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Stanford Report, August 7, 2002

Leading constitutional law scholar Gerald Gunther dead at 75

Gerald Gunther, a constitutional law scholar whose casebook on the subject is the bible for thousands of law students, and who was mentioned as a Supreme Court candidate during the 1970s and 1980s, died at his home on campus on July 30. He was 75.

The cause of death was lung cancer, said his son Andrew Gunther.

Gunther, the William Nelson Cromwell Professor of Law, Emeritus, published dozens of essays and books on legal matters, most notably a biography, Learned Hand: The Judge and the Man (Alfred A. Knopf Inc., 1994).

Gunther served as a mentor to some of the leading lawyers and jurists of his time, including Supreme Court Justice Ruth Bader Ginsburg and Stanford Law School Dean Kathleen M. Sullivan.

"He was a beloved teacher to four decades of law students, an astute and brilliant analyst of the law, a scholar of impeccable intellectual integrity, and a man of unbounded generosity and unstinting kindness to all those who worked with him," said Sullivan.

Friends and colleagues also remembered him as a true intellectual who not only could speak authoritatively about law and art but also could comment on the Max Schmeling-Joe Louis boxing match and translate Winnie-the-Pooh into German.

"His subtlety, situation sense, learning and professionalism were unsurpassed by any other constitutional law scholar," said former university President Gerhard Casper, a constitutional law scholar. "None was taken more seriously by Supreme Court justices and his colleagues. As my closest friend at Stanford, Gerry was also my teacher throughout my career. Nobody will be able to take his place."

Constitutional scholar Gerald Gunther addressed an impromptu First Amendment class on March 7, 1995. The class was organized to discuss a court decision that said Stanford's policy against discriminatory harassment via speech on campus was unconstitutional. File photo: L.A. Cicero

Perhaps Gunther's greatest contribution was the casebook, Constitutional Law, which, beginning in the 1960s, became the most widely used constitutional law text in American law schools, greatly shaping the field of constitutional law. "It set the gold standard for casebooks to follow," noted Sullivan, who became co-author of the book's 13th edition, published in 1997. The late Supreme Court Justice Lewis F. Powell Jr. wrote in 1994 that the casebook was "the leading publication in the field, from which a generation of American lawyers have learned constitutional law."

Born in 1927 in Usingen im Taunus, Germany, Gunther emigrated as a young boy to the United States with his family in 1938, just ahead of Nazi Germany's invasion of Czechoslovakia. He settled and grew up in New York City. The idea of becoming a lawyer came to Gunther only gradually -- for three centuries his family had worked as butchers and he thought of lawyers as "guys who were chasing ambulances and doing mostly very dull things, like tax returns," he told Stanford Lawyer in 1974.

After graduating from Brooklyn College, Gunther earned a master's degree in public law and government from Columbia University. During that period, he began using law school casebooks to teach political science and constitutional law courses at Brooklyn and City Colleges. Confronted with unfamiliar legal terms, Gunther decided he should attend law school so that the cases "would not be so mysterious to me," he told Stanford Lawyer. "I really viewed law school as one thinks of castor oil: as an unpleasant experience that would be good for me." Gunther went on to graduate from Harvard Law School magna cum laude.

Gunther once described himself as "an insecure young fellow, a German Jewish refugee who had spent his teenage years in a poor section of Brooklyn." But those attributes didn't keep him from obtaining the most prestigious early legal positions, including serving as law clerk to Judge Learned Hand on the U.S. Court of Appeals for the Second Circuit and Chief Justice Earl Warren on the U.S. Supreme Court.

From 1956 to 1962, Gunther was a faculty member at Columbia University School of Law. He was recruited to Stanford's then little-known Law School in a faculty hiring move remembered on campus as "the great raid on Columbia," a coup that helped the school lift itself out of relative obscurity. Gunther spent his next four decades teaching at Stanford, with visiting stints at Harvard Law School, Illinois Institute of Technology Chicago-Kent College of Law, Brooklyn Law School, Northwestern School of Law and Arizona State University College of Law.

