Tribute to Jerry Israel.
During the fall of 1977, I was assigned to his section of Criminal Law. From the very first day of class, Jerry made it clear to us that the problems of crime and punishment were at once profoundly important and elusively difficult. Jerry taught from judicial opinions in the classic Socratic mode. Each day we were forced to grapple with the perplexing manner in which the language of precedent, so comforting when first encountered in the frame of an opinion, turned to quicksilver when tested against new cases, real or hypothetical.
We spent our first few weeks on the grisly subject of late-term feticide, attempting to decide what we should think of a legal system that chose to treat it as a different sort of crime than infanticide. We then moved on to a comprehensive stroll through the full landscape of criminalized conduct. Jerry never attempted to offer us a unified field theory. Rather, his mission was only to show us that any authority we might seek to invoke, even the Model Penal Code, could be made to wilt under sustained and rigorous critique. By the end of the semester our band of ninety students--a group that had entered brimming with the hubris of moral certainty about criminal conduct--emerged with a surprising dose of intellectual humility, sensitized to the paradoxes that attend our collective effort to establish a morally defensible system of state-imposed punishment for the activities we choose to deem criminal.
One of the great bits of wisdom passed down from generation to generation of Michigan students concerned Jerry's impossibly difficult final exams. He did not disappoint us. According to the custom of the day, final examinations were typeset, and our criminal law exam could easily have stood upright on a bookshelf. While we were given four hours, we could easily have used twelve. Indeed, few sensations from my past have survived as vividly as the mounting panic I endured just reading through the first question. It was an extended hypothetical where a hypnotically induced, staged assault on the hypnotist's spouse was the prelude to guilt-driven revenge and the shooting of an innocent bystander. To this day the story remains imprinted in my mind as the ultimate demonstration of how our intuitions about moral and criminal responsibility crumble in the face of sociological complexity.
As students we knew little of Jerry's contributions as a scholar. We knew that he and his close friend Yale Kamisar disagreed passionately about criminal procedure. But it was not until I returned to join the faculty in 1987 that I came to appreciate the depth of Jerry's scholarly commitment and attainment.
Jerry had come to teach at Michigan directly from a clerkship with Potter Stewart. And after some early flirtations with subjects ranging from reapportionment to free speech, he settled down to devote himself to the study of criminal law and procedure for which he is revered. His casebooks and treatises, coauthored with Kamisar and Wayne LaFave, have given intellectual structure and momentum to the field. His articles and books have illuminated problems ranging from juvenile obscenity, to search and seizure, to white collar crime. His legislative work as a Reporter for the Uniform Rules of Criminal Procedure and for the state of Michigan have given his insights the force of law.
Making the transition from student to colleague also permitted me to see another side of Jerry that students can only glimpse: his warmth and his wit. Jerry is not a backslapper. He is, however, a wonderful mentor to junior colleagues, and he knows how to laugh at himself and others.
Over a thirty-five year span, thousands of Michigan students like me began their legal education with Jerry Israel. Many times that number have come to know his exceptional mind by reading his scholarship. Our faculty continues to consider him a role model of dedication to the scholarly craft. The Law Review brings distinction to itself and to our Law School by dedicating this issue to his honor.
Jeffrey S. Lehman, Dean and Professor of Law, University of Michigan. A.B. 1977, Cornell University; M.P.P. 1981, J.D. 1981, University of Michigan. -- Ed.
RANDOM THOUGHTS BY A DISTANT COLLABORATOR!
If Jerry Israel was born in the year 1934, then how is it that the state of Israel was not born until several years later? If you find that mind-boggling, then consider this: If, as is the case, I have known Jerry Israel since 1966, then how could it be possible that he did not get to know me until several years later? Although I am totally baffled as to the first conundrum, I can supply the mot de l'enigme -- actually, a bunch of mots -- for the second.
Back in 1965, the soon to be erstwhile(1) Dean of the University of Michigan Law School, Allan F. Smith, invited me to spend the Winter 1966 Term teaching there. This, he explained, was a part of that game of academic musical chairs which occurs when a series of law schools find it necessary to hire a visitor because one of their faculty is in turn filling such a need at another school. I would be replacing Jerry Israel, who had accepted an offer to visit at Stanford.(2) Not fully appreciating what the word "winter" means in Ann Arbor (and not forewarned that if I accepted I would be placed under the close scrutiny of the Michigan Law School's resident alienist during my time there(3)), I unhesitantly accepted the invitation. In short order Jerry telephoned to offer me his home at a rental I would have deemed exorbitant but for his explanation that his architect had also done the Taj Mahal, so I took the tenancy. I arrived in Ann Arbor on January 2, 1966, immediately moved into Jerry's digs and then was assigned his office, beginning a process by which over the next four months I came to know Jerry quite well. I can assure you, if you really want to get to know someone, sleep in his bed, sit in his easy chair, read from his library, listen to his loquacious cleaning lady, work in his office, and read his files.(4) (By contrast, I did not get to know much about Jerry from his colleagues, who seemed largely oblivious of his existence, but I won't go into that here.(5))
Not only did I spend an entire semester at Michigan without actually meeting Jerry, but I only infrequently have had the privilege of a face-to-face encounter with him since. One reason for this is that I have rarely returned to Ann Arbor, perhaps because of a fear that if I ever crossed that city's borders I would be placed again under close psychiatric surveillance. But I did return once, many years ago when I still was foolish enough to think that it would be enjoyable to watch the Fighting Illini football team play at Michigan. The game itself ranks as one of the all-time worst experiences of my entire life! An icy rain fell the entire day. Our seats were located in the first row and in the corner of the end zone, which because of the exaggerated crown of the playing field meant we had to look up to observe the action. I had not been forewarned of the advisability of wearing a "motorman's friend" to the game, and thus I spent the entire halftime and then some queued up with thousands of other hapless males in a serpentine lockstep shuffle toward Michigan Stadium's lone operational urinal. But the crowning blow was that Illinois's halftime lead lasted but minutes into the second half, a nonstop "Hail to the Victors" until the scoreboard reflected what I am sure was the most lopsided victory in the history of the Big Ten.
If you're wondering what all this has to do with Jerry, I'm coming to that now. After the game, Jerry and his wife Tanya received me and my family -- at this point a chilled, soaked, and dispirited band -- into their home for dinner. It was a wonderful event, full of laughter and good conversation, which I still fondly recall. The fact that our visit that evening made everything that had gone before seem insignificant certainly attests to the extreme warmth and friendliness of Jerry Israel. (There was one minor but somewhat ominous occurrence that evening, but I won't go into that here.(6))
Most of my face-to-face meetings with Jerry Israel came about because he and I, and also Yale Kamisar, served as Reporters on the Project of the National Conference of Commissioners on Uniform State Laws to draft Uniform Rules of Criminal Procedure. The three of us, by then coauthors of a comprehensive, hernia-popping criminal procedure casebook, were apparently viewed by the Commissioners as inseparable, sort of like the Three Musketeers, as they asked the three of us collectively to participate in the Project. The Project Director, Ken Kirwin, did all the heavy lifting; the three of us were expected merely to have great thoughts. Over a span of 1971-1974, we all met every three or four months with the Special Committee named for this Project, and it was in that setting that I gained a real appreciation for Jerry's abilities as a lawyer and a scholar in the criminal justice field. Time and again, it was Jerry who would come up with the unique and imaginative provision needed to solve the seemingly insoluble problem before the group. This happened so often that it is no overstatement to say that the final version of these Uniform Rules reflected more than anything the depth and breadth of Jerry's understanding of the totality of the criminal justice system. Indeed, I would go so far as to say (as I am sure Yale also would) that it is Jerry who deserves the credit for the impact which the Uniform Rules have had over the years. (But I won't go into that here.(7))
Although Jerry and I were collaborators on the Uniform Rules Project, most of the time I have been the "distant collaborator" referred to in the title of this fulsome fascicle of flummery.(8) For nearly thirty years we have worked together on a variety of books, and with rare exception we have carried out the planning and implementation of these joint undertakings merely by letter, telephone, or osmosis. Our longest collaboration together has been with Yale Kamisar on the Modern Criminal Procedure casebook,(9) from the 1969 Third Edition to the 1994 Eighth Edition. Jerry's role in this endeavor has far exceeded that of the preparer of one-third of the casebook's material; he is largely responsible for keeping this project afloat all these years. The point is simply this: with an unremitting Kamisar and an unpredictable LaFave, it is absolutely necessary that there also be an unflappable Israel. It might well be said, then, as to this book and also the others mentioned below, that Jerry is primarily responsible for the high volume of sales we have enjoyed over the years. (Or, it might be said that there is another reason, but I won't go into that here.(10))
Jerry and I are also collaborators on a variety of criminal procedure texts. He and I had independently engaged in discussions with West Publishing about doing something in that field, so the grey eminence and great compromiser at West, Roger Noreen, suggested we pool our talents. Viewed from that particular perspective, it cannot be questioned that I got the better end of the deal. The two of us(11) have worked together on five editions of the Criminal Procedure -- Constitutional Limitations nutshell, two editions of the Criminal Procedure hornbook, and a multi-volume Criminal Procedure treatise. To those projects Jerry has brought the order,(12) precision, and attention to detail that mark all his scholarship. Over the years I have heard all sorts of stories about collaborations gone sour as the coauthors have disputed about whose name should be first,(13) who should be allocated what subjects, and so forth. Our collaboration is in marked contrast, for our relationship always has been most cordial,(14) and Jerry has seen to it that we bring our projects to fruition without a hitch. (Well, almost without a hitch, but I won't go into that here.(15))
As the "distant collaborator" who has never been on the scene in Ann Arbor when Jerry was holding forth in class, I am perhaps not the best person to comment upon his teaching style or success. But I have managed to intrude a "mole" into the Ann Arbor academic scene, and that highly reliable source has supplied me with all the information I need to address this point as well. For what seems like an eternity, my son Jim has been pursuing a Ph.D. in engineering at the Ann Arbor campus. Notwithstanding my advice to the contrary, for almost that entire time Jim has lodged in a cramped maisonette in the bowels of a seedy messuage within crawling distance of the Michigan Law School. This is precisely the type of place where law students could be expected to billet, and thus it has been Jim's fortune (mis- or good, I'm not sure which) that most of his housemates have in fact been law students. Some were enrolled in Jerry's classes; they have from time to time passed on to Jim various comments about those classes; and Jim then dutifully has passed that information on to me. Via that pipeline I learned what I would have suspected from my familiarity with Jerry's other endeavors: in the classroom, as elsewhere, he is known for his careful preparation, orderly presentation, and insightful comments. (I also learned that his students' affection is manifested uniquely in Jerry's courses, but I won't go into that here.(16))
What I like most about Jerry (apart from the fact that he is an easy mark(17)) is that he is a quiet, unassuming, and self-effacing person. Never, ever have I known him to leap in front of a TV camera, buttonhole a journalist, send out a press release, or in any other way toot his own horn. Indeed, it would not surprise me in the least if he were to sabotage the offices of the Michigan Law Review in order to prevent the issue dedicated to him from ever seeing the light of day. Yes, he possesses humility, that "foundation of all virtues"(18) which (with the exception of a few of us(19)) is an unknown quality amongst law teachers. Of course, to be a virtue, the humility must not be excessive,(20) selective,(21) or necessary.(22) Certainly it can be said that in Jerry's case there is genuine humility of a special and enduring kind, as is indicated clearly by the following chart: (But I won't go into that any further here.(24))
It is customary in a paean such as this to include a biographical sketch of the approbatee, hitting all the high points of his life. Unfortunately, I am in no position to carry out such an undertaking. As I realized only after I reflected on this particular task, I actually know precious little about the trials, tribulations, honors, and rewards which made up Jerry Israel's life prior to his entry into academe. In a way, perhaps this is not surprising; precisely because he is humble and self-effacing, Jerry has not made it a point to press upon others accounts of his earlier accomplishments. But I can and should mention a few things. Certainly I should report here that as a young lad growing up in the midst of the depression, Jerry sold newspapers and lumps of coal from his wagon on street corners.(25) I likewise should report that he is an outstanding graduate of an outstanding institution, Yale Law School. And finally, I should acknowledge that in the brief interval between his days as a law student and later as a law professor, Jerry served a Term as Potter's porter (but I won't go into that here(26)).
