Harvard Law School Oral History
Interview Date: February 14, 2003
Interviewer: Dan Hamilton
Interviewee: Paul D. Carrington
Transcribed April 3, 2003; edited by Carrington May 18, 2003
Books, articles mentioned during interview
Political Questions: The Judicial Check on the Executive, 42 Va. L. Rev. 175 (1956)
The Moral Quality of the Criminal Law, 54 NW. U. L. Rev. 575 (1959)
The Uniform Commercial Code (Wyoming Legal Research Bureau, 1960)
The Modern Utility of the Quasi in Rem Jurisdiction, 76 Harv. L. Rev. 303 (1962)
Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542 (1969)
The Power of the District Judge, 3 Ga. L. Rev. 507 (1969)
Civil Procedure: Cases with Comments on the Process of Adjudication (editor) (Little Brown & Co., 1969)
Training for the Public Professions of the Law (editor)(Association of American Law Schools, 1971)
Appellate Justice: 1975 (editor) (National Center for State Courts, 5 vols.)
Justice on Appeal (West Pub. Co., 1976) (with Meador & Rosenberg)
Of Law and the River, 34 J. Leg. Ed. 222 (1984)
Afterword: Why Deans Quit, 1987 Duke L.J. 342 (1987)
Butterfly Effects: The Political Influence of Law Teachers, 41 Duke L. J. 741 (1992)
Appeals (Michie & Co. 1994) (edited with Meador and Rosenberg)
Stewards of Democracy: Law as A Public Profession (Harper Collins Westview 1999)
My Devon: Memoir of A Nerd, 2 Alibi 35 (1999)
Tanking the Rankings: Thoughts on Law Schools Rankings by The Media (The American Lawyer, April 2000)
Our Imperial First Amendment, 34 U. Richmond L. Rev. 1167 (2000)
Clients I Remember, Experience 10 (Winter 2003)
Reproducing the Right Sort of Hierarchy, to be published by NYU Press as foreword to republication of Duncan Kennedy, The Reproduction of Hierarchy
Hamilton: Good afternoon.
Carrington: Good afternoon.
Hamilton: Why donít we start at the beginning. Where are you from and where did you grow up?
Carrington: I was born in Dallas and grew up there.
Hamilton: Tell me about growing up in Dallas.
Carrington: Well, I experienced a privileged childhood. My father was a lawyer and an alumnus of the Harvard Law School, Class of 1917. He had a prosperous practice in Dallas and was a leader not only in his profession but in the community of Dallas, in his church, the YMCA, the Boy Scouts. He was, perhaps above all else, a Citizen. He cared a lot about Dallas, about Texas, about America, and about his profession and he served them all generously. And the judges sitting in the area knew that he could be trusted not to sell them snake oil.
In 1951, I went with two friends to pay handball at the Houston YMCA. I filled out a little form for one-day guests and paid a dollar. The manager saw it, came out of his office and returned my dollar, saying that anyone named Paul Carrington from Dallas could play in the Houston YMCA every day of his life without paying.
Also, as it happens, my motherís sister was married to Charles McCormick, who was a member of the Class of 1912. My Uncle Chas was a distinguished law professor at the University of Texas. And my uncle Roscoe, my motherís brother was a distinguished architect.
My father thoroughly enjoyed his career, which he continued for 63 years. He wrote an autobiographical account of his practice that is on file at the SMU Library. At 79, he began teaching at SMU, and taught a seminar there every semester for 8 years. He was a President of the Dallas and the Texas Bars, a figure in the ABA, and Chair of the Board of Visitors at Harvard Law School. He faithfully attended annual reunions of his law school class and was a close friend of Lon Fuller and Erwin Griswold.
Hamilton: Had he grown up in Texas?
Carrington: He grew up in Missouri. His parents were public schoolteachers. His father was elected to the office of State Superintendent of Public Instruction, and then served as the founding President of a teachersí college that is now Southwest Missouri State University. So my father grew up in Jefferson City and Springfield. He and I and my sons and nephews once toured Missouri to visit the sites of his childhood. So we saw Carrington Hall, the main building at SWMSU.
Hamilton: How did he end up at Harvard.
Carrington: There were about six Missourians in his class who lived together for three years. My father was a student at the University of Missouri and was advised by Manley O. Hudson, who was then at Missouri, to go to Harvard. Hudson was later a professor at Harvard and a member of the International Court at The Hague..
Hamilton: And youíve written that one of the influences on him was Bull Warren?
Carrington: Well, Bull Warren was an influence on everyone he met, I think. I donít know that he had a special relation with my father. But recently, while moving some stuff, I came across my fatherís military file and it included a letter of recommendation from the Bull to the officerís training camp at Fort Riley, Kansas.
Hamilton: Did he ever talk about his law school profs?
Carrington: Very little. We had one in common, Austin Scott.
Hamilton: Is that right?
Carrington: We talked about Scotty a little. I also discussed him with other members of the Class of 1917 whom I got to know after I entered law school. All of us loved Scotty, not least because he had a twinkle in his eye that told you that it was all supposed to be fun, even while your mistakes were being made the object of public notice.
Hamilton: How did your father come to settle in Dallas?
Carrington: He had an uncle there. He passed through while in the military, and liked what he saw. He had been planning to go to Kansas City.
Hamilton: You stayed in Dallas until you went to Exeter?
Carrington: Yes, I went to Exeter in 1946 and almost graduated in 1948.
Hamilton: For posterity, will you tell us what happened?
Carrington: Sure. I loved Exeter and still cherish my classmates there. It was a very demanding school, tougher for me than law school.
One memorable event was the Fall Dance of 1947. I brought a girl from Dallas who was in school in New York. She was a friend from earliest times. We had frequently walked home from elementary school together. As I have written in our law studentsí literary magazine, we were nine together, but when I was twelve, she was fifteen, and when I was fifteen, she was a Neiman-Marcus model. She was gorgeous, and my Exeter classmates were blown away by her beauty. Her presence elevated me greatly in their eyes. She agreed to come back to the spring dance. In March, there was a minor riot among Academy students caused by a power outage. The faculty cancelled the dance as punishment. I was enraged. I bought a six-pack and brought it back to the dorm as an act of defiance. I was caught, and knew at once that I was on my way home. I deeply regretted my misdeed, but the punishment was foregone.
Hamilton: Do you have a high school diploma?
Carrington. Yes, two. I finished the year in a prep school in St. Louis. I was all set to go to Stanford. Exeter wrote a nice letter to Stanford about my departure, and my admission to college was reaffirmed. But then I decided for some reason or other to go to University of Texas. Texas did not recognize the school in St. Louis, so I went to summer school in Dallas and got a second diploma.
Hamilton. Well, they were put to good use.
Carrington. Well, they got me into Texas.
Hamilton: Why Texas and not Stanford.
Carrington: I donít really recall. My parents were worried about my going off to California. My experience at Exeter had reduced their confidence in my judgment. But it was my choice. My sister and many others I knew had gone to Texas, and I thought maybe it was a good idea for me to go back to public school.
Hamilton: Was it a positive experience?
Carrington: Sure. I had a problem, shared with some of my descendants, of looking fourteen when I was seventeen. I had attended all-boysí schools for five years. And having survived the rigors of Exeter, I was cocky about academic work. So I spent two years trying to figure out how to make friends, especially girl friends. I drank beer with the guys many evenings, and often well into the wee hours. I slept in mornings and seldom got around to study.
One of the things I did in that effort to attract girls is fun to recall. In an effort to conceal my New England education, I tried to learn to speak with a central Texas drawl. There was a guy from Lampasas whose drawl I tried to replicate. It did not work. No girls were attracted, and so I went on to something else. But in 1970, I was on the school board in Ann Arbor, Michigan. Our very long board meetings were often reported on the early morning news on WAAM. My kids told me a couple of times that the announcer identified some other speaker as me. Finally, I was up in time to listen one morning. Sure enough, there was a guy from Lampasas on the Ann Arbor School Board. Unconsciously, in an effort not to sound like a university professor, I reached back to that phony Lampasas accent that had done me no good with the Texas maidens.
