Jeffrey S. Lehman

Teaching from a Core of Passion

A Tribute to Yale Kamisar

Jeffrey S. Lehman

December 5, 1992

There are a lot of things I would like to say about Yale, but I thought that tonight I should say a few words about Yale as teacher -- about his influence on students here at Michigan.

I first heard Yale's name in the spring of 1977, when I was deciding where to go to law school.  Roger Martindale, who was then Dean of Admissions, suggested I speak with a U of M alum who practicing law near me -- in a town close to Ithaca, New York.  I chatted with this guy for about fifteen minutes, and he was really quite eloquent about why I should go to Michigan.  But what impressed me the most was his statement, "When you go to Michigan you must be sure to take a course from a professor named Yale Kamisar.  That course changed the way I thought about law.  Every day we'd go to class and talk about interesting cases and I was always confused.  But at the very end of the course, when I was studying for exams, I figured it out.  Professor Kamisar thought all those cases were wrongly decided!"

Now today I wonder why it took that student until the end of the course to reach that conclusion, but when I was just a college senior the statement impressed me, and I next heard about Yale when I was enrolled here as a first year student.  I had someone else for criminal law, but a friend of mine had Yale.  My friend was more ambivalent than the alum from Ithaca had been.  He thought Yale was entertaining, but he was very concerned about whether Yale was really a good teacher.  He used to complain about how Yale was obsessed with some marginal, relatively unimportant issues like "intent" and "causation."  My roommate would say, "I'm worried that we're going to end up with a perfect understanding of easy stuff like lifeboats and never even get to the difference between embezzlement and larceny by trick!"

I got a much more vivid sense of what Yale was up to in the classroom in the summer of 1979, when, just a month after Diane and I were married, she had him as her very first professor in law school.  Yale grilled Diane on the first day of class, and ever since she has been one of his biggest fans.  I heard a lot Yale stories that summer, but perhaps the most revealing concerns the morning Yale came to class and announced that he had been up until 3 in the morning finishing up an article, that he wasn't prepared for class, and that he was going to reschedule it.  I daresay he's not the only professor ever to show up for class unprepared; but Yale had the integrity to confess that to his students and to cancel class for the day, rather than trying to bluff his way through the hour.

I reached my third year without having taken a course from Yale, so that fall Diane and I both signed up for Yale's criminal procedure course.  I learned a lot about the Fourth Amendment and Miranda and Messiah in that course.  But what I really learned had much more to do with teaching and with advocacy.

I think that much of what we teach our students in class is not substance but a skill -- a particular style of advocacy.  Most of us implicitly suggest that effective, ethical legal argument involves a certain pose.  The pose is that of the thoughtful, reflective scholar.  One who sees the difficulty of a problem, its complexity, the nuances, the play of competition among worthy social values.  One who then struggles to make the close judgment that one position is better than its opposite.

During my first two years of law school, I am quite sure that I came to believe that the pose was the way lawyers should advocate.  It was instrumentally effective.  And it was morally worthy.

Well, in that criminal procedure class, Yale offered us a different model.  Of course, it was obvious that he knew how criminal procedure is riddled with the same close balanced judgments between respectable concerns as any field of law.  From time to time he would even talk about the area as reflecting a difficult choice between, on the one hand, responding to citizens' concerns about the very real menace of state power or, on the other hand, kowtowing to a few citizens' crazed, irrational fears of one another.

Of course, any of us who knows Yale outside the classroom knows how deeply he feels that the Bill of Rights embodies a special concern with the dangers of concentrated state power.  What made Yale's class so special was that he did not park his passion at the door.  It infused every hour of every day we met.

I had other professors in law school who held passionate commitments.  But none of them brought their passion to the classroom the way Yale did.  Indeed, until I studied with Yale, I daresay I had somehow gotten the idea that hot-tempered passionate argument was at best counterproductive and at worst a kind of unprincipled bullying.

Yet Yale's example showed us otherwise.  In that class, he combined passion with nuance.  It was quite effective; Yale picked up a lot of converts in that class, and even those who remained unpersuaded were not unmoved.  And he showed us that lawyers could exercise their craft in the fully engaged service of profound personal commitments.

I wish I could say that I emulate Yale's teaching style in my own classroom, but I don't have that in me.  By temperament I am more comfortable with the pose.  But I do tell every student I can that before they leave Ann Arbor they should take a course from Yale Kamisar.  They will learn a lot about the Bill of Rights.  More importantly, they will see how a lawyer can blend genuine passion into an effective, indeed compelling form of argument.