"I'm going to tell you a story," the famous law professor announced. "Warning at the outset: There will be points in this story when you're going to think that this is nothing more than endless ramblings and reminiscence. And there may be some truth to that. But, more importantly, I'm going to provide an elaborate groundwork for you to understand perhaps the most important concept in legal thought that you're going to hear in your entire lifetime. And that's an understatement!" Professor Redish waited politely for the laughter to subside. "Actually, I'm not kidding."
On October 22, 2006, Marty Redish changed my life. This was a feat that he would accomplish repeatedly as I became his research assistant, he became my mentor, and, above all, we became good friends. But on that October afternoon-among my first days as a law student-I did not know Marty Redish except by reputation. And as I watched him at the lectern, I indulged visions of naïve grandeur concerning my chosen profession.
The law was, I imagined, a theatrical endeavor on at least some level-an intellectual cityscape populated by debonair advocates and fast-talking deal junkies who propelled the engines of justice and commerce beneath supple armors of virgin wool, Italian leather, and Chinese silk. Its pantheon included Daniel Webster, Henry Drummond, Arnie Becker, and just about any character that Aaron Sorkin might dream up. Jack McCoy was its philosopher king, Harper Lee its documentarian. But over the next ten minutes, I bid the likes of Atticus Fitch adieu as Marty peeled back the blinders, exposed an intricate clockwork of legal thought, and replaced fantasy with a far more compelling reality.
It began where the great stories often begin-with a dead fox in New York, a paddling of ducks in Maine, a beached whale in California, and a young law student's love-hate relationship with his law professor-namely, the famous A. James Casner. Marty described Professor Casner as "the scariest dude that I encountered in law school." A devotee of Socratic pedagogy, Professor Casner would pose quandaries leagues beyond the intellectual limits of his students, scan his classroom like an apex predator, and, following an inevitable collective gasp from the gallery, select his victim. In those salad days, Marty studied case law concerning the legal definition of a wild animal, or ferae naturae-an animal not designated as domesticated by law. He spent halcyon weeks in the company of Blackstone, Fleta, and Justinian until, one rueful morning, Professor Casner announced ominously: "Tomorrow, I want you to come in with a definition of wild animals that takes into account every case we've read on the subject."
Marty, a city boy, was ill equipped for the task. Even today, Marty can flawlessly recite the Brooklyn Dodgers starting lineups from 1941 through 1957, but as he reads this very tribute, has no idea what to make of the phrase "paddling of ducks." Still, Marty persevered, and inspired in no small part by abject terror of being caught unprepared by Professor Casner, Marty's study group set out to meet the challenge. But each time a group member proposed a definition, another would observe that it failed to account for the fox case, or the duck case, or the whale case. Late that night, defeated and exhausted, Marty and his comrades declared: "Kill us; do anything you want; we just don't know." As Marty told it, breakfast the next morning felt like a last meal as he silently calculated the probability that Professor Casner would call upon him that day.
To Marty's simultaneous relief and consternation, Professor Casner did not revisit the question that day or any other day. Instead, he advanced to the next chapter of his property casebook-the definition of "wild animals" be damned! That afternoon, after Marty expended what he described as considerable mental energy contemplating professor-cide, he experienced an epiphany. The reason the group was unable to ascertain a comprehensive definition was simple: No such definition exists. …