit “Medi­
cine USA.” Two years later she left RAND to
join Comsat (the Communications Satellite
Corporation) as a member of its international
arrangements division. In 1968 she left
Comsat to tour four law schools in Australia,
lecturing on the legal aspects of outer space.

When she returned, she practiced law in
Cleveland and then received an appointment
as a lecturer in law at Case Western. Since
1972 she has been teaching at Cleveland State
University’s College of Law where she
teaches courses in sex discrimination and
law, class actions, and international law.
While on leave Picker spent last fall and
winter in Australia lecturing to law students
and consulting about class action suits, a very
topical issue. In this kind of law suit, a
representative of a large group of people can
sue on behalf of the whole group. For ex­
ample, one owner of a car can bring a class
action suit against the car’s manufacturer on
behalf of all owners of the same model car. In
the U.S., but not in Australia, the car owner
can ask for damages for every member of the
class. But if the car has a defective motor,
Australians can only bring an action to force
the company to stop making bad motors.
Under these laws, therefore, Australians gen­
erally do not bother to sue since they have no
hope of recovering money. Critics of Au­
stralia’s current law say that the failure to
award damages discourages suits and pro­
tects wrongdoers, and Australians are now
debating a possible change in their law to
permit the award of damages. As one might
imagine, some Australians and Australian
businesses are satisfied with the law as it
stands and have no desire to adopt American-style class actions. “It’s a hot issue,”
Picker says.
21

YOUNG LAWYERS
Shedding their blue jeans to don pin-striped suits,
many young Swarthmoreans are emerging from law
schools across the nation and plunging into practice
from Wall Street to women’s law collectives. Their
varying experiences, both in and out o f law school,
reflect the fact that lawyers perform an immense
variety o f services. As the definition o f lawyering
continues to expand, the traditional prototype o f the
American lawyer dissolves.
Reactions to law school run
the gamut from love to hate.
Very few claim indifference.
Many graduates recall being
overwhelmed by the amount of
work and the number of hours
required for preparation—espe­
cially during the first year.
Several recent law students
summed up their experiences
with this pithy maxim: “They
scare you to death the first year,
they work you to death the
second, and they bore you to
death the third.”
But as survivors, most are
finding that the practice of law is
considerably different from the
study of law. And the majority
are enjoying the practice far
more.
“I hated law school, but 1 love
my job,” states Michael Barasch
’77, now working for a small
litigation firm in New York City.
“Although 1 do research from
time to time, I spend more time
trying to sell myself to a jury or a
judge or trying to convince an
insurance representative that my
client’s injuries are real.
“Even though I found the
work easy at Fordham, I felt a
constant pressure about study­
ing. After the first year, you have
learned the buzz words and
know the procedures. The next
year is pure drudgery, and the
third year is not necessary.”
Echoing these feelings of dis­
content, Jon Andrews ’79, a
second-year law student at the
University of Pennsylvania,
22

Michael A. Barasch '77

recalls an uncomfortable
amount of fear and intimidation
pervading the first year. He
recognized that the Penn law
professors concentrated inten­
tionally on conceptual, rather
than practical, training, but he
preferred the experience gained
in his summer job.
On the other hand, Paula
Rock ’76, a first-year student at
Cornell University Law School,
has been pleasantly surprised.
“I was warned to the hilt
about Paper-Chase-type pro­
fessors and cut-throat students,”
Rock recalls. “I’m finding that
the atmosphere is low-key and
the workload is very manage­
able. Law school reminds me of
first-year teaching; it requires a
lot of preparation.”
While teaching English in a

