It was the time-honored first-day-of-class ritual. Step One: Get a seat, preferably a good one. In this case, it paid to be an early bird, as late-comers were left blinking in despair at their lack of choices. Step Two: Nab a syllabus; scan it and groan. Step Three: Fumble for pen and paper to take notes; use back of syllabus in a pinch. Step Four: Heads up! The prof has some announcements.
While the opening-day traditions were the same, "DeVane 191b" differed in one important respect from the other spring semester courses launched across campus in recent weeks. Included among this assembly of undergraduate and graduate students were members of the general public, who had been invited to join the course free of charge to learn about the interrelationship of "Life, Death and the Law" under the tutelage of Guido Calabresi, a federal judge and former dean of the Yale Law School.
This intermingling of full-time students with scholars-by- inspiration from local communities is part of the core philosophy of the DeVane Lecture Series, which was established nearly 30 years ago in honor of William Clyde DeVane, former dean of Yale College. The course -- for which undergraduates can get credit -- is also at heart "profoundly interdisciplinary," according to Judge Calabresi, who as this year's featured speaker holds the William Clyde DeVane Professorship in addition to his Yale titles as Sterling Professor Emeritus of Law and Professorial Lecturer in Law.
"Life, Death and the Law," noted Professor Calabresi, will consider the "flaws and advantages" of how the law makes decisions concerning such critical issues as procreation rights, abortion, organ transplants, medical experiments, military conscription, capital punishment and physician-assisted suicide. The 12-lecture series began on Jan. 20 with the topic "Introduction to Legal Thought."
"Since many of you -- most of you -- are not lawyers," Professor Calabresi told the crowd packed into the Law School's Levinson Auditorium for that first session, "what I thought I'd talk about today is how law works ... how law decides ... what is law and legal scholarship." In a speech sprinkled with anecdotes and sly witticisms, he then described four "dramatically different" ways in which the law has approached the questions put before it. He described these as the "Traditional" approach, "Law and ...," "Legal Process" and "Law and Status."
"These categories," he added, "have little to do with the traditional categories of legal scholarship."
Professor Calabresi began by looking at how these four approaches could be used to consider an issue such as the allocation of body parts. "Do we own our organs?" he asked, "Or does a person who needs them own them? Or do they belong to the state, which has a right to take them out as it wishes? ... It sounds like a science- fiction question ... yet that science-fiction question has already been asked in any number of ways." He described the true case of a man whose life depended on a bone marrow transplant. The only suitable donor, his cousin, refused to have the operation because of his fears about the pain involved. The first individual "did what any red- blooded American would do: He sued," said the Yale scholar. The real-life jurists who considered this real-life case looked at the issues involved from a "Traditional" approach, said Professor Calabresi. This involved surveying the "legal topography" -- that is, the decisions that previous courts had made concerning similar issues -- to determine whether there was a precedence for saying that an unhealthy person could lay claim to a healthy person's bone marrow. Using this approach, the court ruled that there was no legal basis for the claim, he noted.
"Law and ...," the second decision-making approach, "rose in rebellion to the first one," with its emphasis on previously- determined values, said the Yale jurist. Instead, this approach "looks to outside disciplines to say what the law ought to be," he explained. A law-and-economics advocate might question the "bilateral monopoly" inherent in the concept of owning one's own body parts or condemn the inefficiency of a system in which one person "owns" two healthy kidneys and another has none, he noted. Similarly, looking at the issue from a law-and-philosophy approach would inspire some to protest that it is inherently wrong to use another person, while others might argue that "everything belongs to those who need it," said Professor Calabresi.
The "Legal Processes" approach is not as concerned with the correct answer to legal questions as with "who is best suited to make the decision," explained Professor Calabresi -- that is, whether the issue is a matter for a judge, a jury, the legislature or a general referendum. A jurist using this approach, for instance, might balk at the idea of letting voters decide the question of organ allocation because "at any given moment, those who need body parts are in the minority," he noted.
The final approach, "Law and Status," holds that "in order to understand law and what law ought to be, you must look at legal issues through the perspective of a particular group," said Professor Calabresi. He asked the audience members to consider how they would feel about the issue of organ allocation if, instead of being the person who "owned" the healthy body part, they were the person who needed someone else's organ to survive. Similarly, looking at the "legal topography" through the "prisms" of race, gender or poverty provides a profoundly different perspective on issues "that seemed so clear when looked at in general," he said.
"Which of these is law? ... Which is legal scholarship?" philosophized Professor Calabresi in his concluding remarks. "All of these mixtures come and go," enjoying varying degrees of popularity or unpopularity at different times, he said, adding, "The tendency to exclude other ways of thinking about law is immensely dangerous. ... I think they all are law. ... They are all part of what the law must do when it looks at really difficult problems."
"Life, Death and the Law" will be held weekly on Mondays
except March 10 and 17 through April 21 in the Law School's
Levinson Auditorium, 127 Wall St. All are welcome.. The syllabus for
the course can be accessed via the campus computer network at the
following Internet site:
http://www.yale.edu/syllabi/spring97/DEVANE_LECTURE/24401-
00.html.
-- By LuAnn Bishop