Interviewee: Walter O. Weyrauch
Interviewer: Stephen Prescott
Date: March 5, 1993
P: Today is March 5, 1993. [My name is Stephen Prescott, and] I am interviewing
Walter O. Weyrauch, a professor in the University of Florida College of Law for
the UF Oral History Archives. Professor Weyrauch, would you tell us your full
name and when you were born?
W: [I am] Walter Otto Weyrauch, [and I was] born August 27, 1919, [in] Lindau,
P: What kind of family did you come from? What did your parents do?
W: My father came from St. Petersburg, Russia, and [he] considered himself
ethnically German, but did not live for any length of time in Germany. He later
on lived and died in Paris. He did not die in Paris, but up to his death [he lived
there]. My mother was essentially German.
P: So is Weyrauch not a German name?
W: Weyrauch is a German name, but the family lived in Russia. Actually, my
grandmother in Russia was Belgian but born in Russia, so it was all mixed. My
own identification with Germany was minor, less than my father's.
P: I understand you were educated at the German gymnasium, which is basically a
high school except a little better.
W: There is more emphasis [on higher academics]. It is a mixture at the upper level
between college and high school. Most of the teachers actually have Ph.D.s, so
it would go up to, let us say, two years of college.
P: What made you decide to go into law?
W: My family has no legal background, so [my career options were] either
higher-level business or [art, as] my father was an artist--a painter. I am
basically the first person [in my family] who is in law, and there was some
resistance in the family to that. And even I vacillated. I went first to law school
and then to art school and then back to law school.
P: I notice you were in school during World War II. What was that like to be a
student during the war?
W: I have a long lecture on that which I gave to colleagues. It was essentially a
traditional legal education, and with a few exceptions the professors made an
effort to avoid controversial topics. For instance, in constitutional law, the
professor would start out with the first constitution of 1848, a draft constitution,
and then the 1850 Prussian constitution and then the Weimar constitution of
1919. Then slowly it was the end of the term. So that was his technique.
P: So they were just trying to ignore the whole thing.
W: [Yes,] to the point that you could ignore it. Sometimes it was unavoidable to say
more. It was also different in individual universities. Some universities, for
instance, the University of Kiel, had a much stronger Nazi reputation than
P: I know here at the University of Florida the enrollment dropped from 3,500 to 300
simply because so many men were either being drafted or volunteering.
W: In the war.
P: Yes, in the war. Did you have any pressure to go to war?
W: First of all, I had an illness which was stabilized to the point that I had no
problems going to school, but on the other hand, [it] saved me from going to the
war. I was nevertheless drafted because of improved health in January 1944,
but discharged in August 1944 again as unable to serve.
P: So I guess that was a good case of [being ill].
W: Yes, [it was] very useful.
P: If I understand it correctly, and I may be wrong, once you finish law school you
take what is roughly equivalent to a bar exam called a Referendar.
W: No, it is not cumulative. It is more akin to an apprenticeship. It took normally
three years at that time. In my case it took from 1943 until 1948 because of the
intervening drafting and closing of the German courts in 1945. [It is] intended as
a big state examination, the first examination before that apprenticeship, which
takes about five months. Then the second state examination takes again five
P: So this is almost similar to an American medical training, where you go to school
and then have residency and internship time.
W: Yes, but [legal education] includes internship.
P: It sounds much more thorough than what we have in the U.S.
W: Oh, yes, it is more thorough. I would not say it is necessarily better.
P: That is interesting. I notice you also did doctoral studies at the University of
W: Yes, I have a doctorate, which hangs up there on the wall, on the topic of
psychological and ethical elements of guilt. It is more similar to a Ph.D., not like
P: OK. I notice you have been very interested in psychological topics. That is kind
of unusual for a lawyer. How did you develop that as a thesis topic?
W: Psychological topics are relatively related to the concept of fault and criminal
law, for instance, negligence or intent, so the topic was related to that. I then
had the second psychological topic in the J.S.D. thesis at Yale Law School, and
that was more directly psychological because it dealt with the personality of
P: It looks like you practiced law for a while in Germany.
P: What did you do there?
W: First I was an associate in the only Jewish law firm in Frankfurt, Max L. Cahn, for
a period of, I would say, two years. We handled only restitution cases of Jewish
persons against the German government or against people who had acquired
Jewish property. I am not Jewish, incidentally. After that I was on my own in
practice for a short while, a partner in the law firm [Muno, Weyrauch &
P: Did the firm that you were a partner in do the same type of law?
W: No. That was general practice. [It was] largely international, actually.
P: I saw that in 1950 you came to the U.S. for five months as a trade regulations
W: Antitrust. That was sponsored by the Department of State in the United States,
and it was a period of five months. After I returned to Germany, since I had
some basic knowledge of the situation in the United States, I applied for
immigration but without necessarily expecting it. In other words, I just filled out
the questionnaire and handed it in and more or less thought it would not be
approved anyway. It was extremely early, in other words, after the war. But it
was approved, to my own surprise, in 1952. Then I had to make up my mind in
a very short period--two or three months--otherwise the visa would expire. I
talked it over with my partners, and they said, "Why not just go there and study
and see what happens? You can always come back."
P: So when you came here you were not sure if you wanted to stay in the United
W: Basically, I was determined to stay but had no [means to do so]. One problem
was that my graduation qualifications in Germany were extremely high. In other
words, I had very good prospects there, and in America I had no prospects or
connections whatsoever. So that was a big problem. For one thing, for five
months I did not get any job because nobody wanted to hire a lawyer, and no law
firm wanted to hire me because I was not an American lawyer.
P: Do you think it was because you were not admitted in America, or was it
anti-German sentiment left over from World War II?
W: [It was a] combination of both.
P: OK. When you came to the United States I see that you went to the law school
at Georgetown. You basically started over and did the LL.B. and the J.D.
W: Yes. Actually, I was at Dumbarton Oaks, employed by Harvard University.
Harvard University has an institute in Washington, DC, which deals with
P: Yes. I have heard of it.
W: There were about five professors and a number of graduate students, and I was
an employee of Harvard.
P: So you were living in Washington, working for Harvard, and going to
P: You almost started over with your legal education. What made you want to do
W: There were hardly any prospects for me in anything else but law. I wanted to
become a professor in Germany. I did not want to practice law forever in
Germany, so it was almost impossible to pursue this in Germany unless I would
leave the country and go elsewhere.
P: My father is very opposed to the fact that I am in law school. He thinks lawyers
are dishonest. What was the reason for your family opposition?
W: My father would never have thought of it because he had died much earlier; he
died in 1934 when I was a boy of thirteen.
P: So you were very young.
W: He was at that time extremely concerned because of my development. In his
last letter he said that he would feel that I would end miserably and become a
banker. That was the ultimate horror. [laughter] So the idea of law never
occurred to him. The professorship probably would have been OK with my
father, but not with my mother and not with my grandmother because they felt [it
was] an endless procedure without any income.
P: How did you find law school at Georgetown? I would think it would be very
simple for you, already having a doctorate from Germany.
W: No. It was totally different--a different method of thinking. I had to unlearn the
German way of thinking. It is constantly in the way. You are better off without
P: I have noticed a lot of graduate students [who] come over and take courses here
at the law school have difficulties. Maybe it is the same dynamic at work.