My academic program at Texas was very good. It had the unpretentious name of Plan II. It was a structured liberal arts curriculum for 100 students, a sort of Amherst within a big university, and with some of the best of the faculty. Because of my state of mind at that time, I got limited benefit from them. One problem in my freshman year was that a girl in all my classes really knocked me out. Jan Scurlock and I shared our birthday. We were delivered in the same delivery room and our mothers shared a room in the ward. I was two hours older. I first met her at Texas and instantly craved her attention. She was later the roommate of the woman I married. She married Barefoot Sanders, who has had a distinguished career as a federal judge in Dallas. And she was the matron of honor in my wedding in 1952. So she was at a party we had in Dallas last summer to mark our 50th. I teased her a little, reminding her that she and I had shared a fetal pig in Biology 1, and somehow when we were doing the required surgery, it was not the body parts of the pig that were on my mind. As a result of her charms, I got a very low grade on the lab test. Amusingly, she seemed to have no recollection of the fact that I was literally crazy about her in 1949.
I began to get my head screwed back on in 1950. Given who I was in 1948, it was remarkable that my fraternity put me in charge of rushing new members in 1950. It turned out to be the flashiest triumph of my life. And that led to my election to an honorific group, the Texas Cowboys. As a member of that group, I was privileged to wear chaps, an orange kerchief, and a big black hat on to the football field to elevate the enthusiasm of Longhorn fans. Our motto, which still hangs on my wall was ďGive your best to Texas and the best will come back to you.Ē
Hamilton: For home games?
Carrington: Wherever. We didnít go on the team bus or anything. But those of us in attendance were always welcome to do our thing. So the Texas Cowboys magnified my self-confidence as a social person. It probably also helped a little that I grew four inches while in college. By 1951, I was able to hit the books again, and to win favorable notice from my wife, which was the most important achievement of my life.
She was an outstanding student, but left school a year early to go to Cambridge with me. In an important sense, she and I grew up together. She worked as bookkeeper at Radcliffe to pay the rent. When I was offered a summer clerical job in Manhattan, the Business Manager of Radcliffe offered to find me a job with a Boston firm so that she would not leave for the summer. He could not do without her. She later raised our four children and then became a professional librarian. Roy Mersky, the law librarian at Texas, told me a few years ago after she made a presentation on new technologies to his staff, that she is the best librarian he ever met: very smart, careful, generous, aggressive when it counts, and with the enthusiasm of one two generations younger. She became the co-editor of the reference book on reference books.
Hamilton: Was it always a foregone conclusion that you would end up at Harvard Law School and as a lawyer?
Carrington: Not at all. I was going to be anything but a lawyer until 1951. As a kid, I had thought about architecture, and I donít know when I turned loose of that idea. In 1951, it suddenly became clear to me that I was a lawyer.
But being a lawyer did not make we want to work for my father. As a kid, I often slightly resented having his name because I thought it implied that I was supposed to be like him. My experience at the Houston YMCA, for example, did not increase my desire to return to Dallas. I admired him but I wanted to be my own person. So I was not much attracted to practice in his firm.
Hamilton: Is the firm still around?
Carrington: Yes. It still bears his name.
Hamilton: Which firm?
Carrington: Carrington, Coleman, Sloman, and Blumenthal. Jimmy Coleman and I started practiced together on July 1, 1955. Bob Blumenthal was a Texas Cowboy with me, and showed up at Harvard to do an LLM during my third year, so we have close ties. Also, the managing partner is Fletcher Yarborough, who was my student at Harvard in 1957-58, when I was a Teaching Fellow.
Hamilton: What changed your mind about being a lawyer?
Carrington. I donít know. One event that I recall may have been significant. In the spring of 1951, the fraternity discovered in the middle of initiation that two of those undergoing that process were academically ineligible. The alumnus present and in charge said we could not go forward in violation of University rules. But there were serious problems to be faced if we aborted the process in the middle. I persuaded the alumnus that we should complete the initiation, and I would go to the Dean of Men on Monday morning and confess our sin and present ourselves for punishment. That is what happened, and we were subjected to a very minor sanction by the Dean, who respected our integrity if not our judgment. Also, I enjoyed politics. It was not out of my mind in 1951 to become a politician, and it made sense to do law first if that is where you were headed.
Hamilton: Did you apply to several schools?
Carrington: I applied to Harvard, Yale, Columbia, and Michigan. I got into all of them. It shows how easy it was to get in in 1952. My grades were unremarkable. Only in 1951 were they good. I did have a good score on the LSAT, which I thought was a dumb test.
Hamilton: Must have been the early days?
Carrington: Yes. The questions were such as, what color wine do you drink with red meat.
Hamilton: Did it really have social questions like that?
Carrington: I am exaggerating. But I did think it stupid that anyone would let me into law school because of a high score on that test.
Hamilton: So you moved back East again.
Carrington: Yes, this time with a wife.
Hamilton: Tell me about your experience at Harvard Law School.
Carrington: Well, I loved it. I had a really good time. I loved my classmates. There were many of them who are still my good and dear friends that I keep up with. I enjoyed the faculty and loved Austin Scott. I enjoyed the work, and reading cases.
Hamilton: í52 to í55; was Scott amongst your most influential professors? Or who was?
Carrington: He was influential only in that I liked him. He taught me Civil Procedure. I taught that course forty times. I didnít learn much in Scottyís class that I passed on to my students. His course was largely historical, mine was current issues. As a teacher, I envied the twinkle in his eye. There was nothing mean about Scotty, but he could be relentless. I recall that in the first weeks of class in the first year, one of my classmates tried to pass Scottís question, saying he had not read the case that was its subject. Scotty said, ďwell, what have you read? Weíll talk about that.Ē
I have never had a mentor or a role model. If I had to judge my teachers at Harvard, I would have to rate Ben Kaplan best. Ernest Brown and Al Sacks also earned my accolade. There were none I disapproved.
Hamilton: That was the heyday of the Socratic method.
Carrington: I donít know if it was the heyday, but it was Socratic. Some teachers were more Socratic than others.
Hamilton: Were you ever called on for an entire class?
Carrington: I donít remember that. My sense was that the teachers were trying to draw as many students as possible into the conversation. That has always been my ambition as a teacher.
Hamilton: Was it rigorous, or as its detractors might say, was it humiliating?
Carrington: There wasnít much if any complaining about humiliation. We took the stress as part of growing up. You were privileged to learn by exposing your thoughts to an audience of critics. You learned that one of the good things about law is that you can have terrible arguments and the next morning itís all over. That was yesterday and you are going on to something else today. A teacher exposed my ignorance yesterday, but maybe I can do better today. Student A did better than B yesterday, but that can be reversed tomorrow. Most of us got that kind of message from the teaching, but there were certainly numerous people who dropped out and I suppose the teaching method had something to do with that.
Hamilton: Did you get the ďlook to your right, look to your left?Ē
Carrington: No, there was never anything like that said.
Hamilton: These were the early days of women. That must have been interesting.
Carrington: There were women in my class, but not many. Some of them have since told me that they were quite uncomfortable. Few of them seem to have had enjoyable careers, no doubt in part because they were not afforded the same opportunities. One of the classmates I keep up with is married to one of the women in our class who made very good grades for herself, but I do not know that she ever did professional work and she will not come out with her husband when I invite them. Myles Alexander had an exceptionally gorgeous wife who was not a law student, but was ogled and groped in the Harvard Law Library. That was part of the picture.
My wife was at one time the leader of the Harvard Law Wives. Another was Mim Erickson, the wife of my closest classmate in my first year. They also had parties that were attended by faculty and faculty wives.
We still hear from Mim every year, but she left Bill forty years ago. Bill was a sad case. He aspired to be a Republican Senator from Minnesota. I liked to argue politics with him. We did moot court together and liked to argue about how to write a brief. He started his career in Minneapolis with a big splash. By 1958, he was head of a twelve-lawyer firm. It was Erickson, Popham & Haik. Popham Haik is still there, but he soon hit the bottle and was disbarred for something or other. He seems now to have regrouped. I wrote him not long ago to tell him that one of our moot court partners is now an artist in Santa Fe, and Bill undertook to go visit Joe Novakís studio.
Hamilton: And the moot court teams were named for professors?
Carrington: Yes. Ours was the Hall Club. Livingston Hall was not high on the pecking order, but he was an amiable fellow who sometimes socialized with us, as did many other faculty members with their namesakes.
Hamilton: How did you decide which club to join?
Carrington: It was a little bit like rush week. As I recall, you just showed up at a smoker with or without invitation. And the members would come around and tell you if you were elected.
Hamilton: So there was more or less a competition?
Carrington: It wasnít very competitive. Our club was unpretentious, and we did not worry very much about who the new members would be. That was probably true for most.
