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William J. Stuntz | Criminal "Justice" | Shared Pathologies | Hatching a Gadfly
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Remembering William J. Stuntz, 1958-2011

by David Skeel '87
S. Samuel Arsht Professor of Corporate Law
University of Pennsylvania Law School

Editor’s note: Bill Stuntz ’84 and David Skeel ’87 blogged together for years at Less than the Least

Bill Stuntz '84

Photo courtesy Grace Benson Photography

The first rumor we students heard when Bill Stuntz returned to the University of Virginia to teach after his Supreme Court clerkship was that he hadn’t gotten into Virginia the first time he applied. He’d been turned down, the story went, spent a year working as a clerk at a local hotel called the Boar’s Head Inn, got in on his second try, then went on to graduate first in his class. It was fitting that even the rumor Bill spawned was encouraging to the rest of us (we too might start humbly yet achieve great success).1

I sometimes wonder if that year as a hotel clerk was one of the secret ingredients of Bill’s humility. At a presentation by a scholar in family law or bankruptcy, Bill would preface his question by saying that he didn’t know anything about the subject and seem to mean it. After giving an hour of his time to work through an idea or a paper or a problem that someone was struggling with, he would apologize to them for “taking up so much of [their] afternoon.” This might be easy for someone who really doesn’t know a great deal or really is presuming on the student’s or friend’s or colleague’s time. It was almost unfathomable in a scholar who transformed an important area of legal scholarship—criminal law and criminal procedure—and pioneered another—contemporary Christianity and law.

One of Bill’s colleagues once told me that Bill was the “dumbest smart person she’d ever met.” This wasn’t intended as an insult (though I suspect she may also have had Bill’s penchant for putting ketchup on steaks or his susceptibility to practical jokes in mind). What she meant was that Bill’s intuitions—the ideas he thought were self-evident—were often anything but self-evident to everyone else. In one of his most famous articles, Bill showed that the new constitutional protections the Supreme Court had put in place for criminal defendants (such as the Miranda rule and an expanded exclusionary rule) may actually have had a perverse effect on criminal justice.2 In another article, Bill identified and solved a paradox with the criminalization of gambling and the social battles over abortion and gay rights: the odd tendency of these laws to undermine the very norms they are designed to promote.3

Bill’s commentary in popular magazines was as stunningly counterintuitive as his legal scholarship, and I believe his meditations on his cancer will have as powerful an impact in their way as his seminal criminal procedure articles.4 Indeed, they already have. Each time Bill emailed me a post for the blog we co-authored (always telling me not to use it unless I thought it was “okay”), I would brace for the emails I would receive as soon as it went up. Many confided, to paraphrase only slightly, that my “posts weren’t so bad, but Bill’s—well, they were simply unforgettable.” As my wife once put it: “Everything Bill writes is interesting.”

The irony of having such an original mind is that one’s insights may become the conventional wisdom. Novel at the beginning, obvious when everyone else catches up.

Bill would never have begrudged this. This wasn’t because he lacked ambition or didn’t value it,5 but because he believed that our enterprise as legal scholars of trying to better understand and perhaps improve the world is a collective one. This commitment to our common mission was perhaps most evident in something Bill, unlike most scholars of his stature, didn’t have: disciples. The work of some scholars—such as Daniel Richman of Columbia, my colleague Stephanos Bibas, or Barbara Armacost of the University of Virginia—would be hard to imagine without Bill’s inspiration. And countless scholars have borrowed from Stuntz—“stealing” his insights, as David Sklansky6 has written. But Bill encouraged new thinking, not devotion to his own ideas.

Two attributes of Bill’s insights will nevertheless keep them from dissolving into the conventional wisdom. The first is simply that his best known ideas were so radically new when he developed them. No one can talk about the unintended consequences of the Supreme Court’s constitutional criminal procedure cases or the political pressures to steadily expand federal criminal law without a nod to Bill’s work.

The other is more aesthetic: the arresting images that capture the ideas. Bill famously described the constant pressure to criminalize publicly salient misbehavior as a “one-way ratchet.”7 And he spoke of law’s “double game”—the need to police sinfulness without giving lawmakers so much discretion that they will enforce a law in discriminatory fashion, an objective he later called the “modest rule of law.”8

During my final year of law school—and Bill’s first of teaching—I did a small amount of research for him. Bill didn’t just give me a research assignment; he asked me to critique his draft, and treated my ill-informed comments as if they might teach him something. I wasn’t used to having professors who didn’t assume they already knew most of what there was to know. Many years later, an evening janitor got the same treatment when Bill and I encountered him as we walked through the tunnels of Harvard Law School on our way to a meeting with the law school’s Christian Legal Society students: Bill greeted the janitor by name, asked about his family, and stopped to talk.

Even in his final weeks, Bill loved to laugh. The last time I saw him, he joked, almost as soon as I’d walked in the door, that he had “already lived past [his] expiration date.”

In an essay about heaven, C.S. Lewis wrote:

It may be possible for each to think too much of his own potential glory hereafter; it is hardly possible for him to think too often or too deeply about that of his neighbour. The load, or weight, or burden of my neighbour’s glory should be laid on my back, a load so heavy that only humility can carry it …. 9

The essay, which Bill once called his favorite Lewis writing, extols those who recognize both that “[t]here are no ordinary people,”10 and that even “the dullest and most uninteresting person you can talk to may one day be a creature which, if you saw it now, you would be strongly tempted to worship.”11

Anyone who knew Bill can guess, although Bill probably could not, why he was so strongly drawn to this essay: it’s about him.

Harvard Law Review, Volume 124, June 2011, Number 8
Reprinted with permission

1 Much later I learned, much to my surprise, that even the first part of the rumor was true. I suspect that UVA’s admissions standards, or perhaps the admissions officer, were soon changed.

2 William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1 (1997) (arguing that, because their fees are capped, defense attorneys may focus on the new procedural objections and forgo the careful investigation that would be necessary to determine whether the defendant may be innocent).

3 William J. Stuntz, Self-Defeating Crimes, 86 VA. L. REV. 1871 (2000).

4 For Bill’s meditations on cancer, see LESS THAN THE LEAST, (last visited May 5, 2011).

5 A small example: several months before a major conference at Harvard Law School honoring Bill’s work last spring, I told him I was struggling to suppress my impulse to treat the conference as an opportunity to enhance my own professional status. Bill surprised me by saying: “I think you’re wrestling too much. There isn’t anything wrong with seeking some professional gain for yourself in this or any conference—that’s the chief reason to have conferences.”

6 David Sklansky, Stealing Bill Stuntz, in THE POLITICAL HEART OF CRIMINAL PROCEDURE: ESSAYS ON THEMES OF WILLIAM STUNTZ (forthcoming 2012).

7 William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 509 (2001).

8 David A. Skeel, Jr. & William J. Stuntz, Christianity and the (Modest) Rule of Law, 8 U. PA. J. CONST. L. 809 (2006).

9 –11 C.S. LEWIS, The Weight of Glory, in THE WEIGHT OF GLORY AND OTHER ADDRESSES 3, 18 (Walter Hooper ed., 1980).

[ed.note: In honor of the passing of Bill Stuntz ’84, we devote this issue of UVA Lawyer to criminal justice, a subject he studied with passion and profound insight. His influence in the academy was deep and broad and will endure.]