During the campus unrest of the late 1960s at Stanford, Gunther became a member of a committee on campus disruption appointed by the Faculty Senate. "He was that rare faculty statesman, the salt of the earth," recalled former President Richard Lyman, who was university provost at the time. "It was great to have a leading constitutional lawyer [on the committee]. He was a wise head looked to by others for guidance."

According to an article published in a supplement to the Stanford Law Journal in May 1995, Gunther made a pact with the Santa Clara County sheriff to gain control over police incursions on campus. If and when the deputies were called in to clear out an occupied building, they would go in only two at a time, and always with a faculty escort. Despite two violent years, police largely stayed off campus. Even when Encina Hall was occupied in 1970, the Santa Clara deputies stuck to the arrangement, avoiding a bloody brawl, Gunther told the Journal.

During that period, Gunther concluded that Kenneth Pitzer, then the university's president, was unable to cope with the unrest. "He tried to avoid tough issues as best he could," Gunther told the Journal. In 1970, he teamed up with Law Professors William Baxter and Thomas Ehrlich to write a detailed critique of Pitzer, whom they viewed as weak and indecisive. Ehrlich said the information contained in the critique was presented to the Board of Trustees. Pitzer left the university soon afterward.

Ehrlich, who served as Law School dean from 1971 to 1976, recalled Gunther as "rare and wonderful. He not only set the very highest standards of scholarship but he lived by those standards. As a faculty colleague, he made us all stand a little taller. He brought out the best, in reasoned reflection, in his colleagues and students."

On campus, Gunther's classes were extremely popular and highly rated, Sullivan said, and his students noted the personal touch he gave their supervision. "Gerry was gracious enough to spend hours talking to me in his office on any number of subjects, and I would always leave shaking my head in awe," said Duane Quaini, chairman of the law firm Sonnenschein Nath & Rosenthal and a 1970 Stanford Law School graduate.

In addition to his devotion to teaching, Gunther spent 20 years working on his biography of Judge Hand. The book garnered him the 1995 Erwin N. Griswold Triennial Prize from the Supreme Court Historical Society for "the best original work pertaining to the Supreme Court in the preceding three-year period" and the 1999 Triennial Award of the Order of the Coif (a legal honor society) for "written work evidencing creative legal talent of the highest order." The historian Arthur Schlesinger Jr. wrote, "Learned Hand was a great judge and a fascinating man, and Gerald Gunther has done him full justice in this rich, informed and absorbing book."

An expert on the U.S. Supreme Court and its jurisprudence, Gunther was periodically considered a leading candidate for appointment to that court. A 1987 poll in the New York Law Journal ranked Gunther as the "best qualified" choice for appointment to the Supreme Court, "ideology aside."

Gunther did not make it onto the Supreme Court, but Ruth Bader Ginsburg, one of his students from his time at Columbia, did. In July 1993, Gunther testified at her confirmation hearing before the Senate Judiciary Committee, noting that he had helped her get her first clerkship. "Although I don't claim a great track record in predicting anything -- football, soccer, elections, you name it -- I have taken special delight in the fact that my expectations about Ruth were entirely, and to me not surprisingly, fulfilled."

Gunther was a longtime leading advocate for a broad approach to freedom of speech, and an opponent of codes to curb bigoted expression on campus in the late 1980s and early 1990s. He once recalled the origins of his views, which occurred during his youth when he was faced with German schoolteachers who called him Judensau -- Jewish pig -- picking on him for being Jewish and bright.

Noting that he quickly learned to combat words with words, he told an interviewer in 1993 that he dedicated himself to "walking the sometimes difficult path of denouncing the bigots' hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law."

Gunther received five honorary degrees and several awards, including the Learned Hand Medal for Excellence in Federal Jurisprudence (1988), the Richard J. Maloney Prize for Distinguished Contributions to Legal Education (1990) and the Bernard Witkin Medal of the State Bar of California (1995).

Gunther became a professor emeritus in May 1995 but he remained active as a teacher. He is survived by his wife, Barbara, of Stanford; his brother, Herbert Gutenstein, of Riverdale, N.Y.; two sons, Daniel Gunther of San Francisco and Andrew Gunther of Santa Cruz, Calif.; and two grandchildren.

A community memorial service will be held in September.

Gerald Gunther