A Sabbatical Leave from Lawyering

In February 1982 I took a three-month sabbatical leave from my law firm, Faegre & Benson, and became a Visiting Instructor in Political Science at my alma mater, Grinnell College.[1]

I taught one course that I created, The American Civil Law System. It had units on the structure of the legal system, legal reasoning, adjective law (civil procedure, conflicts of law and evidence) and substantive law (torts, corporations and contracts).

In addition to readings, lectures and class discussion, I employed some unusual pedagogical devices. I put on the “witness stand” a sociology professor and questioned her about her personal experience as a juror. We saw part of a civil jury trial. We visited the Iowa Supreme Court and observed oral arguments. Afterwards we talked about the work of the court with two Grinnell alums who were justices on the court and another Grinnellian who was a law clerk for another justice. We obtained the briefs in one of the cases we heard, and with some explanatory memos from me the students were asked to write an opinion deciding the case in lieu of a final exam.

Another unusual technique was a moot court in the hypothetical case of Smith v. Oxbridge College. Denied tenure, Smith sued for breach of contract. The dispute concerned whether the plaintiff could obtain copies of the college’s tenure committee records. Two students acted as opposing lawyers and argued the motion to compel discovery relying upon two recent federal cases on point. I played the part of the judge. (I should note that the facts of the hypothetical case were very close to a then current case of a Grinnell faculty member who had been denied tenure.)

During my semester at the College I gave two public lectures. One with an economics professor concerned antitrust policy. The other, American litigiousness.

In the latter talk, I discussed what I saw as the causes and effects of Americans’ inclination to sue one another. While concluding that one could not applaud or deplore litigation and litigiousness in the abstract, I suggested changes in our legal system and national psyche.

I also discovered that the mid-19th century founder of the town of Grinnell (J. B. Grinnell) had similar thoughts. In his memoirs he said, “To the honor of the first settlers [of the town], I can recall no suit where they were personally litigants. How much time and money was saved! What an exemption from bitterness, cold-blooded social strategies, and flippant perjuries in mockery of oaths! This did not come by chance, for there was a verbal compact that we would not promote a lawsuit.”

J. B. Grinnell had even harsher words for lawyers who encouraged litigation. “There may be honor, which I doubt, among thieves, but little when robust clients are to be plucked . . . . [A] class of idle pettifoggers in legal business stir up litigation more degrading than any brute warfare, and then laugh at their dupes, traducing the judge as the author of defeat, or a jury which they irreverently send to another and warmer realm . . . . Filth to them is like nutritious food; they are crazy on constitutions, and in spasms of assumed virtue on a human suggestion not written in law. They have no God, nor one fit to be written with a small g. Human gad-flies.”

While on sabbatical leave, I had to return to Minneapolis to appear at a hearing in federal court. This made me realize how much I enjoyed the challenge of the adversary system–preparing for, and doing, battle on relatively short notice puts an attorney’s abilities to a difficult test. But I did not miss the annoying difficulties of scheduling and re-scheduling appointments and having one’s personal life whipsawed by others’ demands plus the increasing incivility of lawyers to one another, even in a city like Minneapolis.

Nor did I miss the nagging doubts about the significance of a lawyer’s life. As Learned Hand, one of our greatest judges, said in a 1931 commencement address at the Yale Law School, “Most of a lawyer’s time . . . consists of activity which seems to have small value and small bearing on the greater issues of the community in which he lives. True, it concerns the individuals whom he touches oftentimes in their deepest interests, but it is hard to believe that the results are important more largely.” [2]

Despair, however, was not Hand’s conclusion. “When our lights burn low, when we [lawyers] seem to stand futile and without meaning, used up in the senseless strife of interest and passion, concerned with nothing better than to get for others what perhaps they should not have, let us look up to the great edifice which our forebears have built, of which we are now the guardians and the craftsmen. Though severally we may perhaps be paltry and inconsequent, for the present it is we who are charged with its maintenance and its growth. Descended to us, in some sort moulded by our hands, passed on to the future with reverence and with pride, we at once its servants and its masters, renew our fealty to the Law.”[3]

Despair at the lawyer’s life was not my conclusion either. My sabbatical leave enabled me to step back and look more broadly at the edifice of the law and our legal institutions and to draw sustenance to return to practicing law.

In June of 1982 the College granted me an Alumni Award in recognition of this teaching and other service to Grinnell.