W: Oh, yes. The status of the student is also different; the status of a lawyer is
different. The status of a lawyer is relatively high in Germany, and it is lower
[here]. So basically my interest in the United States is largely intellectual; I find it
intellectually interesting and stimulating, while I do not find Germany particularly
stimulating. In my opinion, it is very predictable what is going on. I think in
America I am constantly surprised by something I did not think of. So from that
standpoint I find the United States more interesting, which is very difficult to
explain to a German professor, even though I am on the faculty at Frankfurt.
P: I saw that you were. When did you begin to think that you might be a professor
in America instead of a professor in Germany?
W: Oh, right away.
P: I guess you left there [Washington, DC] and went to Harvard and then to Yale.
Is that right?
W: After graduation [LL.B. from Georgetown], I went to Harvard--I had a scholarship
there--and got a master's degree. After that, I had a small teaching assignment
at Yale, together with further going for residence for the J.S.D.
P: To backtrack for just a minute, at Harvard you got the LL.M., the master of laws
degree. Was this a general LL.M. or a specialized?
W: It was general; it was not specialized. Most people who came from Europe took
international law, but mine was not. As a matter of fact, I took a number of
courses which I had missed out on at Georgetown.
P: You went on to Yale and got a J.S.D., a doctor of judicial science, in 1962. Your
thesis was The Legal Mind. Tell me about that.
W: It was published by [Yale] University Press in 1962 under a different title: The
Personality of Lawyers[: A Comparative Study of Subjective Factors in the Law,
Based on Interviews with German Lawyers]. Essentially I maintained that
lawyers share certain characteristics with people who are compulsive neurotics,
for instance, [those who conduct] compulsive rituals and so on. I would not write
it this way today, and it was attacked in the Yale faculty at the time when it was
deliberated. It was attacked [because many felt] that I lacked the expertise to
make that kind of statement. But one man on the faculty, Jay Katz, was an M.D.
psychiatrist, and he defended the conclusions. Then there was no way they
could deny it.
P: That is interesting. So when you finished your coursework in 1957 for your
J.S.D., you were still writing your dissertation?
W: No. In 1955 I graduated from Georgetown, and in 1956 I got the LL.M. from
Harvard. Then I took one year residence at Yale and taught an introductory
course. Then I had five years' time to write the thesis. I got it in 1962, exactly
in five years.
P: So the J.S.D. had no additional coursework; [there was] just the thesis.
W: There was additional coursework, but it was within the one year of residence.
P: OK. You came here to the University of Florida in 1957. That is just as Dean
[Henry A.] Fenn is retiring and Dean [Frank T.] Maloney is coming in, I believe.
W: No. It was still under Fenn for quite a while. That was interesting, too, because
the basic premise of the whole hiring procedure was completely different. I was
hired essentially just by the dean. I do not think the faculty had any say in it.
The dean also told me one good thing about Florida would be that I never would
have to publish.
P: He was from Yale, too.
W: Yes. He was associate professor. Then he became dean here. He is an
extremely intelligent man--I do not want to give the wrong impression--but his
orientation was basically anti-publication, with some justification because a large
part of legal publications are intellectually worthless. So I think that was the
basis. He also wanted to change my name, incidentally.
P: Oh, really? [laughter] What did he want to change it to?
W: He said, "You should change your name because nobody here can pronounce
it," which to me does not make any difference. Whether they can pronounce it
or not, what is the difference?
P: Do you normally pronounce your first name the American way, Walter, or the
German way, Valter?
W: It does not matter. It is the same with Weyrauch [pronounced vi-raugh] because
nobody here can properly pronounce it.
P: Right. That is true. When you came here in 1957, tell me what the University
of Florida law school was like.
W: It was very small. There was a faculty, I would estimate, of not more than
twelve, and the student body was somewhere between 200 and 300. The
faculty meetings were in the dean's office, and we carried chairs in. In other
words, it was big enough to hold everybody.
P: What were the students like then? I take it they were mostly Floridians.
W: They were mostly male and all white. There was one woman. She is now a
judge at the First District Court of Appeal [in Tallahassee].
P: Anne Booth?
P: I know Judge Booth.
W: Her name then was Anne Cawthon. Booth is her husband's last name. Her
husband was also in law school. She was very good.
P: Judge Booth is from an old Florida family. Her grandfather moved the University
here in 1906 from Lake City.
W: Yes. She was the only woman when I came. Later on there were some others.
P: She told me once that students used to shuffle the women students; they would
rub their feet on the floor. [See UFLC 52, University of Florida Oral History
W: That discontinued after the move to this building because of the carpeting. In
the old building there was no carpeting; consequently you could hear. The
shuffle was not only directed against women, [although] that was an important
aspect of it. For instance, if a woman student--or any woman--would walk into
the law library to look for some book, everybody would start shuffling and would
continue to shuffle until she would leave, which, of course, interfered with
P: Yes, and [it] intimidated her, no doubt.
W: But it would also happen in class. Whenever there was a strong feeling--if
students agreed or disagreed--the groups would start the shuffling.
P: That seems a little immature for the law school.
W: Some sociologist wrote an unpublished paper about it and maintained that it
originated from the prisons. In the dining hall prisoners would shuffle because
you could not see who makes the noise underneath the table.
P: How would you evaluate the quality of the students in 1957?
W: The top students were quite equal to the top students now. I really do not see
any difference in qualifications with, let us say, somebody from Duke, for
instance. So any high-honor student from that time would probably be a
high-honor student today. On the other hand, the bottom was substantially
lower, and also there was a much higher flunking rate in the first year. I would
say [it was] more than one-third.
P: Well, at that time the admissions were basically open. If you had a B.A. degree
you could get into law school.
W: Yes, and that has changed with Virgil Hawkins.
W: See, this is the problem of the whole procedure. The importance of the "quality"
came about with integration, which did not make me particularly happy. You
took anyone so long as he was white before integration. Then suddenly the
standards shot up.
As a matter of fact, there was a very serious incident in that connection. Dean
Fenn called a faculty meeting--this was still under Fenn--and said, "The
University feels we should improve our admission standards and submit this to
the faculty for raising it." The faculty [then] responded to us, "What impact this
will have on the pending Hawkins case? If we raise our standards, it will make
the litigation by this black man who wants to get in moot because he can no
longer be admitted." His qualifications were lower. Fenn told us, "I have been
assured by the administration that it will not apply retroactively." We said, "We
will not do that unless we have an assurance. As a matter of fact, if we raise the
standard we should put in our raising that it should not apply retroactively." This
we did. The next day after that move, University President Reitz rejected
[Hawkins]. I am not sure whether it was the Board of Control. It might have
been Reitz under direction of the Board of Control who rejected him because
Hawkins did not meet our new admission standards. So in violation of our flat
statement that it should not apply to him, he was excluded anyway.
At that point we told Fenn that he had deceived us and that he should refute
them and request a retraction as far as Hawkins was concerned. But then the
University rejected him anyway because he allegedly had beaten up some
children, too. It was an absolutely miserable situation.
P: Yes. This case dragged on for about eight years and was in the Florida
Supreme Court four times.
W: Ultimately he was never admitted here.
P: No, he was not.
W: He got admitted somewhere in New England [the New England School of Law].
P: That is correct.
