Publicity: The New Property? · Page 8 2 8 Computer Matching: A Potent New Government Weapon...

Publicity: The New Property?by Paul Goldstein,Professor of Law

STANFORD LAWYER

Cover photo: David Powers

Editor: Constance HellyerAssistant Editor: Michele FoyerDesigners: Mell Hall,

Barbara Mendelsohn

Stanford Lawyer ispublished semi-annually foralumni/ae and friends ofStanford Law School. Materialsfor publication andcorrespondence are welcomeand should be sent to: Editor,Stanford Lawyer, Stanford LawSchool, Crown Quadrangle,Stanford CA 94305. ©1933 bythe Board of Trustees of theLeland Stanford JuniorUniversity. Reproduction inwhole or in part withoutpermission of the publisher isprohibited.

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John Hart Ely:An Interview with the New Dean

WINTER1982/83 VOL. 17, NO.2

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Computer Matching:A Potent New Government WeaponAgainst Fraud and Waste

by Thomas F. McBride,Associate Dean for Administration

Alumnilae Weekend, 1982

The A. Calder Mackay Professorshipand Scholarship Fund

The Robert E. Paradise Professorshipin Natural Resources Law

School News

Faculty Notes

Class Notes

In Memoriam

Alumnilae Gatherings

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OHN HART ELY

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J ohn Hart Ely became Dean ofStanford Law School last June.A rare exception to the rule that

law schools elevate deans fromamong their own faculty, Dean Elywas recruited from Harvard, wherehe was Tyler Professor of Constitutional Law. His formal title at Stanford is Richard E. Lang Professorand Dean of the School of Law.

Dean Ely is recognized as one ofthe leading constitutional law scholars of his generation. His book,Democracy and Distrust (Harvard University Press, 1980), is a seminalwork in the field. (On January 7 ofthis year, it received the Order of theCoif award, given triennially to theoutstanding book published in anyfield of law.)

Only 43 at the time of his appointment to the Stanford deanship, Elywas born in New York City and raised in San Diego and Westhampton,Long Island. He received his ABsumma cum laude from Princeton in1960 and his LLB magna cum laudefrom Yale in 1963. Between his second and third years of law school,he wrote the first draft of the brieffor Clarence Gideon in Gideon v.Wainwright, an episode interestinglyrecounted by Anthony Lewis in Gi-deon's Trumpet (Random House,1964).

After graduation, Ely served in theMilitary Police Corps and then as astaff member on the Warren Commission. He next clerked for ChiefJustice Earl Warren, for the 1964/65term. The next year was spent as aFulbright scholar at the LondonSchool of Economics and PoliticalScience.

Dean Ely returned to California in1966 to become one of the foundingattorneys of Defenders, Inc., in SanDiego, where-following up on thepromise made in Gideon - he represented numerous indigent defendants charged with felonies, in bothfederal and state courts.

He returned to Yale in 1968 as anassociate professor of law, was promoted to full professor two yearslater, and (largely for family reasons)moved to Harvard in 1973.

Dean Ely gained experience ingovernment during the Ford Administration, when he was GeneralCounsel- the third-ranking officialin the Department of Transportation.

He is a member of the Californiaand District of Columbia bars, and afellow of the American Academy ofArts and Sciences.

The following interview, whichtook place in November, was conducted by Constance Hellyer, theSchool's new publications director.

Stanford Lawyer Winter 1982/3

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'The School is on areal high, and I'm glad

to be part of it."

'There's already morepedagogical innovation here

than at any other of thetop law schools.

... But I think we coulddo more."

W hat persuaded you, as a tenured Harvardprofessor, to come to Stanford?

I've always felt close to this law school. I have friendshere and knew Stanford was doing interesting things.Being offered the deanship provided an opportunity tocome home to California.

I had published a book in 1980 that really representeda decade of thinking and, happily, ended up saying aboutwhat I had hoped it would say. I felt I then had twochoices. One was to keep talking about the same subject - constitutional law, judicial review. But I thoughtthere was a risk that I would just end up saying the samething over and over again - something we see all toooften in academia.

The other choice was to take up an entirely new field probably jurisprudence or criminal law-and spendanother decade working up to another book about thefield's central issues, which is, for me at any rate, the only kind worth writing. I wasn't quite ready to undertakethat long a trek.

This third option - the deanship - came along at theright time.

Do you enjoy being back in the West?Yes, I do. Of course I miss my friends back East

some of them a great deal-but as far as the general feelof the place is concerned, it isn't even close. This iswhere a sensible person should live. This is home.

A Harvard colleague described your appointment as "casting against type;' for which hecongratulated Stanford. What would you say tothat?

I think his point was that I am not instinctivelyauthoritarian or hierarchical. I tend to be pretty straightforward - sometimes, perhaps, overly blunt - in the way Ideal with people and talk about things. I suppose thosewere all characteristics that he didn't necessarilyassociate with deans. I accept it as a compliment andhope it continues to be deserved.

Incidentally, I think Stanford did a very interestingthing in recruiting an outside dean, something that says alot about the School and what it means to become. Ithadn't happened at one of the top law schools for twentyyears. (That time too it was Stanford, which recruitedBayless Manning from Yale.)

Here's why it is interesting: recruiting an outsidedean- especially one whose strengths are perceived asbeing other than diplomatic-is a very gutsy move. Amore risk-averse faculty would have appointed one of itsown, someone known to be able to get along witheveryone on the faculty, someone who certainly isn't go-


ing to rock the boat. When you go outside, you're inevitably taking something of a chance, because you don'tknow the person that well.

I think Stanford's move said to the law school world,"we're really going for it:'

I notice that you tackle your job with a lot of enthusiasm and enjoyment.

I'm loving it. I needed a change and this is it. And I'min a place that I really care about. The School is in manyways what a law -school should be. The members of thefaculty are compatible. Despite various political andtheoretical differences-which we must never lose-theytrust each other and they talk to each other. They worryjointly about how to teach and about the various ideasthat they have.

I'm sure we will go through cycles, and other timesmay not be as good as this. But at the moment, theSchool is on a real high, and I'm glad to be part of it.

This job must be stressful at times. How do youunwind?

In various ways. My chief obsession used to be withballet - watching, not performing- but until recentlyBoston didn't have a decent stage, so that sort of went bythe board.

I've more recently returned to the obsession of myyouth,' with jazz. I not only listen; I also play-jazzpiano -seriously if not superbly.

I'm also a serious skier. And I engage in running andmiscellaneous exercise, not because I especially enjoy it,but so that I can eat to excess without weighing 200pourtds! Nothing too exotic.

You've been at Stanford for six months now.How would you assess the School?

Stanford is one of the three excellent small law schoolsin the country, the other two being the University ofChicago and Yale. I believe that the general perception isthat, of those three schools, the one whose trajectory ismost clearly upward is Stanford.

Of course, they are all very good -only an idiot tries toargue that Babe Ruth was or wasn't a better ball playerthan Ty Cobb - but I think the general impression is that,of the three, Stanford is the one that feels best aboutitself, the one that is most clearly getting stronger.

Harvard of course is also excellent, but on an entirelydifferent scale-particularly in terms of student-facultyratio. It's not really comparable to the other three.

What do you think of the Stanford faculty?It's an excellent faculty-young, flexible, and creative.

I was personally, though not institutionally, chagrined to

Winter 1982/3 Stanford Lawyer

-learn that my age (44) is above the median for our faculty, whereas I was well below the median at Harvard.

Harvard may be the place-at least it used to be-youlook most often for the leading authority on X, Y, or Z.We have some of those here, too. But what we haveprimarily are the people who within the next five or tenyears will be recognized as the leading authorities.

Anyone who understands creativity knows that thepeople you want to be around are the people who areabout to be recognized as the titans. Ours is a faculty inthe process of doing its most creative work.

The students?The Stanford student body is also excellent. The

LSAT mean (753) is staggering and getting higher. Infact, it's 20 points higher than last year. The students arejust frighteningly smart.

The School is also fortunate to have a loyal core ofgraduates. I've really enjoyed those I've met and look forward to meeting many more.

The percentage of participation by graduates in reunions, local alumni meetings, and annual giving is lessthan I would hope for-only about 30 percent, as opposed to about 50 percent at both Harvard and Yale.However, our graduates give more per capita than eitherYale's or Harvard's. So we're supported reasonably well,though it tends to be by a smaller percentage of peoplebeing more enthusiastic.

Are there any changes you'd like to see?We are already under way-and this was started large

ly by Charlie Meyers - strengthening the Law andBusiness curriculum. We've made one very importantadvance with Myron Scholes, who is coming to us fromthe University of Chicago as a joint Law-Business appointment. He's one of the nation's leading financetheorists, and I've become convinced by friends here andat Harvard that finance theory is an important directionin which the study of corporate law must go.

With Ken Scott, Ron Gilson, and Roberta Romanoplus Myron Scholes-we are already strong, but arelooking to add still more strength in the corporate area,given that the overwhelming majority of our studentsend up there. We are also in the process of rationalizing("sequencing;' if you will) our business-related offerings.

Do you plan any other curricular changes?I don't worry all that much about what legal subjects,

recognized as such, are and aren't being thought andtaught about. The creativity of our faculty, and the in-

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"Ours is a faculty in the process of doing itsmost creative work.»

'What kind of educationwould it be . .. if we had a whole

class of upper middle-classwhite students?"

'The best thing we can do i

for our graduates is to continueto get better. . !"

telligent demands of our students, will generally adjustthose markets here, as they do elsewhere.

I do worry somewhat, and think a dean has someobligation to take the lead, concerning subjects thataren't yet fully conceived of as "legal subjects" but arelikely one of these days to assert themselves and catch usnapping.

Two that come to mind are law and computer sciences,and law and biotechnology. These two revolutions overtaking society are simply bound to have enormous legalconsequences, and it's past time for law schools to beginthinking seriously about the issues involved. And whileI'm Dean, I think Stanford Law School will be makingimportant strides in both these directions.

The latest student course evaluations-whichgive the faculty an overall rating of better than4 on a scale of 1 to 5-indicate that the qualityof teaching at Stanford is good. What do youthink about this?

The teaching is good. This is a school that cares aboutteaching. Teaching is not regarded, as it is some places,as an unfortunate impediment to scholarship - as the w~yyou pay the bills, something you have to do in order to dowhat is really your life's work, which is scholarly work.

Nonetheless, I worry about teaching methodology.The second and third years of law school are perceivedby many students as, quite frankly, boring. A great dealof time is spent either working at other jobs, looking forjobs, or in one way or another just not really beingengaged by what is going on. Law school often doesn'tseem to be holding the students' attention.

So I am interested in supporting the faculty's efforts tointroduce more variety into the ways they teach. This isa faculty that is easy to work with in this regard becausethere's already more pedagogical innovation here than atany other of the top law schools.

We already do a great deal of teaching by way ofsimulation and videotaping of students' performance ofvarious lawyers' tasks, followed by criticism of what theyhave done by each other and by the professor.

But I think we could do more. We are looking at whatis available by way of computer teaching. Unfortunately,at the moment there's not much. The software is stillpretty primitive.

I would like the period I was Dean to be rememberedas the one when we finally actually broke thestranglehold of the standard method of law teaching,which - whether it's the old-style sadism or a moremodem and mellow "Socratic solitaire" - still involves; 90percent of the time, nothing beyond a discussion of thelogic of some appellate court's opinion.


