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Stanford Report, October 29, 2003

Influential law scholar dies at 64


John Hart Ely, Stanford Law School's dean from 1982 to 1987, died Oct. 25 at home in Miami from cancer. He was 64.

A constitutional law scholar, Ely was the Richard A. Hausler Professor of Law at the University of Miami at the time of his death.

"He was the leading constitutional law expert of his time; a superb scholar and an even more superb individual," said former Stanford law Professor Tom Campbell, now dean of the Haas School of Business at the University of California-Berkeley.

Ely was the fourth most-often cited legal scholar in history. His 1980 book, Democracy and Distrust: A Theory of Judicial Review, discussed key problems of modern constitutional law and the role of the U.S. Supreme Court. According to the Journal of Legal Studies, it is the most frequently cited legal book published since 1978.

"Very few legal scholars get to write a classic book and watch a whole generation absorb it," Law School Dean Kathleen M. Sullivan said. "Democracy and Distrust is a masterpiece that combines elegant theory, raffish wit and a heartfelt search to get the role of the Supreme Court in American democracy just right."

Democracy and Distrust, which won an Order of the Coif prize, changed the way lawyers and scholars think about the Supreme Court's role. "Ely wrote that the Court, instead of serving as an independent source of moral and political values, should primarily concern itself with guaranteeing that our democracy remains open and fair," noted the Fall issue of Stanford Lawyer. The magazine featured Ely after Yale University awarded him an honorary doctorate this year. "Yours is the work that sets the standard for constitutional scholarship in our generation," the citation said. "With forceful argument and impeccable scholarship, you have given clarity to our concept of democracy, by exploring when and how the Supreme Court should exercise its extraordinary power to declare legislation unconstitutional."

Ely was born in New York City in 1938 and earned degrees from Princeton and Yale. As a law student in 1962, Ely worked as a summer clerk at the Washington, D.C., firm of Arnold, Fortas and Porter, where he helped Abe Fortas win Gideon v. Wainwright, the Supreme Court case that established a poor person's constitutional right to a lawyer. After graduating, Ely served on the Warren Commission, which investigated the assassination of President John F. Kennedy. He went on to clerk for Chief Justice Earl Warren.

In 1966, Ely worked as a criminal defense lawyer at Defender Inc. in San Diego before joining the Yale Law School faculty in 1968. He taught at Harvard Law School and briefly served as general counsel of the U.S. Department of Transportation.

Law Professor Miguel Mendez said it was a coup for Stanford to attract someone of Ely's professional stature to be the Law School's ninth dean. "John had high standards for Stanford," Mendez said. "He wanted to make sure we attracted the best scholars and students. He was also concerned about the diversity of students and faculty."

Paul Brest, a professor emeritus of law and the school's 10th dean, added that Ely was widely respected. "Having a dean of the quality he was helped the institution," he said.

Ely's tenure was marked by the introduction of loan repayment assistance programs for students choosing public interest employment, the development of clinical learning programs and the hiring of a new generation of faculty.

During the Ford administration, Ely served in the U.S. Army Military Police Corps.

He also wrote War and Responsibility in 1993 and On Constitutional Ground in 1996.

When the U.S. bombing of Yugoslavia started in 1999, Campbell -- then a U.S. congressman -- said Ely personally helped him in litigation to try to ensure that America would never again go to war without the approval of Congress. Campbell said he relied on War and Responsibility to bolster his arguments. "In addition to his scholarship, he was a patriot," Campbell said.

Ely is survived by his wife, Gisela Cardonne Ely, a state judge in Miami; two sons, Robert of New York City and John of Washington; and two grandchildren.


John Hart Ely