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Colleagues Honor Stanford Law School Professor Richard Craswell with Festschrift

Some of the nation’s most respected scholars in the field of contract law gathered at a “festschrift” symposium last weekend to celebrate the exceptional contributions of Stanford Law School Professor Richard Craswell to academia and share original research inspired by his insights.

Craswell standing ovation

Colleagues give Stanford Law Professor Richard Craswell (seated) a standing ovation at the festschrift in his honor.

“This is what we do when we want to honor a Hall of Famer. We get together and write papers,” explained M. Elizabeth Magill, the Richard E. Lang Professor of Law and dean of the law school, during the celebratory dinner on Friday in Paul Brest Hall at Stanford Law School. The event was co-sponsored by the law school and the Stanford Law Review.

The evening started on a light note with an original serenade in honor of Craswell’s quirky habit of setting his observations about contract law to different types of music, ranging from sea chanties and drinking songs to themes from classic musicals and westerns. Seven colleagues sang “I’ll Be Suing You” to the tune of “I’ll Be Seeing You,” accompanied by flute and guitar – with footnotes appended to lyrics shown on a big screen. Stanford Law School colleague and chorister Professor Alison Morantz later lauded Craswell as “the Cole Porter of legal academia with no significant rivals.” Morantz conceived the idea of the festschrift and handled the arrangements with help from Professor Barbara Fried.

Currently the William F. Baxter – Visa International Professor of Law, Richard Craswell is a leading scholar of the economics and jurisprudence of contract law. Since arriving at Stanford Law School in 1998, and in prior professorships at the University of Chicago Law School and University of Southern California Law Center, as well as six years as an attorney with the U.S. Federal Trade Commission, he has achieved recognition as an expert in all aspects of commercial law, including commercial paper and secured credit, as well as antitrust and consumer protection law.

Impressive turnout

The symposium, titled “Who Knows? Law in an Information Society,” was the largest one in recent years presented by the Stanford Law Review (SLR), according to SLR President Michael Mestitz (JD ’15). He said virtually everyone who was invited agreed to come. As a result, 25 leading scholars in law and economics, contracts, commercial law, antitrust law and related topics attended the discussions and presentations.

Five new papers presented at the symposium will appear in the June issue of the Stanford Law Review. They are:

  • “The Rule of Probabilities” by Ian Ayres of Yale Law School and Barry Nalebuff of Yale School of Management
  • “Information and the Aim of Adjudication: Truth or Consequences?” by Louis Kaplow of Harvard Law School
  • “Regulating for Rationality” by Alan Schwartz of Yale Law School
  • “Debiasing Through Law and the First Amendment” by Christine Jolls of Yale Law School
  • “What Do People Know (and Think They Know) About Contract Formation?” by Tess Wilkinson-Ryan of the University of Pennsylvania Law School and David A. Hoffman of Temple University Beasley School of Law

Craswell’s generous spirit

A recurring theme throughout the festschrift was Craswell’s generosity in critiquing colleagues’ scholarship with their best interests at heart. “It’s as if he crosses over from his intellectual terrain to your island and spends time there,” explained Morantz, praising his “almost uncanny” ability to “offer insights as an insider.”

Noting that she first met Craswell at the University of Chicago Law School when she was on the entry-level job market, Magill said that during a private meeting with him to discuss her paper, “he was inside my head” and “showed a level of empathy for my intellectual framework that was exceptional.” She said she felt “cheated” because she was new to law teaching and “I thought that all law professors were like that.” At the dinner she told Craswell, “You are the best of what we can possibly be as colleagues and scholars.”

Margaret Jane Radin, a professor of law at University of Michigan Law School, recalled that when she and Craswell were colleagues at the University of Southern California, he never said anything injudicious or lost his temper, never angled for a good recommendation or a prize, and even left his contracts notes for the newcomer. “He’s this wonderful human being and he acts like he doesn’t know that,” she marveled.

Larry Kramer, former dean of the law school and current president of the Hewlett Foundation said Craswell is “the definition of class“ and was exceptional because “anything you needed done he would do and he would do well and thoroughly.”

Intellectual giant

Associate Dean and Law Professor George Triantis focused on Craswell’s academic contributions, declaring, “There are different types of intellectual giants. Some cast long shadows in the field, while others shine sunlight that helps the rest of us find our way and find the paths to make our own contributions. My personal gratitude to Dick lies here, and I know that many others can report similar experiences.”