,4kt1Ai-e~w;elir/tvikJOHN HART ELY

The boredom in the second and third years-isthat a Stanford phenomenon or is it generallytrue at law schools?

It's definitely a wide-spread, nay universal,phenomenon. In fact, I think we probably do as well asanybody because, as I said, there is more experimentation with teaching methodology here than there iselsewhere. Not enough, though. I'd like to see us evenfurther out front on that one.

Do you plan to teach?Yes. I just scheduled a seminar- Utilitarianism,

Democracy and Judicial Review-for next semester(Spring 1983). I don't plan to use a computer.

One reason that I've changed my plan and will teachmy first year here is that· I want to stop acting on thebasis of stereotypes about our students. I want to makesure I know what I'm talking about.

There was a drop in the number of minoritystudents entering the School last fall. Are youconcerned?

I am indeed. It's true that when you look at our overallstudent body, you find a quite healthy minority enrollment of 95 out of 507. But what scares the devil out of meis the possibility of the thing's snowballing-that wemight somehow develop the reputation, quite undeserved, of being inhospitable to minority students. Theimportant thing is to stop the drop-off before it becomesa trend, to make sure this year remains aberrational.

Actually, we accepted as many minority applicants thisyear as we had in prior years. Fewer, obviously, chose tocome. Jesse Choper, the new dean at Boalt Hall, tells methat the number of Chicanos there went up this year, andour drop-off was principally among Chicanos. This suggests that financial aid has something to do with it,Boalt's tuition being significantly lower for Californians.

Now I don't think those students who went to Boalt instead of Stanford have ruined their lives. I think Stanfordis a better law school, but just between us, Boalt is also afine school. Those people will undoubtedly go on to successful careers as lawyers. They'll survive.

The question is, how well will Stanford survive? In onesense, of course, very well indeed. We could enroll an entire class of people whose LSAT scores are over 750 andwho are well able to pay, if we wanted to. We wouldn'thave to give a dime in scholarship aid, and we could stillhave phenomenal numbers.

But what kind of education would it be - in particular,what kind of training for a legal career would it be - if wehad a whole class of upper middle-class white students?It sounds a little like Princeton when I went there in the


1950s-full of smart people but not very interesting interms of what we could learn from each other.

There's a wonderful passage to this effect in TheEducation of Henry Adams, where he talks about Harvard College in the 1840s and '50s: "What caused the boymost disappointment was the little he got from hismates . . . It is more than a chance that boys brought uptogether under like conditions have nothing to give eachother."

Scholarship aid is one of your fund-raisingpriorities, isn't it?

It's the top priority. It's what I mention first to potentialmajor donors.

But it is sometimes hard to sell. An endowed professorship has certain appeals that a scholarship funddoesn't. It attracts more publicity and may, for historicreasons, be thought of as more prestigious. Bricks andmortar-rooms, buildings, and other tangible thingshave a similar appeal.

Finally, there is a reaction on the part of some donorsaren't these kids going to be making $50,000 plus inthree years? I understand that reaction. That's why Ithink we must think more in terms of repayablefunds - various "fly now/pay later" systems. In fact, givenmy druthers, loan funds are what I'd most like donated.

The fact remains, however, that for many of ourstudents, things are very rough. They may have built uptremendous debts from college. Frankly, they need agreat deal of help, and they need it now, which is whyfinancial aid generally is my top fund-raising priority.

What kind of relationship would you like to seebetween alumni/ae and the School?

I would like a higher percentage of our graduates tofeel close to the School. I've been traveling around quitea bit to meet and talk with as many graduates as possible. And I mean to do a good deal more of that.

We can get valuable ideas from our graduates-theyhelp us keep in touch with the profession for which weare preparing people. And even b~yond what they can dofor us either intellectually or financially, I think it's important for its own sake that graduates be in touch withthe School. It's gratifying to us and it ought to be gratifying to them.

They should be proud of having gone here. It's been anexcellent school for a long time and is becoming a reallysuperb school.

In a way, the best thing we can do for our graduates isto continue to get better-in that the better we are, themore their degrees will be something they can takepride in. D

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W hat do Elvis Presley, Groucho Marx,

Agatha Christie, BelaLugosi, and Martin LutherKing have in common?That's a pretty diversecrew, but the answer iseasy. They, their estates,or their assignees were allplaintiffs in right of publicity lawsuits filed within thelast several years.

TheNewProperty?by Paul Goldstein,Professor of Law



My second question is a bit harder.It is the question raised by the title ofmy talk, Publicity: The New Property?Is the right of publicity in fact aproperty right? If so, is it a newproperty or is it just a new way oflooking at old doctrine? And, whatdoes it mean to say that it is aproperty right?

There has been much talk inrecent years about an emerging rightof publicity. At last count, over 31law review and bar journal articles

have specifically considered thetopic. A recent check on Lexis discloses that no fewer than 92decisions have employed the termsince it was coined thirty years agoby Judge Jerome Frank in HaelanLaboratories, Inc. v. Topps ChewingGum, Inc. 2

More important, though, thanthese gross numbers is the rate atwhich discussion and decision involving the right of publicity is growing.We can now expect an average of

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PUBLICITY:TheNewProperty?

one or two reported decisions amonth on some aspect of the right ofpublicity - a right that twenty yearsago wasn't litigated more than once ayear. This increase is particularlyremarkable when you consider that,by and large, it is the product not oflegislative intervention but rather ofthe much slower processes of thecommon law.

What is the right of publicity?Given the speed with which the rightof publicity has developed, it shouldcome as no surprise that the righthas been defined - to the extent thatit has been defined - in only theloosest possible terms.

Consider the following compositepicture drawn from several leadingcases. Elroy Hirsch, as I'm suremany of you know, first gained fameplaying football at the University ofWisconsin. Early in his first seasonat Wisconsin, Hirsch acquired thenickname "Crazylegs" when he ran62 yards for a touchdown, wobblingdown the sideline looking as thoughhe might step out of bounds at anymoment, his running stylesomething like a whirling eggbeater.Hirsch went on to play for theChicago Rockets and later for theLos Angeles Rams. In 1969 hereturned to Wisconsin as director ofathletics.

Now, say that Defendant Number1 prints and distributes a poster ofHirsch in a characteristic pose aspart of a series of posters of sportsheroes that Defendant Number 1markets across the country.

Say that Defendant Number 2 produces, advertises, and distributes ashaving gel for women, named"Crazy Legs:'

And say that Defendant Number 3made a motion picture many yearsago of Hirsch running down thesideline in his unique, whirling eggbeater style, and today licenses thatfilm to television broadcasters forshowing during football half times.

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Now, if this were a game show ofseveral years back and we asked,"Will the real right of publicitydefendant please stand up?" I fearthat each -of our three defendantswould shuffle his chair and rise, for

--- .....--------_._.__.. ---/"

each makes a use of plaintiffs nameor likeness. More important, each ofour defendants has, in more than onecase, been found to violate a rightthat the court called a right ofpublicity.

But, will the real right of publicitydefendant please stand up? If we hadto pick among our three defendantson the ground of historical authenticity, Defendant Number 1, whomanufactured and distributed the"Crazylegs" poster, would be ourmost likely candidate. This is, after

all, the cause of action that was firstexpressly labeled a right of publicityin the Haelan v. Topps case. Theright evolved out of early commonlaw and statutory privacy actions forunauthorized advertising or othercommercial use of one's name orlikeness, actions like the oneauthorized by California Civil Code§ 3344. When the privacy action wasbrought by someone who had neverbefore been in the public limelight,and whose feelings had been offended by the use of his or her name in anadvertisement, it was accurateenough to say a right of privacy hadbeen invaded. But when the cause ofaction was brought by a sports orentertainment celebrity-whose interest was not so much in maintaining privacy as in cashing in on hiscelebrity-the privacy label nolonger fit. Thus, the term "right ofpublicity" took its place for this classof cases for which injunctive andmonetary relief was aimed at securing a proprietary, rather than a strictly personal, reputational interest.

But what of Defendant Number 2and the action against the use ofplaintiffs nickname on a shaving gel?As in the last case, there has been ause of plaintiffs name or likeness,and so this case might be broughtunder that sort of privacy-publicitytheory as well. But there is alsoanother theory at work here, atheory that, at bottom, is really notvery different from the traditionalunfair competition action for passingoff-falsely representing to consumers that plaintiff produces, sponsors,or at least endorses, the product onwhich his name is being used. Although courts often call this a rightof publicity action, it is really an unfair competition or trademark theorythat is at work here.

To realize just how close this classof cases is to traditional unfair competition and trademark cases, youneed only contemplate Johnny Car-


son's name gracing a line of men'sclothes or Farah Fawcett's name serving as a brand of shampoo. And youcan appreciate the subtlety of thedistinction between publicity andtrademark by considering situationsin which the trademark owner ishimself a celebrity. What are we protecting when we give exclusiverights to "Gloria Vanderbilt" jeansand "Ralph Lauren" cologne? Indeed,the decision on which I based mycomposite example, Hirsch v. S. C.Johnson & Son, Inc.,3 employed stateunfair competition doctrine as analternative ground to common lawprivacy doctrine for its holding infavor of Crazylegs Hirsch.

What's in a name? Do courts commit consequential error in calling thiscause of action one for violation ofthe right of publicity rather than onefor unfair competition or trademark?Does anything turn on the decisionto treat this as an unfair competitionaction rather than a right of privacyaction? I believe, in fact, that muchturns on the distinction and that thejudicial tendency to group these suitsunder a single rubric - the right ofpublicity- confuses rather than clarifies the issues involved. Just to takethree examples of the difference:The right of privacy is enforceablethroughout the state; the unfair competition right is enforceable only inthose areas where plaintiffs namehas garnered secondary meaning.Monetary and injunctive relief arestandard in the privacy action; damages are rarely given in unfair competition actions, where correctivelabeling is a standard remedy. Thepublicity action, if analogized to theright of privacy, will not survive thecelebrity and pass to his estate; theunfair competition right will.

What of the action against Defendant Number 3, who procured andlicensed the motion picture of Crazylegs Hirsch running down the sideline? Once again, defendant is,


without permISSIon, using Hirsch's"likeness;' in seeming violation ofthecommon law and statutory right ofprivacy, and its auxiliary right ofpublicity. For example, in Zacchiniv. Scripps-Howard Broadcasting CO., 4

the "Human Cannonball Case;' theOhio Supreme Court declared thatdefendant's videotaping and broadcast of plaintiffs fifteen-second exitfrom a cannon would, if it had notbeen privileged, constitute an invasion of plaintiffs right of publicity.The United States Supreme Court,reversing on the privilege ground,strongly endorsed the state's powerto enforce a right of publicity. In thewords of the Court, the "State's interest in permitting a 'right of publicity' is in protecting the proprietaryinterest of the individual in his act inpart to encourage such entertainment:'5

Yet, although these can becharacterized as right of publicitycases, they also look very much likecopyright cases protecting an enter-

tainer's act or routine. If copyrightcan cover an entire football game,then certainly it can cover the game'sconstituent elements, including theexpressive moves of individual players. Hirsch's antic progress down thesideline, like Zacchini's exit from thecannon, is, really, an act-a bit ofchoreography American style. If theact is fixed in a tangible medium ofexpression, it will be protectableunder the federal Copyright Act. If itis not, it will be protectable understate common law copyright. Indeed,the intermediate appellate statecourt in Zacchini treated plaintiffsclaim as one for common lawcopyright infringement.