W: The next black applicant was admitted. I am not sure; it was probably [Willie K.]
Allen. There was no problem whatsoever. He graduated [in 1963].
P: Well, that brings up an interesting question. Virgil did have very borderline
qualifications at best and some character problems. Do you think it was purely
race and they were just using that as an excuse?
W: Yes, it was purely race, because his borderline qualifications did not keep
anybody else out who was white and who had the same qualifications.
P: Did they raise the standards purely for racial reasons, or was that something that
would have happened anyhow?
W: The racism at the University at that time was extremely open.
P: Oh, yes.
W: And anti-Semitism, also.
W: Yes, and very heavy. For instance, I was asked here to join a legal fraternity,
and I inquired whether there was any discriminatory policies, and they said,
"Well, they do not take Jews with the exception of P.A.D. Phi Delta Phi did not
take any Jews. I wondered how they know [who is Jewish and who is not].
Apparently the classification was made primarily by suspicion.
W: And there was another fraternity. I forget the name of that one. But the only
one accepting Jews was P.A.D., and of course, they did not accept any blacks.
I joined P.A.D. because it was less discriminating than the others.
P: Well, that is an interesting point. Mandy Glicksberg graduated from here in
W: I think magna cum laude.
P: Yes. A former judge on the First DCA [District Court of Appeal], Winifred
Wentworth, graduated the same year, and they graduated one and two. She
said that neither one of them got job offers, he because he was a Jew and she
because she was a woman. [See UFLC 51, University of Florida Oral History
Archive. Ed.] But he was hired as a professor shortly thereafter, a year and a
half or so later.
W: No, he was not hired as a professor. He was hired as a librarian.
W: That is a significant difference. Then slowly he was asked occasionally to teach
a class, and then at some point he moved over almost inadvertently into a
professorship. But he was not made an offer of a professorship initially. He
was hired together with Betty Taylor as a librarian, so they both were on equal
P: That was before Betty came. Was it Mrs. Pridgen who was the librarian then, Ila
W: I think he came together with Betty at about the same time, except Betty was not
a lawyer at that time. Now she is one.
P: OK. He told me that Dean Fenn called him in Miami and asked him to come
back, which suggests that Dean Fenn may have been much more open-minded
than the University as a whole.
W: Oh, he was open-minded, all right, but he would go along with these powers. In
other words, he would not antagonize them. The only time when he was getting
visibly apprehensive was in connection with the Hawkins [case], when the faculty
was becoming rebellious because he was afraid that it would drift out and
become known that he had participated in this action. But he was, in my
opinion, actually deceived himself by whomever--probably the Board of Control.
P: Probably. Was the faculty at the time in favor of admitting Hawkins?
W: Oh, yes.
P: Very much so.
W: This was another part of it. Up to this day we had no control over our
admissions. It is all done centrally, due to alleged administrative necessity. It is
an admission policy. But it had the result that we had no say in whether blacks
would or would not be admitted. The rejection was done on the University level,
not at the law school.
P: OK. How would you rate the faculty intellectually when you came in 1957?
W: In part, very high, at least as high as now. It is very difficult to say. For
instance, Karl Krastin was a terrific intellect, and Phil Yonge was very good. He
was later forced out by the [Charley] Johns Committee, so that was a very
P: That is true. The Johns Committee was originally formed to investigate alleged
communism, but it booted alleged homosexualism.
W: Charley Johns had an official pamphlet about it which they published.
P: Phil and many other professors were forced out. You are right.
W: Yes, he was forced out. He was the only one in the law school.
P: That brings up another interesting question. The Johns Committee treated
people very differently. Some people were forced to resign immediately, some
were allowed to finish the year, [and] some had nothing done. What do you
think motivated that conduct?
W: It worked out this way: it is extreme southern provincialism. I do not know
whether it is racism in the technical sense. It worked out this way: they were
anti-Communists. This committee had a title like "un-American activities" or so,
and you really would have to look [very hard, since it is] almost impossible to find
any Communists here.
W: So they then branched out into homosexuality under the theory that if you are
"queer" (so to say), it is un-American also, and probably also Communist. So
they started investigating this particular aspect, and this went on.
P: At that time Charley Johns was a state senator, but he was eventually elected
W: No, I think he was acting governor when somebody died. [Governor Dan T.
McCarty died in September 1953, and Johns, who was president of the Florida
Senate, served as acting governor until the next election in 1955, which he lost to
LeRoy Collins. Ed.]
P: Yes, that is correct.
W: The thing was disgraceful. It actually happened while I was absent--I was in
Germany on the Rockefeller [Foundation] grant. It must have been 1958. Is
P: Well, 1958-1959 it says you were on the grant.
W: Two policemen appeared at the homes of professors, and they were marched
through the streets with the policemen on both sides to some building, and they
were taken into a cell there and interviewed and fingerprinted. So it was not just
an investigation; there was a deliberate attempt without any judicial proceeding to
embarrass these people as much as possible. They were primarily after one
professor in the liberal arts college, after whom a building is now named.
P: Bill Carlton.
W: Yes. They did not catch him because he was not homosexual. But they caught
a number of conservatives, which was a big embarrassment, including Phil
Yonge, for instance. He was a very conservative man politically.
P: Right. He was from a prominent Pensacola family.
W: He was everything else but a Communist.
P: That brings up another question. Leaving aside the procedure they gave them,
there is some doubt as to whether the people they caught were even guilty.
Some people think that they just accused anybody for any reason.
W: The accusation was, of course, very damaging, especially if it was done in this
fashion, basically exposing them to the public. Ultimately, this pamphlet which I
was looking for was made at state cost from Tallahassee [and distributed] all
over the state. It had some pictures in it of homosexual activity and someone
got the smart idea of saying, "The United States mail is used for obscene
purposes." This was the end of the committee.
P: That is historically correct. Let me go back to something else for a second.
What did you do when you were on the Rockefeller Foundation grant in Europe?
W: The Rockefeller grant was for interviewing French and German lawyers in
connection with the thesis that I was writing for Yale. It was much too big a
project, so I confined it to German lawyers, and this is what was published.
P: OK. You came back here to the law school. After Dean Fenn retired, Frank
Maloney became the dean. Tell me about him and his administration.
W: Frank Maloney was a very decent person essentially. He also graduated from
here, and I think he got a master's degree somewhere like Columbia. There
was a peculiar thing happening. (This is my own interpretation.) He made
tremendous efforts to improve what he felt was the quality of the law school, and
he tried to do that by hiring people--according to conventional standards--who
were very high, from top schools with good grades and so on. On the same
prevailing standards you would not normally get the people who had clerked for
the United States Supreme Court because they would go elsewhere. You would
not get people who had been, let us say, on the Harvard Law Review. But he
got an occasional person who had graduated with high honors, for instance, from
Harvard without being on the Law Review, and [he hired] similar people from
other institutions. What he did not calculate in is that this kind of person who is
very intelligent, who scores very high, and is not on the Law Review, is probably
very liberal, if not left, intellectually. So inadvertently he brought about a
situation where suddenly the voting pattern in the faculty was leaning towards the
left, especially in connection with the Vietnam demonstrations.