These, then, are my random comments about Jerry Israel. I hope the reader has profited from this brief account. I know I have benefited from doing it, as in the process of setting out these comments I have gained an even greater appreciation for my distant collaborator. Indeed, I regret not having done something along these lines sooner, for certainly someone should have come to the defense of Jerry in response to the incessant scurrilous attacks upon his very personhood which have emanated from state and federal courts, the media, and even from the groves of academe. Most pronounced has been the logomachical assault upon his good name, which in our joint publishing ventures always has been clearly and consistently stated on the cover and title page as "Jerold H. Israel." But as a consequence of this anti-Israel jihad, he often is known instead as "Isreal"(27) (but, apparently, never by the more complimentary "Is real"). But this lapsus calami is not the worst of the moniker-mashing and handle-mangling, for it is Jerry's first name which has borne the brunt of the attack. My coauthor has been referred to variously as "Jerald,"(28) "Jarold,"(29) "Jerrold,"(30) "Jerad,"(31) "Jere,"(32) "Gerald,"(33) "Gerold,"(34) "Harold,"(35) "Jerome,"(36) and (my personal favorite) "Joshua."(37) There is good reason to suspect that Jerry's name similarly has been transmogrified even inside Hutchins Hall, this time to the feminine "Jen," so that his gender(38) could be manipulated.(39) It is almost as if the name "Jerold" doesn't even exist.(40) As if that were not bad enough, he also has been referred to as someone else entirely,(41) and also has been alluded to as if he were a group of persons unworthy of mention by name.(42) But the unkindest cut of all, beyond question, is to go unmentioned entirely, and this fate has befallen Jerry in spades, for several courts and commentators have concluded that I should be treated as the sole author of the earlier-mentioned Criminal Procedure texts.(43) At present, Jerry does not even exist in at least two federal circuits(44) and eighteen states,(45) to say nothing of several law schools.(45) All of this has prompted me to offer this conclusion (which I will go into here):
Jerry, you're a genuine schlemiel!(47)
([dagger]) As titles for law review pieces go these days, this will be found wanting by many academic sophisticates. For them, I offer the following substitute: Paradigms of Sociopolitical Postmodernist Psychoanalytic Storytelling in a Multicultural Jurisprudential Deconstruction of Jerry Israel: A Legal Positivist's Cost-Benefit Analysis and Empirical Exploration of the Interstices of Zen Buddhism, Cybernetic Futurism, Common Law and the Novels of Proust in Search of the Emerging Hermeneutical Synthesis of the Critical Legal Studies, Critical Race Theory and Radical Feminist Perspectives: Some Tentative Thoughts on the Implications of Reconceptualizing an Equalitarian Metatheory for Defining First Principles by Applying Game Theory to the Original Understanding of John Rawls Revisited (Part I).
(1.) Smith made no mention of any lame duck status at the time, so I can only surmise that once the faculty got wind of what he had done, he found it necessary to resign the deanship and make a hasty retreat to a campus administrative post. (2.) Once one law school hires a visitor from another institution, it is necessary for the latter school to hire a visitor from yet another college of law, and so on. Thus, I replaced Israel, who doubtless replaced a Stanford professor going to Columbia to replace a faculty member going to Harvard. The "chains" produced by this phenomenon vary in length, depending upon how many visitors are hired before one is found that won't be missed at his home institution. In this specific instance, I was that person. (3.) Although Israel apparently was allowed to teach the Criminal Law course without such scrutiny, I was later advised that the inestimable Dr. Andrew Watson, a psychiatrist from the University of Michigan Medical School and a frequent participant in law school courses, would regularly appear with me as I taught Criminal Law. That turned out to be the case. Watson helped out with the material from time to time, especially when we got to the insanity defence. But whenever I tried for a witticism in class and got even a titter, Watson would leap from his front row seat, point an accusing finger at a student so reacting, and ask, "Why did you laugh at that?" Needless to say, that put a damper on my efforts to inject a bit of humor into the course. At the end of each class, however, Andy and I would retire to the little restaurant across the street for coffee and rolls, where he bestowed appropriate therapy until each session ended by Watson exclaiming "to horse" and then bolting for the door. (4.) Just kidding about this last point. His filing cabinet was locked, and the lock defed my best efforts. (5.) Except for one example. After I had been on the scene over three months, I was greeted by another faculty member as I was stumbling through the dimly lit library stacks. He asked what I was teaching, and I answered I was subbing in Criminal Law for Israel, who was away at Stanford. There was an embarrassingly long pause, and then the faculty member said, "Oh, yes, Israel. I guess I do know him. But I didn't know he was gone." (6.) Other than to say that when we were called to dinner, Jerry motioned me toward a particular chair, but I crossed up the seating plan somewhat when I instead helped the Israels' houseguest (as I recall, either Jerry's mother or mother-in-law) into that chair. Just moments later the chair collapsed and she was unceremoniously pitched to the floor. Had we not revised recently, at Jerry's suggestion, all our joint contracts with West Publishing to provide that in the event of the death of one of the authors, the survivor then should be entitled to all royalties, I would not have given this "accident" another thought. (7.) Except to say that after approval of the Uniform Rules by the Commissioners in August of 1974, they (the Rules, not the Commissioners) dropped out of sight like a lead balloon. To the best of my knowledge, not a single state has ever adopted a single provision from the Uniform Rules! (8.) For all allocations allotting alluring alliterative allusions, my sincere thanks for the generous and enthusiastic assistance of William Safire, the unquestioned champion at this sort of thing. (9.) Which from the beginning had one paperback offspring called Basic Criminal Procedure, and which now has a second offspring called Advanced Criminal Procedure. It also has a first cousin, similarly authored, called Criminal Procedure and the Constitution. (10.) Except to note that a recent news account says that West Publishing Company publisher of all our books, "has a client list that includes almost every large and middle-sized law firm in the country.
"'Owning the customers is the most critical factor,' says Gary Arlen, president of Arlen Communications Inc., a Bethesda, Md., research company specializing in interactive media. 'If they trust you, they'll buy almost anything you have to sell them.'" Edward Felsenthal, West's Bid to Find a Buyer Comes Amid Pressure on Legal Publishers, Wall St. J., OCt. 23, 1995, at B7. (11.) We invited Yale Kamisar to join us in these endeavors as well, but he was too busy with his other commitments, especially the demanding position as CEO of Clarence Darrow Printing, Inc., which supplies Miranda cards for 87% of the nation's law enforcement agencies. (12.) I wisely always left to Jerry the responsibility for "building the structure" of our texts, as it were, by developing a detailed outline showing all of the part, chapter, and section breakdowns for the entire enterprise. He always performed that important task with great skill, so that it can be said emphatically (but pseudocontradictorily) that whatever Jerry built was not jerry-built. (13.) That never has been of concern to Jerry, probably because he thought it really did not make any difference. He may feel otherwise now. See infra text at note 27. (14.) But see supra note 6. (15.) Except to repeat once again, for the record, this plaintive petition: "Jerry, for the last time, just where in hell is your manuscript for the second edition of the Criminal Procedure treatise?" (16.) Except to say that the information Jim received from a variety of sources and then passed on to me is that at the conclusion of the final day of each course, the members of the class collectively respond with an enthusiastic crouching ovation. (17.) I don't mean to suggest by this that I have managed, over the years, to shake him down for large amounts of money because of the outcome of Illinois-Michigan football games. Even Israel won't give that many points! But he can be had without much effort. For example, not so long ago he was bragging to me about the Michigan Law Review and asserted, with his customary understatement, that the Review without exception publishes well-written, well-edited articles. I responded that as a not infrequent contributor to the Review I would agree that he was not wrong entirely, but that he was not right entirely either. This got his dander up (uncharacteristically, I might note, for Jerry is not known for elevated dander), and he asserted again and even more emphatically the unmitigated excellence of the Review's articles and editorial standards. He thus had no hesitation in putting a ten-spot on the line regarding my prediction that within the next six months the Review even would publish an article with a totally nonsensical opening sentence. Jerry has lost the bet. See Wayne R. LaFave, Computers, Urinals and the Fourth Amendment: Confessions of a Patron Saint, 94 Mich. L. Rev. 2553 (1996). However, I came close to losing, as I considered sensible exordia which might have been even more attention-grabbing. Id. at 2553 n.5. (18.) A Dictionary of AMerican Proverbs 317 (Wolfgang Mieder ed., 1992). (19.) Lest this inclusion of myself in the exception category be viewed as suspect, I should explain that my humility does not really stand out, for it is only one of my many admirable qualities. (20.) "Too much humility is pride." A Dictionary of American Proverbs, supra note 18, at 317. (21.) "To be humble to superiors is duty, to equals courtesy, to inferiors nobleness." Benjamin Franklin, quoted in A New Dictionary of Quotations 557 (H.L. Mencken ed., 1960). (22.) As Winston Churchill obviously felt about Clement Attlee when he said of him, "He is a modest man with much to be modest about." James C. Humes, The Wit and Wisdom of Winston Churchile 148 (1994). (23.) I wish to express my sincere thanks to the most Honorable Richard A. Posner, longtime law and economics guru and now Chief Judge of the United States Court of Appeals for the Seventh Circuit, for his generous assistance in the development of this chart. (24.) Except to say that it is much more difficult to try to describe in words (rather than through a chart) precisely the kind of humility I see in Jerry Israel. What I want to express is the thought that he is not excessively and ingratiatingly humble, but at the same time is not without humility. Perhaps the best I can do is to say that he is on the one hand not Uriah Heepian, but on the other hand is distinctly nonDershowitzian! (25.) Not because I know this to