Once again, what's in a name?Does anything turn on the decisionto treat this as a copyright actionrather than as a right of privacy action? Once again, the answer is yes.In some states the privacy-publicityright may last forever; in others itwill die with the celebrity. By contrast, common law copyright protec-

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tion ends with publication or tangiblefixation. Statutory copyright beginswith fixation and terminates fiftyyears after the author's death. Remedies, too, are dramatically different.The privacy-publicity action allows,at most, damages and injunctiverelief. Copyright, by contrast, allows,in addition to damages and injunctive relief, lost profits, statutorydamages, impounding, and destruction.

What, then, is the right of publicity? What is its governing rationale?Is it a privacy rationale, focusing onpersonal injury rather than proprietary rights? Is it unfair~o~peti-

, "'~~-,~~>-->::.:;;,,_::.:_---. ""-:;- ...;,:>

"":~

tion, with its taint of fraud and passing off? Is it copyright, which carriesits own bookish flavor? Or is it a tort,sui generis, capable of standing on itsown?

Some years ago, the late HarryKalven observed that one problemwith the common law and statutoryright of privacy was that it was stillunformed, that it had no "legal profile:' "We do not know;' he wrote,"what constitutes a prima facie case,we do not know on what basisdamages are to be measured, we donot know whether the basis of liability is limited to intentional invasionsor· includes also negligent invasions

and even strict liability:'6Just the opposite can be said about

the right of publicity, which has, infact, too many legal profiles. It is agenuine multiple personality. Oneface looks like the personal injuryright of privacy tort; another lookslike unfair competition and trademark law; and yet another looks likecopyright. Obviously, some sortingout is needed if celebrities are to beable to plan their investment andlicensing activities, and if lawyersare to be able to give sound andeffective advice on both businessplanning and litigation.

As I indicated earlier, the statelegislatures have by and large takenno steps to sort things out, leavingthe process to courts and the common law method. The first majorissue to arise in courts across thecountry has been whether the rightof publicity survives the death of thecelebrity. On one side of the issue isthe claim that, because the right ofpublicity is rooted in the right ofprivacy, it is a personal right and,like privacy, dies with its subject. Onthe other side is publicity's aspect asa property right, and the claim that itshould be transferable on death likeany other property right. The conflict has produced an extraordinaryamount of confusion, and someplainly wrong decisions as well.

Just to give you the flavor of theconfusion and the conflict: We havethe 1979 Lugosi decision7 in California holding that "the right to exploitname and likeness is personal to theartist and must be exercised, if at all,by him during his lifetime:'

We have the 1978 Factors decision8 in the Second Circuit interpreting the applicable New York lawto hold that the exclusive right to exploit Elvis Presley's name and likeness, because it had been exercisedduring Presley's life, survived hisdeath.

We have the 1980 Factors deci-


,..,----.._---.....\

sion9 in the Sixth Circuit holding thatunder Tennessee law, Presley's rightof publicity did not survive, eventhough it was exploited by him in hislifetime.

Returning to New York, we havethe 1981 FactorslO decision, in whichthe Second Circuit Court of Appealsruled for the first time that, underNew York's choice of law rules, itwas Tennessee, not New York,substantive law that applied to theissue before it, and further, that thecourt must give conclusive deferenceto the Sixth Circuit's interpretationof Tennessee law that the right ofpublicity is not descendible.

And then, to complicate things further (and to prove both the Sixth andSecond Circuits wrong), we have thelater, 1981 decision of a TennesseeChancery Court in Commerce UnionBank v. Coorsll that, under Tennessee law, the right of publicity doessurvive, after all.

Finally, to bring things back toCalifornia, we have the Second Circuit's ruling, last September, in theMarx Brothers case12 that, althoughthe right of publicity survives underNew York substantive law, thedistrict court erred in applying NewYork rather than California substantive law. Why? New York's choice oflaw rule for property claims madeCalifornia law dispositive just as, inFactors, it made Tennessee lawdispositive. And, under California'sLugosi decision, the Marx Brothershad no rights that survived them.

As a postscript to all this, I shouldnote that it's really unfortunate thatthe first major effort at defining theright of publicity had to come in thecontext of survivability. Since, inthese cases, the celebrity is no longeraround, there is an understandableand always implicit - tendency forcourts to focus on the competing interests of the heirs and the public,rather than on the competing interests of the celebrity and the pub-


lic, with the result that the right hasnot been given the scope and forcethat it might have received if thecelebrity himself had been wagingthe cause.

Had the celebrity been present inthese cases, it would have beenplainly evident to the courts, as itwas in Zacchini, that what is involved here is a question of incentives - the incentives needed to encourage people like Zacchini, Lugosi,and Presley to originate and provideentertainment.

What good reason is there to require that, for the right to survive,the celebrity must have exploited itin his or her lifetime? We know thatthe reason usually given is that thecelebrity's failure to exploit his nameis taken as conclusive evidence thathe had no interest in ever exploitingthe values of celebrity. Yet, this isplainly wrong. As with any otherproperty right, the celebrity shouldbe free to control the timing of exploitation, including the decision togive his estate the first crack at exploitation. Will real property owned

by a land speculator go, on his death,into the public domain rather than tohis estate just because he did notdevelop the land in his lifetime?

Does the exploitation requirementhave any proper grounding in law orpolicy? Although the courts aren'tsaying so directly, I might note thatthere is more than just a flavor of unfair competition law in the exploitation rationale. Unfair competitionand trademark law-unlike privacyand copyright law-require that aname or other symbol be exploited ifit is to support enforceable rights. Ifthe exploitation rationale is to haveany force, this is its proper arena.

The exploitation rationale reflectsa more general judicial reluctance tolet publicity rights survive at all.Justice Mosk's very thoughtful concurrence in Lugosi captured thereason for this reluctance in threequestions: "May the descendants ofGeorge Washington sue the Secretary of the Treasury for placing hislikeness on the dollar bill? May thedescendants of Abraham Lincoln obtain damages for the commercial ex-

13


ploitation of his name and likenessby the Lincoln National Life Insurance Company or the Lincoln Division of the Ford Motor Company?May the descendants of James andDolly Madison recover for the commercialization of Dolly Madison confections?"13

The fear, though understandable,is entirely misplaced. As a practicalmatter, the names of very few celebrities, indeed, will continue to havecommercial value a decade aftertheir demise; indeed, in many situations, celebrity values will predecease the celebrity himself. Butwhat of those few names that dohave enduring value -like Washington, Lincoln, and Madison andwho knows - Presley and Lugosi? Ibelieve the proper approach is totreat such names and likenesses aspart of our cultural life (as we havealready done for Washington, Lincoln, and Madison) and to carve outa privilege, analogous to copyright'sfair use defense, that would allowtheir free use by all. Curtailing theright - rather than terminating it, orconditioning it on some such irrelevant factor as exploitation - seems tome the most sensible approach. 14

Now let's look beyond the immediate survivability decisions to see what our crystal

ball tells us about the shape the rightof publicity will take over the nextdecade or two. Since we have nolegislation dealing directly with thesubject, and since, I think, we arenot likely to get any, the answermust depend on always risky speculation about what courts will do.

Over the near tenn - and passingresolution of the survivability issueI expect that the next generation ofright of publicity cases will find livecelebrities locked in contract disputes with their licensees over thescope and meaning of the rightslicensed. We will also, I think, find

14

that decision on the right's governingrationale becomes increasingly important as these celebrities sueunlicensed infringers. For example,when Elroy Hirsch sues a downtownboutique selling stockings and tightsfor unauthorized use of the name"Crazylegs" under Civil Code §3344(which provides, among other things,that "Any person who knowinglyuses another's name... for purposes of advertising. .. goods orservices . . . shall be liable for anydamages sustained ... "), we canand should expect the boutique todefend that § 3344 doesn't apply atall, that Hirsch's real actio-n is one forunfair competition, and that his nickname has not acquired the requisitesecondary meaning in the store'slocale.

Similarly, when Hirsch sues forthe unauthorized use of the motionpicture recording his sideline run, wecan, and should, expect the defensethat he is really seeking to enforce aright equivalent to copyright, in thesubject matter of copyright, and thathis state claim is for this reasonpreempted under section 301 of the1976 Copyright Act.

Looking, with somewhat greatertrepidation, into the more distantfuture, I think that it is likely that formost, if not all, important purposesincluding descendibility - publicitywill, over time, come to be treated asa property right. This means that, inthe context of business planning, itwill become mortgageable. In thelitigation context this means that thechoice of law rules will, as in theMarx Brothers case, be propertychoice of law rules. Remedies will include injunctive relief, with both preliminary and permanent relief generally available, and monetaryawards will include those traditionally given for property theftsaccounting for profits lost to thecelebrity or gained by the infringer,or both. And, in the context of

marital dissolution and estate planning, it will be appropriate to ask, Is itcommunity property?

On what do I base this prediction?Doesn't the existing authority on thedescendibility issue suggest thatcourts will split - some taking theproperty approach, other~ the personal injury approach? I think not,and let me give you my reasons forthinking not:

First, with the descendibility issuepresently resolved, the next generation of questions is likely to involveliving plaintiffs in contract disputeswith their licensees and in infringement suits against unauthorized users. Both contexts, because they arepreeminently commercial, will makeit clear to the courts called on toresolve these issues that propertyrules are better calculated than morerestricted doctrines like privacy toresolve the interests at stake.

The clash in these cases, as in allproperty cases-real property and intellectual property - will be betweenthe need for incentives to private investment and the need for freepublic access. To be sure, some ofthese decisions will strike the balance for the side of free public access. The more important point,though, is that it will be a propertyinterest, not a personal, reputationalinterest, that is on the other side ofthe balance.

Second, all of the analogical basesfor the right of publicity - with theexception of the pure, personal rightof privacy- are grounded in propertyconcepts. The common law andstatutory copyright grounds have aclear property basis. And so, for thatmatter, does unfair competitionwhich, in its dilution and endorsement aspects, effectively representsa right valid as against the world,rather than a limited right as againstpassing off. In its trademarkmanifestation it is even more clearlya property right.


Footnotes1. See, e.g., Factors Etc., Inc. v. Pro Arts,

Inc., 579 F2d 215 (2d Cir. 1978) (ElvisPresley); Groucho Marx Productions, Inc. v.Day and Night Co., Inc., 689 F2d 317 (2d Cir.1982); Hicks v. Casablanca Records, 464 FSupp. 426 (S.D.N.Y. 1978) (Agatha Christie);Lugosi v. Universal Pictures, 160 Cal. Rptr.323, 603 P.2d 425 (1979); Martin LutherKing, Jr. Center for Social Change, Inc. v.American Heritage Products, Inc., 508 FSupp. 854 (N.D. Ga. 1981).

2. 202 F2d 866 (2d Cir. 1953).3. 90 Wis. 2d 379 (1979).4. 47 Ohio St. 2d 224, 351 N.E. 2d 454

(1976).5. 433 U.S. 562, 573 (1977).6. Kalven, Privacy in Tort Law- Were

Wan-en and Brandeis Wrong? 31 LAW & CONTEMP. PROBS. 326, 333 (1966).