Triantis credited Craswell with helping to keep the field of contract law dynamic. He said Craswell’s classic work, “Contract Law, Default Rules and the Philosophy of Promising,”published in 1989, “may have produced the greatest impact in our field by clarifying and mapping for us the understanding of philosophical and economic perspectives on contract enforcement.” He commended Craswell’s “Against Fuller and Perdue” paper in 2000 as leading the field away from a dead end and opening up a bright, new framework for thinking about damages.

Triantis also cited Craswell’s generous and open-minded response to Eric Posner’s 2003 paper arguing that economic analysis had failed contract law. Acknowledging how complicated the field was, Craswell heralded “attempts to come to grips with what are, in my view the questions that really matter. As I see it, shedding any light at all on those questions is a useful contribution, whether or not we are able to produce a complete and definitive answer.”

“A lively and productive academic field needs bomb throwers,” Triantis said. “But we also need people who come in, clear the rubble or crumbling structures, and show us the way to construct a sharper and more useful understanding of complex questions that really matter, in contracts and elsewhere.” He concluded, “As a most esteemed, charitable colleague to all of us, Dick, you have and will continue to be a source of intellectual rigor and light.”

Craswell was characteristically modest when he spoke briefly at the end of the evening. Citing Lou Gehrig’s famous retirement speech in which he focused on his good fortune, Craswell thanked his colleagues and said simply, “When it comes to the luck department, I really have been lucky.”

Supreme Court Justice and Circuit Judges Give SLS Students Insider’s Look at Becoming a Judge

A sterling reputation is the key driver of success for lawyers, agreed U.S. Supreme Court Justice Elena Kagan and U.S. Circuit Judges Sri Srinivasan (JD/MBA ’95, BA ’89) and Raymond Kethledge during a conversation at Stanford Law School on Wednesday.

Justice and judges at moot Court

Presiding as the “Supreme Court” at Wednesday’s Moot Court are (from left), Circuit Judge Raymond Kethledge, U.S. Supreme Court Justice Elena Kagan and Circuit Judge Sri Srinivasan. Prior to the mock trial, they shared their thoughts with Stanford Law School students.

The event, presented by the American Constitution Society and the Federalist Society, was held prior to this year’s Moot Court Board final arguments, at which the justice and judges presided as a simulated U.S. Supreme Court.

It was a homecoming for Srinivasan, who was a Moot Court finalist when he attended Stanford Law School. Professor Jeffrey Fisher, who has argued 26 times before the high court and is co-director of the Stanford Supreme Court Litigation Clinic, served as moderator.

Career aspirations

Asked what made them first aspire to become a judge, all three referred to their experience as law clerks, the trusted relationships they made during their careers and unexpected opportunities that came along. Kethledge noted that he and Srinivasan became friends when they clerked together at the Supreme Court, and later helped one another when they were nominated as judges. Srinivasan mentioned also clerking alongside M. Elizabeth Magill, now dean of Stanford Law School, who welcomed everyone to the event.

“I’m feeling like the odd man out,” quipped Kagan. “It sounds like everyone has clerked together but me. But that’s OK because I get to be the Chief Justice.” Kagan was referring to her role as Chief Justice during the Moot Court competition. In her real-life role on Supreme Court, she is the junior justice who, by tradition, takes notes for the group and answers knocks on the door during closed sessions.

Recounting the unexpected twists in her career, Kagan said most law students plan too much and don’t take into account the times when “lightning strikes.” “The best thing is not to plan, but to work hard and be a good person. In the end that’s what gets you the opportunity,” she advised.

What makes a good law clerk

Asked about the most important traits in law clerks, Srinivasan said he looks for “what every supervisor looks for: someone who makes you do your job better.” All three emphasized the need for clerks who bring new insights to the cases they are handling and also are fun to be around, since judges and clerks spent a great deal of time working together.

Kagan said she looks for clerks who can stand up to her and offer counterarguments even when she seems to have made up her mind. Kethledge added that he looks for clerks who take ownership of their assignments, are professional and mature, and can write well because “for lawyers, that’s the medium through which we primarily express what we do.”

The panelists said they enjoy reading well-written briefs, and two said their favorite opinion was Supreme Court Justice Antonin Scalia’s lone dissent in Morrison v. Olson (1988), in which he argued that the Independent Counsel Act should be struck down because it was a wolf in wolf’s clothing. “It is one of the greatest dissents ever written and every year it gets better,” said Kagan.

