Post Date: September 10, 2004

A member of the HLS faculty since 1971, Professor Arthur Miller discusses his teaching career, the state of the legal profession and “My Cousin Vinny.”

This year marks the 35th anniversary of your treatise on federal practice and procedure.

I actually started working on it with Charles Alan Wright close to 40 years ago, so it’s been a major part of my professional life. We originally envisioned a treatise of somewhere around five volumes. Now, with all of its parts, it’s over 30 volumes, and I have responsibilities in about 15 or 18. I have taken it as a commitment for life simply because my name is on the spine, and I feel the only way to have quality control is to keep participating. My attitude toward that is heightened with the death of Charlie a couple years ago. He was a great man, a great friend, a great co-worker, and I miss him. I feel that, by continuing my involvement, I’m continuing his involvement.

Are you surprised by the treatise’s longevity?

There used to be an era when treatises would go on for a long time, but then treatise writing fell out of fashion in some academic circles. I remember the late, great Professor Louis Loss, who did the absolutely critical treatise on securities regulation, bemoaning the fact that treatises were hard work and that some academics disparaged treatise work.

Why is that?

We live in a world of political correctness, and people use a lot of their writing to pursue ideological [issues], which is fine. But there is a tendency to think that those of us who do treatise writing are encyclopedists, and are not plowing new ground. I understand that attitude, but I think it is carried to an extreme. Part of the serving of a profession is to provide the raw materials to lawyers and judges and law students for doing their work.

You’ve been teaching procedure for many years. What are the big changes in the field? What developments have surprised you?

One of the great changes is the explosive growth of the class action. Hated by defense interests, loved by plaintiff interests, utilized by various public interest groups to fight discrimination or prison overcrowding or securing civil liberties, it’s a great instrument for social justice. It’s not simply, as the maligners would have it, a moneygrubbing procedure. You look at all the great cases like Brown v. Board of Education, and the great reapportionment cases, and the great due process cases, and some of the great criminal justice cases, and they were class actions.

Number two would be the expansion of discovery beyond anyone’s anticipation. Cases have gotten bigger, and with large stakes, it produces increased activities at the discovery level so that in reality much of modern federal litigation is pretrial litigation. And in that sense, another, to me sad, development has been the virtual disappearance of the jury trial in civil litigation.

As these changes have occurred, have there been efforts to rein them back in?

The forces are going in both directions. The expansive forces are really societal. We live in a nation that gives you instant communication, mass transportation, mass production, mass distribution, mass utilization, so that many of the phenomena that end up in litigation are mass, not one-on-one. On the other side, these pressures on the federal courts have led to attempts to legislate [changes]. Just this past year, Congress tried to shift all class actions into the federal courts. This has also led to one of the great sadnesses of my life, and that’s the increased polarization of the bar. We all used to be members of the same profession. I remember as a young lawyer on Wall Street that you could stipulate with your opponent orally by telephone. No lawyer in his or her right mind would do that today because we have become less civil. You are either a plaintiffs’ lawyer or a defense lawyer.

You’ve taught a course on privacy and technology. Is there such a thing as privacy today, given the advances in technology?

We could very easily bag privacy as a right and just say the jig is up; there is no way to have privacy in a technological world. Or, we could do what I think we are doing—increase consciousness about privacy values on the part of the information handlers. I think there has been a tremendous change with the development of administrative and technological protections, and the development of privacy policies in almost all economic entities in this country. I think if I looked out from Mount Olympus, I’d say we are losing, but it’s not hopeless.

Should there be a presumption of privacy when we are in public?

I think the greatest ally the antiprivacy forces have is the media. It’s the only business with its own constitutional amendment. And a lot of the degradation of privacy rights has come from media pressures. I don’t fault them; they have their job to do. But we cannot ignore the fact that we cannot have any public privacy because of First Amendment values and presumptions. Every once in a while—and I think my media friends will put out a contract on me for saying this—I try to think about the wisdom of New York Times v. Sullivan.

It sets a high bar.

Absolutely. And in certain contexts and regards, I think that’s appropriate. But the Internet changes everything in ways we are just beginning to perceive. Everyone is a publisher on the Internet. Does everyone get New York Times v. Sullivan protection?

What’s your answer?

I don’t really have an answer. That’s one I think at this point in my life I will leave to my friends over at the Berkman Center.

I understand you give some movie advice to your first-year procedure students?

I give movie advice as to what I believe are the great law movies: “Twelve Angry Men” on the jury system; “Anatomy of a Murder” I think is wonderful; “Judgment at Nuremberg” I think is a great look at law as a profession. And I think “My Cousin Vinny” is wonderful. Most movies don’t really get into trial procedure, but “My Cousin Vinny” does.

Have you ever served on a jury?

Every time I’ve gone for jury duty, I’ve been “excused” because, for the last 30-plus years here in Massachusetts, I’m known because of the television. Either one lawyer or the other lawyer is just dubious. Lawyers generally don’t want someone on the jury who they think might dominate it.