be true, for I do not, but rather because this gives a nice Horatio Alger flavor to my account. (26.) Except to say that after Israel finagled a clerkship interview with Mr. Justice Stewart, he found himself extremely nervous during the interview itself Doubbess that is why, when the Justice asked Jerry why he wanted to serve as a clerk to a Supreme Court Justice, Jerry with uncharacteristic flippancy immediately shot back, "Because there is no heavy lifting." Stewart took umbrage at this response, yet felt he could not offend Jerry's patrons back at Yale by rejecting him, so he did the next best thing by signing ferry up and then "adjusting" his assignment. Israel spent the entire Term on the Supreme Court's loading dock unpacking boxes of briefs, records, and cert. petitions, an experience which served him well when later, in academe, he had occasion to refer to "the weight of authority." (Stewart was suspected of having taken umbrage on other occasions as well, which is why the Chief Justice had him kept under close surveillance whenever he was in the Supreme Court building.) (27.) See, e.g., Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 56 (2d Cir. 1992); Murphy v. Puckett, 893 F.2d 94, 96 (Sth Cir. 1990); Grimsley v. State, 632 So. 2d 547, 551 (Ala. Crim. App. 1993); People v. Blommaert, 604 N.E.2d 1054, 1057 (Ill. Ct. App. 1992); State v. Porter, 639 So. 2d 1137, 1140 (La. 1994); State v. Copley, 594 N.E.2d 648, 651 (Ohio Ct. App. 1991); Clark v. State, 800 S.W.2d 500, 505 (Teen. Crim. App. 1990); Ronald J. Bacigal, The Right of the People to Be Secure, 82 Ky L.J. 145, 196 n.316 (1993); W. James Ellison, Legal Ethics Condones AIDS Transfer: A Disclosure Dilemma, 12 Whittier L. Rev. 327, 342 n.87 (1991); Mary A. Lynch, The Application of Equal Protection to Prospective Jurors with Disabilities: Will Batson Cover Disability-Based Strikes?, 57 Alb. L. Rev. 289, 290 n.1 (1993); Pamela R. Garfield, Comment, J.E.B. v. Alabama ex ref. T.B.: Discrimination By Any Other Name ..., 72 Denv. U. L. Rev. 169, 171 n.16 (1994). (28.) See, e.g., Woodward v. State, 855 F.2d 423, 429 (Alaska Ct. App. 1993); In re Albert, 664 A.2d 476, 480 (Md. 1995); State v. Hernandez, 842 S.W.2d 306, 312 (Text Ct. App. 1992); Ronald K.L. Collins & David M. Skover, Paratexts, 44 Stan. L. Rev. 509, 547 n.197 (1992); Lawrence Herman, The Unexplored Relationship Between the Privilege Against Self-Incrimination and the Involuntary Confession Rule (Part 1), 53 Ohio St. L.J. 101, 182 n.433 (1992); Richard A. Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C. L. Rev. 371, 402 n.82 (1993); Michael J. Aiello, Note, United States v. Barone: Evaluating Police Re-Interrogation After Moseley Courts must Consider the Suspect's State of Mind, 2 Widener J. Publ. L. 707, 708 n.2 (1993); James A. Francque, Note, People v. Simac: How Much Is Too Much Advocacy?, 26 Loy. U. Chi. L.J. 793, 802 n.97 (1995); Fred Schlosser, Casenote, The Fifth Amendment Right Against Self-Incrimination: An Individual's Right Versus the Government's Need For Effective Law Enforcement, 16 S. Ill. U. L.J. 197 n.2 (1991). (29.) See, e.g., Christopher S. Thrutchley, Note, Minnick v. Mississippi: Rationale of Right to Counsel Ruling Necessitates Reversal of Michigan v. Mosley's Reversal of Michigan v. Mosley's Right to Silence Ruling, 27 Tulsa L.J. 181, 183 n.15 (1991). (30.) See, e.g., State v. Thagard, 527 N.W.2d 804, 810 (Minn. 1995); Richard J. Bonnie, The Competence of Criminal Defendants Beyond Duskey and Drope, 47 U. Miami L. Rev. 539, 543 n.24 (1993); Patrick Ingram, Note, Censorship by Multiple Prosecution: "annihilation, by attrition if not conviction," 77 Iowa L. Rev. 269, 281 n.109 (1991). (31.) See, e.g., Hornaday v. State, 639 N.E.2d 303, 306 (Inc. Ct. App. 1994). (32.) Eve Silberman, Yale Kamisar on Guard, Ann Arbor Observer 31, 34 (Nov. 1992). (33.) See, e.g., McCone v. State, 866 P.2d 740, 747 (Wyo. 1994). (34.) See, e.g., David E. Marko, The Case Against Gender-Based Peremptory Challenges, 4 Hastings Women's L.J. 109, 111 n.12 (1993). (35.) See, e.g., Satid Wekili & Hyacinth E. Leus, Police Brutality: Problems of Excessive Force Litigation, 25 Pac. L.J. 171, 188 n.125 (1993). (36.) See, e.g., Rebecca F. Dallet, Comment, Taking the Ammunition Away From the "War on Drugs": A Double Jeopardy Bar to U.S.C. [sections] 881 After Austin v. United States, 44 Case W. Res. L. Rev. 235, 241 n.37 (1994); Alfred Paul LeBlanc, Jr., Note, United States v. Alvarez Machain and the Status of International Law in American Courts, 53 La. L. Rev. 1411, 1433 n.82 (1993). (37.) See, e.g., Dunlap v. State, 894 P.2d 134, 140 (Idaho Ct. App. 1995). (38.) I was going to use the word "sex" here, but then I began to worry about displaying such a term in a piece which might be seen by law students and other impressionable individuals. You see, I am from another era, for when I was a law review editor I would have blue-penciled that word--to say nothing of the F-word and the N-word--out of a manuscript without a second thought. Today, however, the F-word, e.g., Jennifer Lynn Orff, Demanding Jusfice Without Truth: The Difficulty of Postmodern Feminist Legal Theory, 28 Loy. L.A. L. Rev. 1197, 1225 (1995), and N-word, e.g., Linz Audain, Critical Cultural Law and Economics, The Culture of Deindividualization, the Paradox of Blackness, 70 Ind. L.J. 709, 749 (1995), are deemed comme ilfaut. See also Anthony V. Alfieri, Defending Racial Violence, 95 Colum. L. Rev. 1301, 1309 (1995) (managing to incorporate both the F-word and the N-word into the same sentence). Lest it be thought I have located a few deviants, I should point out that through the magic of Westlaw I have learned that there are 597 articles using the F-word and 643 using the N-word.
In any event, I have taken the safest course and used the word "gender" here. However, I checked in my dictionary to make sure of the meaning of that term and was told that it means sex. Webster's Third New International Dictionary 944 (1981). I have my doubts about that. Compare the following two sentences: (A) He walked into the singles' bar, sat down next to a person of the opposite gender, and then inquired, "How about sex?" (B) He walked into the singles' bar, sat down next to a person of the opposite sex, and then inquired, "How about gender?" (39.) Each academic unit in a public institution of higher education must file an annual report with the U.S. Department of Education and with the campus affirmative action office; the report is to be made on Form DE/895/sx, entitled "Faculty Broken Down by Sex." Rumor has it that the Michigan Law School Dean listed a "Jeri" Israel in an effort to make it appear that greater progress had been made in achieving a sexually diverse faculty.
I find that report believable, for I have engaged in such cozenage myself. Some years ago, when I was Associate Dean at Illinois, it was my responsibility to file Form DE/895/sx for our unit. When resubmission became necessary because my first report (a one-liner which simply said "None, but we have a few broken down by alcohol") was summarily rejected, I improved our status by listing my then colleague Marion Benfield as "Marian," thus earning us another tally on the distaff side. Imagine my horror when, just a few weeks later at a campus party, I observed our Dean, John Cribbet, introduce Marion to Joe Smith, our campus affirmative action officer. Minutes later, Smith sidled up to me and whispered, "She's not much of a looker, but she has a nice personality." (40.) After considerable research I have reached the conclusion that the name does exist but is quite rare. Just how rare, you ask? Well, let me go out on a limb and assert that Jerold apparently does not fall within the 20,000 most common names, but is to be found within the 35,000 most common. Compare Bruce Lansky, 35,000 Peus Baby Names 353 (1995) (listing Jerold) with Carol McD. Wallace, 20,001 Names for Baby (1992) (not listing Jerold). (41.) See, e.g., State v. Steele, 1994 WL 637185 (Wis. Ct. App. 1994) (claiming that Israel is actually Austin W. Scott, Jr., who met his untimely demise in the year 1966). (42.) See, e.g., K. Lianne Wallace, Note, Privileged Communications In Sexual Assault Cases: Rhode Island's Treatment of Clergyman-Parishioner and Psychotherapist-Patient Communications, 28 Suffolk U. L. Rev. 433, 440 n.40 (1994) (citing one of our coauthored works as being by LaFave et al.). My dictionary, at least, defines this term as meaning "and others," Webster's Third New International Dictionary supra note 38, at 779, and that must be correct, for it is just as I remember it from my 1946 high school Latin class. (43.) Only my acute verecundity prevents me from commenting on the extent to which that characterization is apt. (44.) United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); Austin v. Borel, 830 F.2d 1356, 1362 (5th Cir. 1987). (45.) Ex parse Hergott, 588 So. 2d 911, 917 (Ala. 1991); Tagala v. State, 812 P.2d 604, 611 (Alaska Ct. App. 1991); Clay v. State, 883 S.W.2d 822, 827 (Ark. 1994); People v. Hill, 839 P.2d 984, 994 (Cal. 1992); People v. Castro, 835 P.2d 561, 562 (Colo. Ct. App. 1992); State v. Johnson, 701 P.2d 239, 242 (Idaho Ct. App. 1985); People v. Newberry, 652 N.E.2d 288, 299 (Ill. 1995); Medlock v. State, 547 N.E.2d 884, 886 (Inc. Ct. App. 1989); Commonwealth v. White, 565 N.E.2d 1185, 1191 (Mass. 1991); Lundin v. State, 430 N.W.2d 675, 679 (Minn. Ct. App. 1988); Scroggins v. State, 859 S.W.2d 704, 709 (Mo. Ct. App. 1993); People v. Velasquez, 503 N.E.2d 481, 482 (N.Y. 1986); State v. Isleib, 343 S.E.2d 234, 238 (N.C. Ct. App. 1986); Houle v. State, 482 N.W.2d 24, 30 (N.D. 1992); Commonwealth v. Cooper, 567 A.2d 656, 659 (Pa. Super. Ct. 1989); State v. Van Sickle, 411 N.W.2d 665, 667 (S.D. 1987); Forte v. State, 759 S.W.2d 128, 132 (Text Crim. App. 1988); State v. Hammond, 829 P.2d 212, 215 (Wash. Ct. App. 1992). (46.) E.g., those who published the following: Edwin J. Butterfoss & Lisa J. Burkett, Extending the Guiding Lefthand of Counsel, 17 Hamline L. Rev. 307, 309 n.1 1 (1993); Lisa K. Coleman, Comment, Criminal Law -- California v. Acevedo: The Erosion of the Fourth Amendment Right to be Free From Unreasonable Searches, 22 Memphis ST. U. L. Rev. 831, 836 n.40 (1992); Peter A. Gaudioso, Comment, Batson's Incomplete Legacy: Gender Discrimination and the Peremptory Challenge, 3 Seton Hall Constl. L.J. 475, 476 n.6 (1993); Teresa K. LaMaster, Note, Prejudice and Retroactivity: Limits on Habeas Relief in Lockhart v. Fretwell, 53 Md. L. Rev. 244, 250 n.56 (1994); Stephen E. Hall, A Balancing Approach to the Constitutionality of Drug Courier Profiles, 1993 U. Ill. L. Rev. 1007, 1012 n.55. Of these, perhaps the last (my own school) is most understandable! (47.) On the Kamisar, LaFave & Israel Modern Criminal Procedure casebook, I am viewed by my colleagues as the token Gentile, who occasionally can make a unique contribution, as when I once pointed out to them a place in the galley proofs where they had mistakenly referred to the Chief Justice as "Berger" rather than "Burger." Yet I know what a schlemiel is (though I have never been able to figure out the other words which my two collaborators have directed toward me over the years, including but not limited to: chazzer, chutzpenik, ganek, k'vatsh, oysvurf, pustunpasnik, putz, schlepp, schmuck, schlump, shvister, szhlok, traifnyak, yatebedam, yold, and zhulik).
