Dean Manning, Professor Ehrlich, distinguished members of the faculty, Miss Goldstone and, members of the Law Review, I am greatly honored to be here on Law Day. Yet, this occasion marks much more than Law Day. For today we honor Dean Bayless Manning and the Stanford Law Review, a publication which has done much to build the national preeminence which the School of Law enjoys.
Perhaps the finest tribute I could pay to Dean Manning would be to simply describe him with a quotation from one of our nation’s leading legal educators:
“The American lawyer of first quality is a rare and highly productive social resource he is our most fungible all-weather problem solver — a blend of architect operator, tactician, analyst, propagandist personal counsellor, synthesizer, scholar and statesman.”
I think it is fair to sat that Bayless Manning richly deserves that description — which he wrote.
I suppose that he has been chosen to head the Council of Foreign Relations in honor of his ability to survive several years in California under the Reagan regime. We usually reward our ambassadors in some appropriate fashion, and I suppose that being the head of a law school or university these days equips one with that special sense of crisis which also characterizes the conduct of our foreign policy, for I notice that the Council is devoted to the study of our “political, economic, strategic, and financial” problems in their international context all areas any dean had better know something about these days! And speaking of strategic problems, the Stanford Daily has purchased an early warning system to protect its files. And I understand that they are purchasing stacks of the Observer to use as decoys, hearing that the contents of the wastebaskets over at the Daily are likely to be read at police stations, I instructed my staff send advance copies of my talk tonight, along with a photo, to Chief Zurcher. After all, a visiting lecturer does have his pride.
Law Day, however, is not a holiday. This year it has special significance for Californians and for all Americans. It marks a time of transition for this great law school, not from old to new but hopefully from excellence to even greater accomplishment.
For legal education is the beginning of a process of involvement in society which must ultimately refine and deepen our system of justice. This is why legal education can no longer be left only to educators and academicians.
It is also particularly important that this discussion about legal education take place in California at this time. For here, we see a state administration which has vitiated the rule of law in the name of law and order. What happened at the Stanford Daily a few weeks ago was not an event isolated in time or context, it is the end result of a climate of state government which creates and approves repression and enshrines it with the legitimacy of lawful action.
It is the same arrogance which marks the state’s refusal to participate in a judicial inquiry into the C.R.L.A. having set in motion the accusations which occasioned the inquiry.
And it is the same ugly climate in which a recent summit meeting took place between Governor Reagan and the President which cleared the way for California to receive an administrative waiver of basic federal welfare statutory requirements, which if enacted, will strip from welfare recipients the protections of due process which alone distinguish assistance titles of the social security laws from the “poor laws” of the 19th century England. I ask you simply: if C.R.L.A. has won over 80% of its cases against the government, who was found to be in violation of the law? The citizen or the government?
As a matter of fact, it appears that C.R.L.A. has been doing better in court than the U.S. Department of Justice in recent days. As a lawyer, I cannot help but be amazed at the increasing condemnation, censure and reversal of the Attorney General before our legal tribunals. His effort to get wiretapping authority without court orders to bug domestic radicals was ruled illegal by a federal court in Pennsylvania. The Supreme Court of the United States only last week voted 9-0 against the Attorney General on school busing to achieve desegregation.
A U.S. judge in Washington charged that the justice was making a “mockery” of the federal judiciary by seeking an injunction against Vietnam veterans camping on the mall which the Attorney General would then not enforce and to top off what must have been a miserable week, a three judge panel in Biloxi, Mississippi, mind you, accused the Attorney General of abdicating his responsibility as chief legal officer of the government in failing to interpret a provision of the Voting Rights Act of 1965. And I hear that Martha Mitchell has sent for a telephone directory of the U.S. Judicial Conference.
Partly because this is Law Day, partly because this is Reagan country, but mainly because we are in the midst of a grave crisis as I speak to you tonight I must depart from my planned remarks to sound the alarm in the interests of justice and the rule of law.