7. Lugosi v. Universal Pictures, 160 Cal.Rptr. 323, 603 P.2d 425"

8. Factors Etc., Inc. v. Pro Arts, Inc., 579F2d 215.

9. Memphis Development Foundation v.Factors Etc., Inc., 616 F2d 956.

10. Factors Etc., Inc. v. Pro Arts, Inc., 652F2d 278.

11. 7 Med. L. Rptr. 2204.12. Groucho Marx Productions, Inc. v.

Day and Night Co., Inc., 689 F.2d 317 (1982).13. 160 Cal. Rptr. 331, 603 P.2d 433.14. See Factors Etc., Inc. v. Pro Arts, Inc.,

652 F2d 278, 387-388 (1981) (Mansfield, ].,dissenting).

SummaryWhere did the right of publicity

come from?Clearly it came in substantial partfrom the effort to accommodate thestatutory and common law right ofprivacy to the economic interests ofcelebrities. Yet privacy is not theright's only source. As we have seen,unfair competition and trademarklaw represent a thriving and fertilesource, as do common law andstatutory copyright.

Where"'is the right ofpublicity now?Right now, as we have seen, it is inthe process of being sorted out, withprimary attention focused on theissue of descendibility, and with thedecisions shuttling between thiscountry's three entertainment capitals-Los Angeles, New York City,and Tennessee.


Where is the right ofpublicity going?Over the short term, it will continueto go through a sorting-out process.But, with attention shifted from thepost mortem context to lifetime transactions, courts will in this context beforced to confront the central andconsequential question: what is theright's governing rationale?

It will be important to attend closely to their answers. Will courtsparcel out the right to its commonlaw pigeonholes - privacy, unfaircompetition, copyright? Or will theyconstruct a true and separate right ofpublicity, pieced together, a bit hereand a bit there from common lawdoctrine?

Although the route to be taken isby no means clear, one thing seemscertain: the right will move in thedirection of property, and we woulddo well to plan accordingly.

This article is the text of a luncheon address delivered at theCalifornia Continuing Education ofthe Bar, First Annual CompetitiveBusiness Practices Institute, in SanFrancisco and Beverly Hills, 22 and29 October 1982. I am grateful to mycolleague, Marc Franklin, for hishelpful comments on an earlier draftof this talk.

Professor Goldstein joined the faculty of Stanford Law School in 1975after eight years on the law faculty ofthe State University of New YOrk atBuffalo. He is a graduate of Brandeis(AB) and Columbia (LLB) universities. His publications dealing with intellectual property include several lawreview articles and the casebookCopyright, Patent, Trademark andRelated State Doctrines (2d ed.,Foundation Press, 1981). D

15

Computer Matching: A Potent New Government Weapon Against

By Thomas F. McBride

The Long Term ComputerMatching Project, sponsoredby the President's Council on

Integrity and Efficiency, was established to promote the use of computer matching and related applications of modern informationtechnology to help prevent anddetect fraud and overpayments ingovernment programs.

That fraud and overpayments exist and amount to billions of dollarsin losses to the government everyyear is beyond dispute. The GeneralAccounting Office estimated overpayments from five major benefitprograms amounted to $867 millionin fiscal year 1979-$639 million infederal funds and $228 million instate funds. 1 By 1982, they estimated that, without corrective action, federal expenditures, becauseof overpayments in these five programs, would exceed $1 billion.

It is also apparent that the publicincreasingly has gained the perception that cheaters· are successfullyexploiting the nation's taxpayers andthat management countermeasureshave been insufficiently effective.This undermines not only supportfor the continuation of governmentprograms, but also respect for thegovernment itself. These are amongthe reasons the project was adoptedand got under way.

There are 58 government benefitprograms in which eligibility for participation depends on financial needas determined by an applicant's income and assets. In fiscal year 1980,federal and state expenditures forthese programs amounted to $102.6billion.

In addition, there are the large insurance and entitlement programs,

16

such as Social Security and Unemployment Compensation, forwhich participation depends on suchstatus factors as an individual's age,employment, and prior payments into insurance-type funds. Social Security retirement benefits will probably cost some $150 billion this year,and it is estimated that state/federalcosts for unemployment compensation may total some $26 billion forFY 1982.

There are also other tremendousgovernment expenditures involvingsuch matters as highway construction, public works, and defense contracting. Audits and investigationshave amply demonstrated that fraudand waste occur in all of them andthat modem computer applicationscan be employed effectively to helpcontain costs, prevent fraud, anddetect overpayments.

Before discussing the organization and activities of theComputer Matching Project,

however, there is one concern that Iwish to address: that is the apprehension that computer matchingmay lead to possible invasions ofprivacy and violations of individualrights.

Questions involving rights andprivacy have been of concern to theProject from the beginning. In fact,the work plan for the Project's operational phase characterizes its overarching purpose as expanding theuse of computer matching and related techniques "with effectivesafeguards to protect the rights andprivacy of individuals:'

What we are talking about is, in effect, drawing a balance. On the onehand, government managers mustresponsibly employ the most modemand effective means available to en-

sure that the taxpayers' money is notbeing wasted through fraud and error. On the other hand, safeguardsmust be maintained to make certainthat privacy rights are protected.

We believe that as far as federaldepartments and agencies are concerned, the necessary safeguards toprevent abuses of modem computertechnology that could violate individual rights or invade privacy arein place and are in compliance withthe Federal Privacy Act of 1974 andwith the Office of Management andBudget's Guidelines for ConductingComputer Matching Programs thatare based on it. According to procedures that have been laid down,one of the salient privacy concernsoften expressed -that computermatching will incrementally lead tothe development of a national database containing complete information on everyone, that can be freelyaccessed and used - is patently impossible.The Guidelines specify that as soonas a match is performed, the file thatwas used must be returned to theagency that supplied it or must bedestroyed. Lists of the matchingitems or "hits" have to be destroyedas soon as investigations have beenconducted. Thus, no files accumulate.

In addition, there must be administrative, technical, and physicalsecurity safeguards for all files beingmatched in order to prevent unauthorized access. Files cannot beduplicated or disseminated within or \outside the agency performing thematch. They can be used or accessedonly to match the files previouslydescribed and agreed to in writing.

Furthermore, files cannot be usedto extract general information about


There is no good reason why taxpayers-those whose taxpayments make humanitarian government programspossible-should be held to higher standards by thegovernment than people who benefit from such payments.

individuals that has nothing to dowith the match being performed.Thus, fishing expeditions are precluded.

These safeguards, along with Congressional review and alert public interest groups, prevent misuse andabuse that could potentially result inharm to individual rights and privacy.

To put concerns about privacy andindividual rights in further perspective, one must understand how computer matching actually occurs. If aperson examines records to discoverpossible similarities, duplications,contradictions, or other relatedmaterial, clearly he or she has toscan or search through the files. Acomputer programmed to do amatch, however, simply picks outand prints only specific items thatmatch. Nothing else emerges fromthe machine. In this respect, computers are much less intrusive withregard to individual privacy than arepeople.

It should also be recalled that computers do not make decisions. Whatthe computer does is provide a list ofapparently common or related items,which are no more than possibleleads for investigation, follow-up,and verification. Computers do notand cannot automatically establishthat fraud exists. They do not mechanically cut off benefits orpayments.

Background

T he first large-scale use of computer matching in the federalsector was Project Match,

conducted in 1977 by the Department of Health, Education, andWelfare. The project, which grewout of matches of welfare-recipientand wage data going on at the statelevel, matched state welfare datawith federal, military, and civilianemployee records. The match found3,071 individuals who had been overpaid. Another 2,168 people wereidentified as ineligible to receivebenefits.

I was Inspector General at theDepartment of Agriculture at the


time. Seeing the results of ProjectMatch, I began to look at my owndepartment to see where these techniques could be applied. The FoodStamp Program, which in 1978payed over $5 billion in benefits (nowover $10 billion) with recipient income as the primary basis for benefiteligibility, was the obvi~us choice.

We decided to concentrate on specific geographic areas and to rely onthe wage data gathered by theunemployment insurance program.The "hits" we found were then compared with other income-based programs to see if overpayments hadalso occurred in them.

This technique proved its wortheverywhere it was applied. In Memphis and Nashville, Tennessee, forexample, over 1,600 cases of underreported income in the Food StampProgram were found through computer matching. Of these cases, 667were also participating in the Aid toFamilies with Dependent Children(AFDC) program and 735 in theMedicaid program; 95 were receiv,ing Supplemental Security Income,and 144 were receiving housing assistance. The losses from these programs for the verified cases wereover $3 million. More than 1,200cases had benefits terminated orreduced, with monthly savings forthe Food Stamp Program of over$80,000. There have been over 400indictments to date. It was estimatedthat there was a $1 return for every 5cents spent on this matching project.

Matching techniques are valuablenot only in welfare programs, butalso in other programs. In 1978, wematched emergency loans of theFarmers' Home Administration during 1977 with disaster loan recordsof the Small Business Administration. We found 123 excess duplicate

loans amounting to $2.3 million. Bythe end of 1981, over $1.25 millionhad been recovered. The match costonly $50,000.

It was about this time that I became Inspector General for theDepartment of Labor, where matching had been done at the state levelsince the early 1970s to verify eligibility for unemployment benefits.

There are 41 states that collectwage data quarterly by either thestate-administered unemploymentinsurance program or the state taxdepartment, and a 42nd (Minnesota)will begin collecting this informationin 1984. This data is compared withinformation on recipients of AFDC,general state assistance, FoodStamps, and Medicaid, as well asother social service programs.

In Illinois, the comparIson with theAFDC files has yielded over $12million in monthly grant dollar savings since 1975. Expected savings inNew York from wage matching, including the unemployment insuranceprogram, is over $114 million from1979 to 1983.

Costs for the Wage Reporting System and the matching program (including development costs) are expected to be $28 million over thesame time period.

It was becoming more and moreapparent that computer matchingwas a quick, efficient, and highly effective means of detecting fraud andoverpayments. In addition, the privacy concerns voiced by many at theonset of Project Match did notmaterialize. These results, alongwith the need to demonstrate vigorous action to protect the integrityof benefit programs, were the impetus for the Long Term ComputerMatching Project of the President'sCouncil on Integrity and Efficiency.

17

But we must also be alert and sensitive to the possibledangers ofgoing too far, 1naking sure that an appropriatebalance with privacy concerns is struck.

The Matching ProjectApproved in September 1981, the

Long Term Computer Project,chaired by the Inspectors General ofthe Departments of Health and Human Services (HHS) and Labor,sought to encourage and facilitatecomputer matching.

The Project does not run computer matches per see The Projectworks on gathering and sharing information on computer matchingand removing obstacles to the use ofthese techniques. It was clear thatlittle information flowed concerningthe use of matching technology andthe results among federal agencies,among the states, and between stateand federal levels. It was also reported that the wider use of matching was inhibited by a broad array oflegal, administrative, technical, andcoordination difficulties.

To accomplish this work of gathering and sharing information andremoving obstacles effectively, theInspectors General brought federaland state program administrators into the Project early. Fifteen statesand the District of Columbia, with atotal of 26 representatives, sit on theProject's four working groups.There are 65 federal representatives.

The Project began by first surveying federal and state agencies to seewhat they had done in computermatching. A great deal was going on.We needed to make this informationwidely available to program administrators, not just to those directlyworking on the Project.

The Project publishes a quarterlynewsletter on computer activities.The newsletter highlights significantfederal and state matches and related activities, unique techniquesand approaches, and problems thatshould be considered in conducting a

match. It goes to over 800 federaland state agencies and officials, andto interested citizens as well.