The reason I know the meaning of "schlemiel" is that I once heard a wonderful story involving such a person: Once upon a time there was this guy (let's call him Jerry) who was fixing himself some breakfast. He toasted a slice of bread, then put marmalade on the toast, and then raised the slice toward his mouth, only to have it slip from his hand and fall to the floor, marmalade side down. Jerry was perplexed because he could recall several similar previous instances and remembered that every time, without exception, the marmalade side hit the floor. Jerry then consulted a rabbi, who dismissed him with an admonition to be more careful. But the same thing happened several more times (again, always marmalade side down), so Jerry went to the rabbi once more and pleaded for help. The rabbi agreed to appear for breakfast the next morning to see if the same thing would happen, and, mirabile dictu, it did. "Ah, Jerry, now I get it," the rabbi wisely explained, "you're putting the marmalade on the wrong side."
A TRIBUTE TO JERRY ISRAEL: A FRIEND WITH A MESSY OFFICE
When the Board of Editors asked me whether I would be willing to write a few words for an issue of the Michigan Law Review that would honor Jerry Israel, I was certain of two things. First, I was delighted to be offered the opportunity to heap praise upon a friend who has had an extraordinary influence upon the law: as a careful and meticulous scholar; a sympathetic, but rigorous teacher; and as a generous colleague who has helped and inspired many younger academics, among whom I am happy to be counted. Second, I knew that I would be at a serious disadvantage in chronicling and celebrating aspects of Jerry's long and successful career. Jerry and I met only in 1992, when I arrived at Michigan to begin my teaching career. I was confident that colleagues like Yale Kamisar and Wayne LaFave -- who after all, began their immensely productive collaboration with Jerry sometime around 1969(1) -- would have countless stories to tell (of deadlines, Supreme Court citations, and perhaps even one or two sporting events) that reached back into decades about which I could claim no expertise.
So I accepted the invitation, determining that I would write about that aspect of Jerry and Jerry's contribution to Michigan that I personally know best: the friendship and generosity that he has extended to younger colleagues in the field of criminal law and procedure, and the ways in which his thoughtful, pragmatic analysis of legal problems, illuminated by the considerable erudition that he brings to bear on criminal justice issues, has helped those of us just starting out in our academic careers. Jerry has packed up his Ann Arbor office for relocation to a sunnier place that he has taken to frequenting in recent years -- though, happily, with the promise to return, I'm told, several months a year. Anyway, I thought I'd begin with that office -- to which many at Michigan rather constantly repaired, seeking illumination in matters of criminal law and procedure.
Jerry's office at Michigan could only be described as comfortably cluttered. Books were stacked upon books; papers were strewn over an antique desk -- the outline of which was sometimes barely discernible amidst the piles of criminal justice reporters, law reviews, and bulging manila folders that surrounded it. The bookshelves were not neatly organized. Annual copies of the Sourcebook of Criminal Justice Statistics, well-thumbed, battled for space next to obscure reports on the administration of juvenile justice in Arkansas. There were boxes upon boxes -- on the floor, and sometimes on the surprisingly comfortable chair in which visitors were invited to sit down. Titles -- The Perjury Routine,(3) Lawyers at Lineups,(4) Federal Habeas Corpus: A Study in Massachusetts(5) -- peeked out from under copies of that somewhat obscure twice monthly, Law Enforcement News. The color scheme, built around a worn green carpet and not-so-recently painted green walls, was eerily reminiscent of Hollywood's depiction of police interrogation rooms. But the view -- looking through the leaden glass of Michigan's stone casement windows, out over the Law School quadrangle -- was phenomenal.
There were no porcelains in this office. No elegant Art Nouveau lamps to grace the space where Jerry sat, crammed in amongst back copies of Crime and Delinquency. There was a photograph of Potter Stewart, autographed to Jerry, hanging on one back wall. Sentimentally, there were two photos of the Michigan faculty (not often examined by said faculty, thankfully, since close scrutiny usually provoked embarrassed chuckles -- for hair lost, sideburns worn, and leisure suits that did not survive the test of time). There was a photo, I think, of Jerry holding a grandson.
When I arrived at Michigan in the summer of 1992 to teach criminal procedure, I visited that office almost immediately. Jerry, after all, was now my senior colleague. I was going to be teaching a course that he had taught for many years: the Criminal Procedure Survey, that purported, in one semester, to work through the Fourth, Fifth, and Sixth Amendments, while also introducing the student to the entire criminal adjudicative process -- from bail to jail, as the Michigan criminal procedure crowd liked to refer to it. I was new to academic life, new to the Midwest, and new to teaching, but working under the influence of that vaunted self-assurance that former prosecutors (and their criminal defense counterparts) can sometimes summon up, I didn't think that I was new to criminal procedure.
Of course, I hadn't yet encountered Jerry.
I remember that first meeting pretty clearly. The door to Jerry's office was open. Jerry was sitting behind his desk, holding a Tab. He was wearing shorts and a baseball cap. (I won't mention what I was wearing but, in fairness, it was my first day on the job, and so I can scarcely be faulted for failing to predict Michigan's somewhat relaxed summer dress code.) Jerry welcomed me to the faculty, and I sat down in that surprisingly comfortable chair. We talked about many things: from prosecutorial discretion to sentencing guidelines, from wiretapping to interrogation. During the course of the conversation, Jerry would periodically start rummaging around in boxes, or among the books and pamphlets on various shelves, each time emerging triumphantly with relevant material: statistics on how promptly defendants are brought to trial in the federal system and in cities across the United States; a study on the rates at which prosecutors in six or seven major urban offices decline to proceed with cases after arrest; a chart depicting the circumstances in which bail is usually afforded or denied. At the end of an hour, I had accumulated a pile of materials several inches high -- much of which I still use in teaching, and all of which added to my understanding of the ways in which the criminal justice system operates. I had also discovered, in a mere hour, just how little I really knew.
That conversation was the first of a series of memorable talks over the two years that I was at Michigan. You could say that my criminal procedure education really began in that office. Jerry's door was always open. Jerry was also around -- a regular among the weekend crowd, and often in the office into the evening, when he was working to finish a manuscript. In my first year of teaching, my course drew its shape from Jerry's syllabus. I avoided error by dropping in to see Jerry on the way to class. Despite his many accomplishments -- the prodigious and influential scholarly work, the many accolades that he has received -- Jerry was accessible, and wholly without pretension in our many conversations. He listened -- not pointing out, even once, that some of my questions might be answered more efficiently merely by perusing his treatise. He was also himself inquisitive, and open to new arguments and new approaches to teaching subjects that he knew better than anyone. Perhaps Sam Gross, another of Jerry's colleagues who recently started teaching criminal procedure again, after spending several years teaching evidence, put it best: "There are two ways to learn to teach criminal procedure. One way is if your office is right across the hall from Jerry. The second, dramatically inferior way, is any other set of circumstances."
Jerry is known, among the criminal law and procedure crowd at Michigan, as the one with the encyclopedic knowledge of the field. You go to him for an answer. The question can be legal, or not so strictly legal; narrowly doctrinal or touching upon broad concerns with the institutional realities of disparate American criminal procedural systems, as they exist today. He is, simply put, a reamed man -- in the best and most wonderful sense of that word. Are you wondering how important the grand jury is in states across the country? Ask Jerry. Perplexed about double jeopardy? Give Jerry a call. One Ann Arbor evidence scholar, namely Richard Friedman, who is known to turn his attention, at times, to matters concerning the criminal justice system, recently described himself as wholly panic-stricken at the idea that Jerry will now be spending much of his time in Gainesville. I can only hope that with Jerry in Florida, the foot traffic to his office is replaced, rather rapidly, with a stream of letters, phone calls, and drafts. Otherwise, there will be many confused souls in Ann Arbor -- students, colleagues, judges, and lawyers -- who will be forced to suffer their confusion, having come to rely upon him over the years for the clarity and illumination that are his trademark.
As someone who practiced criminal law for several years before becoming an academic (and so experienced criminal law in its messy operational sense, so to speak), I think that what I appreciate most about Jerry, as an intellectual, is his terrific capacity to deal with complexity. This capacity manifests itself, I think, in two major ways.
First, Jerry doesn't treat legal abstractions as things that float freely. He tends to situate them in historical circumstances and existing forms of practice, and to take responsibility, as a scholar, for understanding the empirical world -- past or present -- in which power is invoked, legal decisions are made, and people's lives are affected.(6) I learned a tremendous amount from him about the ways in which federal prosecutions, with which I was professionally familiar, differ from typical state prosecutions; we talked, at length, about how these differences might be salient in thinking about procedural rules. The piles of material in Jerry's Michigan office -- studies, compilations, statistical abstracts -- were, to my mind, a testament to his desire to understand criminal procedural rules in light of the complex world in which rules exist: a world in which rules are faithfully (or not so faithfully) applied, artfully (or not so artfully) evaded, and always, in the process of application, partially (or wholly) changed from the ideal form in which their drafters contemplated them.
Second, more theoretically, Jerry doesn't reduce the criminal justice system to binary description -- where results are civil libertarian or oriented to crime control, where every decision can be understood, supposedly, in simple and politically conventional terms. In a thoughtful essay, Jerry has explicated fully nine, different, often conflicting, values that are extant in the criminal procedural materials and that can explain and illuminate portions.(7) I still begin my criminal procedure course by invoking those nine values, and by suggesting that at the theoretical level, as well as the concrete, complexity is the name of the game.
