TRIBUTE - Cardozo Law Review

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1 TRIBUTE Peter Goodrich* Sponsabo te mihi in sempiternum, & sponsabo mihi in justiti & iudicio, & in misericordi, & sponsabo te mihi in fide . . . 1 The tribute is classically both a funeral oration and a sermon. It is, for us, as inherited in the West, a homiletic form and begins with a theological text from which a lesson is drawn and a moral professed. This exemplifies the life at the same time as lending itself to some species of immediate or written worship. I have no doubt that such is the form that El Gates would have wanted. I am sure that looking down from that place where dwell the vast hosts of the dead he will be pleased. My text is taken from a book of funeral sermons published in 1755 and authored by Bishop Massillon of Clermont. It translates loosely as I will betroth you for all eternity, I will betroth you in justice and judgment, and in mercy, and I will betroth you in faith. It is a passage that is very full of union, redolent with bonding, committed to marriage, and suggestive, if I can put it thus, of a low jack to the spirit world. El Gates was all about marriage, fascinated by its theological and legal contours, committed to its spiritual significance and bound to the higher law, the spiritual polity, the justice and judgment, that it represents. That is what I want to say in remembrance of him as a colleague, as the occupant of an office two doors down from mine, a work friend. I knew him fondly but not well. So let me step back. The law review tribute is a curious and idiosyncratic form. It had lowly beginnings as a simple reporting of the demise of alumni and faculty in the school notes or alumni news section of the earliest law reviews. I am fond of an early issue of the Yale Law Journal where an alumnus wrote in to protest the homicidal intentions of the student editors who had listed him as dead ahead of his time. Generally, however, the news of deathsas also of betrothals, marriages, new partnerships, and appointmentswas factual and simply listed the time, * Professor of Law, Benjamin N. Cardozo School of Law. 1 [P. MASSILLON] SERMONS DE MASSILLON, VQUE DE CLERMONT 406 (Paris 1755). 1027

2 1028 CARDOZO LAW REVIEW [Vol. 28:3 place, and often the cause of death. There was little by way of comment, the occasional expression of fraternal grief, and more often than one might suspect, these lawyers died suddenly. Very soon, however, the tribute was taken out of the hands of the students and the faculty started writing to commemorate the magnitude of their loss, the significance of the passing of one of the greats, a former dean, an intellectual giant, a pioneer of their discipline, or some other emblematic representative of the stature of the school. By the late twentieth century the tribute had succumbed to the law and economics of law school ranking. It is in some ways a subtle and not particularly self-conscious shift. It is mediated by the peculiar and ambivalent role of the student editors, but is nonetheless a recognizable pattern. The high status law schools publish an increasing number of in memoriam tributes and now also some tributes to colleagues and pedagogues on their retirement. Sticking to the in memoriam tribute, the style has become ever more laudatory, the content increasingly and flatteringly ad hominem, and the status of the author of the tribute is often seemingly as significant as that of the deceased subject. They seem to go hand in hand. Stars travel in publishing clusters, as it were, and although the great have always risen to the task of venerating the fallen greats, the curve has shifted exponentially. The fallen giants are momentarily resurrected, the living stand on their shoulders, jostle with their aura of eminence, participate in the magnitude of their visibility, and feed on the scintilla of their success. The greater the stature of the star being buried, the greater the celebrity of the authors celebrating and paying tribute to the life. There is here an element of circularity in which fame passes through, to and from, author to subject, from the interred to the text, from celebrant to institution. In the symbolic economy of legal publication we witness here the slow birth of a novel if minor currency of credentialism, a relatively autonomous rhetorical genre which mixes the emotive and the empirical, the intimate and the institutional, tears and texts. Together, however, and at a relatively low cost, the event of the tribute, the occasion of saying in print that the fallen was a member of my tribus or tribe, and so I of his, comes also to emblematize the stature of the law review and hence also of the law school that hosts the tribute. There used to be some element of realism to the tributes. Thus, for example, the undoubtedly fond and markedly extensive tributes to Hoh, to Wesley Newcomb Hohfeld, acknowledge that he was an unpopular and often unsuccessful teacher at the same time as they mark the brilliance of his intellect and the sempiternity of his legacy. The subject used often to be shy, conflicted, a failure even in some aspects of their career, as was Underhill Moore, for example, in his poorly received and little understood obsession with empirical social science as

