Although I am a graduate of Northwestern Law School, this is my first Northwestern Law School commencement. The Class of 1947, of which I am a member, completed its six semesters of study in just two calendar years. We were mostly veterans of World War II anxious to begin earning an honest living as promptly as possible. Northwestern, like a number of other law schools, offered an expedited program that attracted students like us. In the summer of 1947-my last term-I only took one course: federal taxation. Because I was scheduled to start work in Washington soon as a law clerk, I was allowed to leave Chicago early, without taking my final tax exam or attending the graduation ceremony. I mention this history so that you will excuse any mistakes that you have found in my opinions in tax cases as well as deficiencies in this commencement address. I promise you, however, that my remarks will be brief.
I first congratulate you on your successful completion of your studies and welcome you to the proud group of Northwestern alumni. I shall add a comment about our Constitution and conclude with the obligatory giving of advice-including, in this case, two bits that I received from members of the Northwestern faculty: Homer Carey and Willard Pedrick.
During my freshman year in 1945, our principal study materials were casebooks that were arranged by the kinds of controversies that they presented, rather than by the rules that they illustrated. Thus, in Professor Havighurst's course on contracts, instead of studying rules about offer and acceptance, material breach, or the doctrine of consideration, we progressed from cases about personal service contracts to construction contracts, financing arrangements, and so on. In torts, instead of studying foreseeability or proximate cause, we began with personal injury cases, then turned to cases involving fire losses, cases involving injuries to reputation, and so on. The emphasis was on fact patterns and the relative roles of the judge and the jury in resolving particular issues.
Leon Green, our dean and torts professor, who had written scholarly essays in a volume entitled "Judge and Jury," contrasted his approach to law teaching to the rule-oriented approach that the Michigan and Harvard law schools followed. I have often thought that I received a vertical legal education that emphasized the importance of procedures that identify the correct decisionmaker, rather than a horizontal education that emphasized the rules that govern the conduct of law-abiding citizens. While we cherish the principle that we live under a government of laws, not of men, we also must recognize that specific applications of the law are the product of decisions made by executive officers and by the men and women who serve as jurors and judges. Identifying the proper decisionmaker is central to the administration of our system of justice.
When our Constitution was adopted, much lawmaking was intimately tied to specific disputes and the judges who adjudicated them. Judges routinely developed rules of law piecemeal as they explained their decisions in cases arising out of fact-intensive controversies. The Framers did not attempt to drafta Napoleonic Code or a set of substantive rules. Instead, their work product created three broad categories of decisionmakers and procedures defining how and by whom they should be chosen. The categories are not mutually exclusive, because the President's veto power gives him a voice in rulemaking1 and the Senate must confirm his judicial appointments.2 The guarantee of life tenure affects the quality of the judicial process without dictating any outcomes. In short, the common law lawyers who drafted the Constitution created a system of lawmaking in which they expected the members of all three branches to participate. Instead of trying to answer questions they could not anticipate, they forged a framework in which wise decisionmakers cooperated and clashed in a continuing effort to form a more perfect union. …