Srinivasan noted that “writing a dissent is fun” because “you don’t have to write the dry stuff at the beginning. You get right to the punchy stuff.”

Writing a good brief

When Fisher asked them for tips on writing a good brief, Srinivasan said there are two ways to approach the task: by saying you should decide for me because you have to (and listing previous cases that support your argument) or because you want to. He advised the latter, saying he wants to read a brief that persuades him to adopt the arguer’s point of view.

It’s important, Srinivasan explained, to acknowledge the weaknesses in your case. Since he has become a judge with lots of cases to decide, he said he also appreciates a concise summary of what he needs to know about the case and three powerful reasons why he should support your view.

Kagan said the best briefs are ones that tell a story and make an overarching case for why the argument makes sense. Kethledge focused on the importance of good style and establishing credibility. “When a judge reads your brief, you should understand I am judging you,” he said.

Oral arguments

The purpose of an oral argument, Srinivasan said, is not to try to control the room, but to figure out what the room wants to know. “My first job is to address whatever concern you have that is at the heart of the case,” he noted.

Yet another level of discourse takes place during arguments before the Supreme Court. “We talk to one another,” Kagan said. As the junior justice, she must wait during closed conferences until the other eight justices weigh in before she can present her views on a case. So, if she has a point to make and wants to make it “front and center, when my colleagues are thinking about the case,” she will do so while the case is being argued before the high court.

Kagan, Srinivasan and Kethledge later praised Stanford Law School finalists who argued at the Moot Court finals, noting that the two teams did so well that the simulated Supreme Court had a split decision. The case, Electronic Arts, Inc. v. Ryan Hart, concerned Ryan’s claim that a football quarterback avatar in EA’s video game franchise violated his right to privacy.

The winners of “Best Brief” and “Best Team Overall” were the respondents, Phillip Klimke and Matthaeus Weinhardt, representing Ryan. Michael Qian, arguing for the petitioner (EA) along with Daniel Kane, was selected as the “Best Oralist.” In real life, the two parties negotiated a settlement.

Elena Kagan was nominated to the U.S. Supreme Court by President Barack Obama and was confirmed by the U.S. Senate in 2009. Raymond Kethledge serves as a federal judge on the U.S. Court of Appeals for the Sixth Circuit, handling cases in Kentucky, Michigan, Ohio and Tennessee. Sri Srinivasan sits on the U.S. Court of Appeals for the District of Columbia Circuit.


Stanford Law School Students to Hear Case Before U.S. Supreme Court

SLS students worked on a Supreme Court case

Students from the fall quarter Supreme Court Litigation Clinic who helped prepare a case being argued Monday are (from left) Brittany Jones, Gary Dyal, Jenna Williams and Alison Karol.

Students from Stanford Law School’s Supreme Court Litigation Clinic are in Washington, D.C., with Professor and Clinic Co-Director Jeffrey Fisher, who will argue a case before the U.S. Supreme Court on Monday. The students spent the fall quarter assisting Fisher with background research and drafting the respondents’ merits brief for the ONEOK, Inc. v. Learjet, Inc.

Brittany Jones, JD ’16, Gary Dyal, JD ’15, and Jenna Williams, JD ’15, will be in the courtroom with Fisher on Monday, when he addresses the issue of whether the Natural Gas Act preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market. Alison Karol, JD ’15, who also worked on the case, did not make the trip, but will be watching it with interest.

Fisher will argue on behalf of commercial and industrial gas consumers, led by Learjet, against major energy producers, including ONEOK, who are seeking to overturn an April 2013 decision by the Ninth U.S. Court of Appeals that would allow antitrust suits filed under state laws to proceed. The case pits some of the nation’s largest natural gas vendors against their customers.

“The students have worked extremely hard, and that shows in the quality of the brief,” said Fisher, who has argued before the Court more than 20 times. “We’re looking forward to seeing how the Justices react to it.”

Brittany Jones said she was “very, very grateful” she was able to work on a SCOTUS brief. “For a law student, that kind of opportunity is rare,” she noted. She felt the chance to work on a piece of writing with other collaborators was especially valuable. “As a law student, you get to work on a lot of things on your own, and get the feeling of exclusive ownership. Working as a group is more like what attorneys really do.”

“The legal research and writing experience will be very valuable as I enter my legal career,” said Jenna Williams. “The issue is very complex, and I think doing the research and writing for it will make me much more able to confidently dive into and understand new legal topics in the future.”