3 2006] E. NATHANIEL GATES 1029 the proper method of legal studies. Now, however, the publicity machine seems to demand an unmitigated success. The deceased is invariantly generous, frequently handsome, most often prolific, as well as being gregarious, open, an inspired gardener, a good neighbor, a talented musician, a brilliant chess player, a loyal friend, a gifted teacher, and more. Such is the manner in which we now mourn. It is conventional to the point of being courtly and I raise it simply as background observation in preparation of a gentle alternative. Cardozo School of Law is not of sufficient standing, neither old enough nor prestigious enough, to have any very extensive or distinctive record of tributes. There are some, because some have died. Benjamin N. Cardozo himself is commemorated in the first issue of the Cardozo Law Review,2 forty-one years after his death, but that is less a tribute than a gesture, both homage and appraisal. There is nothing very distinctive, however, about the praise that is heaped on the eponymous symbol of the new Law School. The only other notable in memoriam tribute comes a volume later. The founding Dean, Monrad G. Paulsen is memorialized in two consecutive volumes of the Law Review3 and he is variously depicted as a great man, whose presence graced the world of legal education,4 as a giantliterally and symbolically,5 as huge in bulk and enormous in spirit.6 He was one of a long line of thinkers stretching back to ancient Greek philosophers.7 And finally, so choice as to be cited from an early tribute paid when Paulsen left Virginia Law School, he was not any or even a mortal but a cosmic grouch.8 The tributes are fond and moving and highly conventional. Beyond that, and aside from a couple of brief notes marking the death of alumni, there is a tribute in 1992 to Professor John Appel,9 described at one point as truly fabulous,10 and a year or so later Jacob Burns,11 one of the most munificent of donors to the School receives a brief tribute: his indomitable spirit which, like gentle rain, touched and refreshed us all.12 Again, convention governs content, and status in the sense of achievement, the unblemished escutcheon of the career, the fabled and the fabulated, is what seems to matter. 2 Benjamin Nathan Cardozo Commemorative Issue, 1 CARDOZO L. REV. 1 (1979). 3 Monrad G. Paulsen 1918-1980, 2 CARDOZO L. REV. v (1980); In Memory of Monrad G. Paulsen, 3 CARDOZO L. REV. 3 (1980). 4 Sanford H. Kadish, Monrad G. Paulsen, 3 CARDOZO L. REV. 7, 7 (1980). 5 Michael I. Sovern, Monrad G. Paulsen, 3 CARDOZO L. REV. 3, 4 (1980). 6 Monrad G. Paulsen 1918-1980, surpa note 3, at v. 7 Id. 8 Kadish, supra note 4, at 7. 9 In Memory of John D. Appel, 14 CARDOZO L. REV. 247 (1992). 10 Id. at 253. 11 In Memory of Jacob Burns, 15 CARDOZO L. REV. 1 (1993). 12 Id. at Dedication.

4 1030 CARDOZO LAW REVIEW [Vol. 28:3 That Cardozo Law Review has published tributes is itself already interesting. It marks a further shift, a gambit perhaps or simple status aspiration, in which the tribute becomes a more common currency. The lesser journals of lower ranked law schools now lay claim to stature or the dream of greatness in regularly publishing tributes. They are everywhere and they expand in length as the importance of the contributors rises to match the brilliance of the departed. Here, however, I would like to think that something different and more complicated is going on. El Gates was not in conventional terms a success. He published very little and with respect to scholarly output it has to be acknowledged that he did not have an easy relation to the institution. He was an intellectual, but, perhaps in common with Socrates, or in empathy with the Druidic originators of common law, he did not like to write, or more precisely he was not comfortable publishing. Nonetheless he spoke, he acted, he played on the law school stage. It is that unwritten narrative, that oral history, that shard of local tradition and of lived experience that I think deserves to be remembered, relayed, and released in memoriam, to his credit and in honor of his passing on. Stand back a peg and it is not hard to acknowledge that law school is a lot more political and complex than the easy passage of a predominantly Caucasian populace to amicable sinecures might suggest. It is frequently a tense habitus and the studies unequivocally indicate that it has a traumatizing function for many of its inhabitants, students, graduates, professors, and lawyers alike. As an African-American male, as an intellectual radical, and as a professed Christian, I think it is safe to comment that El faced his fair share of the trauma that institutionalization metes out. It is true of course that he was in some respects well prepared. He had briefly attended English boarding school, and after that no institution presents any major threat. He was well equipped, in other words, to handle the academic militias, the demands of face time, networking, collegiality, client appeasement, marginal cost, and product benefit that tenure demands. He wrote which is not necessarily the same thing as saying that he published and taught on the history of slavery, race relations, and law. And as regards the other dimensions of the rites of institutional passage, he was a persuasive orator, a skilled performer, engaging and entertaining if never without a hidden sense of reserve, of another place that he would not share in institutional settings. The obvious point is that law school, tenure, being African- American in a recently founded Jewish enterprise, is likely at times to wound. Scars are left on the soul and most of us, as inhabitants of the institution, are in some manner complicit in that process. El Gates suffered his share of setbacks and probably more. My point is that if we

