To the Editor:
I do not know enough about the ouster of Professor Bruce Franklin at Stanford to become embroiled in the controversy on the merits between my friend and colleague, Alan M. Dershowitz, and my friend and former student, Herbert L. Packer. But one criticism contained in Mr. Packer’s reply to Mr. Dershowitz [Letters from Readers, August] contains such potential for misleading lay readers that I would like to comment on it.
Mr. Packer takes Mr. Dershowitz to task for being “already committed . . . to Franklin’s cause” while at the same time purporting to be a representative of “disinterested opinion” in filing a brief in the case as amicus curiae for the American Civil Liberties Union. If I understand Mr. Dershowitz’s commitment in the Franklin case (and I believe I do), it is only to the position that Franklin’s views, which Mr. Dershowitz considers “despicable” and hopes to see “rejected” by society, are protected by the First Amendment. It could hardly have come as a surprise to the Stanford Advisory Board that an amicus brief filed for the ACLU would take that position.
It may nonetheless come as a surprise to a lay reader that an amicus, or “friend of the court,” brief need not take a “disinterested” position. That, indeed, was the early function of the amicus at common law when he was literally expected to assist the court in its judging function. But, as lawyers well know, it has long since evolved into something else in this country. As is amply demonstrated in a 1963 article in the Yale Law Journal (which Mr. Packer as a loyal Yale alumnus must read), the amicus in our practice has for the most part shifted from neutrality to advocacy as the courts have encouraged “partisan third-party involvement” in the cases before them.
Hence it is that the rules of the Supreme Court of the United States require that an application for leave to file an amicus brief shall “state the nature of the applicant’s interest” in the case. Hence it is that in a very recent case before the Court, involving the constitutionality of Pennsylvania confession-of-judgment clauses in consumer notes, an amicus brief was filed by the Pennsylvania Savings and Loan League, whose members are some of the principal beneficiaries of such clauses.
Since Mr. Dershowitz in behalf of the ACLU was, with no impropriety, aligned with Franklin on one issue in his case, there was no impropriety either in his having “spent a couple of hours with Franklin” before preparing the amicus brief, nor in the fact that Mr. Dershowitz’s research assistant (whether paid for his research duties by Mr. Dershowitz or by Harvard) gave some assistance to Franklin.
In view of all of this, I can only marvel at the sinister changes Mr. Packer rings on the facts that only Mr. Dershowitz and Franklin know what went on during their two-hour conference and that Mr. Dershowitz and his research assistant are close friends.
Vern Countryman
Harvard University Law School
Cambridge, Massachusetts
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Herbert L. Packer writes:
I regret that apparently my friend and former teacher, Vern Countryman, missed the point that I was making about Mr. Dershowitz, the ACLU, and the Franklin case. Historically, the ACLU has been distinguished for two things: its disinterest and its adherence to principle. One might have assumed that the person who wrote the ACLU amicus brief was acting in that spirit. I intended to show that Mr. Dershowitz was not disinterested in that sense. I gave substance to that assertion and Mr. Dershowitz has documented that assertion not just once but again in his September letter, showing a high degree of ego-involvement. Mr. Dershowitz and Franklin had a “privileged” discussion during the hearing well before the amicus brief was filed (that was the “sinister change” that I was ringing). Mr. Dershowitz’s assistant was Franklin’s counsel during the hearing. Further, Mr. Dershowitz said that he would have represented Franklin had he not been prevented by his understanding with the Center (apparently he is less free in his leisure time than he claims that his assistant was). Mr. Dershowitz persuaded the ACLU to enter the case, not the other way around. My response to Mr. Dershowitz’s letter in the August issue was an attempt to set the record straight, to remove from Mr. Dershowitz the awesome mantle of pure disinterest generally associated with the ACLU and the role of amicus (in the minds of the laity, as Mr. Countryman has pointed out).
Mr. Countryman, a noted civil libertarian, was right not to become “embroiled in the controversy” since he “does not know enough about the ouster of Professor Franklin.” I am glad that he has given me an opportunity to correct some of the confusion. I wonder what has happened to the cause of Franklin and of the University in all this involved correspondence.
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