At age 92, retired Justice John Paul Stevens continues to travel around the country, freely offering commentary about his former colleagues while also tossing out verbal bouquets to lawyers he admires.
Stevens’ speech at the University of Texas Law Review’s annual banquet last month was no exception. As he often does, Stevens tailored his remarks to the local audience by talking about four “exceptionally fine lawyers” he knew with ties to UT.
Leon Green, the first Texan Stevens mentioned, also gave him the chance to chide not only Justice Antonin Scalia but Scalia’s alma mater Harvard Law School.
Green was a UT graduate and later dean of the Northwestern School of Law when Stevens attended after World War II. Green was “both an intimidating and inspiring teacher,” Stevens recalled. In his scholarly writing, Stevens said, Green was a critic of the doctrine of “proximate clause,” which he thought interfered with answering the more important question of whether a defendant’s wrongful conduct breached a duty owed to the plaintiff.
Green’s critique of the doctrine, Stevens said, was in line with his broader view that the “fact-specific” approach to legal education, favored by Northwestern and Yale Law School, was preferable to the more “rule-oriented” approach of Harvard Law and the University of Michigan.
The Supreme Court recently issued an opinion that reflected that divide, in Stevens’ view. In Pacific Operators Offshore v. Valladolid, the court held that the survivor of an offshore worker could be compensated under the Continental Shelf Lands Act. Justice Clarence Thomas — a Yale grad, Stevens noted — wrote the majority opinion, finding that a plaintiff needs to establish a “substantial nexus between the injury and extractive operations on the shelf.” Scalia, the Harvard man, wrote separately to urge a different “proximate cause” test for liability.
“I am sure Leon Green would not have been persuaded by Justice Scalia’s suggestion that introducing the doctrine of proximate cause into the analysis would have provided greater certainty to the law,” Stevens said in his speech. The plaintiff in the case Stevens cited was aided by UT’s Supreme Court clinic.
Stevens also spoke of the late Supreme Court Justice Tom C. Clark, another UT graduate. After retiring in 1967, Clark sat by designation in numerous courts, and presided over a trial in which Stevens, then in private practice, represented baseball team owner Charles Finley. Stevens recalled that his adversary in the case suggested that Stevens wore a bow tie to court to “make a favorable impression” on Clark, who also favored bow ties. “The suggestion was inaccurate and unfair to both Tom and me,” Stevens said, “but our shared preference for bow ties did enhance our friendship when we later sat together on the 7th Circuit.”
Douglas Laycock, once a professor at UT, was the next lawyer Stevens praised in his talk. Laycock now teaches at the University of Virginia, but at the start of his career, he clerked for a 7th U.S. Circuit Court of Appeals colleague of Stevens and helped Stevens with writing two of his opinions in 1973. Stevens thinks Laycock’s renowned scholarship and advocacy on the religion clauses of the First Amendment may have been influenced by several conscientious objector cases Laycock handled while a clerk.
Last but not least, Stevens gave a shout-out to 7th Circuit judge and UT graduate Diane Wood, whom he described as a “superb federal court of appeals judge.” Stevens singled out her persuasive writing in a 2011 trademark case, Board of Regents of the University of Wisconsin System v. Phoenix International Software. She argued that states (and state universities) should not be able to invoke sovereign immunity when they are sued for commercial activities such as registering a trademark for software products. Stevens obliquely expressed the hope that Wood’s writings on sovereign immunity might also influence the Supreme Court, which he suggested has gone astray on the issue of sovereign immunity.