Hamilton: How big a deal was Law Review? Iíll tell you why we ask. Weíve heard that really the only way to become known to the faculty was to be on the Law Review, and that it was the only real way that people were classified.
Carrington: I was not on the Law Review. I did the best I could to make good grades and would have been honored to make the Review. The reason that review editors were closer to the faculty was that the faculty played a secondary role in editorial work. They were often consulted about editorial decisions. They sometimes mediated arguments between student authors and student editors. That was still true at Michigan as late as 1967. About that time, editors everywhere seemed to stop consulting faculty about editorial decisions. This seemed to be a tertiary consequence of the hoopla over Viet Nam and the resulting alienation between generations.
I was on the Legal Aid Bureau, which was a lesser academic honor. Law faculty did come to our social gatherings. I got to know quite a few of them, although none well. I have recollections of conversations with Braucher, Brown, Casner, Freund, Griswold, Hall, Jaffe, Keeton, Leach, Loss, MacNaughton, McLachlan, Powell (who was retired), Sutherland, Trautman, von Mehren, and two foreign visitors, Jim Gower from London and Zelman Cowan from Melbourne. Bernice Loss once told me at a Legal Aid Party that Louis thought our class in Securities Regulation to be slow. I had noticed that he was getting a lot of monosyllabic responses to his questions. So I started to make it a point to come prepared with a hard question to ask him. A couple of times, I nailed him and he had to admit to uncertainty in his response. I wondered if he ever told his wife.
I also did a little research as an assistant to Chafee. And, notwithstanding my lack of law review experience, I did publish my third year seminar paper in the Virginia Law Review. I was amused a couple of years ago when a visitor from UVA spoke at our law school on the same subject and I was able to challenge him for not having read the definitive work on his subject that I had written 45 years ago and published in his own very law review.
Hamilton: Was Legal Aid a formative experience?
Carrington: It was an experience. I have written about my clients in that magazine.
Hamilton (pointing): Itís the current issue of the magazine Experience published by the ABA.
Carrington: I had fun doing legal aid. I also got to know some other classmates very well. Joe Califano, later Secretary of HEW was one. Andy Lowenfeld, who teaches at NYU is another. Mike Egan, who was Associate AG in the Carter years. Dave Leventhal, who has had a good career in Hartford is another. Alan Trustman, who had been my classmate at Exeter was another.* I try to keep up with all those guys. But I would not say that the experience we shared was formative.
Hamilton: Was Griswold the dean when you were there?
Carrington: Yes, he was.
Hamilton: Did he loom large?
Carrington: Oh yes, he was The Grizz. I later got to know him quite well because we shared a common interest in the federal courts. We were together a lot in the early 1970s as co-conspirators in the Advisory Council on Appellate Justice we organized with help from the Federal Judicial Center and the National Center on State Courts. Memorably, when we had a huge conference in San Diego, I edited a four-volume set of conference materials. Erwin asked, how dare I kill so many trees? But after he read the four volumes, he apologized for the question. I would later send him reprints and he would often respond, a habit I acquired from him. Near the end of his life, he kindly exclaimed, ďYou are a late bloomer,Ē thereby disowning any approval of my youthful efforts. Any praise you got from Erwin was likely to be qualified in some way or other. But he was also self-critical and there was a sense of humor beneath the shyness and directness.
His class was tough because he was such a daunting presence. In some ways, the high point of my law school career, at least in the impression I made on my classmates, was that I could deal with Erwin Griswold in class. I could even ask questions. (Not, more than once I observed to myself, because I had known my father, who was also a daunting presence to many.) He once stated a problem in class as an example of one that the class could not deal with because we had not studied the relevant provisions of the Internal Revenue Code. There were, he said, three provisions that were applicable. I raised my hand and identified all three. My classmates gasped. I owed my success that day to my habit of reading the table of contents to anything at hand, and I was on that account the only one in the class to read the contents of the tax code. If you happened to have done that, The Grizzís problem was a piece of cake.
The most memorable moment in his class was his reaction when Mr. Hale said he had not read the next case. The Grizz said, OK, read it while we wait. He went back to his office to get his mail, read a letter while standing in class, and then called on Hale again. That was teaching.
The Grizz was among the first I ever knew to engage in what young folks today call multi-tasking. He would come to tea in the faculty lounge most afternoons about 5:00 and read law journals while listening to the conversation. One day, while reading, he uttered an expletive. He was reading a book review that quoted Chief Justice Warren. The Grizz doubted the accuracy of the quote. He went straight to the phone and called the author, whom he did not know. Listening to one end of the conversation, it seemed that the author admitted that it was not really a quote, but merely something that Time Magazine had identified as what Warren thought. The Grizz let him know what he thought about such a sloppy attribution. I have long wondered what went through the mind of the author as he put his receiver back on the hook
The only really mean thing I ever saw The Grizz do happened when I was Teaching Fellow. He was a severe moralist. The event occurred when the only black student in the class entering in 1957 was caught cheating on an exam, and went to the mental ward. I was standing in the faculty lounge when I said I would go visit the student, who had been in my class. Erwin said it was OK for me to go since I was leaving Harvard. It seemed inappropriate to him for anyone permanently connected to Harvard Law School to express compassion for any cheater.
Women did not like The Grizz. I donít believe that he was hostile to women. But he was shy with them. Indeed, he wasnít very graceful in talking to anyone because he was nothing if not direct. He just could not do small talk. He could not talk to my wife, but neither could he speak easily with female law students. They sometimes misinterpreted his manners as a signal that he resented their presence.
He was incredibly attentive to his disabled wife. When, after a decade as a dean, I wrote a piece entitled Why Deans Quit that included a salute to my wife for bearing with me in that time, he wrote to say that he especially appreciated that comment. His daughter Hope once said to me that she could never respect anyone who was afraid of her dad.
Hamilton: How would you assess his significance, more generally, to education?
Carrington: Well, as a friend of his, itís hard to say. I know about his role in the Nixon Administration, and have enormous respect for his role there. I donít know what impact he had on the Law School. I have a sense that he stayed too long, that he generated resistance, and that he may have been counterproductive in his latter years. But during the McCarthy years, Erwin Griswold stood up and told malefactors where to head in. When the issue was basic, you could count on Erwin to be an 800-pound bear. He took no prisoners when you were clearly wrong.
I donít think that he was great theorist of legal education, but then, who was? Who is? Iíve sometimes joked that there have been only two ideas about American legal education that mattered. The first was owned by a non-lawyer, Charles Eliot, who should receive full credit for what the Harvard Law School became. His idea: ďMake it hard and long, and lot of smart guys will come to see if they can do it.Ē My uncle in 1909, my father in 1914, and I in 1952 responded to that sort of challenge. It was a macho thing to do.
The second idea belonged to Robert Hutchins and Charlie Clark at Yale: ďif you make it selective, they will come.Ē So when there were only 90 first year students at Yale, Charlie announced that the class would be capped at 100. So people began to apply to Yale to show that they could get in. That is now the dominant idea in legal education. Law students measure one another by what school they can get in, not by what school they can get out of. Today, many are hard to get in. I am not sure if any are hard to get out of.
Those, I suggest, are the two big ideas about how to run a professional law school in America. Erwin added nothing to the discourse about them. Like Roscoe Pound before him, he ran a school with two years of required curriculum reflecting what partners in big commercial firms ought to know. This, despite the fact that the commercial firms were not the presence in his day that they later became.
Hamilton: They were not when you were there?
Carrington: The placement office was not then a big deal. Many classmates got their job by going home and knocking on doors. I had no interviews in Cambridge, but at the end of my second year, I went out to look at law firms in Sacramento, Fresno, and Phoenix, three cities that my wife and I thought might be suited to our tastes.
Hamilton: Was there a pecking order that was understood at Harvard Law School in the fifties?
Carrington: You mean among firms?
Hamilton: Yes. Ropes Gray? Among the New York firms?
Carrington: Not much. There were those who wanted to go to New York and those who did not. The latter were the majority. Ropes Gray was the Boston firm I heard most about and Champe Fisher went there. But I did not know many who aspired to stay in Boston. New York was competitive, but the firms all paid the same starting salary, $4000 a year.
Hamilton: There was not much rivalry amongst the student body?
Carrington: Not for jobs, really. As I recall, the Cleveland firms recruited in Cambridge and were thought to be pretty classy. Nobody so far as I recall came from Chicago or Los Angeles to interview, except perhaps incidentally. Thus, my father would hold interviews when he happened to be in town. Never I think were there as many as five who wanted to be interviewed for Dallas.