The attack on California Rural Legal Assistance has become an attack on the entire national legal services program. Before leaving Washington, I received a draft copy of the Nixon administration’s proposal to cure legal services of its successes, in the name of a design to set up a national corporation structure for more efficient administration of legal services, the president clearly intends to reorganize this signal contribution of the entire poverty program.
The draft bill makes a mockery of everything that has made poor people believe they could secure redress of grievance through the legal system. It would turn legal service program band-aid operations by virtually prohibiting funding of programs like C.R.L.A. that represent groups or bring class actions. It would set up a corporation governed entirely by presidential appointees. It would shackle attorneys in discharging their professional responsibilities to their clients. It would require a rigorous review system before any legal service lawyer took an appeal to a higher court. It would prohibit absolutely all representation in criminal cases. It would bar the legal services lawyer from any kind of pro bono work — even though he is required to work to improve the legal system by the code of professional responsibility. It would force the poor in many cases to choose between bread and justice by charging them fees for legal services. Most incredibly, it authorizes the new Legal Service Corporation to interfere in any case against the government by entering negotiations to settle the case irrespective of what the client wants or what the attorney believes is in the best interest of the client as a matter of professional judgment.
Further, the draft bill makes no provision for including at the highest policy level those effective voices of the organized bar, legal services attorneys, clients or particular individuals whose long contribution to equal justice for the poor requires recognition in the new corporation. In downgrading the role of the bar the bill removes from legal services its most enduring and potent ally over these first seven years of existence replacing this professional trusteeship which has been fundamental to the program’s survival will be an open season for political interference a la Lewis Uhler. It would not surprise me in the least if the president sees that Mr. Uhler with his unique background and concern for the poor becomes the head of the new corporation. The pattern suggests that the national bill is being written on the model of the conspiracy in Sacramento to do away with C.R.L.A.
The draft bill has other noxious features which I will briefly summarize here tonight: by making the new corporation a private entity and not a government corporation, important rights of due process and access to the Administrative Procedure Act will be lost to grantees like C.R.L.A. suffering adverse decisions from Washington; new methods of disciplining legal services lawyers are suggested which may interfere with long cherished court prerogatives. At every point, the new corporation would interfere with the advocacy process so vital to the concept of legal services. rights which are inalienable cannot be negotiated.
Justice is a matter of right not privilege, not charity. But Nixon and Reagan have what I call the “poor law” mentality in dealing with the poor of this country. They would have the Congress enact a bill which would punish the poor and those Americans who engage in legal services for the poor. I think this proposal must have washed up on the beach at San Clemente during one of those summit conferences. Certainly it was not the idea of the bar, the poor, or the American public to take the sorry example of the Reagan-Uhler attack on C.R.L.A. and make it the law of the land.
This is the bill as it stood on Thursday. And I urge all and I call upon the American public to protest in a voice so loud, so clear, so vehement that this affront to our sense of decency of justice, inundates the administration and makes it understand in no uncertain terms that we will not permit and we will not tolerate and we will not suffer this foul and despicable proposal. It goes beyond repression and strikes at the very heart of liberty and the last resort of the disenfranchised and the oppressed.
Yet as bad as this legislation is, it may be a smoke screen for an even more devious tactic — a red herring to divide those who support legal services — a device for killing C.R.L.A. by a cynical “trade-off” to get modifications of the draft legislation.
Just as we have seen evidence in the last two years of a “Southern Strategy” by which the administration was willing to pack the Supreme Court with Haynesworths and Carswells, so too there is a “California Strategy” emerging which is all the more, sinister to observe. It is a strategy in which the legal rights and lives of the poor people of this state are being compromised in return for crass political deals.
Welfare rights and California Rural Legal Assistance are the price for ultra-conservative support of the administration in 1972 and the president knows he must meet their price. The governor knows the people of California would not tolerate a deal in which the pawns were redwood trees and oil slicks in the Santa Barbara Channel, but he is willing to try it with the poor.