Jerry, who clerked for Justice Stewart from 1959 to 1961, wrote some eloquent words in describing Justice Stewart's judicial philosophy. I invoke them here because I believe that they are helpful in understanding how Jerry himself approaches the task of evaluating and explaining criminal law and procedure. The judge, Jerry said, confronts issues that arise in specific factual settings. These issues, he continued, commenting upon Justice Stewart's conception of the judicial role:
are far too complex to be resolved by the simple application of one or two
absolute values. The judge views an issue in the context of a specific factual
situation, and his resolution of the issue must take into account a multitude of
considerations presented by that context -- considerations too diverse and
complicated to be categorized or analyzed readily in terms of any set of
doctrinaire labels. His decisions cannot be based upon abstract generalities,
but must be the product of a careful evaluation of all relevant factors that
will produce an answer that is pragmatically and theoretically sound.(8)
As Jerry described Justice Stewart's judicial philosophy, the Justice's recognition of complexity and avoidance of quick and easy answers did not signal, in him, a lack of appreciation for guiding principles. Nor do similar habits of mind -- the embrace of complexity and the aversion to oversimplification -- signal in Jerry, the scholar, a distaste for overarching explanatory frameworks. Such frameworks are useful, when they are useful, and in these circumstances, they are freely employed. But in Jerry's work, theoretical frameworks are adopted only provisionally, where useful, and only after due consideration for the matters that they omit or discount. An abiding understanding of complexity, and a meticulous avoidance of over easy characterization -- these qualities are ever present in Jerry's painstaking and careful scholarship and account, in large measure, for the acclaim that it has won.
But let me return, at least briefly, to that cluttered office where Jerry did his work to mention one or two of the ways in which Jerry will be sorely missed, not only by those on the Michigan faculty who devote themselves to (or sometimes turn their interests in the direction of) criminal law and procedure, but also by those less lucky souls who have other scholarly concerns. To set the stage, it was sometimes, quite frankly, a noisy office. A Fourth Amendment decision would be announced. The New York Times would contain a provocative piece on the latest development in some grand jury investigation or in some celebrated criminal case. The noise would begin, almost invariably, with Yale, who would stride down the hall to Jerry's office -- case, newspaper article, or other relevant material in hand -- proclaiming loudly upon the merits or demerits of the matter. On the most memorable days, Jerry would disagree, in whole or in part, with Yale's evaluation of the state of the criminal justice universe, as revealed by the matter at hand. Debate would ensue.
These days were special because, in a moment, the calm of Michigan's Legal Research Building would be suddenly disturbed, and all would be drafted to explicate a matter of criminal law and procedure. Through Jerry's open door, the often animated discussion between Jerry and Yale would attract, first, other criminal law and procedure professors, and sometimes evidence scholars, who would slowly converge in Jerry's office, or outside it in the hall, to add their two cents to the controversy. Tort scholars, labor law specialists, and commercial law aficionados would eventually join the fray -- lured from their offices either by the pure intellectual fascination of criminal law and procedure, or by the realization that no quiet work was going to get done, until this matter was thoroughly explored. These were occasions of camaraderie, of friendship and debate. And the lively conversations that began in Jerry's office, around some matter of doctrine, some assessment of the criminal defense lawyer's tactics, would often echo, for days, in satellite discussions -- in the faculty lounge, the hallways, or over lunch, and often among faculty members who toiled in areas seemingly far removed from criminal law and procedure. The openness of these debates, their excitement and conviviality, were a product, to my mind, of the intellectually provocative, and at the same time down-to-earth and unpretentious scholars who usually set them off in the first place -- namely, Jerry and Yale.
Based on my conversations with several of Michigan's professors, in the course of preparing this tribute, Michigan and the scholars residing there will miss these lively debates. They will miss Jerry in many other ways as well. Certainly Jerry is well-known, among the Michigan faculty, not only as a resource to draw upon in learning about criminal law and procedure, but also as a repository of institutional memory -- as the person to be counted upon, to remember and to recount the lore that is an essential part of the ongoing practice of places like Michigan. Jerry's Ann Arbor office, crammed with information that he made readily accessible, could serve as an easy metaphor for this aspect of Jerry's contribution to institutional life. But less metaphorically, the Michigan faculty, I am told, will miss another, special quality that Jerry was understood to bring to Michigan, and to its collegial decision making: namely, Jerry's widely recognized care and concern for Michigan itself. This care and concern was apparent, as lawyers might express it, in the integrity that Jerry brought to the assessment of institutional issues, in Jerry's habits of good faith and fair dealing, and in the trust that was universally afforded to Jerry in matters of importance. Jerry's care and concern for Michigan represents a pure intangible, unlike his concrete contributions to scholarship, to academic debate, and to institutional memory. It is less easily compensated for with the telephone, fax, FedEx, and e-mail that can keep us abreast, via communications to Florida, with developments in forfeiture law. But it is certainly to be acknowledged as one of Jerry's substantial contributions to Michigan, as an institution.
Jerry's departure, then, is Michigan's loss, the University of Florida's certain and substantial gain. I was just lucky -- to begin my academic career at Michigan, when Jerry's office was open for business, and Jerry was available to help a new academic learn her trade. I predict that Jerry's office at Florida will soon be cluttered, if it isn't already. And I must confess, too, that I've already called down there once, in a panic, right before a double jeopardy class. To you, Jerry, all the best as you pack up that Ann Arbor office, and unpack in Florida. I know that you will be sorely missed. And thanks again for all your help and for those memorable conversations.
Debra Ann Livingston, Associate Professor, Columbia University School of Law. A.B. 1980, Princeton; J.D. 1984, Harvard. -- 2d. (1.) See Livingston Hall, Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure: Cases, Comments & Questions (3d ed. 1969); see also Jerold H. Israel, Yale Kamisar & Wayne R. LaFave. Criminal Procedure and the Constitution 1988) (revised annually); Jerold H. Israel & Wayne R. LaFave, Criminal Procedure in a Nutshell: Constitutional Limitations (5th ed. 1993); Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure: Cases, Comments & Questions (8th ed. 1994); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure (2d ed. 1992) (text); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure (1984) (three-volume treatise). (3.) Irving Younger, The Perjury Routine, 204 Nation 596 (1967). (4.) Frank T. Read, Lawyers at Lineups: Constitutional Necessity or Avoidable Extravagance?, 17 Ucla L. Rev. 339 (1969). (5.) David L. Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321 ( 1973). (6.) Consult, for example, Jerry's lucid history of selective incorporation, in which he carefully analyzes how the doctrine has been shaped by various concerns that have been afforded different weight in different periods of constitutional history, for reasons that he skillfully illuminates. See Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 249 (1982) (7.) See Jerold H. Israel, Cornerstones of the Judicial Process, Kan. J.L. & Pub Poly., Spring 1993, at 5. (8.) Jerold H. Israel, Potter Stewart, in 4 The Justices of the United States Supreme Court, 1789-1969: Their Lives and Major Opinions 2921, 2921 (Leon Friedman & Fred L. Israel eds., 1969).
A TRIBUTE TO PROFESSOR JEROLD ISRAEL--MY TEACHER, MY CO-AUTHOR, MY GOOD FRIEND
He who learns from his Fellow a single chapter, a single verse, a single
expression, or even a single letter must pay Him honor.
(Adapted from Pirke Avot, "Ethics of the Fathers")
Jerold Israel is my colleague, my good friend, and my teacher. He iS also my role model for each of those categories. I appreciate the Opportunity to honor him with this Tribute.
I have known Jerry since 1969 -- twenty-Seven years.(1) Jerry and I met when we were appointed by Michigan Governor William Milliken to a seven-person Committee to Study the Feasibility of the State Commission on Investigation. The Committee, chaired by Judge Philip Pratt, a wise and revered jurist,(2) gathered information by hearing testimony, by visiting states that had such commissions, and by debating the pros and cons of the commissions at length. It was an excellent vehicle to learn about the members of the Committee, and I learned to respect Jerry for his intellect, his ability to sort the wheat from the chaff, his wry sense of humor, and his up-beat personality.
That same year -- 1969 -- when I began teaching criminal law and procedure at the Wayne State University Law School, I quickly came to recognize that Jerry Israel was the "maven," or supreme expert, in the areas of criminal law and procedure. I also came to recognize that his casebook was the "bible" on criminal procedure.(3) During my ten years of teaching and, subsequently, during my sixteen years of practice, I would make many a phone call or visit to Jerry to discuss issues of criminal law and procedure. He was never aloof or otherwise in an "ivory tower." He was always available, patient, and right on target with his answer.
In 1979, when I left full-time law teaching to become the Chief Federal Defender in Detroit, I had just completed a set of materials for a seminar on white collar crime. I told Jerry about the materials and proposed co-teaching an evening seminar at the University of Michigan Law School. Jerry agreed, and he and I began sixteen years of coteaching -- my most intellectually stimulating and rewarding years.
When I came to Ann Arbor in September, 1979 for our first seminar, I was the Defender, and Jerry was the author of a recent, significant article challenging civil libertarian views that the Burger Court had destroyed the legacy of the Warren Court.(4) The smart money in Las Vegas placed me on the left, and Jerry on the right. The reality was that neither of us could be slotted on one side or the other in 1979, nor even sixteen years later.
While the seminar was titled White Collar Crime, the materials covered more than just the substantive crimes -- mail fraud and extortion -- and included procedural issues (grand jury practice), evidentiary issues (privileges), civil matters involving parallel administrative investigations, and sentencing of individuals and organizations. The great reward to me -- and to the students -- was learning from Jerry about all of these matters.(5)
It was appropriate that the University of Michigan designated Jerry to the Alene and Allen F. Smith Chair at the law school. I was fortunate to have had Allen Smith as my real property professor in my first year at law school. He was an outstanding professor and was beloved by his students. Jerry has followed in his tradition.
In all of the twenty-seven years that I have known Jerry, I have never heard him utter an angry word or even seen him turn his face into a mean scowl. Even when we would talk about sports, after the Michigan football team had been blown out the previous Saturday, Jerry would never utter a harsh word about any of the coaches or the players. And these days, that's being a real gentleman.
Jerry has opinions, principles and standards, and he doesn't compromise or hide them. But he has never taken the low road to make or score a point. That is why he is respected and admired by all who know him. My respect for Jerry also extends to his family. One of the benefits of working with Jerry has been spending time with him and his wife Tanya and attending the weddings of two of his children.
Jerry's move from Ann Arbor to Florida -- to an endowed chair at the University of Florida Law School at Gainesville -- hardly means he is ready for the rocker and the Centrum Silver. The best evidence that the mind does not atrophy after moving to Gainesville is Jerry's nextdoor neighbor at the Florida Law School, Professor Francis Allen. A retired Michigan Law Dean and Professor, Frank Allen, who is senior to Jerry by 15 years, has just authored an outstanding book: The Habits of Legality: Criminal Justice and the Rule of Law.
