This evening I plan to say a few words about four exceptionally fine lawyers with ties to both The University of Texas School of Law and the U.S. Court of Appeals for the Seventh Circuit on which I served from 1970 until 1975. I plan also to make a brief comment on the scope of a common law rule that masquerades as an unwritten rule of constitutional law in the opinions of a number of creative Supreme Court Justices.
The first lawyer, Leon Green, was not only a Texas graduate but also taught a Torts course at Texas at both the beginning and the end of his long career as a law professor. Leon Green was the Dean of the Northwestern School of Law when I was a member of the first post-World War II class of entering freshmen in the fall of 1945. He was both an intimidating and inspiring teacher, who made his students stand when responding to his interrogation about assigned cases. His theory, I believe, was that if a student could not withstand the pressure of intense, hostile questioning on his feet in class, he would never survive in a courtroom. Under Dean Green's leadership, Northwestern provided its students with what I think of as a vertical rather than horizontal education, placing greater emphasis on procedure and the differing roles of judges and juries in different categories of cases than on the content of the black-letter rules that supposedly apply across the board in all types of cases. In my work as an appellate judge, I was repeatedly impressed by how often the outcome of a case depends on identifying the correct decision maker rather than the correct rule of law. I am sure that there are countless Texas lawyers who share my admiration for Leon Green and for his writing about judges and juries.
A special target of both Dean Green's scholarly writing and his teaching in class was the doctrine of "proximate cause." Undue emphasis on that issue of causation tended to impede rather than to enhance the ability of judges and jurors to answer the more important question of whether the defendant's wrongful conduct breached a duty owed to the plaintiffin a particular case. His criticism of that doctrine was a part of his larger view of legal education. Dean Green preferred the fact-specific approach that he associated with the law schools of Yale and Northwestern to the more ruleoriented approaches of Harvard and Michigan. A case decided by the Supreme Court earlier this year illustrates the differences between Dean Green's and Yale's approach to the law and Harvard's fondness for blackletter rules. Writing for the majority in Pacific Operators Offshore, LLP v. Valladolid,1 Justice Thomas-a Yale Law School graduate-interpreted the Outer Continental Shelf Lands Act to provide workers' compensation benefits for an employee who can "establish a substantial nexus between the injury and extractive operations on the shelf."2 Justice Thomas refused to endorse the separate writing of a Harvard graduate, Justice Scalia, who would have required that the worker's injury be "proximately caused by operations on the Outer Continental Shelf."3 I am sure Leon Green would not have been persuaded by Justice Scalia's suggestion that introducing the doctrine of proximate cause into the analysis would have provided greater certainty to the law.
One of Dean Green's former students is the second Texan with a Seventh Circuit connection that I remember with special admiration: Justice Tom C. Clark. After Justice Clark retired from the Supreme Court, he continued to do judicial work in various parts of the country. He presided at a trial in San Francisco in which I represented Charles O. Finley, the owner of the Oakland Athletics baseball team, in a controversy over the enforceability of a long-term concession contract that Connie Mack had signed many years earlier when the team was located in Philadelphia. My adversary suggested that I was wearing a bow tie just to make a favorable impression on the judge, who had a reputation for having excellent taste in bow ties. …