private secondary school in Los
Angeles, Rock became intrigued
by Equal Opportunity laws and
started to feel that teaching, for
her, was a dead end. Although
she is enthusiastic about her
career move, she is worried
about getting a job after
graduation.
Her concern is legitimate; the
job market for law school grad­
uates is tight. American Bar
Association statistics reveal a
dramatic increase in the number
of lawyers in this country—from
approximately 317,000 in 1966
to over 464,000 in 1978. Con­
sequently, young lawyers are
sometimes unable to find jobs in
their chosen fields of
concentration.
When Jeff Rothman ’77 saw
how tight the job market was in
New York City, he decided to
join his family’s law firm. Many
of his classmates from Brooklyn
Law School are still looking for
jobs, five months after
graduation.
“I never intended to go into
the family business,” Rothman
admits. “1 was talked out of it by
my father, initially. But then I
was talked into it by his
partner.”
The family firm is composed
of Rothman’s father, uncle, and
partner. Because the firm
handles a wide variety of cases,
Rothman is gaining an under­
standing of general law, often
neglected by young lawyers in
this age of specialization; and he
has rapidly acquired more
responsibility than falls to the lot
of most first-year lawyers.
Another advantage of
working in a small firm is the
high degree of personal contact.
Rothman often deals with
people who don’t have much
money, a situation which is less
common in large firms. For
instance, one of his clients, who
owns a bakery, expressed his
gratitude by bringing in a home­
made cheesecake.
Generally, dedication to a
philosophical goal and personal
satisfaction, not high salaries,

Jeffrey E. Rothman ’77

provides motivation for lawyers
working for small firms. Young
public interest lawyers, too,
frequently work for low salaries.
“You develop a stake in your
cases that most lawyers don’t,”
comments Larry Schall ’75, a
graduate of the University of
Pennsylvania Law School and
an attorney with Community
Legal Services in Philadelphia.
“It’s hard to keep up with the
amount of work, but I enjoy it
because I’m committed to the
goals I’m trying to reach.”
The relationship between
Community Legal Services
(CLS) and the state creates an
unusual tension. Although CLS
funding is allocated by the state
legislature, the agency actively
helps clients lobby against the
state and frequently sues the
State Department of Public
Welfare in response to the
ongoing cutbacks in public
services.
“They [the state] would rather
see us concentrate more on evic­
tions, divorces, and consumer
complaints,” Schall comments.
“But instead we are fighting their
attempts to cut back the welfare
program and terminate aspects
of the medical assistance pro­
grams, such as the orthopedic
and eyeglass programs.”
Schall, like most public
interest lawyers, copes with the
heavy work load by putting in
many extra hours which he still
enjoys at this point in his career.
But eventually many attorneys
in this field tend to burn out.
Sherry Bellamy ’74, an attor­
ney with New Haven Legal
Assistance and a graduate of
Yale Law School, is experienc­
ing this burn-out phenomenon.
SWARTH MORE COLLEGE BULLETIN

“J hated law school, but Ilo ve m y jo b .”
MICHAEL BARASCH ’77

After three years of public
interest law, she is surprised to
find herself seriously consider­
ing corporate law as a viable
alternative.
“I am tempted to get out of
legal services for a while, mostly
because of the amount and
nature of the work,” Bellamy
explains. “My work is often
exciting and rewarding, but it
can also be frustrating and
exhausting.”
Heading the Child Law Unit,
Bellamy focuses on litigation
and spends much of her time in
court fighting for the rights of
abused, neglected, exceptional,
and handicapped children. She
finds it challenging to work in
this growing area of the law,
creating and molding in addition
to interpreting. But she finds it
also emotionally draining.
“Representing children who
are in need, 1find it hard to
remain aloof. 1 have learned how
not to take the cases home
mentally, but it’s often difficult,”
Bellamy comments. “Some­
times 1 feel as though I’m doing
social work.”
She recalls one client, a young
girl under treatment in a local
hospital, who was waiting for
Legal Assistance to find her an
alternative living arrangement
because she could no longer live
at home. In despair, the
youngster tried to commit