Through the federal and staterepresentatives, an extensive network of contacts for computermatching and related activities hasbeen built and is still growing. It isthrough this network and the newsletter that the Project has been ableto serve as a broker. People interested in doing a particular type ofmatch are put in contact with otherswho have done it before. If someonehas encountered a problem in doinga match, ideas for resolving it canoften be found through the network.By simply putting people in contactwith each other, ideas for matchingprojects and ways to perform matches more efficiently are generated.

The Project also sought to addressthe numerous obstacles and difficulties blocking greater computermatching activities, through fourworking groups, composed of thefederal and state representatives.The groups were organized aroundmajor issue areas -legal and administrative issues, state/federal cooperation, technology and programming, and match opportunities. AsInspector General of the Departmentof Labor, I led the working groups onLegal and Administrative Problemsand on State/Federal Cooperation.

Three issues taken up by theformer group may be of particular interest:

Privacy safeguards. A team drawnfrom the working group of the Project participated with Office of Management and Budget representativesto revise the OMB's Guidelines forConducting Computer MatchingPrograms, with particular attentionto privacy concerns. A revised version of the Guidelines - considerablymore simple and practical-was pub-

lished by the OMB and went intoeffect on May 11, 1982.

The new Guidelines reflect ourcommitment to maintain all the statutory requirements laid down in thePrivacy Act of 1974. They requirethat the use of data be compatiblewith the purposes for which theywere collected and that routine usenotices be published in the FederalRegister.

They also go beyond the Act'sbasic requirements in several significant provisions. For example, thenew Guidelines provide for publicnotice that matching is being conducted. They also call for specific information regarding the plans andpurposes of matches and writtenstatements regarding the use, safeguarding, and disposition of files involved in matching efforts.

These new Guidelines derive fromour insistence that the rights andprivacy of individuals must be protected and that matching must takeplace openly with full public knowledge.

Access to Tax Information. Accessby program managers to certaincategories of tax information foranti-fraud purposes would contributegreatly to efforts to verify eligibilityfor needs-based benefit programs.However, the Tax Reform Act of1976 and IRS interpretation of ithave served to make virtually allcategories of tax information unavailable for verification and antifraud efforts.

When access to tax data is suggested, concern is frequently expressed that IRS data includes awealth of information about everyone in the United States and that itwould be inappropriate and undesirable for such information to circulate freely throughout government. We strongly concur, and weare not advocating access to charitable, medical, or other deductionsor payments.

Third-Party Information. A validdistinction can be made between information supplied by the individualtaxpayer and financial informationprovided by such third parties as

18 Stanford Lawyer Winter 1982/3 L--------

Computer Unearths'Cadaver Caper'

T he Social SecurityAdministration recentlystopped payments to

1,618 dead beneficiaries andrecovered $591,000 in erroneouspayments, through a computermcttching project involving 11states and new York City. Theproject, which is now being extended throughout the country, isexpected to save the Administration millions of dollars.

The match involves a comparison of Social Securityrecords with city and state deathcertificates and with VeteransAdministration computer files.

The overpayments uncoveredwere, for the most part, due togovernmental inefficiency ratherthan fraud on the part of citizens.Survivors had usually reportedthe deaths. The checks that arrived thereafter were generallyput aside rather than cashed.

The majority of deceased recipients had been dead for 15 to 20months. But payments for onedeceased woman continued foreight years. Her daughter returned 90 uncashed checks worth$23,000 to the Social SecurityAdministration.

This project is a good exampleof how computer matching cancontribute to efficient operationof government programs,"McBride comments. "In effect,the government was usingmatching to monitor itself morethan the citizens:'

"I'm also heartened;' he added,"at what this exercise showsabout the honesty of the averageAmerican:'

employers, banks, insurance com- available to verify eligibility for ben-panies, and stockbrokers. efit programs to save the large sums

There is now adequate evidence that are lost through fraud.that great savings would result ifthird-party information on assets and SUlllmaryincome were available and used toensure program integrity. The Abasic issue running throughresults recently reported of the in- the legal and administrativeitiative of Massachusetts authorities considerations I have raisedin using data available from state is that of balancing the competing in-banks and financial institutions terests of privacy and individual

rights on the one hand, and theunder provisions of state law clearly leaitimate government interests ofindicate this. On the basis of ex- b~perience thus far, Massachusetts eligibility verification and programofficially estimates that state savings integrity on the other. We must be

sure that benefits are going to thein the range of $136 to $306 million right people, to those who are fullywill be made in the AFDC program eligible to receive them. But wealone; projected savings, if im- must also be alert and sensitive toplemented nationwide, could reach the possible dangers of going too far,$8.8 billion.

Availability.of other categories of making sure that an appropriatethird-party information in possession balance with privacy concerns is

struck.of the IRS would undoubtedly fur- Ultimately, the Congress must re-ther increase savings and curtail solve any problems that may developoverpayments. and specify both the degree to which

Failure to employ information that data should be made available fromis available deprives us of basic and tax authorities, Social Security,necessary safeguards against de- employers, banks, and financial in-liberate fraud. In our estimation, stitutions, and also the proceduresthere is no good reason why tax- and conditions under which suchpayers- those whose tax payments availability takes place. These aremake humanitarian government pro- not decisions that should be left tograms possible-should be held to program administrators andhigher standards by the government auditors.than people who benefit from such It is urgent that Congress addresspayments. Taxpayers are well aware the need for carefully drawn legisla-that their tax returns and information that will properly balance pri-tion submitted by third parties on vacy concerns against the need totheir behalf are subject to computer obtain the data necessary to ensurematching to make certain that they program integrity and reduce fraudare complying with the tax laws. and waste. DWhy should beneficiaries of needs- The above text (slightly abridged) isbased programs not be subject to the the prepared testimony presented bysame sort of safeguards to ensure Dean McBride December 15 to thethat they are complying with the United States Senate's Committee onlaws that specify conditions of el- Governmental Affairs, Subcommitteeigibility for participation in such pro- on Oversight of Government Manage-grams? mente

If Congress has seen fit to amend McBride headed President Reagan'sthe Tax Reform Act to permit re- Computer Matching Project until hislease of taxpayer-supplied informa- appointment, effective October 25, astion to assist in collection of debts the School's new Associate Dean for Dean Ely would like to point out toowing to the government and to per- Administration (see page 24). On those graduates who have asked whatmit locating absent parents for child- November 18, he defended the Presi- we are doing to collect delinquent stu-support purposes without undermin- dent's efforts against fraud and over- dent loans that Dean McBride will being compliance, the third-party sup- payment on "The MacNeil-Lehrer heading up the effort. Deadbeats

,,---,=-p_h_·e_d_in_f_orm__at_io_n_s_h_o_ul_d_b_e_m_a_d...;.-e__ R_e±-p_ort_." b_ew_a_Yl_r_. ----'

Winter 1982/3 Stanford Lawyer 19

Graduates Returnfor Alumni/ae Weekend 1982

Associate Dean Keith Mann mingleswith graduates.

Robert Carmody (62) and friends meet again at their class reunion.

20

Over 450 Stanford Law graduates and their spousesreturned to campus October

15-17 for Law Alumni Weekend.For many it was the first occasion tomeet Dean John Hart Ely since heassumed leadership of the Schoollast July.

Festivities began Friday eveningwith a banquet and dance at theSharon Heights Country Club. Before the band struck its first notes,Dean Ely and University PresidentDonald Kennedy gave a specialwelcome to members of the Half-

Century Club and to the Classes of1937, 1942, 1947, 1957, 1962, 1967,1972, and 1977.

On Saturday morning, the faculty'presented a series of talks on topicsranging from public interest litigation on behalf of children, to law andeconomics, transnational law andnuclear arms control, and the moralresponsibilities of lawyers.

Before zipping offto the StanfordUSC football game, alumni picnicked in Crocker Garden. You'd neversuspect Stanford had lost from thehigh-spirited reunion celebrations

that evening in classmates' homesand nearby hotels.

The weekend concluded with aSunday brunch where the Deandiscussed his impressions of theSchool and the challenges facing hisadministration.

Plans are now under way for the1983 Law Alumni Weekend and Reunions for the Classes of 1928,1933, 1938, 1943, 1948, 1953, 1958,1963, 1968, 1973, and 1978. Be sureto mark October 7-8 on your calen~~ D

Myrl Scott (55) greets Jerome Muys (57) and his wife, Barbara,in the Cooley Courtyard.


Dennis and Barbara Farrar were among the celebrants at the Class of1962's Twentieth Reunion.

21

New ProfessorshipEndowed by A. Calder Mackay

Before retirement he also servedon the board of Pendleton Tool Industries, Inc., and Pacific EmployersInsurance Company.

Mackay was president and director of the Donald·E. Baxter Foundation for fifteen years, during whichthe Foundation presented the Stanford University Medical Center withendowments for the Donald E. Baxter Professorship in Pharmacologyand the Donald E. Baxter Laboratories for the Study of Cardio-

A. Calder Mackay vascular Diseases.War Damages Board of the Amer- Mackay was also a donor to theican Peace Commission. In 1919 he Hoover Institution. In 1957 he wasreturned to Utah and began the named a Stanford Associate, ingeneral practice of law. recognition of his continuing service

Three years later, he was named and generosity to the University.special attorney to the Bureau of In- Mackay's large bequest to Stan-ternal Revenue in Washington, DC, ford was motivated by "appreciationwhere he successfully litigated many of Stanford's commitment to ex-major issues raised by the Commis- cellence in education and of the edu-sioner. He was selected to represent cation Stanford provided his sonsthe IRS Commissioner in the first and grandchildren;' according to hiscase tried before the Board of Tax son Richard N. Mackay.Appeals, now known as the United Richard is now a partner inStates Tax Court. Mackay, McGregor, Bennion & Hig-

Mackay entered private practice in son, the Los Angeles firm his father1926, specializing in the field of taxa- helped found. He has also become ation, and was a founding member of director of American Hospital Sup-the Los Angeles law firm of Mackay, ply Corporation and pr~sident of theMcGregor, Bennion & Higson. Donald E. Baxter Foundation.

He contributed to the growth of John Calder Mackay, A. Caldermany business organizations, no- Mackay's elder son, is a noted realtably Don Baxter, Inc., the company estate developer, who foundedthat pioneered the commercial pre- Mackay Homes in 1950.paration of intravenous solutions, Their sister, Leah Mackayand Pharmaseal, a leader in the field Coulter, lost her husband in a 1979of disposable health care products. airline crash and lives in Los An-After these two companies merged geles.with the American Hospital Supply Three of A. Calder Mackay's nineCorporation, Mackay served on the grandchildren-Calder Mead Mack-American board of directors, until ay, Sally Ann Coulter, and Nancybecoming, at the age of 76, an hon- Louise Coulter-earned their bach-orary director for life. elor's degrees at Stanford. D

Stanford Lawyer Winter 1982/3 L~~--------------

Acalder Mackay, a prominentLos Angeles tax attorney,named Stanford Law School

as a major beneficiary in his will.His bequest - the largest gift of its

kind to the School- has made possible the creation of a newly endowedA. Calder Mackay Scholarship Fundas well as a professorship named inhis honor.

Mackay, who died in 1981 at theage of 90, developed close ties toStanford, first as a parent of Stanford students, and then as a volunteer and major donor.