There remains much for Jerry to do in addition to teaching, updating his many casebooks and treatises, and cherishing his new role as a grandfather. My bold suggestion is that Jerry should consider authoring a law review article updating his earlier article which compared the impact of the Burger Court on the legacy of the Warren Court. I, for one, look forward to an article by Jerry defining the Rehnquist Court's treatment of the major themes presented in the Warren Court's decisions.
Would Jerry reach the same conclusion with regard to the Rehnquist Court that he did in his previous article regarding the Burger Court?
The record indicates that the Burger Court has not undermined most of the
basic accomplishments of the Warren Court in protecting civil liberties;
neither has the Burger Court consistently ignored the interests of the
Would Jerry favor all, several, or none of the Rehnquist Court's decisions dealing with Warren Court precedent in the area of criminal procedure? His earlier revelation regarding the Burger Court stated:
I must acknowledge that I was not a staunch supporter of the Warren Court's criminal procedure decisions, although I also was not a severe critic. I also acknowledge that I favor several (but not all) of the Burger Court decisions that may be viewed as narrowing the reach of the Warren Court precedent.(7)
Would Jerry reach the same conclusion regarding Chief Justice Rehnquist's stewardship as he did with regard to Chief Justice Burger?
Civil libertarian critics too often assume that the positions of Chief Justice Burger will eventually be reflected in the rulings of the Burger Court. The Chief Justice today no more reflects the view of a majority of the Justices than did Chief Justice Warren in the period from 1958-1962.(8)
Perhaps Jerry could begin by analyzing Chief Justice Rehnquist's recent Eleventh Amendment opinion in Seminole Tribe of Florida v. Florida,(9) and then segue into an analysis of Chief Justice Rehnquist's Tenth Amendment criminal law opinion in United States v. Lopez.(10)
Whether or not Jerry accepts my invitation to author this article -- as a Judge it's easy to give suggestions/orders -- I know that he will continue to be the same fine, hard-working mensch in Florida. I will miss his company on Wednesday nights at Hutchins Hall. I hope to drop in on his Florida White Collar Crime Seminar at least once a semester to continue my learning process. I wish him well.
Paul D. Borman, Judge, U.S. District Court, 2astern District of Michigan; Adjunct Instructor, University of Michigan Law School. B.A. 1956, J.D. 1959, University of Michigan; LL.M. 1964, Yale. -- Ed.
(1.) Although I never had him for a Professor when I went through the University of Michigan Law School (1959-1962), I have heard some good stories from students who were there in the 1960s:
(1) how Jerry would take a football from under the lectern, toss it toward the students, and the one who caught it would then be on the firing line for Jerry's questions; (2) how Jerry told a student enrolled in his Saturday class -- who had other ideas on how to spend Saturday morning -- that if he missed one more class, he'd be dropped. That student, now a successful Washington lawyer, appreciates that Jerry cared enough about legal education to make that student stick around and learn the law. (3) how Jerry would zone in on a student who had clearly not prepared for class and ask enough questions to make that student realize that he did not want that uncomfortable experience to occur a second time.
My sources have requested anonymity. In the spirit of this literary season, the author has agreed to their requests. See Anonymous, Primary Colors (1996).
(2.) In 1969, Judge Pratt served as an Oakland County Circuit Judge. In 1970, he was appointed to the United States District Court for the Eastern District of Michigan, where he served as Chief Judge from 1986 until his untimely passing in 1989. (3.) Yale Kamisar, Wayne R. LaFave, & Jerold Israel, Modern Criminal Procedure. is now in itS 8th Edition. (4.) See Jerold Israel, Criminal Procedure, The Burger Court, and the Legacy of the Warren Court, 75 Mich. L. Rev. 1319 (1977). (5.) A second reward has been co-authoring a casebook with Jerry and Professor Ellen Podgor of Georgia State University: Jerold Israel, Ellen Podgor, & Paul Borman, White Collar Crime (1996). (6.) Israel, supra note 4, at 1324. (7.) Id. at 1324 n.9 (citations omitted). It would also be of interest to readers to receive, at least in a footnote, Jerry's views on the two contrary opinions by the same New York Federal District Judge, first suppressing evidence and castigating the "N.Y.P.D. Blue," and then admitting the evidence and apologizing to "the dedicated men and women in blue who patrol the streets of our great city." Don Van Natta Jr., Looking Inside a Judge's Mind, N.Y. Times, Apr. 7, 1996, at E3. Compare United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y.) (holding that investigatory stop was invalid and suppressing evidence found during that stop), vacated by 921 F. Supp. 211 (S.D.N.Y. 1996) with United States v. Bayless, 926 F. Supp. 405 (S.D.N.Y. 1996) (Baer, J. recusing himself). Jerry would probably disagree with the language in the initial decision suppressing evidence, inter alia, on the ground that it was reasonable for residents of Washington Heights to run from police because police officers were "corrupt, abusive, and violent."
In his law review article on the Burger Court, Jerry disagreed with Professor Anthony Amsterdam's assertion that "Trial Judges still more, and magistrates beyond belief, are functionally and psychologically allied with the police, their co-workers in the unending and scarifying work of bringing criminals to book." Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 792 (1970). Jerry noted that while
it is difficult to challenge such generalizations except with other
generalizations that are equally lacking in hard data to support them. . . .
The substantial rate of defense success on suppression motions in narcotics
cases, as documented in cities like Chicago and Washington, certainly
suggests that a fair portion of judges in many overburdened courts will
quickly dispose of matters against, as well as for, the police.
Israel, supra note 4, at 1421-22 n.433.
Does that District Judge's second opinion in Bayless, vacating his initial decision to suppress the evidence, give credence to Professor Amsterdam's hypothesis, or would Jerry just call that case an anomaly? (8.) Israel, supra note 4, at 1422 n.435 (citations omitted). (9.) 116 S. Ct. 1114 (1996). (10.) 115 S. Ct. 1624 (1995).
BOUQUETS FOR JERRY ISRAEL
As it turned out, of those asked to write a few words for an issue of the Michigan Law Review honoring Jerry Israel, I was the last to do so. And when I submitted my brief contribution to the Law Review I took the liberty of reading what the four others who paid tribute to Jerry had written. As a result, I feel like the fifth and last speaker at a banquet who listens to others say much of what he had planned to say.
As Wayne LaFave has pointed out, he, Jerry and I have collaborated on "a comprehensive, hernia-popping criminal procedure casebook" from its 1969 third edition to its 1994 eighth edition.(1) Moreover, in the course of a wonderful long-running collaboration,(2) we have co-authored more than twenty-five annual supplements to this casebook. I heartily agree with Wayne that the "unflappable Israel" has been "largely responsible for keeping this project afloat all these years."(3)
As Wayne has noted too, in the 1970s the three of us also served as Co-Reporters for the Uniform Rules of Criminal Procedure Project of the National Conference of Commissioners on Uniform State Laws. Again, I agree with Wayne that Jerry made unique contributions to this project and that the final product "reflected more than anything the depth and breadth of Jerry's understanding of the totality of the criminal justice system."(4)
Our former colleague, Debra Livingston, writes of "the friendship and generosity" that Jerry extended to younger colleagues in his field and how often "his thoughtful, pragmatic analysis of legal problems" illuminated various aspects of criminal procedure.(5) She also points out that among those professors who had not taught criminal law or criminal procedure for very long, Jerry was the one you went to for an answer.(6) I wonder whether Debra realizes how many times I went to Jerry for help and, although I have taught both criminal law and criminal procedure a lot longer than he has, how often Jerry clarified matters for me.
As Debra recalls, not infrequently Jerry and I would debate, sometimes loudly and fiercely, the merits or demerits of a newly decided case.(7) But she may not have noticed that I did so only in selected areas, such as confessions or search and seizure. I was not about to debate Jerry on such topics as double jeopardy, habeas corpus, sentencing guidelines, grand jury procedures, or white collar crime generally because he knew so much more about those subjects than I did.
What happened when a reporter phoned me about a criminal procedure problem Jerry knew much more about? Typically, I would reply: "Let me consult with my lawyer and get back to you."
Why didn't I tell reporters to call Jerry directly or ask Jerry to call back the reporter? When Wayne observes that he has never known Jerry to "leap in front of a TV camera, buttonhole a journalist, [or] send out a press release,"(8) he understates Jerry's coolness toward the press quite a bit. It took me a long time to accept this (because we are so different in this regard), but Jerry believes reporters should do their own homework, feels that too often they ask silly questions, dislikes talking to them, and usually flatly refuses to do so. However -- and I must say I find this astonishing -- even when I told him that I was trying to help out a reporter who had phoned me about a topic on which I felt shaky, Jerry, as Judge Borman described his dealings with him, was "always available, patient, and right on target with his answer."(9)
At times, I would feel so awkward serving as the intermediary between Jerry and a reporter that I literally would beg him to make himself available to the reporter as a personal favor to me. (Needless to say, nobody ever had to persuade me to make myself available to the press.)