The Supreme Court Litigation Clinic, which was the first of its kind at any law school, is one of 11 clinics currently offered at Stanford Law School. Students enrolled in a clinic spend a full academic quarter working on real cases with real clients, with no other distractions. In recent years, the clinic has represented clients on issues including federal anti-discrimination laws, the Fair Labor Standards Act, criminal defendants with constitutional claims, public interest and trade associations, the free exercise of religion, bankruptcy law and the Voting Rights Act.

Race and Policing Discussion at Stanford Law School Emphasizes Need for Building Trust

Race and Policing panel

Ronald L. Davis, at right, describes the value of community policing at the “Race and Policing” forum on Jan. 6, while (from left) Stanford Law School Dean M. Elizabeth Magill and Professors Ronald C. Tyler, David Sklansky and Tracey L. Meares listen.

It was standing room only at the “Race and Policing: Moving Forward” panel discussion at Stanford Law School Tuesday night, where more than 150 people gathered to listen to some of the nation’s top legal and criminal justice experts discuss race and policing.

The discussion is part of a series of events, classes and workshops during spring and winter quarters at the law school scheduled to encourage discussion and debate about issues prompted by the deaths of Michael Brown and Eric Garner, the justice system’s response to those deaths, and ongoing protests and demonstrations in many communities.

Referring to the engagement of students on campus, Stanford Law School Dean M. Elizabeth Magill said, “I have never been more inspired by those around me, and especially our students, for their courage, their brilliance, their passion. I am confident that we will make progress because of them.” She moderated the discussion.

Panelists included Ronald L. Davis, director of the U.S. Department of Justice’s Office on Community Oriented Policing Services and former chief of the East Palo Alto (Calif.) Police Department; Associate Professor Ronald C. Tyler, who joined Stanford Law School in 2012 to direct the Criminal Defense Clinic after a 22-year career as an assistant federal public defender; Tracey L. Meares, the Walton Hale Hamilton Professor of Law at Yale Law School, who was recently named to the President’s Task Force on 21st Century Policing; and Stanford Law School Professor David Sklansky, an expert on policing and criminal law.

Panelists agreed that ensuring fairness in our criminal justice system requires a better understanding of different perspectives, as well as partnerships between community groups and police agencies. Confidence in policing also depends on determining whether people want police to focus only on lowering crime statistics or to also build trust between communities of color and police, said Davis. “Public safety has to be more than the absence of crime. It has to be the presence of justice,” he noted.

Davis and Tyler, both African-Americans, offered personal examples of the mistrust that people of color feel toward police. Tyler said people of color who are shadowed by officers describe it as “living under martial law in their own community.” He attributed it to the emphasis on the “broken windows” theory of policing that encourages stamping out small crimes like vandalism in order to create an atmosphere of lawfulness that will prevent more serious crimes. Tyler recommended documenting police activity with videos and photos to “trust but verify” their behavior.

Sklansky, who was a federal prosecutor before he became a law professor, said that, while there were many problems, police departments have come a long way since the 1950s by promoting diversity within their ranks and emphasizing community policing, which encourages partnerships between police agencies and the individuals and organizations they serve. He stressed that it is important to avoid stereotyping police and to remember “there are hundreds of thousands of police officers who are smart and compassionate.”

Reminding the audience that police “go places we don’t want to go and see people we don’t want to see,” he said, “If we are going to improve policing, we need to remember there are human beings inside those uniforms.”

He added that “we shouldn’t let prosecutors off the hook” because some of the recent violence was attributable to decisions that prosecutors made behind closed doors.

Meares said that our society requires police to do things they wouldn’t have to do in a society with more social support systems. People act differently, she observed, when they have “an expectation of benevolent treatment by those in authority.” Meares believes the federal government is very committed to righting the wrongs that have sparked police confrontations, as evidenced by Obama’s recent formation of his Task Force on 21st Century Policing.

Davis championed the idea of community policing, which enabled him to drastically reduce the homicide rate in East Palo Alto (at that time, the nation’s worst) when he was police chief. He said, “You hear people say that during times of economic hardship, we can’t afford to have community policing, but during times of economic hardship, we can’t afford not to.”

Davis added that he has great faith in the future of policing. “This generation of police officers is much better than my generation,” he said, noting that they are more educated, more balanced and more progressive.

