«A Scholar’s Journey On The Dark Side William Gangi * These past few years I have lectured for the Federalist Society. That combined with ...»
GANGI 2/19/2008 3:51 PM
A Scholar’s Journey On The Dark Side
William Gangi *
These past few years I have lectured for the Federalist Society. That
combined with celebrating my fortieth anniversary as an academician has
prompted considerable reflection. My initial inclination was to write about
how free pizza has contributed to the dissemination of conservative legal
education (free pizza is frequently offered at lecturing events to entice at- tendance), but when I learned that the American Civil Liberties Union used the same tactic, I abandoned the project. I eventually focused on my im- pressions of contemporary legal education. 1 But I get ahead of myself.
1 See generally The Federalist Society, http://www.fed-soc.org/ (last visited Sept. 3, 2007).
While the Federalist Society undoubtedly has a point of view, no one there has ever offered me guid- ance or asked me to subscribe to any litmus test. I often am amused when liberally inclined students, drawn to my lecture by the offer of free pizza, comment afterwards that a lot of what I had to say made sense.
2 My colleague, Professor Robert Pecorella, kindly pointed out two books illustrating the trend of previously Democratic Italian-Catholic-Americans toward Republicanism in the 1960–70s, demon- strating that my views were fairly typical. RICHARD GAMBINO, BLOOD OF MY BLOOD: THE DILEMMA
OF THE ITALIAN-AMERICANS (1974); KEVIN P. PHILLIPS, THE EMERGING REPUBLICAN MAJORITY(1969). Evidently, the Italian attachment to family, and resistance to government, made them suspicious of the Democratic Party’s statist approach. That, plus Irish control of the New York Democratic Party left them wary. See id. I recall assigning EDWARD C. BANFIELD, THE UNHEAVENLY CITY REVISITED (Little, Brown and Co. 1974) (1968) to my first classes, and being struck by his analysis.
When studying minorities, rather than race, one should examine future orientation. Id. at 52–57. He contended that children of the poor and rich shared similar orientation—a tendency to seek immediate gratification. To be sure, their reasons were different—the poor because of despair and the rich because things were too easily acquired. He also concluded privacy was primarily a matter of upper class con
the completion of my BA found me torn between two career paths: law or political science. I decided to pursue my master’s and Ph.D. in political science, reasoning that the eventual teaching life style would allow me time to obtain a law degree, while the opposite choice would not be equally true. 3 After my MA, I enrolled at the University of Notre Dame and before long (or so it seems in hindsight) I became deeply immersed in dissertation research, spending untold hours in the scintillating company of English common law volumes. Back then (I have not seen it in forty years) the law library was quaint, with spiral staircases leading up to what at the time was called the “stacks” (the various case reports and law reviews). It was a dusty, musty place, probably unsafe by today’s environmental standards, but I loved it. I not only felt a kinship with the students who had preceded me, but like many before me, fell under the spell of Holmes and Brandeis, Cardozo and Frankfurter. 4 Eventually I encountered a brilliant article by Herbert Packer. 5 Several things about it struck me. First, the simplicity and clarity of his hypothesis that “the shape of the criminal process has an important bearing on questions about the wise substantive use of the criminal sanction.” 6 I wondered why it had never been posited before. Second, he embraced the legitimacy and usefulness of “normative model” building. 7 Third, he painstakingly sifted through conflicting viewpoints and did so with relative cern since in such families each child typically had his own bedroom. That was not true in poor, lower or even middle class homes, particularly where several generations of family members lived together.
Id. at 52–77. Some of Banfield’s other comments still ring true: “But facts are facts, however unpleasant, and they have to be faced unblinkingly by anyone who really wants to improve matters....” Id.
at xi. With chapter titles such as “Race: Thinking May Make It So,” and “Rioting Mainly for Fun and Profit,” the rumor was that the book had been banned as racist in the City universities. Id. at xiii.
3 My calculations did not (though perhaps they should have) encompass the realities of marriage and children, and the need to earn a living. I shrugged off the fact that one of my professors drove a ten year old car, and I knew nothing about “publish or perish.” Thinking back, I realize that perhaps the strongest factor in my career choice was my aversion to commuting! Although not explored here, serious introspection makes one realize how easily the intellect is commandeered by acquired attitudes— that is, attitudes frequently bend the intellect to its will rather than the other way around. See WILLIAM GANGI, SAVING THE CONSTITUTION FROM THE COURTS 286 (1995) [hereinafter SAVING], available at http://facpub.stjohns.edu/~gangiw\Saving.pdf.
4 I distinctly recall often finding Frankfurter’s opinions illuminating; primarily because of his penchant for thoroughness—his footnotes would occupy me for weeks afterward. See, e.g., Culombe v.
Connecticut, 367 U.S. 568 (1961). Years later I concluded that Frankfurter distorted the law. See SAVING, supra note 3, at 99–102. Such distortions however were quite innocent. None of us totally escape the assumptions of our era. Publius (the common pen named used by the authors of The Federalist Papers— Alexander Hamilton, James Madison, and John Jay) notes: “They who have turned their attention to the affairs of men must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure.” THE FEDERALIST NO. 64, at 393 (John Jay) (Arlington House 1965).
5 Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964). Compare Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 UTAH L. REV. 289 (proposing a third model to complement Packer’s two models).