Hamilton: And you decided to go back to Dallas and practice for a little while?
Carrington: Yes, but I figured on having military duty.
Hamilton: And in fact you did.
Carrington: Yes. I went back to Dallas, but believing that I would probably not remain. I did not want to spend my career being Paul Junior, which is what I was in Dallas. It was a good firm and I liked the guys, but I was going to do something different.
Hamilton: And then you were drafted, I take it.
Carrington: I was.
Hamilton: And you were in the Army for two years.
Hamilton: And youíve written elsewhere that it was generally a positive experience, at least the training.
Carrington: Yes. You know those were very different times. I could have avoided military service had I told my draft board that I was a father. My wife and I discussed it. I had received six years of deferment because I was in school. I just didnít want to go down to my draft board and tell them I was now not available.
Yes, it was a positive experience. It was part of growing up. I was receptive to it, and took a measure of pride in doing what I had to do. Most of us then in the Army did not want to be there, but somebody had to do it, and we did not ask others to do it in our place. There was no one in my experience in the Army in 1955-1957 who resented being there because we were citizens. I have since appreciated that jury duty has some of the same element. Iíve been asked to do this for my fellow citizens; they trust me to do it; its got to be done; and Iím proud to be asked, even if I donít especially relish the work.
I did get out of the Army two months early to be a Teaching Fellow.
Hamilton: The teaching fellow program is a bit of a mystery to us. Was it a sort of look and see visit in which you were considered as a faculty member?
Carrington: No, absolutely not. None of us had any prospect of a faculty appointment. I donít think anyone holding that rank was ever appointed.
Hamilton: What was its function?
Carrington: It was David Caversí idea to humanize the first year experience by providing a small class contact. Bob Keeton ran the program.
Hamilton: Another son of Texas.
Carrington: Yes. I remember driving up to Cambridge for an interview with him. I had also tried to apply for such a position at Stanford. John Merryman interviewed me while I was nearby at Fort Ord. He said that only law review members should apply to Stanford so I did not. That was apparently not crucial at Harvard.
There were six Teaching Fellows. We divided the first year class into thirty small groups and each of us met a group every day of the week. We gave them projects related to their course work. It was not supposed to entail a lot of extra work. Our role was to make sure that someone in the school knew each member of the class. We gave them a practice exam at the end of the first semester, and our grade was the only feedback they got at that time. The six of us worked together with Bob to plan our curriculum. It was fun. Four of the six of us spent our careers as academics.
Hamilton: What was the Group Work curriculum?
Carrington: There were about fifteen exercises that we wrote and then discussed in those seminars.
Hamilton: Sort of a precursor to modern research and writing courses.
Carrington: Except our students did not do much writing other than the practice exam. We did not want to take much time away from their study of the core courses.
Hamilton: Then you decided, I take it, to become a law professor. I am interested both in how you came to that decision and how you ended up in Wyoming?
Carrington: I thought about law teaching while I was a law student. I discussed it with Joe Califano and with Jim Logan, a classmate and very close friend who was later the dean at Kansas and then a judge on the 10th Circuit. I probably also discussed it with Bill Andrews and John Steadman, who were also close friends. Bill, of course, is on the Harvard faculty. John taught at Georgetown for years before becoming a judge on the DC appellate court. Then while I was a Teaching Fellow, we all discussed it a lot. And I got a first hand view of the academic life, and became friends with Bob Keeton, Dave Cavers, Dick Field, Lon Fuller, Jack Dawson, and Clark Byse. I often went to late afternoon tea in the faculty lounge, and about once a week I walked over the Faculty Club and at the law faculty table. Scotty and Archie Cox were regulars there. I liked all those people and liked what I saw them doing with their lives. I thought they were having more fun than most of the big firm lawyers I knew. And so it proved to be for me. I recently had occasion to acknowledge that I have not done a full dayís work since I got out of the Army; I have had long hours of fun daily, and have been paid for my own enjoyment.
1958 was not a good year to look for a law teaching job. Many schools were shrinking because the war veterans had graduated and there were fewer children born during the Depression. Ken Karst and I went to San Francisco to the AALS Meeting, and found almost no one interviewing. Nevertheless, Ken landed a job at Ohio State, Doug Boshkoff at Wayne State, and Sandy Fox at Boston College. Jack Friedenthal, then a third year student, landed the job at Stanford; Phil Neal was visiting at Harvard from Stanford that year and was more impressed with Jack than with any of us.
Hamilton: I should say that I am a George Washington graduate and Jack Friedenthal was my dean. Do you still talk to him? I am just curious.
Carrington: I havenít seen Jack lately, but for many years we shared an interest in Civil Procedure and we were both visitors at Michigan in the spring of 1965. I saw a lot of him then. I best remember an encounter with him at a conference at Notre Dame in 1988. We were celebrating the 50th anniversary of the Federal Rules. As the Reporter for the Civil Rules Committee, I was on the defensive end, but it was always fun to argue with Jack.
I should tell you something pertinent to a previous question. His wife was one of my students during my Teaching Fellow year. Her name was then Ann Marder. The last time I saw her she made a point of saying that she found her first year of law school at Harvard very brutal, but she appreciated that I always treated her on equal terms as one of the guys and made her more comfortable with what she was doing.
Hamilton: Thatís great.
Carrington: Well, anyway, she did remember that 40 years or so later, and it was a nice thing to say.
Why did I go to Wyoming? One opening was at Rutgers Camden, but that did not appeal to us. I did have an offer from SMU. Alan Bromberg, with whom I had practiced law briefly, was and is there, and has had a highly ornamental career. I was recruited by Roy Ray, who was the co-author with my uncle of a text on the Texas law of Evidence. He was a sweet guy. Robert Storey was the dean and he was also President of the ABA.
But SMU was too close to home. Among the problems was the civil rights issue. I had been involved in the NAACP as an undergraduate during the days when Heman Sweatt was suing to get into the Texas law school, and it would have been hard for me to pursue that commitment in Dallas. I had in-laws in several directions who would have taken offense, and more than a few friends from childhood and friends of the family. And I could not have stayed in Texas and kept my mouth shut.
Race had long been a problem for me. At four, I did not like the way my mother spoke to ďthe help.Ē At ten, I once earned a free ticket to the big circus by stacking hay for the elephants. I then played king-of- the-mountain on the hay with a couple of black kids who had done the same work. When it came time to go in the tent, my new friends were told that they could not come in even though they had earned the same right I had. I can still see those kids. I did not enjoy the show.
These feelings had not been much of a problem in Austin. Most undergraduates at the University favored Sweattís admission, and my uncle, who was dean of the law school, thought I was on the right side in circulating pro-Sweatt petitions as a member of the NAACP, even though he was ex oficio in a defensive situation. And, when African Americans were finally admitted in 1951, I found one of them in my Statistics class. He and I shared a calculator and had some good conversations.
While I was practicing law in Dallas in September 1955, I had the experience of being joined on the bus by a little black girl on her way to her first day in school. She was carrying a lunch bucket bearing her name, Narcissus Thompson. I was about to speak to Narcissus when an older boy came up the aisle, grabbed her, and took her to the back of the bus where Negroes were required to sit. I wanted to do something about it, but what? And then at a United Fund (the Community Chest it then was) meeting a couple of weeks after my son was born, I encountered a black lawyer who told me of the difficulty he had in explaining to his son why there was only one day in which they were allowed to go to the state fair. In Dallas, I would have had to deal with these matters in ways that would have created numerous problems among family and friends. So, for that reason, too, I hesitated to go to SMU. Perhaps that was a failure of moral courage, but it did not seem that simple to me.
Then Wyoming came along. That sounded like a lot of fun. I was interviewed by the dean at the faculty club at Columbia and got the job. I loved Wyoming and had a wonderful time at that University for two years. Absolutely everyone in Laramie was on a first-name basis and I really liked that. One of the things I did while there was to secure enactment of the Uniform Commercial Code. Wyoming was among the first states to adopt it. With a lot of help from Al Pence, a Uniform Commissioner who practiced in Laramie, I got to talk to lawyers, bankers, cattlemen, truckers, and legislators and present them with a monograph I wrote comparing the Code to existing Wyoming law. No one was inclined to argue with me, so they just enacted the law.
