Toward "Active Liberty," continued
Q: How are law schools doing today in terms of training
tomorrow's judges?
A: Well, the law schools are doing what they always did. They do it very well.
[But] the law is so fractionated now. It's terribly easy now for a graduate of a
law school [to go] directly into a firm and spend his entire life learning
nothing but the latest regulations of the bank regulators. That's a pity,
because it's too narrow.
The great advantage of law always was that you could be a generalist. You have to specialize, but also you could be a generalist. And in particular, it's supposed to give you enough time to participate in the life of a community. And it becomes harder to have a life that is satisfactory in terms of family, community and work. Law schools can't easily control what law firms do, but they can encourage. The forms of encouragement are many--public service scholarships, forums where they can bring up issues with people in firms, participation by law professors in professional associations, like the ABA.
So I'd say the challenge for the law schools is the same as the challenge for every one of us, and that is how to prevent specialization from turning into balkanization. Can the law schools help? Probably, but only a little.
One of the courses I took in law school that made a tremendous impression on me was Agency with Professor Louis Loss and Professor Austin Wakeman Scott. Agency taught the notion that a lawyer is a fiduciary. A fiduciary does not get his reward in life from the amount of money that he earns. He gets it by practicing the profession for the advantage of someone else. If you see law as a path toward making a fortune, I would say that's unfortunate. That isn't the job of a lawyer. And the more that people think it is, not only is it harder to keep that general interest in the community, but the more they're in a world they find unsatisfactory.
Q: Why is it controversial when a justice of the Supreme Court
looks to foreign law for guidance?
A: Well, I think it's controversial because the two cases in which that became
an issue happen to be cases involving controversial subjects--the death penalty
and the rights of homosexuals, gay rights.
By and large, I think it is not controversial. References to cases elsewhere are never binding. We're interpreting the American Constitution, American law. And foreign case law is there by way of reference. It may show support or the opposite of what you should do. It's like referring to a treatise or like referring to a professor's work. But the more it refers to the values of people abroad, the more it seems as if the object of the reference is to promote values, the more controversial it is. The more the purpose of the reference is to look at how other people solve similar problems, the less controversial it is. And that's as it should be.
Consider, for example, the question of how Israel deals with the problems of terrorism and security. Isn't that something you'd like to know? Not that it binds us, but you'd just like to know what's possible in trying to balance those different objectives.
More and more of the cases in front of us involve questions of foreign law. And we have to be able to look to others. The real obstacle is not posed by politicians. It's ignorance, when we don't know what the source is, and the lawyers who must tell us may themselves not be sufficiently familiar with the foreign sources, because when they went to law school, the professors were themselves not that interested.
We're getting more and more briefs filed by the European Union, by Japan, France, Germany. Those briefs help.
Q: The death penalty is one place where we tend to differ with many foreign
countries. What's it like to approach a death-penalty case?
A: I didn't have any death cases at all when I was in the 1st Circuit. [Here]
there are quite a few. And when one comes up just prior to an execution, we'll
all consider the case, almost always. And there's a system for doing so, but
although it's routine, it's never routine, because from the beginning and
continuously, one is fully aware of what turns on the decision. So it's
approached with caution and care.
Q: Does it affect you on a personal level?
A: These cases affect a lot of people.
My wife is a clinical psychologist. She works at Dana Farber. And she's working with children, and many of them and their parents have terrible problems. So there are people in other professions who deal with the most difficult human problems on a daily basis. And I think here, as in all those jobs, you don't ever become immune to or unaware of the consequence of what you're doing. You take the job seriously and do your best.
Q: Quite a few states have judges who are elected. It sounds
like that's not something you would support.
A: No, the grave concern with the elected judge today is campaign contributions.
A student of mine became chief justice of Texas. He told me he had to collect
several million dollars in campaign contributions. Now, that is a debilitating
influence, and at the very minimum it produces an appearance of justice for
sale. It's a very, very bad thing. But ultimately it has to be up to the people
of the state to decide what to do.
Q: Of your predecessors on the bench and on this Court, whom do
you admire the most and why?
A: I admire different ones at different times. I admire Brandeis a lot because
he'd go into things in detail. He tried to be very fair-minded. He considered
laws as a series of problems aimed at trying to produce a better system that
worked better for people. He was practical. And he was basically a defender of
civil liberties, but with care and caution in the analysis.
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See also:
On the Potomac, a crimson tide
In confirmation hearings, Harvard lawyers are everywhere
"May it please the Court"
For aspiring Supreme Court advocates, some hands-on experience
Friendly fire
Amicus briefs can help a party. They can also hurt.
Next: Getting it right