There was, for instance, also some picketing of the law school. There was one
law professor participating, and he was not here long. At that point apparently
Maloney was under alumni pressure. The St. Petersburg Times had a number
of articles that were critical of the law school. The alumni pressure ran in the
direction of influencing the hiring of professors in the opposite [conservative]
direction. He hired simply a number of people who were clearly
conservative--[who are] still on the faculty--without faculty approval. We had
meeting after meeting to debate it, supposedly. There would be a meeting for
an appointment scheduled, and the faculty in large part boycotted the meetings.
There may be an attendance of four or five who would come to the meeting. I
would come and raise repeatedly the question, "We do not have a quorum."
The standard answer to that was, "I do not need a quorum because it is only
So with this, he went out and hired about ten people who were clearly
conservative. This created a major scandal, and a number of [liberal] faculty
members--about six or so--left pretty much simultaneously, all with tenure. One
went to UCLA, three went to Boston College, and so on.
That, of course, made the institution more conservative. There was also one
who did not leave voluntarily but who stayed on but was then denied tenure. In
the in-between period, between the denial of tenure and his discontinuation here,
he succeeded in getting himself fired overnight. There was again an effort from
the state to interfere. They checked the loyalty oaths and found that a number
of the oaths in the personnel files had not been notarized, so they required them
to be signed again. He refused to sign it and then was fired within twenty-four
hours by Maloney, who had the lock on his office changed. He then litigated
over a period, together with a number of other people who had been fired [within
the state] over a period of several years. They lost everywhere except in the
United States Supreme Court, 5-4. The University was forced to rehire him and,
in addition, to pay all the back salary and the lawyers. [This was] a long
negotiation which was very awkward, again, because the University said, "We
offer restitution in what you were when you were illegally fired," namely, a
nontenured professor about to be terminated. [laughter]
P: Do you remember his name?
W: Yes. Leroy Lamborn. He said, "This is not in good faith because meanwhile I
have been a tenured full professor at Wayne State. I am willing to come back
only as a tenured full professor." Then it was a long negotiation. The
University then said, "We invite you to come down here as a visitor for a year
with a promise after the year to hire you as a full professor with tenure." When
they made this offer he said, "I am no longer interested." [laughter]
P: [It was] just the principle. [laughter] That brings up an interesting point. The
hiring of professors is still controversial, even today.
P: And I hear the other complaint today from conservative students who complain
that the faculty are all liberal, and they feel discriminated against. What role
does ideology have and what role should it have in selecting professors?
W: The problem is that the higher your education level and the better educated you
are, the more likely you are [to be] liberal. So [to answer] the question of getting
good people, you are bound to wind up with relatively liberal people. I mean, not
necessarily left liberal, but if somebody has seven or eight years of very intensive
education at top institutions behind him or her, the people are more likely to be
more liberal than uneducated students who have never heard of anything like
this. We come with ideas to our students that people have never heard of, so
they think we are crazy. [laughter]
P: Oh, well. [laughter]
W: You should see some of the papers I get. And these are relatively good
P: When you first came the law school was still in Bryan Hall.
P: And it moved over to where is now. A lot of people have seen that as a major
turning point in the history of the law school.
W: It was meant to be. The University administration was always disturbed about
activities of the law students in campus politics, and this was encouraged by the
central location right next to Tigert Hall on campus. At the time I came, our
student body was perceived as a breeding place for future state politicians, and
indeed it was, [with] Blue Key and so on. It interfered with the business of the
University to some extent, and when the law school relocated it was deliberately
put way out to physically separate it from the rest of the campus.
P: Do you think that was a good move?
W: Not necessarily. It has many disadvantages. For instance, it isolates the
P: Yes, it does.
W: ... from the rest of the campus, which I consider a major, major detriment, more
so, for instance, than at Harvard or Yale or Columbia. The [law] faculty of all of
these institutions are right in the middle of things. It is not just a matter of
politics, but it is simply a matter of having access to colleagues from other
disciplines. I have to go after them now.
P: I find, in talking to students and even sometimes talking to faculty, that if they did
not do their undergraduate work here, they do not even know what the buildings
are on campus. They are not familiar with the campus.
W: Nothing. There was once a fantastic faculty art exhibition that was extremely
interesting here on the main campus, and I told my students in class that they
should go there, and they looked at me as if I had lost my mind. So I convinced
them to go to an art show in the law class.
P: A lot of students tell me they feel pressured by the administration not to be
involved on the main campus and to stay isolated from it. Do you think that is
W: It depends what you mean by "administration." Certainly the University
administration has no interest in law student politics. Why? Because they are
less subject to being controlled, in my opinion.
P: That is probably true.
W: I am not sure what our faculty position on it is. [There is] some reservation. I
remember one man who was the student body president who then taught in
some other school. There was some concern that he would get all involved as a
P: Is this Jay Plager?
W: No. Plager was actually a student of mine. He is now a federal judge in
W: He was in his last semester when I came. I had him in class. No, it was
somebody else. Plager was never involved in campus politics.
P: I guess what I was trying to ask is a lot of law students are interested in taking
graduate courses and things like that, and they get a lot of resistance from the
law school administration. They are told the courses are not as good, the faculty
is not as good on the main campus, and they are perceived as being
anti-intellectual--whether it is true or not--in the law school.
W: [It is] probably true. But you have to be careful. You have to distinguish
between intelligent and anti-intellectual. These people are all extremely
intelligent, but they may very well be anti-intellectual.
P: After Dean Maloney retired, [Joseph Richard] Dick Julin was recruited as dean.
W: It had something to do with the retirement, because the school was under
investigation by the Association of American Law Schools and was in danger of
losing accreditation. As a matter of fact, the AALS report on the school was very
negative. At that point, Dean Julin was brought in because he came from the
outside, he had nothing to do with the situation, which helped, and he had some
national recognition. He succeeded in soft-pedaling the issue, and we avoided
losing our accreditation. So it was a very tense situation.
P: What were the problems with the accreditation commission?
W: The hiring, which I mentioned, and some other incidents which were extremely
bad. I am not even sure I should mention them. But, you see, one of the
accreditation standards is that faculty should have a reasonable amount of
control over recruitment.
P: OK. Tell me what happened at the law school during Dean Julin's
administration. A lot of people see this as a period of growth and improvement.
W: It was, in a way. He came from a different environment--a state university, but a
state university with a different tradition and a much higher perceived rating. It
was a growth [period], but only up to a point. For instance, he resisted some
pressure for sabbaticals. He, in my opinion, did not give enough credit to
publications under the theory that other things are more important, namely,
teaching and public service. There was no need for that, but it was quite clear.
People who had relatively moderate publication records were pushed ahead and
so on. So there was growth, but it was a growth more on the status level than
on the substantive.
P: Of course, the school grew a great deal numerically. The LL.M. program in
taxation, I believe, was established under Dean Julin.
W: Yes. That was [Richard B.] Dick Stephens who died, and Jack Freeland.
P: Before we go on, maybe we will talk about the LL.M. programs. The law school
has had a lot of interest in expanding those, particularly international law and
comparative law, and it has met a great deal of resistance from the Board of
Regents. How do you feel about the LL.M. programs? They are very
controversial. Some people see them as superfluous, and others see them as
essential to the quality of the law school.