When I started at Wyoming, I did not think of myself as a scholar. But I started reading stuff with which I found myself in disagreement and discovered that I liked to express my opinions, especially if they were contrarian. I wrote a pretty good article inspired by something Henry Hart had written. My reply was published by Northwestern; it was entitled The Moral Quality of the Criminal Law, a pretentious title indeed. I got more responses, I think, than to almost anything I have since written. I remember getting a long letter from a lawyer in eastern Oregon. And another from Felix Frankfurter, who recognized my name because he had taught my father.
Also, I have to say that the Wyoming law school in 1958 was very, very good for what it was. I wrote a piece in the American Lawyer not long ago, comparing Wyoming and Harvard as of that date. My point was simply that people who rank such institutions as if they were trying to do the same things do not know what they are talking about.
We had a faculty of six, just enough to teach a curriculum. Everything that was permitted was required. We took any student who had three years of college and were lucky to get 30 a year. We graduated about 15, but they were survivors of a pretty tough program, and they left the school excited the law and the profession.
The faculty had small homes near the campus and worked in their offices. On an average evening, even a Saturday evening, there would be two or three of us at work. We were at work on projects, mostly pro bono, and mostly of local importance.
Of the sixty or so graduates of that I school that I encountered, one became a US Senator, one was a Secretary of the Interior, one was the commanding general of the JAG Corps, one sat for a quarter century of the Wyoming Supreme Court, one was a law professor at Oklahoma City, one made a zillion dollars as a personal injury lawyer, one was a partner in a big Denver firm. The school had put some momentum in their careers.
Hamilton: Thatís quite a distinguished list of alumni.
Carrington: There were others who were community leaders in Wyoming counties, and one woman who became chief of staff for a Congressional committee in Washington.
Hamilton: You then went to three Big Ten schools in rather short order.
Carrington: Actually five if you count summer visits to Northwestern in 1962 and Minnesota in 1964.
Indiana was a different environment. It was a good university, the students were better prepared, and Bloomington is a lovely college town. I did not like the dean very much. We had several minor encounters, but what really ticked me off was his posting a notice telling my students they were required to attend a lecture, and then signing my name to the order. The lecture was given by Kurt Pantzer, whom I knew as a member of my fatherís Harvard Law class. The dean was trying to get his support for a gift from a client. Kurt may have been a very good lawyer, but by 1964, he was a windbag. If asked, I would have told my students to attend his utterance, but I would not have like it. Dean Wallace avoided that minor confrontation, which was his way of doing things.
I decided to leave. I wrote Archie Cox and would have quit teaching for a position at the SGís office. I did not get that, but Archie got Abe Chayes to offer me a job at the State Department. However, Ken Karst was at Ohio State and he brokered my move there.
Hamilton: You had been drawn to Civil Procedure by that point?
Carrington: Yes. They did not let me teach it at Wyoming, but I did break in at Indiana, and continued to teach the subject for forty years. That Indiana would let me teach procedure was one of its attractions.
Hamilton: And federal courts?
Carrington: I taught Federal Courts a couple of times, once at Ohio State, and once at Michigan, but it was not a primary focus. I did also teach Adminstrative Law, and at one time or another, just about a whole curriculum, but leaving out Taxation. When I went to Indiana, I was told that I would be teaching the Procedure courses. Dean Wallace did not tell me until Christmas that Procedure included Creditorsí Rights, a subject I had never studied.
Hamilton: Difficult stuff.
Carrington: It was heavy lifting. I was just a half jump ahead of the students. It was a good subject to teach, but it was lousy of the Dean not to tell me when he offered me the job.
Hamilton: So you left there.
Carrington: Yes. Ohio State was a step up. There were some good people at Indiana, but most of the best had lost interest. Jerome Hall was a very distinguished scholar of Criminal Law but was in a state of semi-retirement. Val Nolan was very smart, but was primarily interested in ornithology. Harry Pratter was the intellect of the faculty, but could not write. He was a good colleague to have, except that he told me that my article on quasi in rem jurisdiction was not fit to publish. The draft evoking that assessment was accepted by the Harvard Law Review and won me a better job.
Ohio State had a lot of very lively people. Ken Karst is still my dear friend; he has had a distinguished career at UCLA. Bill Van Alstyne has had a great career at Duke. Carl Fulda was a distinguished ťmigrť from prewar Germany. Larry Herman, Bill Burke, Bob Nordstrom, Vaughan Ball, Bob Mathews, and Norman Lattin were all formidable folks. Ivan Rutledge followed me from Indiana to Ohio State and became their dean, succeeding Frank Strong, who was in many respects a fine leader during my time there.
The University was not well run. The President had been president of AAA and formerly a public school superintendent in Columbus. He had no identity with the intellectual enterprise and was a pawn for a very politicized governing board led by former US Senator, John Bricker. As a university, Indiana was superior, and Bloomington was a better place to live, but the Ohio State College of Law was a swinging place.
Hamilton: At some point along the road you got tenure?
Carrington: Yes, at Ohio State.
Hamilton: So you were brought to Michigan as a tenured professor. You had a distinguished career at Michigan.
Carrington: Maybe. I certainly had a wonderful time there. The minute the offer was out of the mouth of Dean Allen Smith, accepted. I guess that was pretty close to the case for all five of the permanent jobs that I accepted. I was a visiting professor at the time. It was plainly a very classy place, and Ann Arbor is a very attractive city.
I did have a competing offer of the deanship at the University of New Mexico. That was a crossroads. New Mexico could have been a political career, something I had concluded I could not pursue in Texas. I could reasonably have tried it in New Mexico.
Hamilton: But you stuck with academia.
Carrington: With the chance to stay at Michigan, it was a no-brainer. I am still grateful to that University for hiring me when they did and for keeping me around for thirteen years. Some of my dearest friends were made there: Roger Cramton especially, and Terry Sandalow, Joe Sax, Ted St. Antoine have been lifelong chums. I had a lot of other invitations that came along because I was at Michigan. The first of these was from the American Bar Foundation that asked me to direct a study of the business of the United States Court of Appeals that were then beginning to feel some stress from caseloads.
Hamilton: Is that the one that came to be known as Justice on Appeal?
Carrington: That was a later by-product. The first result was a long essay in the Harvard Law Review and a shorter one in the Georgia Law Review. Geoff Hazard, then the ABF Director, hired me to do the study. I had met him while I was at Wyoming and he was at Berkeley; we were both in our first year of teaching and invited to speak a law school conference at the University of Washington. We have kept in touch over the years. The advisory committee Geoff gave me proved to be a problem. It was an elegant group that included among other notables Thurgood Marshall, Leon Jaworski, and Carl McGowan of the DC Circuit. All of them became my friends except the chair, Bernie Segal, who was at the time the President of the ABA. Bernie was determined that my study should conclude that the size of appellate panels should be reduced from three to two. When I stubbornly refused to recommend that, he drew a line in the sand, and so my report was published as two articles rather than as an ABF monograph. Bernie never forgave my stubbornness, perhaps especially because so few agreed with his judgment on the divisive issue.
Maury Rosenberg at Columbia shared my interest in the courts of appeals. We organized the aforementioned Advisory Council on Appellate Justice with money from the Law Enforcement Assistance Administration. We ran a program for five years. Erwin Griswold was a member of the group and there were about thirty other notables. I especially enjoyed knowing John Frank from Phoenix, Harold Leventhal of the DC Circuit, Shirley Hufstedler then of the 9th Circuit, and her husband Seth, who was then President of the California Bar. Justice on Appeal was a summation of the ideas and concerns surfacing in that program and was written with Maury and with Dan Meador, who has just concluded his career at Virginia. I did the first draft, and then we spent a week together re-writing it. It was wonderful fun.
Meador is a very dear man. He lost an eye while we were working on our book. Soon thereafter, he became an Asst AG to Griffin Bell, another member of ACAJ. While in the Justice Department, Danís good eye failed. Yet while blind he maintained his career successfully. He turned Justice on Appeal into a casebook, Appeals, that bears my name although my contribution to it was miniscule. He has also published two novels.
I also did a casebook with Little Brown. Barbara Babcock at Stanford joined me on the second edition, and she is still running the same book, although I have signed off. I now prefer to re-do my own teaching materials in every course every year. I enjoy thinking about it. I enjoy the editorial process. So I left the book to Barbara, whom I first met at an Advisory Council conference. She visited at Michigan the summer that we worked together. Then she went off to be Assistant Attorney General in the Carter administration.
Hamilton: Now at some point Duke came calling in 1978. You took a position as dean. I am curious why you took the job and what your goals were, what you thought about when you took the job.
