From the Big Apple to the Farm

Larry D. Kramer left New York University to become Stanford Law School's new dean. The 46-year-old constitutional scholar is respectful of the school's past, but he's not afraid to try new things.

By Eric Nee

Photo: Glenn Matsumura

Larry D. Kramer didn't waste any time settling into his new life. Within weeks of being named dean of Stanford Law School, he and his wife, Sarah Delson, flew out to the Bay Area and, after a brief look around, purchased a home in the sprawling faculty neighborhood on campus. Then it was back to New York City to pack up their belongings, tie up a few loose ends, and say goodbye to friends and colleagues before heading west.

Their new suburban home is a far cry from the circa 1814 Washington Mews carriage house they occupied in New York's Greenwich Village. Kramer's office at New York University School of Law was a five-minute stroll across Washington Square from their home. The two could walk, or take a cab, anywhere they needed to go. Now they have a pair of cars, along with the requisite car seat for their 4-year-old daughter, Veronika, affectionately called Kiki, befitting their new California lifestyle. But all of this upheaval doesn't concern Kramer in the least. "They are both great places to live, just different."

The fact is, Kramer is used to adapting to new environments. He even thrives on it. Stanford is the fourth law school at which the 46-year-old Kramer has held a tenured professorship. At each of the first three he had the good fortune of being hired by, and working with, the most gifted deans of that generation: Gerhard Casper, then dean of the University of Chicago Law School, went on to become president of Stanford University; Casper's successor, Geoffrey Stone, became provost at Chicago; Lee Bollinger, then dean of the University of Michigan Law School, is now president of Columbia University; and John Sexton, then dean of NYU School of Law, is now president of NYU.

Working for such esteemed deans was an educational experience for Kramer. "I learned an incredible amount from each of them," said Kramer in an interview shortly before assuming Stanford's deanship on September 1. "If there is one thing I came away with, it is to be generous—generous to faculty and generous to students. They all viewed their job as making it possible for the faculty and students to pursue the things they wanted to pursue."

Kramer became an exceptional teacher, earning awards at both NYU and the University of Michigan for his teaching. "He had very high standards," said Richard L. Revesz, the current dean of NYU School of Law. "He expected a lot out of students, which scared some people off. He cultivated that persona, but underneath he's very sweet." Kramer also spent a good portion of his ten years at NYU helping to recruit and nurture young faculty and working with colleagues to invigorate the intellectual life at the school.

"He [Kramer] is one of the three or four most exceptional legal minds that I've ever dealt with," said Andrew Frey, a partner at Mayer, Brown, Rowe & Maw LLP. Frey met Kramer about 20 years ago, when Kramer was a law student working as a summer associate in the solicitor general's office, where Frey was then deputy solicitor general. While at NYU, Kramer was a consultant to Mayer Brown's Supreme Court practice, working on a wide range of cases. "He's fast and insightful, and has a tremendous range of expertise," said Frey. "He's an extraordinary lawyer."

It wasn't always obvious that Kramer would end up as the dean of a major law school. He spent his early years in the near northwest Chicago suburb of Niles, a working class town made up mostly of Polish, German, and Italian neighborhoods. The family moved to the nearby suburb of Morton Grove after his father's restaurants—the Pickle Barrel—took off. "Those were relatively affluent years for us," said Kramer. Nevertheless, Kramer worked during his teens: first at his father's restaurants, where he did just about everything, and then as a caddie, a gas station attendant, a short-order cook, a Kmart clerk, and a shoe salesman. Just as Kramer was entering college his family's restaurants went belly-up, and he had to put himself through college and law school.

In high school, Kramer was a good student, but not at the top of his class. On a lark he applied to and was admitted to Brown University. "I think I was only the second or third person in the history of my high school to go to an Ivy League college," said Kramer. He graduated from Brown in 1980 with a BA in religious studies and psychology, and promptly moved to New York. Kramer had fallen into the New Wave music scene his senior year at Brown, and what better place to pursue that than Soho. He and some friends rented a loft at Broadway and Broome Street for $350 a month, and proceeded to have the kind of fun young people could be expected to have in New York.

At the time, Kramer worked as a paralegal. Not because of any interest in the law, he explained, but because "it paid reasonably well and was a relatively easy job. I was going to be an artist or a writer. I was going to change the world somehow, but not with any of those bourgeois professions."

But Kramer's mother continued to prod him to become a doctor, or at least a lawyer. During his freshman year at Brown, Kramer had tried, and rejected, pre-med. As for the law, "My sister went to law school before me. I held her in utter contempt for going." But finally Kramer relented, and to satisfy his mother applied to law school. "I sort of agreed to go to law school, thinking in the back of my mind that if I hated it, as I expected to, I would drop out and then I could say to her, 'I tried, now leave me alone. I'm going back to New York.'"

Well, law school turned out a lot differently than Kramer thought it would. He entered the University of Chicago Law School in 1981, and that first semester had the good fortune to take a class taught by Edward H. Levi, one of the university's most illustrious figures. "I stayed in law school because of Edward Levi," said Kramer. Levi was a former president of the University of Chicago, a former dean of its law school, and a former U.S. Attorney General under President Gerald R. Ford.