Both his sons, John Calder Mackay (AB '42, JD '48) and Richard N.Mackay (AB '45, JD '49) graduatedfrom Stanford, and his daughter,Leah, was married to a StanfordLaw graduate, the late F. LeeCoulter (LLB '57).

"We are delighted and grateful tobe the beneficiaries of Mr. Mackay'sgenerous bequest;' said Dean JohnHart Ely of the Law School.

"The new A. Calder Mackay Professorship endowed through his giftwill help us attract and hold outstanding faculty members. And theendowment income designated forMackay Scholarships will help makea Stanford legal education availableto talented students of limitedmeans;' Dean Ely said.

Mackay was born in 1891 on afarm in Granger, Utah. He receivedhis bachelor of arts degree from theUniversity of Utah in 1915 and hislaw degree from George WashingtonUniversity in 1917.

Following a tour of duty with theArmy in World War I, Mackayserved as secretary of the Italian

22

Robert Paradise ('29)Gives Fund for Professorship

in Natural Resources

R obert E. Paradise and hiswife, lone, have endowed anew chair at the School, ti-

tled the Robert E. Paradise Professorship in Natural Resources Law.

Mr. Paradise, who is now 75 yearsold, retired in 1974 and lives in Arcadia, near Los Angeles. A portionof his gift was made in the form of anannuity trust.

The first holder of the new Paradise chair is Professor Howard R.Williams, .a well-known authority onnatural resources law who hastaught at Stanford since 1963.

"The Paradise chair will help ensure Stanford's continued leadershipin a legal field that vitally affects thefuture of the West and the nation;'Dean Ely said. "And the chair willalways be more distinguished forhaving as its first holder a scholar ofunsurpassed strength, respect, andinfluence in the field:'

Mr. Paradise has been an activesupporter of Stanford for manyyears, and a member of the LawSchool Board of Visitors from 1972to 1975.

He earned his undergraduate (AB'27) as well as law (JD '29) degrees atStanford, graduating with great distinction. He was elected to both PhiBeta Kappa and the Order of theCoif.

"I feel enormously indebted to theLaw School for giving me my firstmature sense of intellectual identity,"Mr. Paradise said recently, as well asfor "the benefit of Stanford's mentaldiscipline and standard of excellence:'

He originally provided for the Professorship in his will, he explained,but "altered that plan when I realizedthat the pleasure I receive from apresent gift greatly outweighs thesatisfaction I might expect to experience at the exact moment mytestamentary gift would have become effective:'

Mr. Paradise is currently a coowner of Anacapa Oil Corporation,which is active in producing gas inthe Sacramento Valley. For eightyears before his formal retirement in


Robert and Jone Paradise

Professor Williams

1974, he was general counsel of theRalph M. Parsons Company, an international engineering and construction firm.

A specialist in oil and gas law, healso served, from 1937 to 1944, asassistant general counsel withRichfield Oil Corporation, predecessor to ARCO. Paradise waspreviously (1929-37) with the lawfirm of Gibson, Dunn & Crutcher inLos Angeles. He returned to privatepractice in 1944 as a partner inKrystal & Paradise.

Mrs. Paradise, who graduatedfrom UCLA, has been a leader in theAmerican Association of UniversityWomen for many years, and served

as president of the AAUW CaliforniaDivision from 1968 to 1970.

The Paradises have two daughters, Lisa (Mrs. Gus Van Der Stad)and Carol (Mrs. Leo C. Black),

Professor Williams, the newParadise Professor in NaturalResources, frequently serves

as a consultant to governmentalagencies and law firms. He was amember of the California Law Revision Commission from 1971 to 1979,including four years as vicechairman and the final year as chairman. He has also been a trustee ofthe Rocky Mountain Mineral LawFoundation for the past fifteen years.

Professor Williams was named in1967 as the first holder of anotherendowed chair, the Stella W. and IraS. Lillick Professorship in Law, andremains Lillick Professor emeritus.He became an emeritus professorupon his official retirement last year,but was promptly recalled to teachhis specialty of oil and gas law.

Williams was born in Indiana andeducated in Missouri, earning hisbachelor's degree at WashingtonUniversity in St. Louis. He studiedlaw at Columbia University in NewYork, where he was a member of thelaw review. During World War II, hesaw active duty as a member of theArmy field artillery.

Williams joined the law faculty ofthe University of Texas in 1946,serving for a time as acting dean. Hewas named to the Columbia LawSchool faculty in 1951 and held itsDwight Professorship from 1959 until his departure for Stanford in 1963.

Williams has written severalbooks, including the definitive Oiland Gas Law (with Charles J.Meyers), an eight-volume work withannual supplements and an abridgededition. Among his other works arethe Manual of Oil and Gas TeY111S(also with Meyers), which has hadfive editions. Williams has alsopublished in the areas of property,trusts, wills, and estates.

He and his wife, the formerVirginia Merle Thompson, weremarried in 1942 and have a son. D

23

s

The full complement of deans (left to right): Diaz, Smith, Ely, Mann, and McBride.

School Names NeVI Deansfor Administration and Student Affairs

24

T wo vital appointments by Dean Ely last fallhave restored the School to full strength on the

administrative dean level.The new appointees are Thomas F. McBride,

associate dean for administration, and Margo D.Smith, assistant dean for student affairs.

Vacancies in these posts both occurred in June,within days of Dean Ely's arrival from his previousposition at Harvard. First there was the unexpectedand much-mourned death, June 3, of Joseph Leininger, associate dean for administration since 1970.Second was the celebrated elevation, June 11, ofLaDoris Cordell, then assistant dean for studentaffairs, to the Santa Clara Municipal Court bench.

Deans McBride and Smith join two incumbents:J. Keith Mann, associate dean for academic affairs,and Victoria S. Diaz, assistant dean for development and alumni/ae relations.

"In Keith, Tom, Vicky, and Margo, we have a setof deans (pride of deans?) of truly remarkablestrength," Dean Ely wrote in a memo to faculty andstaff, adding with wry relief that "I will at long lastbe able to become the figurehead I have aspiredto be."

The new deans are introduced below:

T homas F. McBride,the School's

associate dean for administration since October 25, has adistinguished record ofpublic service, mostrecently as inspectorgeneral of the U.S.Department of Labor.

"McBride's ability andintegrity have beenpraised by virtuallyeveryone he's workedwith," Dean Ely said inannouncing the appointment. President Reaganpersonally cited McBridelast March as one of thethree outstandingmanagers in government(in a talk to the NationalAssociation of Manufacturers).

In addition to his LaborDepartment duties,McBride headed thePresident's ComputerMatching Project, a keyelement in the Administration's antifraudprogram. [An article

about the project-basedon McBride's testimonyDecember 15 before aCongressional committee-appears on pages16-19.]

From 1973 to 1975,McBride was associateWatergate special prosecutor, heading thecampaign-contributionstask force. This resultedin prosecution of morethan thirty individuals andtwenty major corporations.

He was earlier with thePeace Corps (1965-68),as director in Panamaand as deputy di rector ofthe Latin America region.

McBride has alsoserved as director of theBureau of Enforcement ofthe Civil AeronauticsBoard (1975-77) and inspector general of theU.S. Department ofAgriculture (1977-81).

"There's a time whenany of us should leavegovernment," he saidsoon after his arrival atStanford. "For me, thattime had come.

"I wanted to get into auniversity setting but notjump from onebureaucracy to another.Stanford Law School impresses me as being notonly unbureaucratic buteven mildly antibureaucratic. I suspectth is is due to its relativelysmall size, innovative attitudes, and the goodsense of the Dean, faculty, and staff."

Associate DeanMcBride plans two major"special initiatives" during his first months atStanford: "Participating in


the review of student aidprograms and the largerproblem of financing anincreasingly expensivelegal education; andworking closely with thefaculty and staff figuringout how we can use wordprocessing and computers to do more workand do it moreefficiently.' ,

Born in Elgin, Illinois,McBride, 53, attended theUniversity of Iowa andthen graduated from NewYork University with a BAin English. He earned hislaw degree (LLB, 1956) atColumbia University whileworking summers as aseagoing purser andnights as a cargochecker on the West Sidepiers of Manhattan.

After completing lawschool, McBride served inthe rackets bu reau of thedistrict attorney's office inNew York County, and,during the Kennedy Administration, as a triallawyer in the OrganizedCrime Section of theJustice Department. Healso worked (in 1969) asdeputy chief counsel forthe House Select Committee on Crime.

Dean McBride hasbeen a member of theadjunct faculty of GeorgeWashington University,where he taught courseson criminal justicemanagement and publicadministration reform.

His publications include six InspectorGeneral Reports to theCongress and TeamPolicing (Police Foundation, 1972), which hecoauthored.


His wife, Catherine H.Milton, is author ofWomen in Policing, PoliceUse of Fatal Force, andLittle Sisters and the Law,as well as coauthorof History of theAmerican Negro.

How does DeanMcBride feel about hismove to Stanford? "Verypleased indeed."

Margo D. Smith, a1975 graduate of

the School, retu rnedDecember 1 as assistantdean for student affairs.

At the time of her appointment, Mrs. Smithwas a trial lawyer withthe U.S. Attorney's Officein San Jose. She waspreviously deputy districtattorney with the SantaClara County District Attorney's Office, also inSan Jose.

"I am convinced,"Dean Ely said in his announcement to theSchool, "that Margo willbe able to work very effectively with all ourstudents and studentorganizations. In addition,she will be unusually effective in our continuingeffort to attract qualifiedminority students to Stanford."

Formerly MargoDianne Richmond, Mrs.Smith was born and raised in Rossford, a smalltown near Toledo, Ohio.She attended San JoseState University, earninga BS in microbiology andpremedical studies, andworked as a medicaltechnologist for threeyears before entering lawschool.

'Deep inside I alwayswanted to be a lawyer,"

she said in a recent interview. "But it was a whilebefore I real ized that itwas okay for me tobecome one."

Her primary focus atStanford, she says, "is toguide and counselstudents and to att ractnew students to theSchool. Stanford offersminority students thesame advantages it offersall students-absolutelytopnotch legal trainingand prestige."

Smith, Dean forStudent Affairs

Dean Smith is marriedto Ezekiel L. Smith, aStanford Business Schoolgraduate, who is Stanfordmanager of telecommunications. "We're aStanford family," sheobserved, "and very happy about it." D

25

¥tEWSLeading Finance Theorist Recruited ¥lith B School

26

Stanford Business School has joined with the LawSchool to make Stanford's first Business/Law appointment: Myron Scholes, MBA, PhD, who became a Stanford professor of finance and law on January 1.

A leading financial theorist, Professor Scholes, 41,was previously with the University of Chicago'sGraduate School of Business as Edward Eagle BrownProfessor of Banking and Finance. He has also directedChicago's Center for Research in Security Prices.

Professor Scholes

"Weare always delighted to steal someone fromChicago," Dean John Ely recently said, "especiallysomeone as distinguished as Myron Scholes. He willadd real strength to our Law and Business Programand be a valuable resource for our corporate law andother teachers."

Professor Scholes was the prime mover in developing the finance teaching program at Massachusetts Institute of Technology, regarded as one of the mostdemanding programs in the Sloan School.

Welcome, Dean Smith

The arrival of Margo Smith as assistant dean for student affairs was celebrated December 9 with a reception at the Faculty Club.