W: I would say they are absolutely necessary in a state like Florida. The Board of
Regents was always conservatively composed, and they are basically behind the
times on that. They have not quite caught on to the evolution of the state being
[so heavily influenced by Latin American countries]. For instance, Miami is
essentially the capital of the Caribbean. All of this area, although it is located in
the United States, [is more Latin American than American]. My wife is an
immigration lawyer, and she has nothing but foreign clients. So it is absolutely
[essential that we develop and expand our international law program]. My
classes in comparative law for thirty years have had 100 students in them, one of
the highest enrollments in the United States. Stanford has fifteen or twenty,
maybe, in comparative law. So the interest is there.
I am also a faculty member in Frankfurt. I can accept doctoral candidates in
Frankfurt. For years I had difficulties being on doctoral committees here. The
theory is that I am only a law professor ...
P: That is true.
W: ... and have no Ph.D. I have a J.S.D. from Yale, but they do not know what it
P: That is true.
W: I am a faculty member in Frankfurt in a German university where I can accept
candidates. They do not know that. I was once on a doctoral committee in
anthropology, and I actually succeeded in salvaging a candidate who otherwise
would have been killed by the committee.
P: Well, that is true, I know. Anne Spitzer was on my committee, and she does
have a Ph.D. from Harvard as well as a law degree, but we had to petition to get
her on since she is only a law professor. Maybe that has to do with the isolation
of the law school.
W: No. It is a so-called professional school; that is how it is distinguished. To
some extent it is justified, but not in Europe. Under European tradition the law
school is the center of things. In Bologna, for instance, the first faculty in the
eleventh century was the law faculty, and the other faculties grew around the law
faculty. But this country started out with apprenticeship and no law school.
P: That brings up an interesting question about the philosophy of education. There
is a lot of division in law schools about whether we should teach the theory or
skills. Students constantly want more clinics, more skills, [and] the faculty want
the theory courses. How do you feel about that, both [from the standpoint of] a
professor and a student--someone who is going to practice law some day?
W: It is like the dichotomy between teaching and publishing. Students are in grave
danger of malpractice if they are not on the theoretical level; if you focus on the
practical level you are usually putting things together without seeing connections.
The connections would be the theory. For instance, the capacity of drawing
parallels to other areas would be done on the theoretical level. If that theoretical
level is missing, you are incapable of seeing the parallels, in essence. What
then happens is that the student or the practicing lawyer overlooks something
that is absolutely serious. All he needs now is an opponent, another lawyer, to
discover that and sue his pants off because of malpractice. So theory is
practical, but students do not see that.
P: Maybe we will go ahead and talk about the law school historically and then come
back and talk about your specific interests. When Dean Julin retired, [Frank]
Tom Read came as dean. [He was] a somewhat controversial figure. Tell me
about the law school under Dean Read's administration.
W: Dean Read came in very peculiarly. [I say that] because the faculty was split
somewhat ideologically between, let us say, liberal and conservative, and each
group had a candidate. The conservatives had one candidate, and the liberals
had another candidate. All of them had to be rated one, two, three, to five or so,
and all the liberals voted the conservative candidate zero, and all the
conservatives voted the liberal candidate zero. Both of them voted Read
number three. This way he pulled ahead of everybody else.
P: It sounds like he was a compromise candidate.
W: So he came in, and the first thing he did rattled the conservative faculty
tremendously. He had some sort of retreat that the full faculty [was to attend].
The first one was done here--I think in the chamber of commerce building. The
whole meeting was under the heading of "Improve the Research Output and
Quality of the Faculty," and this was perceived as a tremendous threat by a part
of the faculty who had a moderate to low publication record. They felt deceived
because they thought the liberals had imposed Read on them by false pretenses.
He had been voted in with a conservative vote and this liberal vote, and people
did not know that he was research-oriented. So the first thing that happened
was that rumors were spread that his research output was weak and so on. But
nevertheless, he immediately established sabbaticals, [and] he immediately
rewarded people who had not been recognized to the same extent under Julin
and definitely not before that. That, of course, created some discontent in some
parts of the faculty who had been better situated under earlier deans. So I have
no qualms with Read. He hid it in a direction which I approved of, so it was fine
P: That is interesting, because he himself was not a research scholar at all. He
was more of a fund raiser.
W: Yes. I think he had a record of publication when he was at Duke, which for
some reason our faculty tends to ignore. He made life as nice for the faculty as
possible. For instance, the faculty lounge which we have was put in by him. I
do not think it is a waste of money. It is actually doing some good.
P: It encourages interaction, if nothing else, between the faculty.
W: Yes. So I think whatever the merit level of Read was, as far as I can see, he did
the right things. When Jeff Lewis was associate dean and then took over, he
inherited a well-running ship, basically, with sabbatical funds in place, with
rewards given to faculty members with publication records.
P: And Dean Read raised the private money for the new building. It was not paid
for by the state. When he left to go to Hastings, his associate dean, Jeff Lewis,
as you said, became dean. That also was controversial.
W: It was controversial. He had pulled in votes equal with Jerry Israel. As far as I
know by rumor, there was not one vote difference between the two, which gave
the University acting president [Robert Bryan] the full power to take whomever he
pleased, and he picked Lewis simply because he knew him. He knew that he
could work with him. Israel is a very good man, but, again, Lewis, as far as I am
concerned, has done a marvelous job in terms of allowing intellectualism and
research and things of that nature.
P: You may not even be aware of it, but part of the reason it was controversial was
[because] about the same time, four jobs on campus were done the same way,
[including] the dean of the graduate school [and] the vice president for
agriculture. There were four jobs that were filled by the old associates, and
Florida got a reputation nationwide of being inbred and sticking its own people in.
W: Yes. But the choice [was] between the two equally pulling as far as faculty vote
was concerned, which was, of course, only advisory. Bob Bryan, the acting
president, could have picked either one from that standpoint. But he did pick the
associate dean. Again, I have absolutely no reason to be unhappy. I was
unhappy under earlier deans, moderately happy under Julin, and from then on I
have had no problem whatsoever.
P: So Dean Fenn and Dean Maloney were both not oriented toward research.
W: Maloney was in a way, but he misread the political situation in the state. In part,
what happened with Maloney was that the radical students in the law school
(meaning the radicals demonstrating against Vietnam) all had daddies who were
powerful politicians, and these law students, together with their fathers,
undermined Maloney's position. He completely miscalculated that situation.
P: Frank Maloney himself was a major scholar of water law.
W: Yes, so I would not say that he was not research-oriented. That was the case
with Henry Fenn; he had his own agenda. But Maloney essentially liked
research and also had a feeling of rewarding it. He got screwed up basically by
the Vietnam War situation.
P: Is that still a problem with politics interfering with the law school administration, or
is that a thing of the past?
W: It is much less so, I think, than it was. That was an old southern tradition that
slowly faded out in connection with, I would say, the Vietnam War.
P: What about the faculty today? On paper the qualifications are fantastic--top-five
schools, judicial clerkships, and all that.
W: [It is] very good.
P: That itself is very controversial. Some people think that those standards--you
have to come from the top-five law schools--are class biased or economically
biased and so on.
W: Not necessarily, because many of the people attend these schools by way of
scholarship and so on, and [they] come really from nowhere. I could give you
dozens of illustrations of people. There is an intellectual bias involved in a way
because there is indeed a difference in the education which is offered. We could
call it a quality difference.
P: Do you think it is a quality difference?
