THE RULE OF LAW ORAL HISTORY PROJECT The Reminiscences of Anthony G. Amsterdam ...

243 Pages·2011·0.78 MB·English

THE RULE OF LAW ORAL HISTORY PROJECT
The Reminiscences of
Anthony G. Amsterdam

Oral History Research Office
Columbia University
2010
PREFACE

The following oral history is the result of a recorded interview with Anthony G.
Amsterdam conducted by Myron A. Farber on April 1, 2, 8 and 9, 2009. This interview is
part of the Rule of Law Oral History Project.
The reader is asked to bear in mind that s/he is reading a verbatim transcript of the
spoken word, rather than written prose.
MJD Session One
Interviewee: Anthony G. Amsterdam Date: April 1, 2009
Interviewer: Myron A. Farber New York City, NY

Q: This is Myron Farber interviewing Professor Anthony Amsterdam at New York
University [NYU] Law School for Columbia University‟s oral history project on the
movement to end the death penalty in the United States. Today‟s date is April 1, 2009.

Professor Amsterdam, could I just get your birthday for the record?

Amsterdam: September 12, 1935.

Q: I noticed in looking over some materials that at one point in discussing McCleskey v.
Kemp [1987], you said you were going to digress into common sense, and that is what I am
going to try to do here a little bit today. And to the extent that there is very much legal
emphasis to this interview, I would like to try to make it accessible to a general reader or
listener of this transcript years from now.

Amsterdam: Good.

Q: What we‟ll do is talk a little bit about your life before any of the death penalty cases and
lead our way down the path toward Furman v. Georgia [1972]. I may not get there today
but that is where we‟re headed.

Amsterdam: Fine.
Amsterdam -- 1 -- 2

Q: Your title here is University Professor?

Amsterdam: That is correct.

Q: And what do you actually teach?

Amsterdam: I teach criminal law and constitutional law but the thing that makes me a
University Professor is that instead of taking a purely legalistic approach, I look at it from
the standpoint of the humanities, including literary theory and narrative, with a lot of
emphasis on lawyers‟ use of techniques of storytelling, of conceptualization, of cognitive
input that are not strictly legal.

Q: And the terms “clinical work” or “clinical teaching” -- are you familiar with that, in terms
of what you do?

Amsterdam: Yes. That is a general grab bag categorization for a lot of different things.
Originally clinical legal education, going all the way back to the days of Jerome [N.] Frank,
involved having students handle actual cases instead of simply sit in a classroom. It was
the legal equivalent of a medical student actually treating patients. But nowadays it is
much more complex than that. Nowadays it includes the use of simulation techniques --
role-playing.

Students, for example, in examining the process of constructing a case out of facts after
interviewing a client, may role-play the client themselves as well as role-play the lawyer.
Amsterdam -- 1 -- 3
Or we may use actors from the University‟s drama department -- interestingly, Anna
Deavere Smith is on our law faculty here -- to assist the students in a non-threatening
situation, one where real clients‟ interests are not yet at stake, to develop the techniques
and the skills and the insights that are necessary for actual practice.

What we have at NYU is a three-level clinical program. It starts out in the first year with
an introduction to lawyering skills called the Lawyering Program, which is mandatory for
every student in the law school. We are the one law school in the country that has that. We
teach basic techniques such as interviewing, negotiation, some litigation skills, examining
witnesses, and case conceptualization -- how do you think about putting a case together?
How do you turn a client‟s story, when a client walks in the office and says “It hurts,” into a
legal issue that you can do something with? Then at the second level we have students do a
lot of simulation work. So we may simulate, for example, a situation of a client who is
arrested. The students take that case all the way through from arrest to verdict in a
criminal case. At the third level we do the more traditional clinical legal education.
Students actually handle clients‟ cases because by this time they have had an extraordinary
amount of training. They really are up to get the benefit of that experience. That is
essentially what we do. That three-layer model is something I have spent a large part of my
life developing.

Q: It must have been very different here before you came to NYU in 1981.

Amsterdam: Well, yes and no. NYU was always a school with a strong clinical program, but
their program was of the traditional sort, putting students right into court in their third
year. There was none of the preparation for that in the first two years. What has happened
Amsterdam -- 1 -- 4
by way of change is the construction of this three-tiered program, which is a progression.
Instead of thinking about the highest level of clinical training that you can give a student
as being reachable within one year, we start from zero -- the first day of law school -- and
they have three years to escalate up to the highest speed they can get. That is what‟s new
about our program.

Q: Right. Are students generally enthusiastic about that approach?

Amsterdam: Yes and no. It‟s probably not for everybody because many people who come
into law school really do not want to be client-centered lawyers. They are more interested in
some other things. I would say that a large percentage of our students are very much
turned on by this. Certainly the students who elect to go all the way through and take all
three years are very excited by it. But what is nice about our arrangement is that a student
is not required to do more than the first year so that those students for whom this is not
exciting stuff, this is not really what they‟re in law school for and it is not what they want
to do, get off the train at the first station. Some of them may feel like they would like to get
off a little before the first station.

