How Umpires–and the Supreme Court–Make the Call

Your interesting article about Sandy Alderson and his effort to improve the performance of baseball umpires reminded me of a story Professor Paul Freund used to tell in his Constitutional Law class back in the ’50s to explain the different views of the role played by the Supreme Court in determining whether government actions were constitutional or unconstitutional.

Professor Freund’s story involved three umpires who are sitting around talking about their role in calling balls and strikes. The first umpire says: “Some is balls and some is strikes, and I call ’em as I see ’em.” The second umpire says: “I agree that some is balls and some is strikes, but I call ’em as they are!” Then the third umpire says: “Well, fellas, some may be balls and some may be strikes, but until I call ’em, they ain’t nothing!”

Publication of Lawyer’s Book Open to Question

The description of the book Executing Justice by Daniel Williams on page 6 of your Fall 2001 issue leads me to wonder how Mr. Williams reconciles his publication of the book with his obligation of confidentiality to his client. Comment 5 to Model Rule of Professional Conduct 1.6 says: “The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Of course, disclosures are permitted with the consent of the client, but in view of Mumia’s reaction to this book, it cannot be supposed that he consented to its publication “after consultation,” as the rule requires.

I have no wish to accuse Mr. Williams of intentional wrongdoing. The article indicates that he is a lawyer of great integrity. All the more reason why the question I am raising here should be addressed. When bad lawyers act unethically, it is easy enough to attribute their conduct to their character, but when the conduct of good lawyers raises ethical questions, we should think about those questions and, if possible, answer them.

Reparations Discussion Ignores History

I was struck by the lack of historical perspective both in your [Summer 2001] article on the reparations issue and in the letters that were printed in the Fall 2001 issue.

I noted a few comments about the Civil War Amendments to the Constitution, but no discussion of the terrible human cost of the War of the Southern Rebellion (the official name of the Civil War). Over 600,000 Americans were killed in this war. Twice the number of Americans killed in World War II, and at a time when our country’s population was probably less than 100 million. One would think that this terrible death toll, incurred in the war to end slavery, was sufficient reparation for the sin of slavery. Does no one remember the words of “The Battle Hymn of the Republic”–the marching song of the Union Army (“As He died to make men holy, let us die to make men free”)–and its significance?

Bruce Catton wrote a number of books about the Civil War in which he referred to America “reaping the whirlwind” as a result of the inability of our ancestors to put a peaceful end to slavery. I do not for a moment seek to minimize the suffering and deprivation that have characterized this country’s race relations. However, to talk about reparations for slavery while ignoring the terrible price that was paid by those who fought to preserve it and those who fought to end it is too much. Does anyone at Harvard Law School study history anymore?

For ’39 Grads, a Different Kind of Interruption

The [Fall 2001] article “The Greatest Interruption” highlighted some distinguished alumni whose continuity of study at Harvard Law was disrupted by World War II.

For two undistinguished alumni of the Class of 1939, the war really was the greatest interruption.

My friend Robert Heller had an intelligence quotient that was off the chart. In addition, he was a military enthusiast and a ROTC graduate whose poor eyesight precluded a military career.

Like many others, we went to law school for reasons that did not include a fascination with the law. As in an arranged marriage, love was to come later. After staggering through the first year, I wanted to graduate but was not going to increase the boredom with intense application.

We believed that unless a high grade was the objective, an exam could be beaten with general intelligence, writing skills, keeping cool, and controlling the clock, even with an incomplete grasp of the subject. With that outlook, our work was minimal. I went to class, took notes, and transcribed them into a notebook. If I anticipated a classroom call, I read the assignment.

Bob did much less. He had the texts, which he read occasionally, but his classroom attendance, always sporadic, came to a virtual halt after the midyear. He used my notes for the exams.

At the time we graduated in 1939, the Army was expanding and Bob went on active duty as an infantry officer. I clerked for a small firm that did some admiralty work and heard that the Marine Corps was recruiting volunteers for its First Officer Candidates Class. I joined in 1940 and about a year later volunteered into the Marine Raiders, then the commando unit of the Corps.

At the conclusion of the hostilities, I took a regular commission. Thus the war was a permanent and, I admit, welcome career interruption.

As for Bob Heller, his was the ultimate and final “greatest interruption.” He was killed on New Georgia in 1943.

Letter Writer Mischaracterizes Ethics of Abortion

Having characterized abortion as “the killing of unborn children,” the letter of Klaus Beckmann ’79 has no difficulty in concluding that abortion is unethical and “[i]n most civilized countries . . . is in principle illegal” (emphasis added) (Fall 2001 Harvard Law Bulletin). The characterization, of course, is false and inflammatory, the kind of extreme language which has provoked a reign of terror for a quarter century in our country against family planning clinics and safe and legal abortion. In nearly all civilized nations, abortion is not only ethical, it is legal–not in principle, but in fact. At one time in Mr. Beckmann’s country of Germany, to perform an abortion was a crime punishable by death. That was Hitler’s Germany. Should we conclude that the Third Reich was therefore an ethical nation in principle?