W: Yes. I mean, it is debatable, again, from the standpoint of what you already
raised, namely, the bread-and-butter orientation and theory orientation. Now,
they are also bread-and-butter oriented, but on a different level, a high level of
corporate practice and so on. But there was, for instance, a tremendous
difference between Georgetown and Harvard. It is stunning.
P: Really? Of course, Georgetown itself is a fairly highly ranked school.
W: Yes. It is higher than we [are]. But there was a difference--at least at the time
that I was there.
P: That brings up a question of the rankings themselves. Some people think that
they are just tradition, and other people think they are true. How would you rank
Florida? Do you think it is a better law school than its ranking, which it claims to
W: It is definitely better than its ranking. That is absolutely clear. The ranking is
influenced by factors which should not count. For instance, [its] location in the
South should not count. But nationally it does not make a difference. Then it is
a state school rather than private. It had a history of segregation. Any of this
would lower the national ranking. It does not have graduate programs like these
schools have. It is outside the mainstream of scholarship. It used to be, but it
is no longer. Again, I think that is a merit of Read and of Jeff Lewis. We now
have exchange programs with foreign institutions, and we have never had this.
We have exchange professorships, as constantly professors from other countries
are here as visitors. We have exchange students from the Netherlands and so
But traditionally we used to be in the backwater. You had to go after
information. You had to spend summers elsewhere digging up information
because you could not get it here. I did that, but it cost me thousands of dollars.
I did not teach for years in summers, mainly by going after other sources.
P: What role did you play in developing the international programs?
W: I was hired initially by Fenn with an understanding that I could never expect to
teach comparative law. It was expressly stated. He said, "This is a local state,
and there is no interest in international trade or anything." This was flatly stated.
Then a year later, Bob Mautz, who was later chancellor [of the State University
System] but who was at that time assistant dean and a professor, approached
me and said he would like to teach a seminar in comparative commercial law
with me. He said he wanted to add something commercial; otherwise nobody
would take it. Then we taught it jointly, and we had only three or four students.
Then I continued to teach it; he went into being a dean of administrative affairs,
vice president, and so on. I continued to teach it, and within two years, I had
100 students each time I taught it. [It is] the largest enrollment in the United
States in comparative law.
P: Are you involved in any of the exchange programs, [such as] the Leiden
W: I brought about the Frankfurt exchange, but I am not involved in it except
politically by preparing and supporting it. Otherwise I never have been [involved
in any of our exchange programs].
P: Still, that was tremendously important. You helped to get it going.
W: Yes. Now I am really not that much interested in comparative law. It is more of
a sideline. I am labeled this way. I am about to publish an article on Gypsy
law, but my interest is essentially American law.
P: Let us talk about your fields of interest. In going through your resume, I just
pulled out some areas that seemed to me that you were interested in, and I wrote
down four: psychology and personality, legal counseling, family law, and
small-group law. Do you think that is a fair list?
W: [I am] also [interested in] business organizations. Some people do not see the
parallels between business organizations and family law, but if you call it law of
associations, then obviously it covers both. I am essentially in the law of
associations, including small-group law. Small group law is also the informal law
which grows in small groups.
P: Right. I see that connection. Business Organizations as it is taught at this law
school is primarily [about] partnerships, and [it] deals with smaller groups and not
W: Not my course.
P: Not your course? That is Stu Cohn's course, I guess.
W: Yes. My course is essentially taught out of the Wall Street Journal.
P: Really? Tell me how you got interested in psychology [and] personality and
things like that.
W: I am not really interested in psychology and personality, not in the sense as your
question implies. I am interested in it only from the standpoint of my past
experience as a practitioner and my observation of lawyers in operation, for
instance, [and] also of law faculties. I like going to faculty meetings--not
because of the substance. The substance I find totally uninteresting mostly.
But I like to watch what people do. I watch lawyers [to see] how they win actual
cases. What you call psychology is really part of, in my opinion, a more refined
legal analysis, which is mostly missing.
P: Closely related, you teach legal counseling.
W: Yes. I have taught legal counseling since about 1963 or so, and it is always
extremely popular. It is always immediately signed out [with] 100 students, and
many have to be turned away. I cannot get anybody else to teach it. It is
essentially a discussion of what lawyers do with clients, based on reports by
lawyers. Some students complain occasionally because the reports are too old,
but I have no time to go out and dig up materials. It is too much trouble, and I
do not need it because the materials are good enough, and they actually become
more interesting as they get older.
P: You are also something of an expert on family law. Your book American Family
Law in Transition is in its second edition now. How did you become interested in
W: I was told to teach it by Henry Fenn. I think every topic is interesting. For
instance, a large part of my teaching in any course involves procedure, but I do
not teach procedure. I would give an analysis of a family law case [and] how
much it is influenced by procedure or any of these things. There is not a single
area of law which I would not call a matter of interest.
P: OK. That brings up an interesting point. You have earned two doctorates, and
by your own statement you are a very research-oriented, intellectual person.
Yet I have noticed that you have also written very pragmatic, practical things, like
["The Art of] Drafting Judgments." That seems to be unusual. Maybe I have
W: Yes, it is unusual insofar as I am research-oriented and theory-oriented, but I
consider good theory to be always practical.
P: Right. You do not see the dichotomy between them.
W: No. As a matter of fact, I consider practice one of the main feeders of theory; it
comes up with solutions which then have to be theoretically adjusted. In my
opinion, all these dichotomies are false. Publish/teaching is absolutely false. It
is mostly pushed by people who are incapable of good research. They would
bring up this as a political tool. Theory/practice is another false thing.
P: That is interesting. You have done all kinds of things. You were a visiting
consultant at the UC Berkeley Space Science Laboratory. Tell me what that
W: That was about 1965, and it involved an experiment financed by NASA, which
incidentally, is now continuing here in all my publication activities. Nine male
volunteers between twenty-one and thirty were confined in a penthouse of the
campus at Berkeley, and nutritionists were trying to develop a diet for space flight
purposes that was high in nutrition and low in weight. This was the theory.
They came up with something, but they had to keep the people under total
confinement; otherwise, the experiment with the diet they had invented would
have been worthless. I would say it was an expensive experiment; there was a
staff of about thirty people, and nine volunteers had to be paid and so on, so this
cost thousands and thousands of dollars.
They called me as a law professor into the experiment to observe the law which
the people would generate under confinement. Their theory, in a way, was:
maybe there is a correlation between diet and law. Scientists looked at law as
an intellectual excretion of people. I mean, maybe that is cockeyed, but it is
interesting, so I went there and watched them. [Later] I wrote several articles
and the report about it. It got some national attention, actually.
The people at Berkeley--again, this is interesting--asked, "Where are you from?"
This was written up in the newspapers all over California. I said, "I am from the
University of Florida." [They would say,] "Do you mean to say there is nobody
here in Berkeley who could handle this?" I said, "There is nobody among law
faculties in the United States who would handle it." I was indeed the only one
who would do it or who would have an interest in it.
P: You have done a lot of work with small groups. Even a family, arguably, is an
area of small-group law.
W: Even the United States Supreme Court is a small group. A jury is a small group.
These people, in my opinion, have an unwritten law that rules what they do, and
the lawyer who argues a case before them being unaware of these unwritten
rules will lose his case. If you argue a case strictly along legal lines, you create
an inference, and the inference is that your case is weak.