Sherry F. Bellamy '74
NOVEMBER. 1980

suicide by jumping out a
window. Most recently, she has
been spending much of her time
in court asking for a federal
injunction to prevent a local
school system from closing an
alternative high school.
Bellamy’s role as lawyer/
counselor is complicated by the
age of her clients. Whenever a
discrepancy arises between the
child’s desires and the best
interest of that child, she lets the
courts decide the latter while she
pursues the former. Otherwise, if
a child is too young to express
and formulate his or her desires,
Bellamy makes that decision
herself.
But despite the fact that
Bellamy enjoys representing
children, she suspects that a shift
into the corporate world might
eliminate the emotional com­
ponent which is unusually strong
in the field of child law. “I’d be
sad to leave this job, but I know
I wouldn’t encounter the same
type of stress in corporate law.”
Working for a small women’s
law collective in Washington,
D.C., Alice Bodley ’74, a grad­
uate of Villanova Law School,
believes that an emotional
investment improves the quality
of her work.
“If I were to shut down emo­
tionally, it might be easier,”
Bodley states, “but then I would
be a less effective lawyer. My
caring does not impair my legal
reasoning.
“Lawyers are programmed
not to apply their own sense of
ethics,” she continues. “We are
trained to argue either side of a
case. That training is valuable,
since we have to anticipate the
other side’s arguments. But in
the law collective, we take a
political stance.”
The collective is composed of
six women, four attorneys and
two assistants, who consider
themselves feminists with leftist
leanings. Operating in a nonhierarchical fashion, the women
make all policy and procedural
decisions by consensus. They
determine their salaries on the

basis of need rather than rank
and offer their clients a sliding
fee scale.
One of fewer than two dozen
such organizations in the nation,
this collective focuses on antidiscrimination work with an
emphasis on women’s rights
cases. The attorneys take on
race, sex, and class discrimina­
tion cases and nearly half of
their clients are male, but they
refuse to represent men in con­
tested domestic relations cases.
Although they do criminal work,
they will not represent alleged
rapists.
“We won’t be hired guns for
either side,” Bodley comments.
“If there is any question about
taking on a case, we discuss the
political ramifications before
deciding.”
When opposing the Federal
government in a race discrimina­
tion case or convincing a judge
that a lesbian mother is qualified
to raise a child in a divorce and
custody case, Bodley finds that
the laws are designed to protect
the status quo. Trying to
promote change, she says, is
often an uphill battle.
“Most jobs that provide the
opportunity to create change
also create frustrations,” com­
ments Christopher Edley, Jr. ’73,
who earned a master’s degree in
public policy from the Kennedy
School of Government as well as
a law degree from Harvard. “It’s
challenging to figure out how to
overcome the obstacles.”
Edley, who now serves as
associate chief of staff at the
White House, spent one year
working for Patricia Harris in
the Department of Health,
Education and Welfare (now
Health and Human Services)
after spending sixteen months in
the White House as assistant
director of the Domestic Policy
staff. His focus has remained
constant—policy formation.
Concentrating on welfare and
social service issues in his first
two positions, Edley was instru­
mental in the development of the
1979 welfare reform package

Christopher F. Edley, Jr., '73

proposed by President Carter as
well as an energy assistance pro­
gram aimed to help low-income
families. He has also spent time
compiling a proposed revision of
the social security policy for
women.
Another change-promoting
project has entailed implementa­
tion of child welfare amend­
ments, which drastically reform
adoption and foster care
policies. Edley explained that in
the current structure the
emphasis has been on providing
foster care with very little focus
on preventing problems, re­
unifying families, or finding
permanent placements.
Edley, unlike many young
government workers, sees con­
crete evidence of progress as bills
are enacted and programs imple­
mented, but he admits that he
avoids entanglement in red tape
because of the high level of his
positions.
Now, back again at the White
House, Edley is developing a
program to guide all presidential
appointees (cabinet and sub­
cabinet officers) in media rela­
tions and outreach to the public.
Elizabeth Leader ’73, a grad­
uate of George Washington Law
School, had a less positive ex­
perience with government work.
As an investigator for the Penn­
sylvania Human Relations Com­
mission for two years before law
school and an attorney for the
Equal Employment Opportunity
23

