It was a sad week for the University of Michigan School of Law and the greater academic and legal world this week. We lost both Yale Kamisar and Terrance Sandalow. Both were giants in the fields of legal education, academic research and writing and, perhaps most importantly, teachers. I was privileged to have taken courses from both when I was in law school.
About the only way I know to describe Yale Kamisar is that he was force of nature. He was also, according to his New York Times (NYT) obituary, the father of Miranda rights and Miranda warnings. He “began to wrestle with the issues of criminal procedure — the rules under which the legal system adjudicates crimes — in the late 1950s, as a newly hired faculty member at the University of Minnesota. At the time, the subject was considered largely a sideshow to the big questions in constitutional law.” Kamisar moved front and center into the debate on criminal procedural rights. According to Nancy J. King, who teaches criminal procedure at Vanderbilt University, “He made the subject matter. He created constitutional criminal procedure as a topic that demanded its own text, and as a field of study.”
The first of his writings to be cited by the US Supreme Court was in the 1963 decision in Gideon v. Wainwright, which established the right to legal counsel in criminal cases. The Court’s opinion was authored “by Justice Hugo Black, it was the first of more than 30 decisions over the next half-century to cite Professor Kamisar’s work.” Orin Kerr, a law professor at the University of California, Berkeley, said, “He was writing articles about what the court should do and what the court had done recently, and they were in turn citing him.”
However, his “greatest impact on the court came in 1966, in its decision in Miranda. The year before, he had published a lengthy essay in which he compared the American legal system to a gatehouse and a mansion — the gatehouse being the police interrogation room and the mansion being the courtroom…In a decision written by Chief Justice Warren and citing Professor Kamisar’s work, it ruled in 1966 that criminal defendants had to be informed of their rights before being questioned, especially their rights to remain silent and to legal counsel.” Time Magazine wrote about him, “at 37, Kamisar has already produced a torrent of speeches and endless writings that easily make him the most overpowering criminal-law scholar in the U.S.”
As a professor, he could be terrifying in class. Do not be the person he called on who was unprepared. If you wanted to challenge him, he certainly encouraged an open dialogue, but you better come prepared. He was as fine an example of the Socratic method as I ever experienced. Kara Brockmeyer, former head of the FCPA Unit at the Securities and Exchange Commission (SEC) and now partner at Debevoise & Plimpton LLP, said, “he was one of those professors you never forget. Scary, brilliant, impatient, and incredibly passionate about criminal law.” Classmate Mike Flanagan told me, “Professor Kamisar was a remarkably impressive person and an outstanding professor. He not only taught us “the law” and “how to think like lawyers”, he challenged us to understand the underpinnings of criminal law and criminal procedure, including the reforms that he played a key role in bringing about. I always knew that I was not cut out to be a criminal lawyer, but Professor Kamisar’s courses were my favorite courses in law school.”
Terrance Sandalow was the Dean of the Law School when I attended UMLaw. In his obituary in the Ann Arbor News, it noted he was “ member of the University of Michigan Law School faculty for 34 years, serving as dean from 1978 to 1987.” He was very different from Kamisar, yet that was one of the great strengths of UMLaw, the richness in diversity of its academic talent. Sandalow had clerked for Justice Potter Stewart before beginning his professional career. Like Kamisar, he began his academic career at the University of Minnesota Law School before joining the faculty of the UMLaw. “He was a strong supporter of the constitutionality of affirmative action, authoring the brief submitted to the Supreme Court in the 1975 Bakke case on behalf of the American Association of University Professors.”
He was also academically rigorous, not focusing so much on the result but on the rigor of your opinions and research. That led him to testify for Robert Bork in his now famous Senate hearing in 1987. “Sandalow said that, while he disagreed with Bork on many issues, Bork was unquestionably qualified to serve and a refusal to confirm would further politicize the Court. Thirteen years later, Sandalow was fiercely critical of the Supreme Court’s ruling in Bush v. Gore, which halted Florida’s recount following the 2000 Presidential election. He called the ruling incomprehensible given the Court’s previous deference to states on election matters.”
In the classroom Dean Sandalow was a very different style of teacher from Professor Kamisar. He was much more cerebral. I took a 14th amendment class from him, and we would often go down some deep legal and philosophical rabbit holes in reviewing this important Constitutional amendment. Yet it was equally intellectually satisfying as Professor Kamisar, even without the verbal fireworks. In fact, you really have not experienced a thoroughly free flowing exploration of Con Law until you heard Dean Sandalow lead a discussion of the Slaughter-House cases from the 1870’s presaging the Constitutional revolution in the 20thCentury. I still recall them to this day for that reason.
The UMLaw family lost two great members this week. I am sure they are actively debating issues in that great Moot Courtroom in the sky. Go Blue.
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