The next programs in the series will be a discussion on Jan. 12 that is open to the public about “Grand Juries: An Arcane Institution or Sacred Cow?” and a talk on Jan. 28 that is open to the Stanford community by Stanford Law Professor Norman Spaulding called “Rights Without Remedies: Litigating Claims of Police Bias and Excessive Police Force.”

Those interested in the latest news about race and policing activities on the Stanford campus can follow hashtag #SLSforJustice on Twitter.


Stanford Law School Offers Campus-Wide Forums on Race, Policing and the Criminal Justice System

"Die-In" demonstration at Stanford Law School

Stanford Law School students participated in a “Die-In” in December 2014 to call attention to events in Ferguson, Mo., and Staten Island. Photo by Vanessa Casado-Pérez

Stanford Law School is organizing a series of events and educational programming focused on race, policing and the criminal justice system, beginning in January and running through the winter and spring quarters, which will be open to the campus community. Members of the faculty also will offer courses that directly address related issues.

“For many in the Stanford community, events in Ferguson and Staten Island have raised fundamental questions about the basic fairness of our criminal justice system,” said M. Elizabeth Magill, dean and Richard E. Lang Professor of Law at Stanford Law School. “In organizing these events, our goal is to offer a campus-wide forum where all who are interested can learn about and reflect on the legal and policy issues about race and criminal justice that recent events have made salient. It is an opportunity to learn and share ideas as part of this important national conversation.”

The first event will be a panel discussion called “Race and Policing: Moving Forward” on Tuesday, January 6, from 4:30 to 6:30 p.m. in Room 190 in the Crown Quadrangle building at the law school. Dean Magill will moderate the panel, which will include Ronald L. Davis, director of the U.S. Department of Justice’s Office on Community Oriented Policing Services and former chief of the East Palo Alto (Calif.) Police Department; Professor Ronald C. Tyler, who joined Stanford Law School in 2012 to direct the Criminal Defense Clinic after a 22-year career as an assistant federal public defender; Professor Tracy L. Meares of Yale Law School, who has served on the Committee of Law and Justice with the National Research Council since 2004 and was named to the President’s Task Force on 21st Century Policing in December; and Stanford Law School Professor David Sklansky, an expert in policing and criminal law. More details are available here.

On Monday, January 12, Stanford Law Professor Robert Weisberg, faculty co-director of the Stanford Criminal Justice Center, will join former Judge LaDoris Cordell in a discussion titled “Grand Juries: An Arcane Institution or Sacred Cow.” Judge Cordell is a 1974 graduate of Stanford Law School who serves as the independent police auditor for the City of San Jose. This program will take place from 4 to 6 p.m. in Room 180 in the Crown Quadrangle building. More information is online here.

Both events are free and open to the public. They are sponsored by the Dean’s Office, the Stanford Criminal Justice Center, the John and Terry Levin Center for Public Service and Public Interest Law, and the Stanford Law School Office of Student Affairs.

The law school will produce and host several other programs in coming months. They include a faculty-led workshop on the scope and efficacy of federal civil rights laws; discussion of proposals for relying on special prosecutors in cases of homicide by police officers; an in-depth look at the City of St. Louis; and a review of potential efforts for legislative and other reforms.

In addition to these activities, several faculty members are offering courses or reading groups that focus on some of the legal and policy questions raised by the events in Ferguson and Staten Island. Three professors—Professors Norman Spaulding and Richard Banks from the Stanford Law School and Jennifer Eberhardt from Stanford’s Psychology Department—will teach a one-unit seminar on race and policing during winter quarter, Professor David Sklansky will offer an informal (no credit) reading group on race and criminal justice, and Professor Joan Petersilia will teach a course called “Reinventing the American Criminal Justice System” during spring quarter.

Other courses will delve into equality and the law more broadly. Professor Kenneth Mack from Harvard Law School will teach a 1-unit short course in Critical Race Theory in January, Professor Barbara Fried will teach a course on Modern American Legal Thought in the winter quarter, Professor Richard Ford will teach a course on Comparative Civil Rights, and Professor Ford and Professor Bernadette Meyler will teach a 3-unit course in the spring quarter on Critical Theory. Interested students should consult the registrar’s webpage for information.

In addition, the Stanford Criminal Justice Center is compiling a list of potential research topics that can be supervised as directed research projects for students interested in doing research on racial justice issues.

Those interested in the latest news about these activities on the Stanford campus can follow hashtag #SLSforjustice on Twitter.