Sponsored by Stanford Women Lawyers, the eventattracted a lively mix of people from both the School(deans, faculty, staff, and students) and the community(Dean Smith's husband and family, former classmates,colleagues, and interested law graduates).

Dean Smith is joined here by Keith Mann, associatedean for academic affairs. D

His research interests have recently expanded fromfinance theory to include interactions between businessand law, particularly in the securities and tax areas.(Scholes's knowledge of the tax code is legendary.)

Professor Scholes was at Stanford during the schoolyear 1981/82 as a GSB distinguished visiting professorof research. He became involved in a number of ongoing investigations with Stanford faculty at the LawSchool, Center for Advanced Study in the BehavioralSciences, Hoover Institution, and Computer ScienceDepartment.

He and Law Professor Kenneth Scott are currentlylooking at such problems as how to determine damagesin suits where a company has failed to makedisclosure. They are also interested in the uses oftheories and models to measure the consequences ofchanges in corporation and securities laws.

Born on July 1, 1941, in Timmins, Ontario, Scholesdid his undergraduate work at McMaster University,graduating in 1959. His MBA and doctorate wereearned at the University of Chicago in 1964 and 1969,respectively.

Scholes's major publications include: "The Pricing ofOptions and Corporate Liabilities" (coauthored withFischer Black) in the Journal of Political Economy;"Dividends and Taxes: Some Empirical Results" (withMerton Miller), also in the JPE; "A Simulation of theReturns and Risk of Alternative Put Option InvestmentStrategies" (with Robert Merton and Matthew Gladstein), in the Journal of Business; and "Dividends andTaxes" (with Merton Miller), in the Journal of FinancialEconomics.

Professor Scholes plans to take up residence atStanford this summer. D

Margo Smith and Keith Mann


Foul-Weather Friend

Third-year student Margaret Niles recently returnedfrom the Soviet Union, where she and two otherAmerican students participated in debates at eightuniversities and institutes in six cities.

The debate subject was "War and Peace in theSystems of Values of the Soviet and AmericanSocieties." Each member of the two teams gave a10-minute speech, followed by at least 30 minutes ofvigorous questioning directed primarily at theAmericans.

"I found myself gettingvery evangelistic about

our system." Niles says."The United States is

certainly not perfect, butat least we are free to

talk about that fact andtry to change it."

Niles '83 Debates Russians

Margaret Niles

Niles and her teammates-a Slavic studies graduatestudent and a business student-debated entirely inRussian, which Niles learned at Harvard (BA '77) andhoned during seven months as a guide at a 1978/79U.S. exhibit in Moscow, Kishinev, and Rostov-na-Donu.

"The Soviets were surprised when each member ofour team freely admitted not voting for Reagan in1980," she reports. "In their society, 'politicaldissidents' would hardly be chosen to represent theircountry abroad! Soviets have a hard time understanding why we think our freedoms of expression and opportunity are so important.

"The Soviet press depicts the U.S. very negatively,"Niles adds. "It was a challenge to set the recordstraight by filling in missing information or providing different perspectives."

Niles, 27, is associate managing editor of the LawReview and president of the International Law Societyat Stanford. After graduation, she will clerk for JudgeEugene Wright of the Ninth Circuit Court of Appeals inSeattle, where she plans to settle.

"Who knows?" she says. "Someday trade may pickup with Vladivostok."

[A report on the Soviet-American debates was broadcast March 21, on the PBS "Frontline" series.-Ed.] D

peared at the head of themain staircase, descending to join a cluster ofchildren waiting below.

A round of familiarcarols followed. Outside,dusk fell, along with amajor blackout thatdoused lights all over theBay Area. Happilyunaware in the candlelitlobby, we raised ourvoices in joyous song.All was calm, all wasbright. D

Calder's Le Faucon reigned in solitary grandeur overthe Crown Quad courtyard, during record-breaking rainsthat drenched the Bay Area for the second year run-ning. [Photo by Michael Powlen, Class of 1984.] D

A surprising wealth ofmusical talent wasrevealed at the annualLaw School holiday partyDecember 22.

Placement DirectorGloria Pyszka and tvyoformer staff membersPeg Dickson Gitelson andBetsy Scroggs-sangseveral medieval andmodern carols, artfullyaccompanied on piano byAssociate Dean ThomasMcBride, with descantsby Dean John Ely onflute.

Distant sleighbellsbrought a hush of anticipation. SantaClaus-with a voice uncannily like that of Professor John Kaplan- ap-


Job Hunting?Recruiting?

You can get help fromthe School's Office ofLaw Placement.

The Office compilesand mails a listing ofopenings every two-tothree weeks free ofcharge to SLS graduates."We know that alumnihave accepted positionslisted in the publication,"says Placement DirectorGloria Pyszka.

Graduates interested inreceiving the listingshould write or call thePlacement Office. Thetelephone: (415)497-3924.

Mrs. Pyszka urgespotential employersamong the alumni to inform the Placement Office of openings, providing job descriptions,qualifications sought, andname and address of thecontact-or, if preferred,a post office box. Jobseekers should applydirectly; the PlacementOffice does not collectand forward resumes.

Each job seeker is,however, encouraged tosend the Placement Office a resume, with adescription of positionsought and geographicpreference.

.,'Even though stafftime limitations preventus from active searcheson behalf of alumni," Mrs.Pyszka explains, "we arehappy to put applicantand employer together ifwe hear of somethingpromising." D

28'

Ne\¥ Smith and FriedenrichScholars Thank Donors

Mrs. ~udrey Smith (above, center) joined Dean Elyand Assistant Dean Victoria Diaz for the annual luncheon with re~ipients of S~muel Morton and AudreySpence Smith Scholarships. This year's Smith Scholarsare third-year law students Stephen Easton and EvaCarney.

A similar event (below) was held November 30 forMrs. E?ith Friedenrich, her son John ('61), JonathanGreenfield ('71), and other law associates of Mrs.Friedenrich's late husband, David ('28). Dean Elyand the current David Friedenrich Memorial ScholarMartha Sanchez ('83), were among those present to'express appreciation for gifts to the endowed fund.

Scholarship donors are frequent and welcomeguests of the School. D

SU HonorsO'Connor andStephens

John J. O'Connor IIIand George E. Stephens,Jr., both received Stanford Associates Awards in1982 for exemplary continuing volunteer serviceto the_ University.

Another lawyer knownto many readers, Max G.Kolliner (AB '31), wasalso among the nineteenindividuals so honoredlast year. Mr. Kolliner,who earned his lawdegree at Harvard in1934, is of counsel toMyers & D'Angelo of LosAngeles.

John O'Connor ('53)

O'Connor is a doubleStanford graduate (AB'51, LLB '53) and pastpresident (1980 and 1981)of the Law Fund. He wascited in the award "forgiving energetically andgenerously of time,leadership and ideas toStanford University fortwo decades, for providing vital support to theLaw School for a decadeand for being the Law 'School's 'Man inArizona.' "


Stanford Beats Cal!Big Deal for La\V Revie\V

A stellar performance by winning pitcher SteveEaston and towering home runs by Paul Cassell andMike Klarman led the Stanford Law Review to acrushing 15-6 victory over the California Law Reviewin the first annual "Big Deal" 'softball game,November 20.

The Stanford squad used its superior athletic ability,good looks, higher LSATs, and greater earning potentialto bounce back from early problems, including a 1-0California lead and faulty directions concerning thelocation of Underhill Field.

The turning point of the game was a crisp TonyRichardson to Barb Gaal to Geoff Berman double playthat thwarted a potentially dangerous Cal rally in thethird inning. Mike Zigler stopped two other Berkeleythreats with amazing shoestring catches in left field.

"Nobody could stop us today, not even the officials.As a matter of fact, the officiating was excellent, unlikethat in another game," noted Easton in an obviousreference to "Mr. Touchdown" and his disgustingzebra-suit comrades from the 1982 football Big Game.

Although the Stan. L. Rev. squad was invited to theprestigious "Hall of Shame" softball bowl game, the invitation was refused out of sympathy for the cheatedfootball team. "It's a package deal," said Easton."There's no way they're going to get Steve Eastonunless they agree to take John Elway, too."

[Reprinted from the Stanford Law Journal (studentnewspaper), December 3, 1982.] D

fraternity (recently cit~d

in Newsweek magazinefor its "seemingly endlessparties' ').

Sternick's Stanfordstudies have been supported in part through theStella W. and Ira S. LillickScholarship Fund and theEleanora and C. FentonNichols Law ScholarshipFund. D

Pennsylvania, in 1980,with BS degrees in bothaccounting and finance.His career interest is taxlaw, which he plans topursue as an associate(beginning in June) ofPendleton & Sabian, aDenver law firm.

For the moment,however, he is enjoyingIife as a resident assistant of the Delta Tau Delta

Sternick '83Wins Prinz·metal A\Vard

Mike Sternick

Michael J. Sternick, athird-year law student,won the 1981/82 Prinzmetal Award of theBeverly Hills Bar Association. His winning paper,prepared for ProfessorHoward Williams's Oiland Gas course, was titled "The Effects ofRevenue RUling 77-176upon Oil and Gas Farmout Arrangements."

Sternick and a secondwinner (Jeffrey Epstein ofWhittier College) werepresented with thei rawards January 20 at aceremony in Los Angeles.In addition to receiving acash prize, each will seehis paper published in theBeverly Hills Bar Association jou rnal.

The Prinzmetal competition is open to allstudents attending an accredited law school inCalifornia.

Sternick is warmly appreciative of ProfessorWilliams, whom hedescribes as "a reallygreat guy."

Sternick graduatedfrom Lehigh University,

This is the second timeO'Connor has beensingled out for hisvolunteer service to Stanford. In 1976 he wasawarded a Certificate ofOutstanding Achievementby the StanfordAssociates. He also served on the Law SchoolBoard of Visitors from1976 to 1979.

O'Connor is presentlya partner with the firm ofMiller & Chevalier inWashington, DC.

George Stephens ('62)

George Stephens'scontribufions are alsomeasured in decades, including, in the words ofhis award citation, "serving as area vicepresident, Law Quad program, for both Northernand Southern Californiasimultaneously.' ,

Stephens is a partnerin Paul, Hastings, Janofsky & Walker, of LosAngeles, and specializesin probate and trust lawand estate planning.

The StanfordAssociates Award isgiven to individualswhose efforts on behalfof the University show"a quality of caring andan uncommon gift of self,time, and energy." D


¥tEWS

NeVI Editor Invites Suggestions

Surprise!

Members of the Law Review surprised editor Walter Kamiat with abi rthday celebration, affectionatelydubbing him "Rev Rex." D

"I'm interested in hearing fromgraduates," says ConstanceHellyer, the School's new Directorof Publications. "This is yourmagazine, and we want it to be asuseful and interesting to you aspossible."

Connie replaces Cheryl Ritchie,who resigned last fall, after eightyears with the School, to spendmore time with her growing family.

Connie studied European civilization at Mills College, earning a PhiBeta Kappa key in her junior year.After graduation, she moved East,spending eight years in New York publishing, first as aresearcher/reporter at Newsweek magazine and then as editorialresearcher to several authors, including Theodore H. White (for TheMaking of the President 1964).

