Law School Class Address

Speech as delivered by Guido Calabresi, U.S. Court of Appeals judge and former dean of Yale Law School, for the Law School Class Exercises Address.

Dear friends, it is a great, great joy and an honor to be here, to be part, again, of the Harvard Law School, this wonderful and great school. I came here first for a significant period of time almost 40 years ago. I spent a year visiting. Derek Bok was the dean. It was a great school then. It is a better school now. It was a great school then because it was the epitome of excellence. It is still the epitome of excellence, but now, under Dean Elena Kagan, it combines excellence with decency and humanity and love. And that is what we have seen today. We have seen it in all these speakers. Excellence, by itself, can be negative. Some of the worst people in history have been excellent. But excellence combined with decency and love and humanity is what can move the world. And that is why this school today is great. By the way, that little card that you were given and told to read again in a year, read again, as my classmates did, something similar, in 25 years, at your twenty-fifth reunion. And read it again, as my classmates will for our fiftieth reunion and see then, not just one year out, 25 years out, 50 years out, if you are living up to the ideals that brought you to this place and that move you as you leave this place. Do it. It's fun. And scary.

Okay, I'm not going to give a Commencement speech, I'm going to tell a couple of stories. And most of my stories are always about me. It just happens to be that way.

My first story has to do with when I was clerking for [U.S. Supreme Court] Justice [Hugo] Black. He wanted to write an opinion attacking...double jeopardy—a doctrine that allows a person to be acquitted in a state court and tried again in federal court or vice versa, to be tried twice. He thought that was terribly wrong, and he thought that that had never happened in the history of Anglo-American law until Prohibition [which] he thought was an abomination as he thought all prohibitions were. So he sent out this young law clerk to do research and to find out if it was in fact the case that this had never happened. He wanted to build the case... against this as a byproduct of, a bad product of, prohibition. And so he had this clerk who loved history, and so he sent me out to do research.

He also wanted to tweak Justice [Felix] Frankfurter, because Justice Frankfurter was always writing very long opinions citing history, while Black tended to take out what he had in his pocket—and all his clerks knew that was the Constitution of the United States—and simply read and say, "No man shall be twice put in jeopardy and leave it at that. And I went out and did some research and found that Saint Jerome said that God himself does not try people twice for the same offense, and that and this and that, and it worked, because in writing down the opinion, Frankfurter said it doesn't matter what Saint Jerome said, it doesn't matter what happened in thirteenth-century England, and of course Black smiled, because that was just what he wanted to do—to get Frankfurter to say, "It is the Constitution that matters."

Well I went out and found all these things and it seemed right; we had never done this before. And then I found a statute from Tudor times in England which seemed to allow exactly that: that somebody who was tried in the church courts and acquitted could be tried again in the king or queen's courts, and vice versa. So I said that to another clerk, who was something of a jerk... "We are not going to be able to say that this has never happened before." And this clerk said, "Well, why don't you say it anyway? And I said, "Well I can't. I found this." And he said, "Well, only some geek like you... And I said, "I found it, we can't do it." And he said, "Your judge won't like it." And I said, "Too bad."

So I went out to the judge. We called him "Judge." And I said, "Judge, we can't say it has never happened. We found this statute from Tudor times which says...He wasn't in the least bit fazed. He said, "Guy"—he always called me Guy because he couldn't pronounce Guido—"Guy, have you read the original of that statute?"

And I said "Judge?"

"I said, 'Have you read the original of that statute?'— a contemporary account of that statute?"

"No, I haven't found the original of the statute."

And he said, "Well, I'd be happy if you'd find the original of the statute."

And I said, "Judge, this is a statute from Tudor times in England. Where am I a going to find the original?"

And he said, "Well, I don't know. You're a lawyer, you can start lookin'. You might look up here; we have a very good library here in the Supreme Court—it was given by Elbridge Gerry, not the one of gerrymandering, his great-grandson. Maybe it's there. Just start lookin', 'cause I'd be happy if you found the original of that statute."

So—having done incredible research—I thought, I walked away swearing under my breath, saying "What is the matter with that old man? What does he want? He was a little bit older than I am now, but back then I thought he was ancient beyond belief. I call up the librarian of the Supreme Court and I say, "I'm sorry to ask you this but do you—I'm trying to find a statute from Tudor times and I'm trying to find the original and I need help in where we can find them." And she said,"Well actually, we might have something for you. We have a book of statute books, a book of statutes of England, which was used to teach Queen Mary, Bloody Mary, the half-sister of Elizabeth, the laws of England."

And I loved history. I said, "Wow! Bring it down." She brought it down, and there was this book of statutes which they told me had commentary on it by Queen Mary herself. I don't know if that was true, but if it was true, she was mighty smart—and has gotten a bad press over the years because a different side won out...And there was the statute. The original of the statute. It was in every respect identical to what I had found, but with one difference. This statute had a title. And when I saw the title, I laughed out loud, because I knew what the judge would do.