Jerry has many outstanding qualities. He has great powers of analysis,(10) a tremendous capacity for hard work, a fabulous memory,(11) remarkable staying power (having produced more scholarship in the l990s than he did in the 1960s, when he first began writing about criminal law and procedure),(12) extraordinary insights about the legislative process (largely as a result of twenty years service on the Michigan Law Revision Commission), and a vast knowledge of criminal law and criminal procedure. He is, as Dean Jeffrey Lehman called him, "a role model of dedication to the scholarly craft"(13) or, as Professor Livingston described him, "simply put, a learned man -- in the best and most wonderful sense of that word."(14)
However, if I had to single out one quality of Jerry's, it would be his detachment, his openmindedness -- his integrity, if you want to call it that. More than any other person I know, Jerry is, to use Learned Hand's phrase, "a runner stripped for the race":
One ingredient [of wisdom] I think I do know: the wise man is the detached
man. . . . Our convictions, our outlook, the whole make-up of our thinking,
which we cannot help bringing to the decision of every question, is the
creature of our past; and into our past have been woven all sorts of
frustrated ambitions with their envies, and of hopes of preferment with
their corruptions, which, long since forgotten, still determine our
conclusions. A wise man is one exempt from the handicap of such a past; he is
a runner stripped for the race; he can weigh the conflicting factors of his
problem without always finding himself in one scale or the other.(15)
I think Jerry's openmindedness and sense of fair play led him to conduct his monumental study of the work of the Burger Court in the field of criminal procedure.(16) Jerry believed that just as some critics of the Court of the 1960s had "so overstated their case as to create a grossly inaccurate and unfair image of the Warren Court,"(17) various "liberal" critics of the Court of the 1970s had demonstrated that "gross exaggeration is a quality that can be shared by criticisms coming from both sides of the political spectrum."(18) After spelling out his thesis with painstaking care, Jerry concluded, a hundred pages later,(19) that --
neither the record of the [Burger] Court nor the tenor of its majority
opinions, taken as a whole, really supports a broad movement towards
restricting the protections afforded the accused. Many civil libertarians
might be well advised to examine the current Court's record carefully and
to push aside the fact that Richard Nixon appointed four members of the
current court. If they did so, they might find that their true interests lie
in dropping their wholesale attacks on the Burger Court and in attempting
instead to attract public attention to the various decisions of that Court
that stress the continuing need to safeguard the basic rights of the
As Professor Carol Steiker points out in this very issue of the Law Review, in the three decades since Richard Nixon ascended to the presidency "and then almost immediately had the opportunity to replace Chief Justice Earl Warren and three Associate Justices with appointees of his own," the Supreme Court's "pulse-takers" have offered "periodic updates on the fate of the Warren Court's criminal procedure `revolution' in the Burger and Rehnquist Courts."(21) I confess to having written three "periodic updates" myself.(22) And of the many "pulse-takers" who preceded me in the same enterprise, I found Jerry Israel's article the most comprehensive, the most measured, the most meticulous, and the most useful.(23)
Although I never specifically asked him, I suspect Jerry is in basic agreement with another point Learned Hand made. If I may quote Hand a second time, he once observed:
[Y]ou may not carry a sword beneath a scholar's gown, or lead flaming
causes from a cloister. . . . You cannot raise the standard against oppression,
or leap into the breach to relieve injustice, and still keep an open mind to
every disconcerting fact, or an open ear to the cold voice of doubt.(24)
Now Jerry is well aware that sometimes, at least, I do "carry a sword" beneath my gown, and every time he, Wayne, and I prepare a new edition of our casebook, Jerry -- how shall I put this -- looks into my gown or watches for that sword. The three of us always have operated on the premise that the one chiefly responsible for a particular chapter has the final say on what goes into the chapter and how the selected cases and extracts from the literature are edited. But that has not prevented Jerry from making his views known. Not infrequently the conversation would go something like this:
JHI: If this book gets much longer the seams will burst; we have to edit cases as tightly as possible.
YK: I realize that, Jerry.
JHI: Then why is Brennan's dissent [or Marshall's or Stevens's] in so-and-so case about two and a half times as long as the opinion of the Court?
YK: Well, it's a much better opinion than the one Burger [or Rehnquist] wrote for the Court.
JHI: What do you mean, much better?
YK: Well, it's more sound, more closely reasoned, more persuasive --
JHI: More persuasive to whom? Certainly not to a majority of the Supreme Court!
YK: You can't judge the quality of an opinion by how many votes it commands. After all, Justice Holmes's dissenting opinion in Abrams was joined by only one other justice.(25)
JHI: Wait a minute! Are you claiming that this underedited dissent we're talking about ranks with the Holmes dissent in Abrams?
YK: No, Jerry, I was only making the point --
JHI: Look, if and when this dissenting opinion you're so fond of becomes as famous as the Holmes dissent in Abrams -- by the way, I wouldn't hold my breath -- I shall encourage you to leave out the majority opinion entirely and just publish the dissent. In the meantime, however, I think as a general rule a dissenting opinion shouldn't be much longer, or any longer, than a majority opinion. Why don't you take another look at the dissent and see whether you can whittle it down some more? You can do it. I know how drastically you can edit an opinion -- when it's one by Burger or Rehnquist.
My editing of opinions was not the only thing that concerned Jerry. On occasion, he would also have something to say about a portion of a law review article I had decided to reprint in one of the chapters of the casebook assigned to me. Once again, Jerry was watching for that sword under my gown. I remember one incident very well. When preparing the 1974 Fourth Edition, I decided to run a long extract from an article by Professor Anthony Amsterdam, which stated in part:
To a mind-staggering extent -- to an extent that conservatives and liberals
alike who are not criminal trial lawyers simply cannot conceive -- the
entire system of criminal justice below the level of the Supreme
Court of the United States is solidly massed against the criminal suspect.
Only a few appellate judges can throw off the fetters of their middle
class backgrounds -- the dimly remembered, friendly face of the school
crossing guard, their fear of a crowd of "toughs," their attitudes engendered
as lawyers before their elevation to the bench, by years of service
as prosecutors or as private lawyers for honest, respectable business
clients -- and identify with the criminal suspect instead of with the
policeman or with the putative victim of the suspect's theft, mugging,
rape or murder. Trial judges still more, and magistrates beyond belief,
are functionally and psychologically allied with the police, their co-workers
in the unending and scarifying work of bringing criminals to book.(26)
Jerry was troubled by the passage. The conversation between us went something like this:
JHI: You know, I think Tony may have overstated the degree to which judges and magistrates are allied with the police.
YK: I thought he was right on the money.
JHI: Now why doesn't that surprise me? I didn't expect you to have any doubts, but I do. Serious ones. You know, it's hard to support the kind of generalizations Tony made with any hard data. But based on the courts and judges with which I'm familiar, I would have to disagree with him.
YK: I thought you had a high regard for Tony Amsterdam.
JHI: I do. I also have a high regard for Frank Allen, Joe Grano, Sandy Kadish, Frank Remington, and many others. But I wouldn't automatically accept, and don't accept without challenge, everything they say either.
YK: Look, we are not saying this; Tony Amsterdam is.
JHI: I don't think we can wash our hands of the matter that easily. We decided to reprint his article. If his views are questionable we ought to drop an editor's footnote saying so. Need I remind you that when you edited Chief Justice Burger's majority opinion in Harris v. New York,(27) you felt no compunction about dropping an editor's footnote questioning his reading of the record. Well, if we can challenge the Supreme Court's reading of the record in a given case, why can't we question the accuracy of a law review writer?
YK: Two law professors had written an article spelling out how the Harris Court had distorted the record in that case.(28) I simply dropped a footnote referring to that article. But I don't know of any article challenging Amsterdam's assertion that to a very large extent the criminal justice system is tilted against criminal suspects and criminal defendants.
JHI: If you came across such an article, would you use it?
YK: Yes, you convinced me of that.
JHI: Why don't you make another tour of the relevant literature. If you don't find anything on point now, I assure you that you will find something right on the nose before we do the next edition.
Three years later, Tony Amsterdam's views were challenged in print -- by Jerry Israel. So, when I quoted Amsterdam's views again about how the system is "solidly massed against the criminal suspect" and how judges and magistrates are "functionally and psychologically allied with the police,"(29) in the 1980 Fifth Edition, I was able to add the following editor's footnote:
But see Israel, Criminal Procedure, the Burger Court, and the
Legacy of the Warren Court, 75 Mich. L. Rev. 1319, 1422 fn. 433 (1977),
"find[ing] Professor Amsterdam's characterization deficient at several
First, a great many judges who can recall the friendly school
guard can also recall the tales of their sons, daughters, nephews,
and nieces about the unnecessary "hassle" they received from police
in the course of a traffic stop, a police visit to a noisy party, or even a
marijuana bust. The difficulties that police encountered in the 1960s
frequently altered the attitudes not only of teenagers and college
students, but of their parents as well. Skepticism as to police
efficiency, motive, etc., spread beyond those immediately involved
and obviously included a significant group of those "middle-class"
lawyers who are now on the bench. Second, the bench itself, at least
in the large cities, comes from a far more diversified background than
Amsterdam acknowledges. On the benches of the two primary trial
courts in the Detroit area -- Wayne County Circuit Court and Detroit
Recorder's Court -- we have not only former prosecutors and business
lawyers of middle-class backgrounds, but also former public defenders,
defense lawyers, and lawyers who grew up in the ghettos of the city.
Perhaps Detroit may be somewhat atypical, but defense lawyers in other large
cities have told me of similar diversity among the judges in their cities.
Third, insofar as these judges are functionally allied with anyone on a
day-to-day basis, it is not so much with the police as the prosecutor and the
public defender or defense "regulars" who appear in their courtrooms.
Obviously the pressure of high volume may lead some judges to want to "push
past" preliminary motions and "get to the case." Also, many may take the
position, perhaps correctly, that as between a defendant and a police
officer, the defendant is more likely to lie, having a greater interest in
the outcome. This is not the equivalent, however, of the almost inevitable
bias that Amsterdam suggests.(30)
I have quoted two observations by Learned Hand that I think
apply to Jerry Israel. But Holmes, too, said something that makes
me think of Jerry:
I learned in the regiment and in the [Harvard Class of 1861] the conclusion, at least, of what I think the best service that we can do for our country and for ourselves: To see so far as one may, and to feel, the great forces that are behind every detail . . . to hammer out as compact and solid a piece of work as one can, to try to make it first rate, and to leave it unadvertised.(31)
Trying hard to make a piece of work first rate and then leaving it unadvertised -- that's Jerry. In writing of Jerry's "unassuming and selfeffacing" nature, Wayne noted that "it would not surprise [him] in the least if [Jerry1 were to sabotage the office of the Michigan Law Review in order to prevent the issue dedicated to him from ever seeing the light of day."(32) I assume Wayne spoke in jest, but he came closer to the truth than I think he ever imagined. Dedicating this issue of the Law Review to Jerry Israel was done without his knowledge or cooperation and over his strong objection.
More than a year ago, after consulting with various faculty members and Law Review editors, I walked into Jerry's office and started talking about the "networks" senior professors develop over the years. I named a number of people who were in my network and asked Jerry who were in his.
"What's going on?" responded Jerry. "Are you trying to help put together a collection of law review tributes to mark my retirement from the U-M? No way. I don't want to be a part of that. I don't want to impose that burden on my friends. Besides, dedicating an issue to a retiring professor is something that's gone out of style."
Jerry's attitude was so foreign to me that at first I simply did not believe him. I was about to say, "Surely, you are not serious, Mr. Israel" when--his eyes blazing--he looked right at me and repeated grimly that he did not want to put this kind of burden on his friends. I decided he was serious.
So I lied. I told him we would do it his way--forget about dedicating an issue of the Law Review to him and simply run a story about his retirement from the law school in Law Quadrangle Notes (the law school alumni publication). This, Jerry insisted, was the appropriate thing to do and the only thing he wanted done.
Jerry Israel's views to the contrary notwithstanding, I hope and trust that dedicating an issue of the law review to professors like Jerry on occasions such as these is something that will never go out of style. And I hope even more that law professors like Jerry Israel will never go out of style.
(1.) Wayne R. LaFave, Random Thoughts by a Distant Collaborator, 94 Mich. L. Rev 2431, 2431 (1996). (2.) See generally Jerold H. Israel & Yale Kamisar, Wayne R. LaFave: Search & Seizure Commentator at Work and Play, 1993 U. Ill. L. Rev. 187 (tribute to Wayne LaFave). (3.) LaFave, supra note 1, at 2434. (4.) Id. at 2433. I believe, or at least I would like to believe, that the Uniform Rules of Criminal Procedure have significantly affected the thinking of judges and law professors, but as LaFave notes, it appears that no state has adopted any of the Uniform Rules' provisions. Id. at 2434 n.7. Perhaps Jerry had this in mind when he recently observed:
Criminal procedure is hardly touched by those interests that typically have led states to adopt uniform laws. Unlike fields such as commercial law, a lack of uniformity in the criminal procedures of the different states is not likely to be a deterrent to the free flow of goods, services, or persons between the states. Having criminal procedures that are different from those in other states is not likely to impede the full economic or social development of the individuals within a particular state. . . .