“I was unprepared to fin d that thefirst yet m

YOUNG LAWYERS
Commission, she grew increas­
ingly frustrated with the bureau­
cratic system. Now, having left
the Commission to free-lance,
she finds that she prefers the
freedom of self-employment.
“I got tired of dealing with a
system that’s not promoting
change,” Leader states. “I guess I
should have learned from my
experience in Harrisburg that I
don’t like government work. I
had hoped to feel more selfemployed and have more client
contact as an attorney. But in
E.E.O.C., each person sat in a
little semi-oxygenless office with
no windows and was supposed
to read, write, and research.”
Working for a different
agency, in the labor relations
employment field, Alan Symonette ’76 enjoys conducting inves­
tigations of unfair labor practice
cases for the National Labor
Relations Board, an indepen­
dently managed governmentfunded agency. A graduate of
Villanova Law School, he is
enthusiastic about his position
which involves investigating
violations of the National Labor
Relations Act, settling cases in
and out of court, and traveling
to conduct union elections.
“Everybody talks about how
nasty divorce cases can get;
labor relations cases can get just
as heated,” states Symonette. “In
fact, the question of whether a
union comes into a plant is prob­
ably more important to most
individuals than the outcome of
a presidential election or a
change in the nation’s foreign
policy.”
It is not unusual for union
elections to last past midnight,
and it can be extremely time
consuming to try to document
and prove that an employer has
fired a worker just because that
worker was trying to organize on
behalf of the union. But
Symonette, like the majority of
young Swarthmore lawyers
interviewed, does not resent the
24

extra hours he puts in.
What he did resent was the
alleged discrimination he ex­
perienced as one of only two
black students in his law school
class. The open-mindedness and
liberalism which he appreciated
at Swarthmore were conspicu­
ously missing in law school, he
recalls.
“The students’ attitudes
worried me,” Symonette states.
“Everybody was constantly
testing you. It was as if they
thought you got in on affirma­
tive action.”
Looking back, he remembers
cold shoulders, students’ refusal
to let him join their study
groups, trouble finding a part­
ner for moot court, and even
blatantly predjudiced comments.
“One day in a class concerning
housing, a classmate described
people living in low-income
public housing as ‘scum,’”
Symonette recollects.
Statistics indicate that there
has been a steady and dramatic
increase in minority enrollment
in law schools. Over the last ten
years, it has jumped from 4.3
percent to 8 percent. Nonethe­
less, an atmosphere of discrimi­
nation still prevails, according to
several young black lawyers.
In discussing their law school
experiences, most recent Swarth­
more graduates, black and white
alike, remarked that the law
school community felt markedly
less supportive than the Swarth­
more community. Recalling cut­
throat competitiveness and
isolation, many were distressed
to discover a lack of political
and social consciousness. Often,
they attributed apathy and lack
of open-mindedness to the
pressures of a staggering work
load.
Rosalind Plummer’73, a
graduate of Harvard Law
School, echoed Symonette’s feel­
ings about the racist attitudes in
law school; but in addition, she
regretted that students seemed

generally self-oriented and
overly competitive.
“The greatest stimulation in
learning comes from exchange
with others,” Plummer com­
ments. “But in law school,
students learned to do only
whatever was required to get
through.” A firm believer in the
value of education, Plummer
earned a master’s degree in
education, public policy, and
administration from Harvard
Graduate School and taught
high school for a year before
entering law school.
After spending a year with a
prestigious Philadelphia law
firm, Plummer realized that she
wanted to be more involved in
the community and left the firm.
Now, utilizing both master’s and
legal training, she works as a
business and legal advisor in an
advertising agency while she
maintains a private practice on
the side. Politically and pro­
fessionally, she is now focusing
on encouraging the growth of
small businesses in Philadelphia,
a town with a significant black
population but few black busi­
nesses.
For Richard Barasch ’76, a
graduate of Columbia Law
School, the training provided by
a large firm is invaluable.
Working for a Wall Street firm
with 200 lawyers on the staff, he
enjoys having the opportunity to
work on a wide variety of cases.
While arranging the sale of a
major office building, leasing air

Rosalind M. Plummer '73

Richard A. Barasch '76

rights, and settling conflicts
arising over funding of state sub­
sidized housing projects, he has
learned that the firm empha­
sizes the high quality of the work
produced, not the amount of
time needed to accomplish the
task.
Rhonda Resnick Cohen ’76, a
graduate of the University of
Pennsylvania Law School, chose
to work for a large firm for
similar reasons. At this point in
her career, she wants exposure
to all aspects of the law, and she
wants the mobility which a big
firm background will allow. Her
husband, David Cohen ’77, a
third-year law student at Penn,
may also be interested in joining
a large Philadelphia law firm,
which raises some interesting
questions for the couple and the
firms.
For law firms, developing a
policy about hiring spouses is
becoming essential as more
women enter the field of law.
(Over the last ten years, enroll­
ment of women in law schools
has jumped from less than 7
percent to over 31 percent.)
During recent job interviews, the
Cohens discovered that many
firms expressed totally different
points of view. Some firms
encourage the couple to work
together; others discourage
them.
“Working for different firms
would put a real damper on our
opportunities for collaboration,”
David says. “And collaboration
is important when you are trying
SWARTHMORE COLLEGE BULLETIN

IF

m

wasfascinating.

