Monday, November 25, 2019

In Memory of David Shapiro

by Michael C. Dorf

David L. Shapiro, the William Nelson Cromwell Emeritus Professor of Law at Harvard Law School, passed away last week. David was a brilliant, humble, witty, and fundamentally decent human being. He was my teacher, mentor, and friend. In a lovely tribute on the occasion of his retirement, Prof. Amanda Tyler called David a "lawyer's lawyer." I agree. Indeed, David was also a law professor's law professor. The current Solicitor General, Noel Francisco, wrote a respectful remembrance here. The official obituary in Harvard Law Today includes praise from Prof. Tyler, Dean John Manning, and Prof. Richard Fallon. Meanwhile, I want to add a few words of my own.

David's two main areas were Civil Procedure and Federal Courts, both subjects that students find challenging, albeit for somewhat different reasons. Federal Courts is simply difficult: the materials are complex, abstruse, internally contradictory, and often inconclusive on key points (such as whether there's a constitutional right to a remedy for the violation of constitutional rights). Civil procedure is not as difficult conceptually, but because it is typically taught in the first semester of law school, it can bewilder students because of its foreignness.

Regardless of their undergraduate major or work experience (if any), students come to law school with a reasonable idea about the nature of the material they will learn in such first year classes as contracts, torts, and property. They do not know much of the content of these subject areas, but they at least have some idea what they will be learning. By contrast, civil procedure is largely a black box. It's about the rules of procedure in a civil lawsuit, a new student might think, but what those rules are, where they come from, what policies they serve, and other basic questions are largely a mystery. Moreover, upon being instructed to purchase a copy of the Federal Rules of Civil Procedure before the first class, students are almost immediately turned off. They imagine that the course will be an exercise in the memorization of arcana.

Good civil procedure instructors undercut that way of thinking immediately by showing students that the subject matter implicates fundamental questions of justice no less than other legal subjects do. There are a variety of means of doing so. When I was his student, David did it by beginning his course with Goldberg v. Kelly, a 1970 Supreme Court decision that construed the Fourteenth Amendment's Due Process Clause to require trial-like procedures before state and local government agencies administering state and federal welfare benefits could remove someone who had been receiving such benefits from the eligibility rolls.

The pedagogical goal of beginning the civil procedure course with Goldberg is not to teach students currently operative legal doctrine. Mathews v. Eldridge, decided just six years after Goldberg, did not exactly overrule Goldberg, but it mostly supplanted Goldberg's approach (as Justice Brennan, the author of Goldberg, protested in his Mathews dissent.) One begins with Goldberg to illustrate the profundity of the subject matter.

When taught well--and David taught the case extremely well--Goldberg raises a host of basic questions, including: Do fair procedures have inherent value or are they only useful instrumentally for arriving at truth? What counts as a fair procedure and how does the answer depend on context? In light of the legislature's substantive ability to repeal a welfare program entirely, why are individuals entitled to any procedural protection against ineligibility? What are the costs of various procedures and do the resulting benefits justify those costs? Etc.

The challenge of teaching civil procedure in a way that keeps students engaged is that most of the other material in the course does not appear to implicate fundamental questions of justice or policy. It seems technical. Consider this one: Under what circumstances does a corporate defendant that was named improperly in a lawsuit before the statute of limitations expired have to respond to the suit on the merits? The issue is governed by Federal Rule 15(c)'s "relation back" provision and, before that rule was amended, spawned a maddeningly complicated 1986 Supreme Court decision. Students have difficulty even keeping track of who's who in the case, much less understanding how the intuitions about justice that were triggered in a case like Goldberg might bear on the application of Rule 15(c).  Yet I vividly remember how David made the discussion of Rule 15(c) come alive. The meta-lesson of his course was that there are no merely technical issues of civil procedure.

That is not to say that David was a thoroughgoing legal realist who thought every question of law was reducible to a question of justice or a mask for politics. He believed in the constraining power of law. Although a political centrist-to-liberal, he was happy to take a leave of absence from academia to work as Deputy Solicitor General during Republican administrations (the end of Reagan's first term and into Bush I's term). He knew that arguing for the interests of the United States would sometimes mean arguing for  positions he might not favor as a matter of policy--and within bounds he did so happily and  very successfully.

But just as David was not a legal realist or a crit, neither was he a formalist. More of a fox than a hedgehog, David was nonetheless best known (at least by me) for his view that courts have and should wisely exercise discretion to decline jurisdiction on prudential and related grounds. Chief Justice John Marshall wrote in Cohens v. Virginia that for the Court to decline jurisdiction granted by Congress "would be treason to the Constitution." David argued that this statement was hyperbole. Courts have and sensibly exercise some discretion to decline jurisdiction, just as they exercise discretion in other contexts.

For David, however, discretion was never unbridled. He joined the Hart & Wechsler Federal Courts casebook beginning with the 2d edition in 1974. By then Henry Hart had died, but his influence on the book and on David's work is everywhere. The primary theme of Hart's other great work--the Hart & Sacks materials--is the exercise of reasonable judgment in the allocation of decision making authority. That was the hallmark of David's work as well. He was deliberately not a systematizer, but rather someone who drew careful lines and traced arguments where they led. He was willing to admit when he found that there were good arguments on various sides of a question.

David's view emphasized judgment, which is admittedly a difficult quality to define or measure. It is part skill, part virtuous character trait. It can be improved through practice but is hard to teach. There is a somewhat unsatisfying know-it-when-you-see-it character to sound judgment.

Be that as it may, David's own judgment was excellent. A number of characteristics contributed to that quality in him: His intelligence, work ethic, open-mindedness, compassion, and most of all his humility. I corresponded with and occasionally talked to David in the more than three decades since he was my teacher. When I picture him in my mind, his shoulders are bouncing up and down as he laughs, typically at a joke he made at his own expense. I miss him dearly.