Tuesday, April 5, 2011
Oscar S. Gray is the Jacob A. France Professor Emeritus of Torts at the University of Maryland School of Law and the 2010 recipient of the William L. Prosser Award from the AALS Section on Torts and Compensation Systems. He is perhaps best known as the surviving co-author of the definitive six-volume treatise on tort law, Harper, James and Gray on Torts and as a co-editor of Cases and Materials on the Law of Torts, along with the late Harry Shulman, the late Fleming James Jr., and Donald Gifford.
Before entering the academic world, Professor Gray served as an attorney-adviser in the Legal Adviser's Office of the U.S. Department of State; special counsel to the President's Task Force on Communications Policy; and as acting director of the Office of Environmental Impact for the U.S. Department of Transportation. He also joined and became a vice president and director of a start-up company in the nuclear materials field. In addition to his decades of teaching and scholarship at the University of Maryland School of Law, Professor Gray has taught at the Georgetown University Law Center, the University of Tennessee College of Law, and the Catholic University of American School of Law. He is a member of the American Law Institute, the Selden Society, and Phi Beta Kappa.
It was a personal pleasure and privilege for me to interview Oscar--my colleague, mentor and friend--on March 10, 2011 at the University of Maryland School of Law. The interview follows.
Edward M. Robertson Research Professor of Law
University of Maryland
1. Why did you apply to law school? Where did you go to law school, and why did you select that school?
Law school was a possibility in the back of my mind for a long time. The actual decision came about as a result of a confluence of three factors as I was approaching graduation from Yale College. One was that I had to figure out what I wanted to do after graduating. And my thinking about that involved speculation about what I might like to do, and the conclusion that I would never be able to make a living with a Ph.D. in History or English. The second factor, I suppose, was that at this time I still dreamed of changing the world. The third factor was the desire to promote justice. My sense was that from the point of view of public life, law was the mechanism for bringing about social change, and looked at from the point of view of retail justice, law again was a way—perhaps the most striking way—of fighting for the righting of wrongs. All this was what was attractive about law.
What were the injustices and wrongs that you were focused on when you thought about these things?
Oh my heavens! The general oppression of people. One of the big problems of course then was racism. The taking advantage of poor people by the rich was a problem then as it is now, as it has been since biblical times. Those were the factors and then I suppose, what sealed my interest was that at that time, the Yale Law School had a local reputation among the students of being the best liberal arts graduate department in Yale University. And that’s why I chose Yale.
2. Who was your Torts professor, and what was your experience as a Torts student?
Well my experiences as a student were that I was essentially hiding under the desk not to be called upon! I had two teachers: Harry Shulman and Fleming James, Jr. Shulman was the greatest Socratic scholar that I have ever encountered anywhere. While I was terrified of him, his pressure was never gratuitous. There was always a very clear pedagogic objective to everything he said and everything he asked; it was always constructive, always tremendously challenging. It was immensely valuable. Between him and James, I think I had the best introduction to Torts I could have hoped for.
Fleming James was not as flashy a teacher as Shulman, but he was an experienced torts practitioner and had already demonstrated a great deal of thoughtfulness in a series of law review articles about torts which developed into a whole body of thinking that ultimately I had the privilege of working with for the rest of my life.
From an early time at the law school, I had contact with Fowler Harper as well. Harper probably had the greatest reputation of any of the members of our faculty for torts scholarship, as author of Harper on Torts, but at that time was not teaching Torts. He taught Constitutional Law, and I had him as a Constitutional Law teacher my first term. Later, I was a student research assistant of his on a casebook he was doing on family law, and it was one of the famous and really important casebooks of its time because I believe it was the first family law casebook that drew extensively on the results of social science research and applied them to problems in family law.
3. How did you become interested in teaching law and Torts in particular?
I first thought about law teaching while I was in law school simply because I admired the teachers so much. It just seemed as if that would be a wonderful way to live if it were ever possible to have the opportunity, so in the back of my mind I was always predisposed towards teaching.
Seventeen years or so after graduation from Law School, I had the opportunity to establish the Office of Environmental Impact in the Department of Transportation, and I had a dandy time trying to prevent roads from doing unnecessary environmental harm. After three years in that position, I left and that’s when I started to teach. I had some offers to teach something called Environmental Law which I had never heard of before then but which seemed like a natural thing. I started doing a casebook because there were no casebooks on environmental law. I taught Environmental Law courses at Georgetown and at Catholic University.
4. When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?
In 1970, Georgetown Law School significantly over-enrolled students. It needed professors to teach an additional section of Torts. The dean at Georgetown was my old senior supervisor from State, the former Legal Adviser of the Department of State, Adrian S. Fisher. Fisher asked me whether I would like to teach Torts. I was thrilled at the opportunity, and that’s how I got a chance to become a Torts teacher.
My first step was to telephone James in New Haven to try to remind him who I was, which I didn’t expect him to remember; this was, after all, over twenty years after I had taken the course from him. I told him what had happened and asked whether he could help. He asked, “Can you come up to New Haven tomorrow?” I said yes; got on the train and went up and he had the whole torts faculty of Yale lined up to talk to me and give me whatever help they could to get started. They were all very, very helpful to me. That is where I met Guido Calabresi.
When James drove me back to the train station when I was leaving, he asked me how I would like to work on revising his Shulman and James casebook. I said, “I accept”! And so I got back to Washington all set to teach a course that I hadn’t thought about much for over twenty years, and all set to do what turned out to be a very big work of scholarship for me. Later, after I had done the casebook, James asked whether I would like to help revise the treatise. Obviously I was very pleased to do that.
As to the changes, I think the central issue addressed in the Torts course as Shulman and James envisaged it and in the one that many professors teach today remains the same: the problem of dealing with accidents.
It’s hard for me to judge what teachers were like back then in comparison with my own experience with their present-day successors. I have a very high regard for the quality of applicants for teaching positions whom we see at Maryland. On the other hand, to try to generalize about trends and differences is difficult for me because when I think of the productivity of the teachers when I was a student, it just seems fabulous compared with the productivity of anybody I know today, other than Posner and Calabresi, and one or two others. The Yale Law Faculty had 35 teachers when I was a student. Harper, having previously authored Harper on Torts, which was the treatise on torts in America before Prosser, was also teaching Constitutional Law, teaching Family Law, and writing in both fields. James was doing a tremendous output of tort work and civil procedure at the same time.
5. What do you see as your major accomplishments as a scholar and teacher?
Well, I don’t know that I’ve accomplished anything major. It has been a satisfaction for me to have been able to contribute toward the keeping alive of the voices of Shulman and James, and Harper, so that they can continue to speak to new generations of students and scholars. I think that’s been a contribution to those of us who have access to this material, and in the case of Harper it is of considerable personal satisfaction as well. But I suppose that’s what makes me feel the best.