99

POLLY PINSKER C H ILL’50

to come up with a creative legal
theory or solution.
“On the other hand, I would
want to have a life after law,”
David continues. “It might be
nice to have the ethical code
provide an artificial barrier.”
David’s decision to accept a
clerkship next year will afford
them time to weigh carefully the
pros and cons of both alterna­
tives.
As the number of women in
law is steadily climbing, the
number of women entering law
school after many years in
another career or after raising a
family also is on the rise.
After twenty years as a book
editor, mother, and wife, Polly
Pinsker Chill ’50 decided to
move into a new career. Newly
divorced, she wanted to find a
job which would be less isolating
than editing. Therefore, she
began working for the Depart­
ment of Research and Negotia­
tions of a labor union, where she
learned how to handle collective
bargaining negotiations and
other matters related to labor
relations. She was so intrigued
by the field that she decided to
pursue a law degree in order to
further her career in labor
relations and is now in her
second year at New York Uni­
versity Law School.
Becoming a student again
after thirty years in the work
world has not been difficult for
Chill, a fact which she chalks up
to her high level of motivation.
“I was unprepared to find that
the first year was fascinating
and enjoyable,” Chill comments.
“The work covers material
which has always been interest­
ing to me.”
Chill recalls that her interest
in discrimination dates back to
her days at Swarthmore. “At
that time, the question of quotas
for Jewish students was being
hotly debated,” she recalls. “I
was placed on the admissions
committee to explore the quota
question.”
Now, thirty years later, she is
headed for a career in labor
relations. Knowing exactly what
NOVEMBER, 1980

11

H

,

H

RPIl

n

m

|

S i
iV
Rhonda Resnick Cohen ’76

she wants to do with her law
degree, Chill chooses not to
compete for Law Review or
interview for positions with
large law firms. She devotes
much of her time to the
Women’s Rights Clinic. There,
under the guidance of a law
professor, she works on cases
involving discriminatory
employment practices based on
sex.
“If I wanted to go into the
traditional channel, my age
might be a disadvantage. Big
firms want young people they
can train from scratch,” she
responds when asked if she is
concerned that her age will be an
employment handicap, “but I
am in a less popular branch
of the law and already have
experience in the field I plan to
enter.”
Anne Larchar Spitzer ’50,
who graduated from the
University of Iowa Law School
five years ago, feels that her age
has not hampered her career.
Her initial reaction to law school
was terror and boredom com­
bined with “a feeling of being
demoted from a grown-up to a
child.”
Since graduation, however,
she finds the work rewarding
and challenging. After clerking
for an Iowa Supreme Court
judge for a year, she joined a
small trial law firm in Iowa.
There, she was “the tallest,
oldest, and most junior member
in the firm—and had a
wonderful working experience.”
Now teaching at the University
of Florida Law School, Spitzer
is combining practice with teach­
ing, spending time litigating in
court while teaching a legal-aid
clinic for indigents. She explains
that law school clinics, modeled
after medical internships, have
become increasingly prevalent

and popular.
Another growing trend that
has recently come into vogue is
deferral. Anticipating the
pressures and time demands
connected to the study of law,
many recent Swarthmore grad­
uates choose to take time off
before plunging into the enor­
mous financial and emotional
investment which law school
represents. The length of time
varies, but the reasons given
usually boil down to a common
need: the need for a break.
“After attending high school
and Swarthmore, I felt like I’d
been in a pressure cooker for
eight years,” admitted Robert
Herman ’80. I wanted to take a
breather and get some job
experience.”
Working in Washington,
D.C., on Senator Percy’s SubCommittee on Investigations,
Herman has become involved in
issues of first amendment law
while examining the Criminal
Code and the Intelligence Iden­
tities Protection Act. His up­
coming investigation, a project
which he designed, will entail
researching the political, as
opposed to the technical,
barriers blocking the develop­
ment of solar energy.
Clara Pope ’80 deferred to
“get some perspective on school.”
Working for the Inter-American
Commission on Human Rights
of the Organization of American
States, she investigates alleged
human rights violations and
prepares OAS reports, tasks
which sometimes involve travel
to Latin American countries. A
law degree, she says, is a tremen­
dous springboard into politics
and government.
Post-graduate work experi­
ence has become an important
factor in law school admissions