And the question I want to put to you is, what are you going to do here at Stanford? What strategy have you evolved to help save C.R.L.A.? Is this a spectator sport for you when the very future of C.R.L.A. is involved? Is C.R.L.A. somebody else’s cause? — a “good thing” in the abstract. And I say to you, fellow men and women of law, as present a prospective officers of the court, can you stand by – students professors, alumni, without mounting the most thorough going attack upon this attempt to destroy the one program which has more than any other, come to symbolize that justice meant justice — and that official lawlessness would not be tolerated even in tie interest of political expediency.
Do you think I felt good when Bill Wirtz called me up three years ago and said, “What are your lawyers doing out there in California suing me?” Bill Wirtz was referring to C.R.L.A. and its famous Bracero case. And I said to Bill, “They’re doing just what lawyers are supposed to do, represent their clients as vigorously and effectively as the law allows and as professional ethics require. Would you want them to do anything else? Do you want to be above the law? Would you rather these issues were settled in the streets than in the courts?” And Bill said, without any hesitation, “No, you’re right. They are doing just what they must do if the poor are ever to get justice in this country.”
It is not fun to be sued, but we have a system of justice based on the adversary process. And either you are going to defend that system when it is under mortal attack — and it is right here and now in California — or there won’t be a legal system and a rule of law worth talking about when you get out. So where are you and when are you going to take your stand? And how? Are all these brains and talent and energy good for nothing but law journal dissection autopsies? Are you going to make sure that, the deliberative process now going on which Governor Reagan is flaunting so openly and callously, is vindicated?
It would be nice if we could all wait for a law review piece to sum it all up and change the world. But I warn you that we are all about to be ship-sawed between a vicious piece of legal services legislation and an even more sinister plot to sacrifice C.R.L.A. by diversionary tactics.
And at such times, do you really think that you can stand apart? How long do you think academic freedom here or elsewhere — especially in California universities will last if Reagan triumphs and C.R.L.A. dies, if the legal service program emerges crippled and hamstrung? How long do you think there will be such a thing as the rule of law when two men in summit conference can simply decide that they will waive provisions of the law in such a way that will make grown men and women accept any kind of work – emptying urinals, cleaning oil slicks from the bay, for welfare payments instead of for the minimal wage.
I say to you at times like this there is no room for neutrality. C.R.L.A. and legal services will stand or fall together. And the very rule of law itself is in peril. Three judges have been courageous enough to examine the charge cooked up against C.R.L.A. They will take their stand. They are prepared to give genuine due process. Will you stand by and let them be insulted? Will you protect the integrity of their process? Will you rise up, once they have rendered a decision, or will you say it’s none of our business? We’ll get around to that later. We need to be concerned right now with academic excellence. I say to you if you tolerate such lawlessness now, in the name of scholarly pursuits, or intellectual insulation, beware for your own sake. And I am reminded of the lines of Sir Thomas Moore in “A Man for All Seasons”:
“And when the last law was down, and the devil turned round on you — where would you hide, roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws not god’s — and if you cut them down and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law for my own safety’s sake.”
Is it the judges who should cease their investigation and resign — or is it Governor Reagan who should cease his defiance of the law or resign? Tragically, the results of Reaganism in California have made his administration synonymous with official lawlessness.
It is I fear, sad commentary on the fate of our nation today that a Law Day speech must be a call to arms against official lawlessness. And it is even more distressing that the situation is so dire, the danger so imminent that one must call upon a community of scholars to enter the fray or desist at their own peril.
Yet, this is perhaps an inevitable aspect of life and one with which you at Stanford may have to cope increasingly over the years to come.
I am aware of the pioneering this school has done with its extern program with law students getting a semester of credit for work in the so called outside world. I congratulate you this first step. But I believe that the time in which we live will require even more. Work in the real world is still too divorced from the nature of scholarly inquiry at law school and Chief Justice Burger is on firm ground when he says that legal education equips a law school graduate to cope with the real world about as well as if we trained doctors by having them spend four years doing autopsies. He calls the Langdell case method the post-mortem approach to law.
