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Stanford Report, May 21, 2003

Wartime pushes lawyers aside, Fisher tells Law School graduates

BY ANN DETHLEFSEN

As he watched the events of Sept. 11, 2001, unfold, law Professor George Fisher recalls planning for the following day's evidence law class.

"[I was] wondering how I could persuade you that evidence law remained somehow relevant even as our world came undone," he said in an address Sunday at the Law School's 2003 graduation ceremony. "As we fought through that [Sept. 12] class, I worried that lawyers and law could never again claim their central role in guiding and shaping culture."

Jonathan Eric Rackoff received warm wishes upon his graduation from Stanford Law School Sunday. The graduation ceremony, held in Memorial Auditorium, included an address by law Professor George Fisher. Photo: VISUAL ART SERVICES

Speaking to the Law School's graduates and about 1,700 family and friends in Memorial Auditorium, Fisher said that in the 20 months since the 9/11 tragedies, "the worst of my fears that morning have come true. We have passed through an era in which law and lawyers have withdrawn to the sidelines, and our military and security institutions have taken center field. This has been an era of war, and in times of war, as Cicero said, the laws fall silent."

Citing the numerous ways in which "in our quest for physical security, we have changed or evaded the law and have pushed lawyers to one side," Fisher said he was not trying "to indict our leaders" but rather "to lament our loss. Over the last 20 months, we all have learned that the prominence of lawyers in our culture and the primacy of law may be luxuries of physical security and casualties of war. We have learned that when our very survival is at stake, the legal terms of that survival may become negotiable."

Fisher nevertheless named areas where the law and lawyers have continued to achieve change: in challenges to racial profiling, discriminatory lending practices, executions of the mentally retarded, corporate fraud and security measures implemented in the wake of the 9/11 attacks. He expressed in particular the hope that, in a case heard recently by the Supreme Court of the United States, the court would rule that a state cannot lawfully criminalize private homosexual acts and thereby correct what he considers a mistake made in the decision in Bowers v. Hardwick.

"The rule of law cannot cure all the world's evils. But it can cure some," Fisher concluded. "When you leave here today, I hope you will go out there resolved to cure those evils that are within the law's power to cure. We will be here, waiting while the world decides whether the rule of law retakes its place as the arbiter of social progress. You will be out there, working to regain the day in which law, and not fear -- law, and not force -- will shape our world."

The graduation ceremony took place a month before the university's general commencement because the school follows a semester system and law classes end in May. Among those participating in the ceremony were 188 candidates for the degree of Doctor of Jurisprudence (JD); 18 for the degree of LLM, with 9 focusing in the area of Corporate Governance & Practice and 9 in Law, Science & Technology; 14 for the degree of Master of the Science of Law (JSM); and 5 for the degree of Doctor of the Science of Law (JSD). Pending exam scoring and grade recording, the graduates will receive their degrees this summer.

Kathleen M. Sullivan, Dean and Richard E. Lang Professor of Law and Stanley Morrison Professor of Law, presided over the ceremony. She reminded the graduates why Stanford was the right choice for them. "We have tried to teach you in ways that are demanding but unpretentious, to be a law school that has warm weather, but no hot air. We have tried to inspire you to welcome the challenges of law, to revel in its difficulty, to love its complexity and its nuance and depth."

Alluding to the recent economic downturn and the tragedies of 9/11, she told the class: "You know better than those who graduated before you how important the balance between public and private values is. You know the government is full, not just of red tape but blue-, white-, and green-clad heroes whose sense of public duty saves lives even as it costs them theirs. You know that markets need regulators and accountants need standards lest irrational exuberance be revealed as resting on foundations fit only for the paper shredder. You know that the privacy we enjoy in a newly digitized world interacts with concerns about national security. And you know, better than many law school graduates before you, how greatly the world needs lawyers -- that group of people whose job is to anticipate, prevent and manage conflict."

Fisher, who was chosen to speak by a vote of the graduating class, also was presented with the 2003 John Bingham Hurlbut Award for Excellence in Teaching. He also received the teaching award in 1999 and, according to the competition rules, only this year became eligible to be considered again for it.

A former prosecutor and assistant attorney general (civil rights division) in Massachusetts, Fisher runs the school's Criminal Prosecution Clinic, a program that enables students to gain hands-on experience with criminal cases through the Santa Clara County District Attorney's Office. In 2002, Fisher produced an innovative multimedia casebook on evidence, a text that is in use in law classrooms across the country. The Stanford University Press this year published his newest work, Plea Bargaining's Triumph: A History of Plea Bargaining in America. Fisher was named the Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research this spring.

Associate Dean for Student Affairs Catherine Glaze, cited for her "tireless devotion to the student body," was presented with this year's staff appreciation award.