decisions, according to J.
Roland Pennock ’27, Swarthmore’s pre-law advisor and
Richter Professor Emeritus of
Political Science. In fact, close
to 50 percent of the recent law
school classes have been com­
posed of students who have taken
a year or more off to work before
beginning law school, he says.
Reflecting on the markedly
anti-establishment tendencies of
many of the young Swarthmore
lawyers interviewed, Pennock
points out that “during the late
sixties and early seventies, there
was a strong anti-business and
pro-public-interest atmosphere
which often translated into pro­
government feelings. The fields
of interest pursued by these
young lawyers are in keeping
with the spirit of the age which
molded them. They were raised
in a highly politically charged
climate which cultivated an
increased awareness of human
rights.”
In a country where the legal
profession has always been an
integral part of the nation’s
development, it is not surprising
that the number of lawyers con-

N
Jp *
mi

David L. Cohen ’77

tinues to blossom as the nation’s
internal and international prob­
lems continue to grow in
number, size and scope. In
today’s society, lawyers wear
many different hats, but the
most salient aspect of the legal
profession, which unifies and
motivates, is that lawyers are
attacking the serious problems
of the world.
25

In th is sp e c ia l issu e:
1 C a n th e J u d ic ia r y S o lv e
E v e r y b o d y ’s P r o b le m s?

Paul H. Buchanan, Jr. ’39
2 N e w T ren d s fo r O ld
C o u rts

John C. Crats/ey ’63
4 S tr u g g lin g to R e c o n c ile
C o m p e tin g V alu es

Jane Lang McGrew ’67
6 T ea ch in g L aw

Frank H. Easterhrook ’70
8 L a w a n d th e L ife S c ie n c e s

Alexander Capron ’66
10 L egal E th ics: B a la n c in g
C o m p e tin g In terests

Geoffrey C. Hazard, Jr. ’53
1 2 -2 1 P r o file s o f fo u r w o m e n
ju d g e s , th ree S u p r e m e C o u rt
cle rk s, a n d six rem a r k a b le
a tto r n e y s .

O n a recent trip to
E ngland, I fo u n d in
W estm inster A bbey
the ep ita p h o f
C h risto p h e r C h a p m a n , w ho died
300 years ago. This e p itap h has
been an in sp ira tio n to me. I c o m ­
m end it to you:

22 Y o u n g L aw yers
2 6 C la ss N o te s
E d ito r: Maralyn Orbison Gillespie ’49
M a n a g in g E d itor: Nancy Smith
A s sista n t E d ito r: Kathryn Bassett ’35
E d ito r ia l A s sista n t: Ann D. Geer
D e sig n e r : Bob Wood
C o n tr ib u tin g w riters: Gus

Swarthmore College Bulletin

McLeavy ’73, Susan Milius ’75,
Hope L. Wohl.
C o v e r p h o to : Thomas Sahagian ’76

What I Gave I Have
What I Spent I Had
What I Left I Lost By
Not Giving It
Eugene M. Lang '38, General Chairman
The Program for Swarthmore

T h e P ro g ra m fo r S w a rth m o re , th e
C o lleg e’s c a m p a ig n to raise $30.5
m illio n , has p a ssed 85% o f its goal.
S w a rth m o re ’s C e n te n n ia l C a m ­
paign in 1965 w ent over th e to p by
22%. S w a rth m o rea n s have it in
th e ir g ra sp to e q u a l
o r b e tte r th a t
a c c o m p lish m e n t
j
in th is la st y e a r o f \
SWARTHm o r e
th e drive.