P: That is interesting. It is fascinating.
W: But it is true.
P: It is.
W: The more technical and legal you get, the more you bolster the inference that you
have a weak case. But lawyers seem to be unaware, and law schools seem to
be unaware, [of this dynamic]. They create an illusion that you actually can win
a case on the legal level. You may have something there, but if you are totally
unaware of all these other factors, you will not win. This is my theory. But you
see, this is practical.
P: It is very practical.
W: Extremely practical. That is why they like local counsel.
P: Do you see yourself as a legal realist?
W: Possibly, except I do not see it as a dichotomy between law in the books and law
in action. Our traditional law proceeds as a theoretical structure which, for
generations, has not incorporated these aspects into it, which should have been
done. In other words, it is not a dichotomy but a faulty theory.
P: You have been very active as an editor. You are still the editor of the American
Journal of Comparative Law.
W: I still am, yes.
P: You were on the board of editors of the Family Law Quarterly.
W: That is no longer so, and I no longer [am an editor there].
P: Right. And you were still on the editorial board of Law and Society Review.
W: Yes, [but this was for a special issue].
P: That is common for a liberal arts and sciences professor, but that is a little
unusual for a law professor.
W: In America, you see, most lawyers do not have editorial boards among faculty.
There are only a few that have that; for instance, Law and Contemporary
Problems at Duke University is one. Others are the Journal of Legal Education
and the American Journal of Comparative Law. These are faculty-edited law
P: That is very unusual. Most are student-edited.
W: Law and Society is another one.
P: How did you get involved with the American Journal of Comparative Law?
W: I am always classified as a comparative law professor, which in a way is
nonsense, but it is also very true. But my specialty within comparative law is
American law as seen from the European side. But that is, of course, a very odd
animal in the United States, because I am specialized in American law as a
whole as a fully-trained European lawyer. There is no such thing over here.
P: You already said that you consider comparative law to be one of your minor
interests right now.
W: Yes. If you classify [them], my main interest is legal anthropology, not
psychology. That is what it really is.
P: Behavior more so.
P: Why have you stayed editor for thirteen years if you are not that interested in
W: All of my things inevitably have a comparative aspect to them. This big article
here, for instance, which I am mailing out now, is on the legal system of the
Gypsies [forthcoming in 103 Yale L.3.#2 (1993)]. The Gypsies are a tribe
originating from India. There are about 1.5 million living in the United States. If
I write about their legal system, you could call that comparative law. Nobody
else has written about it, but I draw parallels between our culture and tribal
aspects in our law, for instance.
P: What about the Law and Society Review? Tell me what that is.
W: That has an ideological component a little bit. There is the Law and Society
Association that publishes it and is frequently mentioned in it, together with
critical legal studies. You are familiar with that.
W: So I think [the emphasis is] not so much intellectual. To some extent, yes, but [it
was] largely because people who were active in founding these institutions were
active on both sides. They go a little bit in different directions now.
P: You do not strike me as a critical legal studies person. Would you call yourself a
W: No, I would not call myself a crit. As a matter of fact, Professor [Jeffrey L.]
Harrison here maintains--and I secretly agree with him--that I was usually ten
years earlier than anything they said. For instance, I published an article, "Law
as Mask[: Legal Ritual and Relevance]." About five or six years later, suddenly
all the critical studies started talking about law as mask but without ever
mentioning my article. So they come usually later.
P: Well, some people think they are dishonest anyhow. [laughter]
W: I do not have as activist an agenda as they have. To me, it is more of an
intellectual endeavor. From that standpoint, I consider some of the things they
do very valid, simply by rethinking some basic proposition.
P: I will not try to go through everything you have written because the list is
enormous. The one book on the Gestapo I had trouble reading [because it is] in
German. Tell me what that was about. It sounds interesting--"Gestapo
W: I can give you an English reprint of it. It was published here in a condensed
version in the Columbia Journal of Transnational Law.
P: Dr. Weyrauch has handed me a reprint of his article, "Gestapo Informants:
Facts and Theory of Undercover Operations." Tell me just a little bit about what
it is about.
W: Yes. In 1945 the German courts were closed; I was an apprentice in the
German courts. The people were told to stay at the disposition of the
occupation forces as needed. The prisons were empty, and somehow the
Americans and others were under the mistaken assumption that everybody in
prison was [a] political [prisoner], which, of course, was not true. There were
murderers and thieves, among others. So they were all let out. The prisons
were soon all full again with Nazi functionaries, and the Americans did not know
what to do with them. Technically they had not necessarily committed any
crime, or nothing [had been] charged. They were just Nazis.
So fifty people who were in Frankfurt at the time were asked by the acting mayor
of Frankfurt and the American military government to interview these people, so I
interviewed them from morning to night. What kind of interview was it? There
was no formal crime there. The main issue was, "Are you a danger to the
occupation forces?" So we made recommendations whether the people should
be released or not. This was in April and May of 1945.
One of the people involved was a Gestapo agent, and he mentioned to me that
the Gestapo card files had been secreted in a water tower in a city near Frankfurt
and had not been destroyed. I asked the official in charge, "Can I go there and
get them?" The official said, "I have no vehicles." An arrangement was made
with the American military, and a driver and a truck went there to get the files.
We got the files, and they wound up in the American military government. I was
asked, since I had located them, to evaluate them, and two or three people were
given to me to work with me inside the local military government. So we went
through the files, and we were asked to concentrate on secret informants
because they had files on Nazi members and so on, and they were not really
interested in that. They were interested in people who had no formal affiliation.
So we checked that and found about 1,200 cards of informants.
I wrote a report which I gave to the German senior judge who was there--the
American military government also got one--about what kind of people became
informants. Essentially what emerged was that the informants fell into definite
categories: either non-Germans, especially Swiss citizens living in Germany; or
members of the German resistance, namely, people who were Social Democrats
or Communists and for some miraculous reason were not in a concentration
camp, the reason being that they were collaborating as informants; or an
occasional Catholic priest or a Jew who was not deported to a concentration
camp, sometimes married to a non-Jewish spouse. In other words, the people
who were least suspected were actually the ones who were recruited, which
There were also categories of people who were not collaborating. (This is all in
this article and book.) These were essentially Jehovah's Witnesses. They
were so religiously fanatic. Even in the concentration camps they were trying to
convert the Nazis to becoming Jehovah's Witnesses. They would approach
P: Historically this is true. Even the Confessing Church, the very conservative
Protestants, were the ones who resisted Hitler the most.
W: There were Jehovah's Witnesses and Gypsies. The Gypsies never
collaborated. They were murdered by the hundreds of thousands [about 1.5
million], but they did not collaborate. And open Nazis [did not collaborate]. Let
us say a man who was known in his neighborhood as being a fanatic Nazi would
not be recruited as a Gestapo agent. Why not?
P: Nobody would tell him anything.
W: Nobody would tell him anything. So actually a part [of the book] was taken as a
sensation, but in a way it made sense. Some then attacked it as all speculation
that I was trying to smear the German resistance and so on. Then the whole
thing was verified by Stasi [Staatssicherheitsdienst] in East Germany. They
found their files, and it was the same thing all over again, the same principles.
P: You have published dozens of things. Are there two or three of those that you
would like to talk about that you consider specifically very significant?