Not only is criminal procedure an unlikely candidate for state law uniformity; it is also a prime candidate for considerable individuality in the laws of each state. Criminal procedure is subject to many of the influences that push lawmakers in the direction of shaping the law to fit the special qualities of their local jurisdiction. Perhaps the most significant of those influences is the need to adjust procedures to fit the administrative environment in which the procedures will be applied.
Jerold Israel, Federal Criminal Procedure as a Model for the States, Annals Am. Acad. Pol. & Soc. Sci., Jan. 1996, at 130, 133-34. (5.) Debra Ann Livingston, A Tribute to Jerry Israel: A Friend with a Messy Office, 94 Mich. L. Rev. 2443, 2443 (1996). (6.) See id. at 2444. (7.) See id. at 2449. (8.) LaFave, supra note 1, at 2436. (9.) Paul D. Borman, A Tribute to Professor Jerold Israel -- My Teacher, My Co-Author, My Good Friend, 94 Mich. L. Rev. 2450, 2451 (1996). (10.) Perhaps the best example is Jerry's thoughtful and definitive discussion of the "selective incorporation" doctrine, under which, once the Court determines that a provision of the Bill of Rights protects a fundamental right, that provision is enforced against the states via the Fourteenth Amendment to the same extent it applies to the federal government. See Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253 (1982), well summarized in Livingston, supra note 5, at 2446 n.6. (11.) One incident comes readily to mind. When Claus von Bulow was convicted of attempting to kill his wife Martha ("Sunny") von Bulow (a conviction subsequently overturned on appeal), various reporters received conflicting advice as to whether, in addition to his conviction, Mr. von Bulow could also be prosecuted and convicted of murder in the event of the death of his wife (who remained in a permanently vegetative state). A television newscaster called me for an authoritative answer. I replied that I couldn't tell him off the top of my head, but I knew someone who could. I then rushed down the hall to ask Jerry whether he knew of any case on point. After looking out the window for about three seconds, Jerry said approximately the following:
There's a 1912 case called Diaz v. United States [, 223 U.S. 442 (1912)], a
case where the defendant was convicted of assault in the Philippine Islands
when his victim was still alive and then prosecuted for, and convicted of,
homicide when the injured person died as a result of the blows inflicted
during the assault. The U.S. Supreme Court upheld the conviction, but you have
to keep in mind that in that case the Court was construing a provision of a
Philippine statute against double jeopardy. The case does indicate that where,
despite the best efforts of law enforcement officials, a crime
is not completed or discovered until some time after the defendant has been
prosecuted for another crime growing out of the same transaction, the Double
Jeopardy Clause does not bar a prosecution for the second crime.
I asked Jerry how he happened to know about the Diaz case. He told me that Justice Brennan had mentioned the case in a footnote to a concurring opinion in Ashe v. Swenson [397 U.S. 436, 448 (1970)], and that, after coming across Diaz in Brennan's footnote, he had decided to read the case. As I turned to leave, I couldn't resist asking Jerry whether he remembered the number of the footnote in Brennan's opinion that contained the reference to Diaz. Jerry looked at the ceiling for a couple of seconds and replied: "I think it was footnote six." It turned out to be footnote seven. Nobody's perfect. (12.) In the 1990s Jerry published Cornerstones of the Judicial Process, Kan. J.L. & Pub. Poly., Spring 1993, at 5; Federal Criminal Procedure as a Model for the States, Annals Am. Acad. Pol. & Soc. Sci., Jan. 1996, at 130; a new 800-page casebook, White Collar Crime: Law and Practice (1996) (with Ellen S. Podgor and Paul D. Borman); two new editions of the 1700-page casebook he co-authors with Wayne LaFave and me, Modern Criminal Procedure: Cases, Comments and Questions (7th ed. 1990, 8th ed. 1994); and a new edition of the 1300-page handbook on criminal procedure he co-authors with Wayne, Criminal Procedure (2d ed. 1992). In addition, Jerry has written hundreds of pages of manuscript for portions of the forthcoming second edition of the multi-volume treatise, Criminal Procedure, that he co-authors with Wayne. The first edition of this treatise filled three volumes; the second is expected to fill five.
Although our 1994 casebook contains dozens of references to the inchoate second edition of the LaFave-Israel multi-volume treatise, and the 1992 LaFave-Israel hornbook purports to be an "abridgement" of the "forthcoming" second edition of the treatise, the treatise has yet to appear. See LaFave, supra note 1, at 2435 n.l5. Jerry has not explained to me why there has been a delay in publication, and I have not asked him for an explanation (nor would I do so without giving him the Miranda warnings). But an anonymous informant from the state of Illinois who has proved reliable many times in the past has told me the delay is due to Jerry's determination to treat every issue exhaustively. (13.) Jeffrey S. Lehman, Tribute to Jerry Israel, 94 Mich. L. Rev. 2429, 2430 (1996): (14.) Livingston, supra note 5, at 2446. (15.) Learned Hand, Mr. Justice Cardozo, in The Spirit of Liberty 98, 101 (Irving Dilliard ed., 1959). (16.) Jerold H. Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L. Rev. 1319 (1977). (17.) Id. at 1321. (18.) Id. at 1322. (19.) Along the way, Jerry seriously doubted that the Court would overrule Mapp or Miranda, but anticipated the Court's adoption of a so-called "good faith" exception to the search and seizure exclusionary rule (actually, as Jerry makes clear, a "reasonable mistake" exception). Jerry discussed proposals to adopt a "good faith" exception to the exclusionary rule at some length, see id. at 1408-15, and concluded that such an exception would "not seriously undermine the [exclusionary] rule's basic functions." Id. at 1410. Although Jerry's discussion was fair and balanced -- he was careful to present, and to respond to, various objections to a "good faith" modification of the exclusionary rule-he failed to convince either one of his frequent collaborators. See 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment [sections] 1.3, at 51-70 (3d ed. 1996); Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in The Burger Years 143, 16465 (Herman Schwartz ed., 1987). I hasten to add, however, that Jerry did impress a majority of the Supreme Court. When, seven years after Jerry had published his Legacy of the Warren Court article, a 6-3 majority of the Court adopted a "good faith" exception to the exclusionary rule, it quoted from Jerry's article with approval. See United States v. Leon, 468 U.S. 897, 920 n.20 (1984). (20.) Israel, supra note 16, at 1425 (footnote omitted). (21.) Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich. L. Rev. 2466, 2466 (1996). Many of these articles are listed id. at 2467 n.5. (22.) See Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective, 31 Tulsa L.J. 1 (1995); Kamisar, supra note 19; Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), the Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in The Burger Court: The Counter-Revolution That Wasn't 62 (Vincent Blasi ed., 1983). (23.) Of course, in the two decades since Jerry wrote his "Legacy of the Warren Court" article, many significant decisions have been handed down and many other "pulse-takers" have had their say. This has diminished the usefulness of Jerry's article (but not its high quality). I do not plan, in this lifetime, to deliver a fourth update on the state of health of the Warren Court's landmark criminal procedure decisions, but if I were to do so my starting point would be Professor Steiker's excellent article. See supra note 21. (24.) Learned Hand, On Receiving an Honorary Degree, in The Spirit of Liberty, supra note 15, at 102, 105.
With all deference to one of the great figures in American legal history, I must register a dissent. Of course a scholar who tackles a problem or a cluster of problems should start out with an open mind or "an open ear to the cold voice of doubt." But after studying for hundreds of hours such issues as the search and seizure exclusionary rule; the admissibility of confessions; the nature and scope of the right to assigned counsel; the death penalty; and the relationship, if any, between the crime rate and rules of evidence and procedure, and after thinking, writing and speaking about these issues for many years, isn't the scholar, at some point, likely to arrive at some pretty firm conclusions? If so, why shouldn't scholars explain to noncriminal law specialists in the legal profession and to members of the public generally how and why they reached the conclusions they did and how and why arguments to the contrary by law enforcement officials and politicians are unsound or misleading? If this makes the scholar an "advocate" or "counteradvocate," so be it.
I know the generalization I am about to make is hard to prove to everybody's satisfaction and is the kind of generalization that makes my friend and colleague Jerry Israel wince, but I believe that so many law enforcement officials, politicians, and media people have been proclaiming "crime crises" for so long and have expressed lack of confidence in the capacities of ordinary institutions and traditional procedures to deal with the current great emergency for so long, (see Yale Kamisar, The Rights of the Accused in a "Crime Crisis," in Postmortem: The O.J. Simpson Case 211 (Jeffrey Abramson ed., 1996); Yale Kamisar, When the Cops Were Not "Handcuffed," N.Y. Times Mag., Nov. 7, 1965, at 34, reprinted in Crime and Criminal Justice 46 (Donald R. Cressey ed., 1971)), that members of the academy who are knowledgeable about these matters almost have an obligation to enter the fray in order to respond to these charges. (25.) Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J., joined by Brandeis, J., dissenting). (26.) Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 792 (1970). (27.) 401 U.S. 222 (1971). Often called the first blow the surger Court struck Miranda, Harris held that statements preceded by defective warnings, and thus inadmissible to establish the prosecution's case-in-chief, could nevertheless be used to impeach the defendant's credibility if he chose to take the stand in his own defense. (28.) Alan M. Dershowitz & John Hart Ely, Comment -- Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198 (1971). (29.) See text accompanying supra note 26. (30.) Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern0 Criminal Procedure 205 n.b (5th ed. 1980). (31.) Oliver Wendell Holmes, The Class of '61, in 3 The Collected Works of Justice Holmes 504, 504 (Sheldon M. Novick ed., 1995). (32.) LaFave, supra note 1, at 2436.
Yale Kamisar, Clarence Darrow Distinguished University Professor of Law, University of Michigan. A.B. 1950, New York University; LL.B. 1954, Columbia; LL.D. 1978, John Jay College of Criminal Justice, CUNY; LL.D. 1979, University of Puget Sound. -- Ed. (32.) LaFave, supra note 1, at 2436.
Wayne R. LaFave, David C. Baum Professor of Law Emeritus and Center for Advanced Study Professor of Law Emeritus, University of Illinois. B.S. 1957, LL.B. 1959, S.J.D. 1965, University of Wisconsin. -- Ed.
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|Title Annotation:||includes five testimonials; Professor Jerold H. Israel's departure from the University of Michigan Law School|
|Author:||Lehman, Jeffrey S.; LaFave, Wayne R.; Livingston, Debra Ann; Borman, Paul D.; Kamisar, Yale|
|Publication:||Michigan Law Review|
|Date:||Aug 1, 1996|
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