Carrington: Well, one of the things I had done at Michigan was to do some systematic thinking about legal education. I started on that as director of a Ford Foundation project for the Association of American Law Schools. We started in 1968, about the time I finished the ABF project, and filed a report in 1971 entitled Training for the Public Professions of the Law.
Hamilton: How did the AALS come to you?
Carrington: I have no idea. Bill Klein, then at Wisconsin and now at UCLA, was the Associate Director. We had a lively committee that included David Currie, Ed Kitch, Bill Gould, Les Mazor, George Lefcoe, Maury Rosenberg, Dick Wasserstron, Preble Stolz and some other very good people. We had a big national conference for that, too. Some of the speakers we invited thought we were too radical and some thought us to be neo-conservatives. Ramsey Clark, I recall, was in the latter group. And Myres McDougal, himself a proponent of a radical curriculum, in the former group. In fact, we presented no new ideas about how to conduct law school classes, nor had we any new courses to suggest. What was radical was our proposal to reduce the standard curriculum to two years. We also suggested a one-year course whose graduates might provide basic legal services at low prices. The argument we made proceeded from the premise that the legal profession should become more open and less pretentious, and therefore less expensive. These were ideas whose time had not come. I still think them sound. A study funded by Carnegie and done by Tom Ehrlich and Herb Packer at Stanford came to essentially the same conclusions. They republished our report as an appendix to theirs.
That work led to a long period of involvement in the affairs of the AALS, and it made me visible as a decanal candidate. I talked about it at a lot of law schools and flirted a little with several deanships. I spent some time helping to plan the University of Hawaii Law School.
It was also a factor that I was of a temperament suited to the tasks of managing colleagues. Not only was I interested in the issues of legal education, but I liked talking to others about their work. Ted St. Antoine announced that he was quitting the Michigan deanship three years in advance. I begged him to do whatever seemed right to him, but not to announce so far ahead of time. As I foresaw, his announcement turned all my conversations with colleagues into deanship interviews. It was my own judgment that Terry Sandalow was the right person for that job at that time. On the other hand, I was over 45, and if I was ever to manage anything, it was about time to make the move.
At Michigan, I had been active in university politics in diverse roles. At the same time, I was involved in public affairs in Ann Arbor and in Michigan. In 1970-1973, I was on the local school board. Particularly in the mid-70s, I was active in the Michigan Democratic Party. In a moment of crisis resulting from a scandal, a couple of the old hands asked me to think about running for the Supreme Court of Michigan. I could have remained on the faculty while serving on that court, so I was tempted.
Then, there was my wife. She was having a good career as a reference librarian at the Detroit Public Library, but because she was junior in years of service, she got laid off when funds were short. Also, she developed a reaction to cold weather causing acute pain in her fingers.
When all this was brewing, Duke came along. It just seemed like the right thing to do.
Hamilton: What were your goals going in?
Carrington: I had no specific objectives. Certainly I did not plan to implement our 1971 Report. My successor, who did a fine job, believed in business planning. I did not. I was chiefly an opportunist trying to help my colleagues to do better whatever it was they thought they should be doing. At the margins, I thought it my place to indulge in a few lesser ideas of my own when and where they seemed to fit.
I spent a lot of effort in the early years trying to recruit distinguished scholars. I had some luck, but it was heavy lifting, and there were numerous disappointments. The main thing that happened on my watch was internationalization. That was not an objective going in, but I did quickly discern that there were opportunities in that direction and so I invested some of my time and some resources there.
Hamilton: What do you mean by internationalization? Thatís a term thrown around a lot.
Carrington: When I arrived, there were two foreign students in the law school, one from Saudi Arabia and one from Kuwait. They were a vestige of a small number of students that had earlier been studying in Arthur Larsenís Center on International Law. The admissions officer received a half-dozen applications from Europeans that summer of 1978 and asked me if she should just throw them away. I said ďHeavens no, admit any who are competent so that we can have their tuitions for a little extra discretionary money.Ē I reckoned that they could not cause us a lot of extra work. Under my deal with the University, I kept all the tuition revenue, plus a subvention from the University endowment, so I had a lot of money, but could use a little more.
Hamilton: Thatís unheard of. Who was the president when you were there?
Carrington: Terry Sanford.
Hamilton: Sure, Senator Sanford.
Carrington: Anyway, one thing led to another. I hired Donald Horowitz, who was an attraction to international students. His wife took an interest in their management. Then I got involved in China.
I had been involved in legal missionary work once before and it was a failed effort. In the spring of 1970, the Ford Foundation sent me to Colombia to bring legal education to that deserving but benighted land. There were four of us missionaries there at that time, including Lloyd Weinreb of Harvard. As soon as the last of us got on the plane to go home, there was no trace left of our efforts.
Notwithstanding that failure, I stumbled into China. It was simply fortuitous. In early 1980, as dean, I received a very interesting letter from a guy named Shi Xi-min. He reported that he was the son of a Chinese Air Force general; that he had been in prison twice, once because his father was suspected of views contrary to the Cultural Revolution, and once because he was himself suspected. He was completing the program at the University of International Business and Economics in Beijing. He thought China needed a legal profession and he wanted to study in the United States. What blew my mind was his claim that he had translated Absolom, Absolom and another Faulkner novel into Mandarin. I just wanted to meet this person.
So I got him out of China. We had a Duke Law alumnus who was General Counsel to Pan-American Airways. He got Xi-min a free ride from Beijing to New York. When he could not get a visa, I got another alumnus, Richard Nixon, to ask the Mao government to let him come. They did as a favor to a former President, and so we had the first student from the Peopleís Republic to study law in the United States.
Hamilton: You made that call yourself to San Clemente, I guess?
Carrington: No, he was in New York. I didnít call him, I wrote him.
Hamilton: And he was receptive?
Carrington: Oh, yes. He was a loyal alumnus. One thing led to another. Xi-min persuaded me to take a second student, Gao Xi-qing, who is now one of the most important lawyers in China, and a sometime teacher in our law school. I think Xi-min is a real estate speculator in China. On my watch, we had about 25 students from mainland China. The Chinese government delivered them to Durham. I got a law firm to sponsor each to the extent of a summer job that paid enough to cover living expenses. And I did not charge them tuition.
Hamilton: They came for a free ride?
Carrington: Yes. Given the value of Chinese money at that time, there was no other way. Most of them I interviewed in China in 1984 when I went as a guest of Chairman Mao. That trip happened in a funny way. The Chinese Embassy established about 1980 was appalled by the fees charged by American lawyers. Their answer to most legal problems was to call on the Office of Legal Counsel in the State Department or otherwise to seek intervention by the US government. In the summer of 1983, they importuned Shi Xi-min, then working in a New York firm, to survey the bar and suggest lawyers they might hire. He did, and gave them a list of three. In the fall of 1983, someone tried to get the Department of Commerce to impose countervailing duties on Chinese textiles. The Embassy called Xi-min and told him that his list was no good -- one lawyer was in Europe, one had a conflict of interest, and the other wanted too much money. So Xi-min and Xi-qing, then second and first year law students respectively, would have to represent the PRC before the Department. By ambassadorial decree!
The amount at stake was nominally billions, but it was a pretty sure thing that the Reagan Administration did not want to impose countervailing duties at that time. No one then at Duke knew anything about countervailing duties, but we knew a few Washington lawyers who did. I think my classmate Bob Herzstein may have helped them. In any case, they filed a brief and won the case. That made me a mini-hero to the Chinese government and I was invited to come to China to select more students for training at Duke, and so I went.
The high point for me and my wife of that trip to China was a dinner served in the home of Xi-qingís parents. His dad was a retired police chief who had been on the Long March in 1933. The provincial government moved much of the furniture out of his apartment to make room to serve us a 27-course dinner. The first course was a giant butterfly made of cheese and condiments. The main event was flaming carp. The fish had been coated with caramel, cooked inside out, and served with fire coming out of its mouth.
I became involved for a while with the Committee on Legal Education Exchange with China, a group run by Randy Edwards and Walter Gellhorn at Columbia with Luce Foundation money. Walter, Whitmore Gray and I were the first faculty at a program conducted at Jilin University in Changchun for Chinese students headed to the US. That was the summer of 1985 and gave me a chance to interview some more prospective students. As a result of all this, our law school has as large a presence in the PRC as any.