6 Packer, supra note 5, at 1–2.
7 Id. at 5 (emphasis omitted). Packer carefully comments that “[t]hese models [referring to the Crime Control and Due Process models] may not be labeled Good and Bad, and I hope they will not be taken in that sense.” Id. On that score successors would disappoint him.
GANGI 2/19/2008 3:51 PM 2007] A Scholar’s Journey On The Dark Side 3 dispassion. Finally, although he forthrightly acknowledged that under the Due Process Model, legal reform became indistinguishable from the criminal process and it would inevitably result in the guilty escaping punishment, he nevertheless embraced it. 8 It is fair to say, I think, that Packer characterized those who embraced the Due Process Model (particularly students) as being on the side of the angels. He predicted it would dominate the “future” of criminal law and on that score he certainly proved prescient. 9 Today, the Due Process Model so completely dominates the perspective of most criminal law professors, that few law students are ever exposed to pre-Warren Court precedents. 10 I will return to that particular point later. 11 Although I rejected Packer’s substantive conclusions, I now realize how fortunate I was to have encountered such a superb scholar so early in my career. 12 In that regard, throughout my career I have indeed been fortunate. For years (decades when added together), I have struggled with the work of one great scholar or another, and I have never regretted doing so.
They taught me important lessons about my craft: to forthrightly confront one’s opponents and to be intellectually honest. 13 I likewise urge today’s law students to identify excellent scholars. If they are as good as you think they are they will point you in the direction of the best with whom they disagree. Learn to master opposition arguments as well as your own. It will make you a far better lawyer.
8 Id. at 18. “[T]he criminal process is viewed as the appropriate forum for correcting its own abuses.” Id. at 17. “[W]hile it may in the first instance be addressed to the maintenance of reliable factfinding [sic] techniques, [the Due Process Model] comes eventually to incorporate prophylactic and deterrent rules that result in the release of the factually guilty even in cases in which blotting out the illegality would still leave an adjudicative factfinder [sic] convinced of the accused’s guilt.” Id. at 18.
9 Packer’s own preferences are not at issue here. With respect to his model building he observed: "When we polarize, we distort. The models are, in a sense, distortions.... This Article does not make value choices, but only describes what are thought to be their consequences." Id. at 6. Compare William Gangi, The Exclusionary Rule: A Case Study in Judicial Usurpation, 34 DRAKE L. REV.
33, 107–10 (1984–85) [hereinafter Exclusionary] (the exclusionary rule is not mandated by the Constitution).
10 See GRANT GILMORE, THE AGES OF AMERICAN LAW 47–48 (1977) (noting that for some time the ability to identify the correct precedents has played an influential role in our law). I for one, insisted that our law school retain its copy of John Henry Wigmore’s 1940 Edition of EVIDENCE. JOHN HENRY
WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW(3d ed. 1940) (1904). Subsequent editions incorporated progressivist assumptions, and by doing so, diminished the work as a valuable resource. See id. at vii. As our libraries become digitized, not only will much of this information probably disappear (who will keep older editions?) but whoever decides what is available will have a controlling voice.
11 See infra notes 279–280 and accompanying text.
12 I would also add Yale Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, From Escobedo to..., in CRIMINAL JUSTICE IN OUR TIME 1 (A. E. Dick Howard ed., 1965) as well as sources cited infra notes 14, 17, 19. But see William Gangi, The Inbau-Kamisar Debate: Time for Round 2?, 12 W. ST. U. L. REV. 117 (1984) [hereinafter Inbau-Kamisar] (Kamisar’s analysis rests on sub-constitutional grounds). “Our society is free to select the positions of either Kamisar or Inbau, or anyone else, on police interrogation and the appropriateness of various remedies for abuse of constitutional rights on a subconstitutional [sic] basis. Such decisions represent what self-government is all about.” Id. at 153.
13 See supra note 4; infra note 196 and accompanying text (discussing thesis books).
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From what law students have told me, however, this generation may have to work harder than I did. When I began my career, reformers were in the minority and had to first demonstrate their mastery of our legal tradition before they were given much credence. For example, by probing the footnotes in one of Yale Kamisar’s articles, one still acquired considerable insight into the very traditions he advocated abandoning in his text. 14 Young professors today are far more likely to be theoretically grounded than precedent grounded, and as a result (I hope to illustrate), law students find it much more difficult to escape the conventional wisdom that surrounds them. 15 Returning to my own professional journey, my dissertation and initial publications (one and the same) chronicled the Supreme Court decisions on coerced confessions. 16 Before long however, I focused on and pursued the exclusionary rule. Drawn to that topic, I ran across yet another brilliant article. 17 The authors equated the imposition of the exclusionary rule as synonymous with the exercise of the power of judicial review. 18 They labeled their approach the judicial integrity argument 19 and it dazzled me. Although I knew their conclusions were wrong, I could not find fault in their approach. Now, pretty grumpy, I pushed on, and the deeper I immersed myself the more one question emerged: What was the proper role of the Supreme Court? Recognizing (not too graciously) that I was in over my normative head, I abandoned the exclusionary rule research and focused my attention on the issue of judicial power.
A virtuoso performance by Raoul Berger soon caught my attention. 20 As a result I collected, read, and digested hundreds of pro-and-con articles.
14 See Yale Kamisar, A Dissent from the Miranda Dissents: Some Comments on the “New” Fifth Amendment and the Old “Voluntariness” Test, 65 MICH. L. REV. 59 (1967).