30

Faculty Notes

William F. Baxter, Wm. BenjaminScott and Luna M. Scott Professorof Law, described his activities asPresident Reagan's antitrust chiefto Stanford law students during anOctober visit to the campus. Hisappearance was sponsored by thestudent-run Stanford Law Forum.Professor Baxter is currently serving in Washington as U.S. AssistantAttorney General.

Professor Mauro Cappellettibegan a two-year term January 1as president of the UNESCOsponsored International Associationof Legal Science. He is also serving as chairman of the Law Department of the European University Institute, a graduate research centeroperated by the member states ofthe European Economic Community. A native of Italy, Professor Cappelletti divides his time betweenStanford's Palo Alto and Florencecampuses, teaching comparativelaw and conducting research.

Connie has also had a busy freelance writing career, with articles inHistory Today (London), Glamour,the Encyclopedia of Psychiatry,Social Science Information, Stanford Magazine, and Stanford MO.

She comes to the Law Schoolfrom the Northern CaliforniaCancer Program (a research consortium including Stanford), whereshe served as communicationsdirector. Connie was previouslyassistant director for publications inthe Stanford Medical Centerdevelopment office.

"It's a delight for me to workwith people as verbally-sophisticated as lawyers," shesays. Readers with ideas and comments are encouraged to callConnie, at (415) 497-9301. D

He is currently directing a majorinternational project, cosponsoredby the EEC and the Ford Foundation, on "Prospects for EuropeanLegal Integ ration in Light of theAmerican Federal Experience." Thefour-year study (1980-84) involvestwenty teams of European andAmerican scholars working intandem. Stanford Law participants,in addition to Cappelletti, includeProfessors Lawrence M. Fried·man and Thomas C. Heller.Several Stanford law graduates andstudents have also been involved,including Bryant Garth ('75), DavidGolay ('77), Gwendolyn Griffith('81), Robert Helm ('82), BettyMeshack ('82), and Robert Wise('84).

Professor Robert C. Ellicksontravelled to Charlottesville, Virginia,last June to speak at the Conference on Teaching Property sponsored by the Association ofAmerican Law Schools.

Jack H. Friedenthal, George E.Osborne Professor of Law, is serving as special master in a case

Connie Hellyer


brought by former property ownerson Guam, to collect fair compensation for land taken by the U.S.government following World War II.The case is being tried by JudgeRobert F. Peckham ('45), thepresiding judge of the U.S. DistrictCourt of Northern California.

Professor Friedenthal is StanfordUniversity's representative to theNational Collegiate AthleticsAssociation (NCAA) and to thePacific-10 Conference. He is also,for the fourth year, chairing theLaw School Admissions Committee, in addition to teaching coursesin civil procedure, evidence, andconflict of laws.

Professor James Lowell Gibbs,Jr., is the proud parent of a newRhodes Scholar: Geoffrey Gibbs,21, a Harvard economics major.Gibbs pere, a Stanford professor ofanthropology, teaches theBotswana section of a Law Schoolcourse, Radically DifferentCultures.

In late summer, Gerald Gunther,William Nelson Cromwell Professorof Law, completed work on the1982 supplement to his constitutional law casebooks and lecturedon equal protection before anIdaho conference of appellate andtrial judges from six western states.More recently, he agreed to serveon the advisory boards for twopublic television stations (KQED inSan Francisco and WQED in Pittsburgh) planning documentary programs to commemorate thebicentennial of the ConstitutionalConvention of 1787.

Professor Gunther has also beennamed a member of theUniversity's Program Committeefor the newly established John S.Knight Professional JournalismFellowship program. In addition, heserved as a panelist at two sessions of the annual meeting of theAssociation of American LawSchools, discussing problems pertaining to the writing of judicialbiography and to the constitutionalamendment process.


Professor Thomas C. Heller is inItaly at Stanford's Florence campus and the European UniversityInstitute. His seminars deal withtax and monetary integration in theEuropean community, as well ascapital and labor flows betweennorthern and southern Europe.

Professor Heller gave a presentation last November 20 at theUniversity of California, San Diego,on "America's New ImmigrationLaw," focusing on the relationshipbetween the Administrative Procedure Act and the prospective enforcement of the pending amnestyor legalization program. This work,he explains, is part of "an effort todevelop at Stanford an instituteconcerned with the economic relations between the United Statesand Mexico, with particular emphasis on the legal regulation oflabor and capital flows in thewestern regions of both nations."

Professor and Law LibrarianJ. Myron Jacobstein representedthe Library at a January meeting ofthe Law Committee of theResearch Libraries Group, held inconnection with the annualmeeting, in Cincinnati, of theAssociation of American LawSchools.

A. Mitchell Polinsky, professor oflaw and associate professor ofeconomics, was one of threeeconomists selected to teach thefirst Advanced Economics Course

/'for Law Professors on Tort Law andProducts Liability, sponsored byEmory University's Law andEconomics Center. The course washeld at Dartmouth College last July.In October he attended a conference in Denver on "The Role ofEconomics in Legal Education,"sponsored by the Association ofAmerican Law Schools and theEmory University Center. InDecember he lectured on productliability at UCLA's Law andEconomics Seminar. His book, AnIntroduction to Law andEconomics, was recently publishedby Little, Brown & Co.

Professor Robert Rabin has beennamed a University Fellow for1972-74 by Stanford President Kennedy. The honor, which is given toonly four faculty members eachyear, carries with it five months ofsalary support for independent projects, as well as a special Fellowsprogram of meetings on Universitywide concerns. Rabin is currently afellow at the Center for AdvancedStudy in the Behavioral Sciences,where he is working on a book onenvironmental decision making. Asecond edition of his bookPerspectives on Tort Law (Little,Brown &ICO.) is now in press, as isa third edition of Cases andMaterials on Tort Law and Alternatives (Foundation Press), whichRabin and the original author, Professor Marc Franklin, haveprepared together.

Professor Deborah Rhode hasbeen nominated by the Yale AlumniAssociation as a candidate for theYale Corporation, the university'sgoverning body. A study by Professor Rhode on the Equal RightsAmendment ratification campaignwill be published in April as thelead article in the first issue of anew scholarly journal, Law and Inequality. Professor Rhode will alsoappear on a panel concerning legalethics at an April conference sponsored by the Public Interest Clearinghouse.

Professor Byron Sher was swornin December 6 to his second termin the California State Assembly. APalo Alto Democrat, he rolled up"quite a comfortable" vote total of68 percent against three opponentslast November. Sher will chair theAssembly's Criminal Justice Committee, as well as serving on thecommittees for Transportation andfor Energy and Natural Resources.His Stanford Law courses-offeredin the fall when the legislature isnot in session-include Contractsand a seminar on legislation. D

31

Dean John Hart Ely has, sincehis arrival at Stanford lastsummer, been a featured

guest at several gatherings of Lawgraduates and friends.

The American Bar Association meeting in August was the occasion for the first such meeting - adinner in San Francisco at whichDean Ely shared "Reflections onStanford Law School and LegalEducation:'

The Los Angeles Law Societyheld a reception in his honor August25, through the good offices of Society President Stephen Harbison ('68),Hugh McMullen ('71), and the firmof Argue, Freston, Pearson, Harbison & Myers. A smaller reception,hosted by Walter Weisman ('59), washeld the next day for Inner Quad andother major donors.

Alumni from throughout California had an opportunity to meet theDean at the State Bar Convention in Sacramento, where theSchool held its annual luncheon forgraduates September 13. JohnKaplan, Jackson Eli Reynolds Professor of Law, gave the keynote address, "What Should We Do Aboutthe Insanity Defense?"

The San Diego Law Societyarranged a series of homecomingevents in November for native sonDean Ely. Some fifty Stanford lawgraduates and spouses attended thereception November 23 organized bySociety President Ted Graham ('63)and hosted by· Luce, Forward,Hamilton & Scripps. A luncheonearlier that day, hosted by RobertCaplan ('60) and Barton Sheela ('50),gave Inner Quad and major donors achance to talk with the Dean atleisure. The Stanford partners ofGray, Cary, Ames & Frye capped theDean's visit to San Diego with anelegant dinner November 24.

The next week, two NorthernCalifornia alumni - George Sears('52) and Charles Legge ('54) - hosteda reception in San Francisco, atwhich the Dean was pleased to meetand thank Inner Quad members

70

Robert Caplan (right) and Barton Sheela (feff), with Assistant Dean Victoria Diaz, at San Diego Inner Quad luncheon.


Judge Winslow Christian with Inner Quadmembers Paul Ginsburg and Chris Burdick,in San Francisco.


Los Angeles alumni with Dean Ely.

Judge John Cole (50) and Peggy Stern Cole (49)in Los Angeles.

from the city and East Bay, as wellas other generous friends of theSchool.

A variety of other Stanford Lawgatherings-many featuring members of the facility - were heldthroughout the country.

The Oregon Law Society wasvisited last August 29 by JackFriedenthal, George E. Osborne Professor of Law. Discussions at thePortland meeting ranged from admissions policies and procedures toissues in intercollegiate athletics.The Oregon group met again October 1, in Eugene, for breakfastduring the state bar convention.

Special events for new graduatesand law clerks were held during thesummer by societies in LosAngeles, Washington, DC, andNew York. The New York gathering was a luncheon, hosted by Kendyl Monroe ('60), while the LosAngeles affair-an annual picnicincluded admitted students.

November 12, the Los Angelessociety sponsored a presentation bytwo Stanford-educated judges-TheHonorable Cynthia H. Hall ('54) ofthe U~S. District Court and John L.Cole ('51) of the Los Angeles CountySuperior Court - on their "Viewsfrom the Bench:'

Capitalizing on its strategic location, the Washington, DC, Society enjoyed meeting February 2 forcocktails with Supreme CourtJustice William Rehnquist ('52). Justone week before, the group welcomed Professor Kaplan for a talkabout the state of the Law Schooland various burning political issues.Washington area law graduateswere also invited to join their Stanford Business School counterpartson January 13, at the New Ze~land

embassy, for a presentation andsocial hour with Ambassador L. R.Adams-Schneider.

You will be invited, during comingmonths, to other Stanford Lawevents. A warm welcome awaits youand all graduates and friends of theS~o&. D

71

StanfordLaw Review

N(JUJ in its 35th year ofpublication

Timely research articles, projectreports, notes, and book reviews

Subscription: $21/year ($24 overseas)

Stanford Law ReviewCrown Quadrangle

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AVAILABLEReaders are invited to submit brief, noncommercial notices of interest to fellowStanford Law School alumni/ae. For example: houses for exchange, condominiums in exotic climes, clubmemberships, works of art, books (new,rare, and unpublished), back-date journals, season (and off-season) tickets,r~~~hor ses, or Type A workshops.

Please address items to:Editor, Stanford LawyerStanford Law SchoolStanford, CA 94305

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72

Stanford Business Schoolannounces ....

the 32nd Session of the

Stanford ExecutiveProgram

An eight-week executive program inmanagement education, which countsamong its alumni many distinguishedleaders of American and internationalbusiness.

The Graduate School of Business also offersthe following executive programs annually:Financial Management Program, MarketingManagement Program, Executive Program inOrganizational Change, Executive Program forSmaller Companies, General ManagementProgram (Singapore), and International Investment Management Program (Geneva).

Qualifications include senior management responsibility and sponsorship bycompany or organization.

For information contact:Mrs. Fran RinaldiAssistant Director- SEPGraduate School of BusinessStanford UniversityStanford, California 94305

(415) 497-2921

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