On my 1984 trip, we stopped over in Tokyo where we had a chance meeting with an old friend from my Columbia days, Walter Gellhorn. He introduced me to Koichiro Fujikura, then at the University of Tokyo. I hired Fuji as a visitor, and he has taught in our law school for a month or so every other year for twenty years. As a result of that, we began to attract Japanese students, and I and Herbert Bernstein were invited to spend a semester at the University of Tokyo. That was a wonderful adventure for us. And Korean students began to appear. In 1988, I took some of them to lunch and asked how they happened to come to Duke. Duke, they said, was the best place in the world for a Korean to go who wanted to meet people from the PRC.
Obviously, I planned none of this. So much for business planning. But clearly this was the respect in which my deanship had the most impact on the school. It led me to hire Herbert Bernstein away from Hamburg; he had been my research assistant at Michigan in the summer of 1966. It led to the creation of a summer program for European students as well as those in our school doing a new second degree in foreign law. And to the recruiting of foreign faculty as visitors and as scholars in residence. One of the latter, Lawrence Baxter from Natal, was given a regular appointment at Duke. He had written a stunningly good book about South African administrative law. And I think I got pretty close to hiring Patrick Atiyah away from Oxford. He was then the most luminous legal scholar in England. Canadians seemed to be especially easy to attract to Duke.
All of this also led me to an intellectual interest in legal missionaries. While working on the history of legal education and of the profession, I have been struck by how many American lawyers have tried to export democracy. My failures in Colombia also contributed to that interest.
Hamilton: As Dean of Duke, and since, of course, you have been one of the most prominent critics and writers about American legal education. I am wondering if I can ask you some sort of big questions. What led you to write Stewards of Democracy? How did that come about?
Carrington: I have been working off and on since 1988 on a history of legal education in America. I became really interested in Thomas Cooley.
Hamilton: Sure, the author of Constitutional Limitations.
Carrington: He was also the founder of the University of Michigan Law School and Chief Justice of Michigan. He was the most prominent member of the profession in the second half of the 19th century. I found myself in sympathy with many of his ideas, reflecting the fact Ė I guess it is a fact Ė that I am essentially a 19th century democrat sharing his egalitarianism. There is a biography of Cooley written by a good historian at Grinnell. I wanted to write a short biography that would emphasize his ideas about the profession. Not even the University of Michigan Press would publish such a book. So I abbreviated the treatment of Cooley, and added Brandeis, Ernst Freund, and Byron White to draw out a theme that seemed to survive Cooley through the 20th century. The theme was congruent with the egalitarian ideas advanced in that 1971 report on Training for the Public Professions of the Law.
Hamilton: What is it that you wanted to address in Stewards of Democracy? What was the problem you saw that you wanted to attack?
Carrington: Some people found the point obscure. I tried to present my heroes as examples of great lawyers who saw their careers as service to All The People. They were anti-snobs. They were not much interested in elevating their own status or acquiring great wealth. They shared a vision commonly held in the 19th century that moral worth is acquired by public service, and thatís what counts. While that is my value system, it is not one widely shared in academic life, where professional status is for many what life is about, or in big firm practice, where money is for many what life is about. I included a chapter on Byron White as a contemporary Justice who cared less about his status and personal impact than most of his brethren.
Hamilton: Did you see this as a critique of law schools, or the legal profession, or both?
Carrington: Both. And it was the same point made in 1971, that lawyers have public duties to perform, and should resist the urge to become an elitist enclave. The impulse to class distinction is ubiquitous and needs to be resisted. It seldom is.
Hamilton: What do you mean when you say elitist?
Carrington: I mean exclusive and hierarchical.
Hamilton: You mean serving only the very wealthy?
Carrington: Thatís only part of it. It is true that my political instincts are hostile to policies that favor the rich and are justified on the trickle-down theory. I think such fundamentalist economics is mostly snake oil. People utter that stuff to mask their greed, often even from themselves. I believe in a market economy, but I agree with Adam Smith that you cannot expect corporate managers to be feel moral responsibility for the welfare of remote interests such a workers or consumers or investors, or the environment. The market must be regulated, and public expenditures are needed to correct for its failures.
But I am also hostile to the academic status-seeking that is characteristic of most of the institutions in which I have been employed for over forty years. I wish more of my academic colleagues would invest a little less of their energy in trying to impress one another, and a little more trying to help people and causes that need help. This requires us to step outside the academic role from time to time, as my heroes Cooley and Freund were very prone to do.
In that vein, I have two public causes I try to serve directly while I am doing my academic thing.
Hamilton: Do you want to give a brief account?
Carrington: Sure. One of them is campaign finance. I was one of those who secured passage of a new North Carolina statute governing expenditures in judicial campaigns. It is those campaigns I have been chiefly working on. I have been trying to help groups in Texas, Ohio, and Pennsylvania as well as North Carolina. Interest groups such as the US Chamber of Commerce and the trial lawyers are spending more money on those campaigns than on those for the US Senate. While this is not bribery, the resemblance to corruption is close in the eyes of the ordinary citizen. The Supreme Court has in my opinion made a God-awful mess by extending the First Amendment into this area. I gave a lecture at Richmond on this point not long ago. I am not confident that democracy will survive expensive sound-bite campaigns that the Court has made it virtually impossible to modify.
My other cause is contracts of adhesion that strip people of their procedural rights. Again, it is the Supreme Court that is the source of the problem in its unwarranted re-writing of the Federal Arbitration Act of 1925. With the Courtís encouragement, Business now inserts into many printed forms arbitration clauses and the clauses are often decorated with bells and whistles to tilt the arbitration in its favor, so that all manner of individual rights are rendered less enforceable. I am especially enraged by the Courtís notion that the FAA preempts the power of states to use their courts to enforce public laws regulating business by means of private rights.
I have recently had a professional involvement on behalf of the National Automobile Dealers Association. They got Senator Hatch of Utah to advocate their cause in seeking an amendment to the federal law that would exclude its application to automobile dealers. For a modest fee, I wrote the legal memorandum circulated to the Congressional committees. The auto dealers were emphatic that they wanted nothing in my memo to suggest that consumers should not be subject to arbitration clauses written by the dealers. I agreed to write the memo thus, but to retain my right to express the equal entitlements of consumers. They won in Congress, and the FAA no longer applies to them.
Hamilton: I didnít know that.
Carrington: Now come the poultry growers. Senator Grassley of Iowa has undertaken to protect them from what the Court has done. I wish them well. I have had a few pro bono clients brought to me as legal services lawyers or others. We have tried to contend that the oppressive clauses are invalid for reasons that the Court has left open, such as unconscionability. I have also been working on state legislation. A Model Fair Bargain Act that I have had a hand in drafting has been enacted in New Mexico, and is presently on the agenda of several state legislatures. I am not wildly optimistic about its chances, but we are open to making deals to get something done.
Hamilton: So these both speak to a kind of concern for a democratic approach to the law. I want to ask you, though, what do you mean when you say ďelite law.Ē Help me figure it out.
Carrington: I did not intend to use that term, if I did, to describe legal principles espoused because they are beneficial to a ruling class, but I suppose the term could be used thus. If so, I guess I am generally opposed to elite law.
I want to say, however, that I have nothing against big law firms that represent big clients for big money and high status within the profession. I do wish that fewer of my most admired students wanted to do that kind of work And I will observe that I think big commercial firms are not what many were a half century ago. I do not think my father would accept the constraints imposed on those in many big firms today. One of things he did that he regarded as morally redemptive was giving good heart-to-heart advice to business clients. That is much harder to do with very big corporate clients with whom the only contact is in-house lawyers who were committed to a position before the present law firm was hired for the specific task at hand. And, while money interested my father, the ubiquitous tendencies to measure the worth of a partner purely in dollars, and to rate law firms by their incomes per partner would have driven him or me into the loony bin.
Of course, the Enrons of the world need advocates and in Ėhouse counsel. But somewhere in the professional scheme there should be lawyers who can and will tell the Enron scoundrels what they cannot get away with.
Hamilton: Youíve written about this, of course.
Carrington: Not directly. But I try to encourage my students here to do some of the kind of public service that my students at Wyoming have done.
Hamilton: And there should be zealous advocacy inside the law firm?
Carrington: Certainly, where possible. But also outside the law firm or the academy. As I say, I have been doing some of that and having a lot of fun doing it. And there are still millions of clients as well as hundreds of causes that need pro bono help by smart lawyers.
Late in my life, I have lined up with the trial lawyers. I am not big on everything they are into. Asbestos is a terrible mess. I have no sympathy with the tobacco cases. But if we have to choose, as it seems we do, between the US Chamber of Commerceís view of the future and that of the lawyers who represent real people against corporate malefactors, I choose ATLA. So I am on the legislative committee of the North Carolina Trial Lawyers. I also help out the AARP in its lobbying efforts in this state. I am not so much interested in their concerns for aged as for their willingness to fight for consumesí rights.