[Laugh]

Amsterdam: But most of them --

Q: Well, we always have Columbia up in Morningside Heights.

Amsterdam: -- stay on and are pretty happy.
Amsterdam -- 1 -- 5

Q: The other students who come into law school here, or just generally, what do they have
on their mind as a career?

Amsterdam: There are a number of things that they have on their mind. Some of them are
academically inclined and want to go into teaching law. What fascinates them is the play of
ideas -- problem solving at what I would call the doctrinal-conceptual level, making sense
out of the law. Certainly, the law can be an intellectual exercise. From the days of [Edward]
Coke and [William] Blackstone on down, wrestling with ideas for their own sake has been
an important part of the law.

What we are doing in our program is trying to get people to understand that the process of
thinking about facts and the process of understanding what is bugging a client is every bit
as intellectually demanding and every bit as susceptible to systematic analysis as
traditional ideas and concepts and doctrines. But there are some students who just simply
don‟t turn on to that -- they really are fascinated by the more abstract aspects of law.

Another thing is that there are many students who regard law school as paying their toll to
a gatekeeper. They just want to get out and practice law, and they don‟t really feel that it is
a matter of acquiring any set of basic skills. They may feel they already have the
interpersonal skills they need. Some of them may, in fact, feel threatened by the idea that
they don‟t and that these things have to be taught. We are dealing today with a situation in
which because of the economic state of affairs, some of our students have been slotted into
law school since junior high school. Their parents have been saving money to be able to put
them through law school for so long that by the time they actually enter law school, they‟re
Amsterdam -- 1 -- 6
burned out. And what they really want to do is pay their union dues, get into this place, get
out of this place, and start earning enough money to repay their educational loan debts and
repay their parents.

Q: Right.

Amsterdam: It‟s hard for somebody in that frame of mind to take terribly seriously
something that requires real emotional insight and some depth. It‟s a lot easier to learn the
fifty-one civil rules and be able to itemize them and lay them out in a set of lines. The kind
of legal education we do does not lend itself to a student summarizing, “What I learned in
the last hour,” let alone, “What I learned in the last semester -- ”

Q: Right.

Amsterdam: -- and then reciting it back in an examination in one, two, three, four, five
order. So it is more demanding of somebody with short patience who is really anxious to get
on about the business of practicing law and life than some of the more systematized
intellectual stuff.

Q: Let me ask you about your own parents. Were they slotting you to become a lawyer from
the time you were in junior high school? Where was this, by the way? Philadelphia?

Amsterdam: Yes. I was born in Philadelphia, grew up there. I think my parents were fairly
flexible. I don‟t think any of us had the remotest idea what I would be interested in or what
I would do. My dad was a lawyer but for a very long time had not practiced law as a
Amsterdam -- 1 -- 7
litigator or a legal counselor. When I was really quite young, he went into the Army -- the
Second World War. He was beyond the age where he would be drafted but was a very
patriotic guy and went into the legal aspect of military government and was away for a
significant period. The entire period of the war.

Q: Right.

Amsterdam: When he came back, I think that he didn‟t really have a lawyer‟s perspective. I
don‟t think they would have thought of me as a second-generation lawyer, even if they had
been disposed to try to slot my life. But they really didn‟t. They were very flexible about it.

Q: What did he do for a living? After the war?

Amsterdam: He started out by being a legal advisor to corporations but became what was,
in effect, a corporate executive. He managed and ran corporate business rather than the
strictly legal side of things.

Q: And your mother, was she a homemaker or --?

Amsterdam: Again Myron, it is hard at this remote date to remember how important the
Second World War was in shaping people on the home front. Just before the war we had
moved into a new house. My parents, at the time I was born, were living with my paternal
grandparents. For the first while in my life, the two generations of Amsterdams above me
shared a household. I was on the upper floor, the third floor.
Amsterdam -- 1 -- 8
Very shortly before the war, my parents -- for the first time -- bought their own house and
moved into it. Then the war came along and my dad enlisted. Mom was left with the house.
And so we did the whole victory garden and organizing and all of that sort of stuff. My
mother never had a profession or an income-earning occupation, but was always very, very
occupied with one thing or another -- community organization, charitable work, victory
garden, working in the schools, the whole business.

Q: Was this actually in Philadelphia or in the suburbs?

Amsterdam: The house that I was just describing for you, in which I spent the first four,
five, six years of my life, was literally two blocks within city limits. The place where I went
to the 5 & 10 and Horn & Hardart‟s was on City Line Avenue. City Line Avenue really was
the city line and it was two blocks from my house. My parents gave up the house they
bought just before the war because economically they couldn‟t swing it when my dad was in
the service. The new place was on the other side of the line. It was in what is called, in
Philadelphia terms, the “Main Line,” a little further out.

Q: Yes.

Amsterdam: That is very society hill, society stuff. But we weren‟t in that area, we were
just over the line.

Q: Right. Your father‟s name was?

Amsterdam: Gustave G. Amsterdam.