5 2006] E. NATHANIEL GATES 1031 are to memorialize him, if we are to hang his portrait in a seminar room as will soon be done, then we should acknowledge honestly that he had a constrained place in the institution. He worked on race and slavery. His inclinations were towards history and leftist sociology. He was angry at the lack of institutional recognition, and the disciplinary and political limitations of his colleagues. That said, he was far more than the institution and role, he had a life beyond being a professor, his contribution and cadence were humanistic, often humorous, deeply moral, and expressly pastoral. What he offered was proffered as an outsider. It was in spirit as much a challenge as a lesson. His contribution lay much more in what he said than in what he wrote. One measure of the caliber of an institution lies precisely in the ability of its denizens to efface and forget it. El in particular went beyond the institution. I mean that literally in that he ended up living and dying in Canada. For the last years he commuted to school from Montreal. I also mean it metaphorically and politically. In paying tribute to El we acknowledge and memorialize a life of explicit and tacit struggle. A life ended ahead of time, painfully, unfairly. To that I will add that we should also celebrate a life outside of the institution, beyond the law school, of which we knew relatively little but enough to say that it had a singular strength and a unique emotional success. El found his peace in belief, his cause and victory in marriage. Lest this appear cryptic, I will end in time-honored fashion with a couple of brief anecdotes. Both, in their way, concern marriage and Els betrothal to faith and fidelity. Both are the product of chance encounters; both are divagations and thoroughly slight. El and I rubbed along well enough as office neighbors and fellow leftists, whatever that really means these days. A historical persuasion and sense of injustice is I guess the kindest way of putting it. When he visited the School for one of the last times, he came with his spouse, Franois. He introduced us and then headed out of the building. I turned away as the elevator doors closed but not quick enough to avoid hearing El remark Peter is one of my more sane colleagues. I have to say I was touched. The remark stuck. I took it as a gesture of fellow feeling. I was not so unlike him. We both struggled. We shared a certain eccentricity born, no doubt, of childhood exercises in resistance. I too am slightly mad, prone to a similar species of radically utopian politics. I too believe in the theater of the everyday and in the fragile yet informative mask of biography uncovered. Eccentricity, a little madness, comedy or the flair of the Dionysian are surely virtues in the vestibules of academe. My other anecdote is somehow more personal but scarcely intimate. El would come and vent from time to time in my office. During one such session his eyes alighted upon an unpublished and in fact still unpublished manuscript of

6 1032 CARDOZO LAW REVIEW [Vol. 28:3 mine. It is titled Every Contract is Like a Marriage. It propounds my theory that the spousals contract is the historical exemplar and archetype of the commercial contract. All the tricks were figured out in relation to spousals and I show that to be the case, irrefragably prove it in fact, through lengthy historical examples and coruscating theoretical analyses. That maybe overstates it. It is unpublished for a reason. But El had grabbed it and was off on the subject of marriage. It was in his view an outrage that gays could not marry. Civil union in his estimate was of absolutely no merit. Marriage meant marriage, a Christian ceremony, a spiritual rite within the Church. He wanted to borrow the paper but I said I had more work to do on it, it was unfinished, unclear, lacking as yet the requisite philosophical underpinnings. In truth I was embarrassed, but did not let it show. He did not mind. He was fired up, passionate, had light in his eyes. And of course he married his partner in Canada; he bent law to his will. He betrothed justice and judgment, mercy and faith. Clearly he wanted his relationship acknowledged, public, a beloved that all could see. He wanted to marry, he wanted to dare to speak the name of his love. And that is what he did. With passion. With humanity. With force. I remember that conviction, that fierce sense of faith, that intolerance of injustice. Now that he is gone, now that he is no more one, more than one,13 I will miss it. I am sad that he fell. 13 JACQUES DERRIDA, SPECTERS OF MARX: THE STATE OF THE DEBT, THE WORK OF MOURNING, AND THE NEW INTERNATIONAL, at xx (Peggy Kamuf trans., 1994).

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