W: The most important is the one on the way.
P: This is the one on the Gypsies.
W: Yes. You may look at the table of contents. It is basically my theory of law, and
I maintain that law is essentially private in application and that the written law, the
law in the books, the law in cases, is not entirely insignificant but that the actual
impact of unwritten rules, oral traditions, and the outcome of cases is
substantially more important than people realize. Then I say, for instance,
"What is called strategy?" This is disparaged as being lowbrow. It is in reality
an invocation of oral tradition mostly. It is strategically important. You can
never argue oral tradition openly in court because it will be dismissed as
irrelevant. But you can infer it; you can slur; you can imply it. If you do that
skillfully as an experienced attorney, you will win your cases over and over,
because the judge is listening to it and the jury listens to it.
The next question is, how can you create a sensitivity to that vital aspect of law?
I say by study of tribal law. I picked the Gypsies because nobody has ever
written about them, and nobody really knows what they are and who they are and
what they do. Their courts have an oral tradition. There are numerous parallels
to what we do.
P: It very much makes your case that theory and practice merge.
W: Yes. So if you call me a legalist, I would deny that because I consider myself a
theoretician who makes an attempt to be practical.
P: OK. Are there any other of your publications that you consider especially
W: No. This is probably the main one for me. The big problem will be who will
publish it. [Article meanwhile accepted by Yale Law Journal: Walter O.
Weyrauch & Maureen A. Bell, "Autonomous Lawmaking: The Case of the
'Gypsies,"' 103 Yale L. J. Nr. 2 (Oct. 1993).]
P: I was going to ask you about that.
W: That will be difficult. How would they know that there is any substance or if it is
P: That brings up an interesting question. I happen to be the editor-in-chief of the
Journal of Law and Public Policy [JLPP], and we try to have others outside
referee. We have had a lot of opposition from the administration of the law
school over that, among other things. How do you feel about student-edited law
W: It is of tremendous benefit to the students. There is no question. For instance,
the Harvard Law Review editors basically do nothing but work for the journal.
They hardly can to to classes. They have too much to do.
P: It takes a great deal of time.
W: Yes. But they come out of this educational experience as terrific lawyers
through the editorial experience. So there is no question it is very valuable.
The problem is that it has a proclivity of being unduly conservative, in other
words, a conservative bias. Why? Because if something is too unusual, they
would get cold feet. They would know they were out of it and so on.
P: As I said, I am also in history, and most academic disciplines have a very
different system. Articles are blindly read by outside readers without the
author's name on them.
W: Harvard is doing that.
P: Harvard does do that, yes.
W: Harvard has a rule that you have to cover up the names and give a blank title
sheet in addition.
P: That is correct. They do. We do that at JLPP, but it is very unusual.
W: But that is the only one.
P: We have been discussing your article, "Autonomous Lawmaking: The Case of
the Gypsies." Do you think it will go in a law review, or are you going to try to
put it [somewhere else]?
W: If it goes in a law review, [it will] more likely [be] in one of the top law reviews,
because that would be one of the differences.
P: It would be seen by more people, also.
W: Yes. Furthermore, at this point I am interested in making it effective as a piece
of scholarship, and if it is published in Harvard, Yale, or Stanford, it will be
infinitely more effective than if it were published anywhere else. And I want to
reach the law professors, whom I will not reach if I publish it as a monograph with
the University presses because they will not read books. So there is here the
politics of publication involved.
P: It certainly is. You have had a very distinguished career. You have been
Teacher of the Year in the law school, you have received the Florida Blue Key
Distinguished Faculty Award, [you are listed in] Who's Who in America and
Contemporary Authors and are honorary professor at the University of Frankfurt,
[you are] one of thirty members of the American Academy of Foreign Law at
Stanford. Looking back on forty years, thirty-five years as a law professor, do
you have any regrets about the career choice you took?
W: No, but there is one regret I have. I was almost simultaneously offered a
professorship at Stanford about ten days later after I was accepted here, and my
feeling at the time was I had to reject that offer because I had accepted here.
Everybody in America tells me this was stupid, but that is actually how I felt at the
time. So it was an ethics question.
Probably I would have been better located there, in terms of being effective,
because I think I have unusual ideas which nobody else has. Of course, if you
have unusual ideas which nobody else has, then you are better located
somewhere at the top to be effective because there is always a tremendous
resistance to overcome with unusual ideas promulgated from southern schools.
P: Right. Being in a top-five school would give you a certain amount of credibility
P: What do you see as the future of the University of Florida law school? Where do
you think it will be in fifteen years?
W: There is, of course, a dichotomy here. It is dependent on the state's policies,
which is in some way an advantage and a disadvantage. For instance, in my
interest in American law, from that standpoint Florida was better than Stanford.
Why? Because I was forced into all these local state controversies which I
otherwise would never have experienced. So probably my scholarly activities
now have a base which I might not have gotten at Stanford or Harvard.
P: That is true.
W: But people do not see this. I mean, I do not get credit for it.
The future? The diversification of education in multiple institutions, all of the
graduate programs, is a danger, in my opinion. It is a benefit in spreading
education democratically, but it destroys any hopeful effort to break into the
league of Michigan or Berkeley or any of these top-level state schools, even
Texas. I was on the Texas campus recently, and I was amazed about that
institution. It is way ahead of us, yet it is only a state school. But if you look
around, they do not have to wrestle with the problem of spreading it into
numerous [other state schools]. There are, of course, other
institutions--colleges and so on--but not to the degree that it seems to develop
P: Florida, of course, wants to be a top-twenty school. Will it ever be one?
W: In terms of quality I would say it could well be now, but this is a problem I
mentioned, and it is very sad. We wrestle with historical baggage. For
instance, a friend of mine accepted a chair; he was a professor in Wisconsin and
accepted a chair at Washington University in St. Louis. They told him
academically that it was step down from Wisconsin to Washington, even though
Washington is a good university.
We are in the top-twenty ranking in terms of the intellectual output of the faculty
now and the quality of the faculty, including the students. The students are
tremendous. But the question is, how can you mix a prestige rating which is
lower than top twenty and adjust it to the reality? This is a major struggle. I do
not know how [to do it]. It is very difficult.
P: Is there anything you would like to add? Anything I have missed or forgotten?
W: I think the exchanges which bring us into a constant flow with other institutions
[are very positive]. It does not really matter whether they are the same ones, for
instance, one in Australia and one in British Columbia, in Vancouver. We now
have this guest professor here, Harry Rogers, who, in addition, is Orthodox
Jewish. I mean, this is valuable because we are exposed here to [different
ideas]. Furthermore, these visitors go back to where they come from, and they
report that we actually are good, and I think that may be helpful to our reputed
P: Would it help if we had more students going out of state?
W: For instance, the exchange programs--we have now one with Frankfurt which we
just negotiated last December. And [we have] another one [with Leiden,
Netherlands]. The big problem is, of course, only a minimum number [of our
students have adequate] knowledge of German, at least enough to be able to
follow. They will give us exams in English and grade them in English, but you
still have to attend the class, and the lectures are in German. So I think that
would be all [helpful]. It made a big difference with our faculty, by the way, going
there and seeing something different.
P: Anything else?
P: Thank you very much for your time and the information. This interview will be
a valuable addition to our Oral History Program.
[End of the interview]