Hamilton: Where do you place your book in relation to other critiques. Two come to min, Mary Ann Glendonís book, A Nation Under Lawyers, and Tony Kronmanís book, The Lost Lawyer.
Carrington: Well, both of those books are better than mine. Mary Ann made her point elegantly. At the end of the day, I disagree with some of it. I take issue with part of it in a manuscript I am just finishing entitled Democracy at the Courthouse. It is a critical guide to the distinctive features of American legal institutions, and an argument that we need civil juries, contingent fee lawyers, the American rule, class actions and the like because of the political role of the profession that was set in place in the 18th century. I tell European audiences that they may have no use for this stuff, but we in the US do. Given the frailties of separated powers and bicameral legislatures, courts do a lot of things in the US that courts do not need to do in cultures with simpler legal and political structures. Yes, we are a ďnation under lawyersĒ and thank God because otherwise we would be a ďnation under M.B.A.s.Ē The only way we have of protecting people is by suing the bastards.
It is true that some personal injury lawyers have themselves attained elite status. I donít know many of the billionaire lawyers. At my last class reunion, I admitted to my classmates that I am an impoverished member of ATLA, and that in attending meetings of that organization, I had encountered the most self-righteous people imaginable. I donít take myself that seriously, and I rather my ATLA friends would not. But given the choice between the trial lawyers and the tort law reformers, my choice is clear.
Hamilton: How do you respond to Kronmanís book?
Carrington: It is an elegant book. He is on a point I was making earlier about the big-firm practice. I also made the same point in the little piece I wrote very recently as a foreword to the republication of Duncan Kennedyís critique of 1970s legal education. Many of the lawyers in my fatherís class of 1917 were both big-time partners in big firms, and also public citizens on a large scale. Dean Acheson, Claude Cross, Raeburn Green, Kenneth Royall, and Joe Welch were acquaitances of mine through my father. Like my father, they devoted enormous parts of their careers to public service that was very much needed. Kronman regrets that there are not more such today, and so do I.
And as lawyers, they retained the power to fire clients whose interests they no longer wished to advance. The firms I was with in Dallas fired a client in 1956 that provided about 10% of its gross income. They did it because they decided the client was basically a crook. For reasons I stated, there is I think less of that done nowadays. Kronman regrets that, too, and so do I.
Hamilton: The law has lost its moral center to some extent.
Carrington: To some degree. I think maybe Tony has overstated a bit, but he is on a real point.
Hamilton: Now I wonder if I can get you to use that to talk about legal education, one of his concerns and one of yours. What is the connection between the profession and legal education?
Carrington: They are separate things. Some years ago I wrote an article entitled Butterfly Effects arguing with an utterance of Felix Frankfurter who thought that law schools make the profession. I think it is mostly the other way around.
One of the things that has happened in Tonyís time and mine has been the separation of the legal academy from the profession. One benefit of the narrow view of law against which Legal Realists rebelled is that it linked the legal academy to lawyers. A disadvantage of Legal Realism is that it tends to break that link as it drives the legal academy more deeply into the university and the larger academic profession where status seeking is even more ubiquitous and real consequences of actions are often given even less attention. It tends to be the case in universities that the persons engaged in pursuit of the most abstract interests gain the greatest professional respect. That system of values is not congenial to democracy generally, and perhaps especially to democratic law.
As a dean, I was instrumental in moving our law school more toward the intellectual center of the University, wherever that is. I caused the making of many joint appointments and even hired a non-lawyer (Neil Vidmar) who is a distinguished empiricist. I caused the joint appointments of a philosopher of law (Martin Golding), an historian of Chinese law (Jonathan Ocko at North Carolina State), and another philisopher, Guy Haarscher from Brussels, who became a regular visitor. Kip Viscusi, an economist now at Harvard Law School, was one of our joint appointees. There were others. The most distinguished were the historians John Hope Franklin and Bill Leuchtenberg.
Hamilton: Bill Leuchtenberg taught at this law school?
Carrington: Indeed, for a decade or more. He wanted to leave New York and I promoted his appointment in our history department. Unfortunately, his interests were redundant to those of his student, Bill Chafe, who was a member of our department and the appointment was not made. So he went to Chapel Hill, but with a joint appointment in our law school. He and Franklin and Walter Dellinger taught an elegant and elaborate course on Constitutional History for perhaps a decade.
Hamilton: Is Franklin still teaching?
Carrington: No. He is retired and living in Durham. I see him a couple of times a year. The University has named a building for him.
Also, one of the regulars hired on my watch is a member of the political science department. Donald Horowitz, whom I previously mentioned, is the member of our faculty having the greatest international renown. He is consulted by almost everyone in the world who is trying to write a new constitution. He is an expert on ethnic conflict and the ways in which governments can minimize it. He had an offer from Harvard a few years ago. He is off to Africa or South Asia or the Pacific several times a year. He also does some teaching at London.
Hamilton: He is one of your legal missionaries?
Carrington: Certainly in a sense. But he only helps people who want help. Most of us missionaries have tried to impart our wisdom to benighted lands who were not seeking our enlightenment. In that we, but not Don, were forebears to the present Administrationís effort to export democracy so they can rule the world.
In any case, Don was a part of my effort to break down the intellectual isolation of our law faculty. The Harvard faculty that taught me was equally isolated. The isolation was breaking down at Michigan while I was there. But in relocating the intellectual center of the law faculty with folks like Don and the others named, we were moving away from the legal profession, from practicing lawyers and judges of all kinds.
Hamilton: Here, or in general?
Carrington: In general. Maybe here we are actually a little behind the curve by maintaining a little connection with the profession. Certainly I think of myself as a lawyer and nothing else. I respect the other academic professions, but I am not of them, and have no wish to be. I want to break down the isolation of our discipline without isolating ourselves from the realities experienced by our alumni. I am a big consumer of history; I want lawyers to use data bases, other information, advice, and ideas from other disciplines. But it is important that we remember our collective public duty, and that requires us to remain connected to the dirty work of the law.
Most of the moral squalor in America comes to rest in a law office. If youíre going to be a lawyer, or train lawyers, you canít be too squeamish. You have to be tough in dealing with the realities of the moment when abstractions and creative moral theories donít help all that much. Iíd feel better if more colleagues would stay more at home in the profession, confront the realities of the moment in the political life of the Republic, and remain in touch with the experiences more nearly ordinary people are having with our legal institutions.
Increasingly, as law schools hire faculty with Ph.D. degrees, they are hiring folks who eschew not only the realities faced daily by our alumni, but also those faced by the citizens to whom we own a primary loyalty.
To the extent that we have colleagues who are interested in the realities of politics, they tend to bring an extra load of ideological baggage. The feminists have a pretty fixed agenda, so do the critical race theorists, not to mention the ideologues who go in and out of think tanks such as the American Enterprise Institute and the like. Ideologues of whatever kind are seldom animated by the impulses of citizenship that I identify as the core impulse of great lawyers.
Indeed, this concern lay at the bottom of my spitting match with the Critical Legal Studies folks in 1984. It started with my talk at the AALS meeting based on Mark Twainís comments on professionalism as presented in Life on the Mississippi. It seemed to me that their legal nihilism was a disavowal, perhaps unintended, of the responsibility of legal educators to prepare their students for careers that would be useful to the whole Republic and not merely to some favored sample of its citizens. Such careers can only proceed from the conviction that law is possible, however illusory the meanings of words often are. It is not the marketplace that depends on that idea, but also the whole network of constraints we impose and must impose on reckless profit-seekers. I was and am an advocate of academic freedom, but could not understand why anyone would want to teach law who regarded their subject as mere bullshit. Indeed, I associated myself with someone who declared that the Crits and their like in other disciplines had given bullshit a new meaning.
Perhaps I wrote with too much passion in responding to Roberto Ungerís dismissal of the idea of law, but my passion was not, I think, misdirected. I do not believe for a moment that any words of mine could have brought down the house of Critical Legal Studies, but I take a little pride in the thought that my resistance marked the beginning of the end of a school of destructive thought.
* Other Exeter classmates who were also my law school classmates were Bill Fitzpatrick, Paul Glenn, Jed Philp, and Alan Weisberg; Dick Thomas and Ralph Jones showed up in 1954.