But I played it straight. I went up to the judge. I said, "Judge, I found the statute. Here it is. It is identical to what I told you." And I handed it to him. And of course, he saw the title. And the title was "An act dealing with the jurisdiction of the court of Star Chamber."

And what the judge said [was], "What we're gonna say, what we're gonna say is, 'The only time in the history of Anglo-American law that this was done was with respect to that nefarious court, the Star Chamber, which our framers knew and were rebelling against when they wrote our Constitution.' And its right there in those pages."

And I walked away saying, "How did that old man know? Did that old man know it? How could he have known when he sent me back to look at the original? What did he have in his mind? And of course, I realized he didn't know, but that he had a faith in law. A faith in the justice of law, so that if you worked hard enough, if you dug deep enough, if you really strained yourself, you would either find that things were different from the way they had seemed, or you would see where the law had gone wrong and you would find what would help to do justice today. He had that kind of faith in law.

And believe me, having that kind of faith in law is crucially important to what you will do, and to what I do today. I don't have as much faith as Hugo Black did in law, but it does make me work darn hard whenever I have a case where the law seems to come out wrong. And I think of that old man saying, "Have you read the original Guy? Have you gone back and looked?" That is my first story.

My second story is a graduation-day story and it happened when I was dean [of Yale Law School]. I had a student from South Africa who was a wonderful young man. He was a white kid from South Africa in the days of apartheid and he was marvelous. He was open to everybody, and he worked with the LL.M.'s who were of color from all over Africa. There were a number of our own African Americans; he was at the core of everything, he was a perfectly wonderful person. Very smart, loving, and great.

When his year came up, was ending, and graduation was coming, I said, "Are you going to be at graduation?" He said, "Of course." I said, "Is any of your family coming?" and he said, "Yes. My father and mother are coming from South Africa." And I said, "Oh , how wonderful," because I really wanted to meet the parents of a kid who, coming from South Africa, from privilege, at a time of apartheid, could be such an open and wonderful human being out of an environment that was so closed and destructive.

And so I asked, "What do your parents do?" And he said, "My mother is a housekeeper, she brought us all up and so on and my father is the head of the Afrikaaner Church."

And my knees sank, because the Afrikaanker Church was the pillar of apartheid, the basis on which the whole apartheid system stood. And I said to myself, "Oh my God, how can I deal with that?" Here comes this person who is going to, who is the epitome of something that is one of the most evil things that I can think of. And I remembered the fact that my father...in a position where he should have, refused to shake Mussolini's hand—and we fled [Italy]. And I said, "Am I going to greet this man? Am I going to shake his hand, as I would have to? What am I going to do about a person like that?"

And I argued with myself and I said, "He is the father of your student. I am the dean, and I have responsibilities as dean. What will I do?" And finally, I said, "Oh, all right, I'll shake his hand. I won't make conversation, but I won't be rude. I will shake his hand."

He and his wife arrived. She was a very interesting, pleasant person. And he arrived—and he looked like the very caricature of the apartheid South Africa. He looked a little bit like what Winston Churchill said about Sir Stafford Cripps: "There, but for the grace of God, goes God himself." Tall. Holier than thou in every way. And now again, I didn't know quite what I would do. But I shook his hand, and I was polite, and I talked to his wife. The boy graduated, I hugged him, and he went off to South Africa.

Two weeks later, that man, the father, announced not only that apartheid was wrong, but that apartheid was a fundamental sin. It was the beginning of the end, the destruction of apartheid in South Africa. And I looked at myself, and I said, "Guido, at least you shook his hand. But because of your prejudice, because of your lack of faith in human beings, you did not get to meet someone who was obviously a great and courageous person. You lost out, because you did not have faith. You prejudged."

The story has a sad ending. This man, the father of my friend, was murdered in South Africa by a white extremist because he blamed him for the destruction of apartheid. This man was playing with his grandchildren, who fortunately were not hurt—the children of my friend. I wrote a letter to my student in tears, telling him of what I had thought at the time and what I had done, and what I had not done, and how sorry I was. And my student wrote back a beautiful letter saying, "You know, one of the interesting things about my father was how he changed over time from a bigot to a man who became the most courageous opponent of something truly evil, and how we were all part of that growing up with him."

His story stands for faith in human beings. Faith in the capacity of human beings to change, to become, to be, and for your responsibility to have that faith, because if you have that faith, you will benefiit from it, and you will also help them to grow in that way.

Faith in law, as Hugo Black had when he said, "I want you to read the original." And faith in human beings. If you have those, you will be not only great lawyers, but great human beings, and worthy of this school that stands for excellence, decency, humanity, and love. Thank you.