And today I call upon this law school to move toward establishing a teaching law firm — just as medical schools have established teaching hospitals. And I would urge you to establish not here on this campus, but in San Francisco where the problems are of the disenfranchised, the dissenters, the minority groups, of pollution and suburban sprawl and urban decay. But San Francisco is also where the federal government has established one of its regional offices. And slowly but inexorably federal power is being decentralized to those regional offices. San Francisco is, in fact, becoming a miniature Washington D.C. and all of the complexities of Washington are now being multiplied by decentralization. If revenue sharing and block grants become a reality, and they are already becoming reality administratively even without legislative action by Congress then the regional offices will bear even closer scrutiny.
Then, more than ever, it will be critical to have a teaching law firm where the problems of the real world and in particular of this little “federal government,” are subjected to the most intensive scrutiny by a community of scholars, studying, dissecting and probing, monitoring. You are needed, not to serve simply the legal needs of San Francisco but to deal with the problems posed by the changing nature of the legal process and the peculiar lawlessness of federal and state officials.
And if you think that I am kidding about the kinds of lawlessness going on in federal grant programs in California, here are two examples from projects in the state capital:
In Sacramento, California, three urban renewal projects displaced several thousand persons from the city’s west end. Affidavits to H.U.D. by former project area residents testify that displaces were forced to sleep outdoors, as housing within their financial means was unavailable.
The final relocation report for the Capitol Mall project in Sacramento admitted that a ‘hobo jungle’ of shanties had sprung up along the American and Sacramento Rivers and that former residents were now sleeping in ‘weed hotels’ under bridges, sidewalks and in vacant buildings. Personal affidavits confirm reports that displacees sought shelter under bridges, in basements of old houses and by burrowing under the sidewalks of second and front streets.
It is time that our concept of legal education changed from that of producing to that of producing the full range of manpower necessary to fill the needs of a just and adequate legal system.
The other challenge out to you is that you must move more directly into the field of training the full range of professionals and para-professionals needed if the legal system is to be capable of providing justice for all. You have already taken a major step in that direction by conferring new types of degrees.
The JM degree which Stanford has pioneered in offering to persons who choose other professions and vocations is a major first step in that direction. But it is only a first step. And there will be no second step unless we see legal education as a continuum that sensitizes the child to basic legal concepts in grade school, equips the teenagers with a minimum of sophistication and an awareness, of rights and responsibilities early in junior high and high school, develops a brand new approach to legal education at the college and junior college level and then institutionalizes viable approaches to continuing education in the law for crusty old law school graduates such as myself.
It is not simply that we need more lawyers, more judges and a few court administrators. We need to develop entire new career lines in the law — welfare counselors, patient advocates in hospitals, student ombudsmen for public schools, advocate fact finders — all of whom will have distinctive skills distinctive and roles. The fate of the poor verdict and sentence are handed out daily in administrative and bureaucratic rulings — “courtrooms” where no judge sits. If justice is ever to reach those tribunals, law schools such as Stanford will have to take the lead with the same boldness that has marked your recent innovations.
Yet the challenges of the ‘70s go beyond any vision that man has ever had before — beyond even the unrealized utopias of the East, beyond the promises of the New Deal, to a vision that exceeds any we even dimly perceived during the new frontier days or the days of the Great Society.
We need to begin groping to reach, to define, and to realize the vision of a society finally purged of the inequities of the past and the legacy of two centuries of institutionalized racism and exploitation.
That society, I would call the just society. And on this day, Law Day, 1971, I would, call upon all of you here to fight every fight, resist every tyranny, remedy every injustice, create every institution and train every citizen in the ways of justice.
To do this, above all will take honesty about ourselves, and our complicity in the injustice that surrounds us. The poet, Kahlil Gibran, said it more poignantly than I can hope to in six lines of poetry. He says:
“The righteous is not innocent of the Deeds of the wicked: You cannot separate the just from the unjust, and the good from the wicked: for they stand Together, before the face of the sun, Even as the black thread and the white are woven together. And when the black thread breaks, the Weaver shall look into the whole cloth, and he shall examine the loom also……"
Let us begin today, Law Day, 1971 here at Stanford to look into the whole the loom also if we would become members of a just society.