Levi's class, Elements of Law, "opened my eyes to how interesting the law was," said Kramer. "I had the typical lay person's view of law school, that you learned a bunch of rules that weren't very interesting, and then spent your life lying and manipulating the rules to make a bunch of money." Instead, Kramer discovered that the law was a fascinating way to look at society. "Levi's course was designed to show the way in which everything met at the law. We started with Socrates and ended at Roe v. Wade, with a little bit of everything in between." Kramer was so inspired that he became one of Levi's research assistants that first year.

What intrigued Kramer most was "the idea that people had been having a set of arguments for hundreds and hundreds of years, and that you could trace these arguments from the beginning up to today," he said. "To this day I don't come across many legal questions that I don't find interesting."

Needless to say, Kramer did not drop out of law school. In fact, he graduated magna cum laude and Order of the Coif in 1984, and was comment editor of The University of Chicago Law Review. After graduation Kramer clerked for two renowned jurists: Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit, and Justice William J. Brennan, Jr., of the U.S. Supreme Court.

Clerking for Friendly "was the single best learning experience I ever had in law," said Kramer. "He was brilliant, open-minded, and dedicated to law. He wasn't completely impervious to the outcomes of his decisions, but he didn't let that shape them. It was a wonderful process to watch." Friendly was also the most demanding person Kramer has ever worked for. "He caught every single mistake I made. He was that smart. The thing that was most depressing was that he was always right. Always."

After clerking for Brennan, Kramer planned to become a federal prosecutor. He had lined up a job with the U.S. attorney's office in Boston, but before he could begin work, Gerhard Casper at the University of Chicago Law School invited Kramer to join the faculty. He accepted and in 1986 began his academic career. Three years later, at the age of 31, Kramer became a full professor.

At the University of Chicago, Kramer focused on conflict of laws. He developed a new approach to state-state conflicts, using game theory to help explain competition between states with overlapping interests. Many of his ideas are now incorporated in the leading casebook in the field, Conflict of Laws: Cases, Comments, Questions, by David P. Currie, Herma Hill Kay, and Larry Kramer (West Publishing Co., 6th edition, 2001).

But Kramer's first wife didn't like living in Chicago, so in 1990 they left for the University of Michigan. For someone who had studied and taught law at only one institution, it was an eye-opening experience. "Chicago was an intense, small community. Everybody was focused on one set of questions," Kramer said. Michigan, on the other hand, was a much larger school, its faculty were more diverse, and the academic climate encouraged one to explore law from a multidisciplinary perspective.

"When I got to Michigan it turned out that all of the ideas that everybody at Chicago thought weren't to be taken seriously, were being taken seriously," said Kramer. "So I started to rethink a lot of things."

That is when Kramer began to study conflict of laws from a federal-state perspective, or federalism. "I very quickly discovered that I couldn't make sense of federalism without history." That initial foray into the history of federalism led to the publication more than a decade later of Kramer's most recent book, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004). (See p. 13 for a Q&A with Kramer about his new book.)

After only a few years in Michigan, Kramer and his first wife divorced. To recuperate, he took a semester sabbatical and went to New York City to reconnect with old friends. While he was in New York two important things happened: He met Sarah Delson, whom he would later marry; and New York University School of Law Dean John Sexton convinced him to leave Michigan for NYU, which he did in 1994. "He didn't try to tell me that NYU was the equivalent of Chicago or Michigan," said Kramer. "He sold me on the idea that we could really build something, that we could change the law school."

Under Sexton's leadership, NYU moved up in the ranks of U.S. law schools. "We experimented with different kinds of things. Some good, some bad, some worked, some didn't," said Kramer. "It was the ambition, the innovation, and the willingness to take chances that was exciting." Sexton was rewarded for his efforts by being named president of NYU in 2001.

One of the keys to improving the quality of the school was hiring new faculty. Kramer chaired the hiring committee three times and was instrumental in recruiting a number of faculty. "A huge amount of the new talent at NYU was attributable largely to Larry's efforts," explained Robert M. Daines, Pritzker Professor of Law and Business. Daines joined the Stanford faculty this summer from NYU. "There is no one better at spotting talent and figuring out ways to get them to come."

Kramer also helped elevate the intellectual climate of the school. "He was one of the most important contributors to building a vibrant intellectual community at NYU," said Barbara H. Fried, William W. and Gertrude H. Saunders Professor of Law. (Fried was a visiting professor at NYU in 1998-99 and again in 2002.) "He regularly read colleagues' drafts across a wide range of subject matters, gave detailed comments, tirelessly mentored young faculty, and brought colleagues together to talk with one another," said Fried. "There is no material reward for that sort of generosity. You do it because you care about the intellectual enterprise."

It was because of that effort that Kramer was named associate dean for research and academics at NYU. It had been announced that he would be vice dean of NYU School of Law this year, before he was invited to come to Stanford. "He was hugely successful as associate dean," said Revesz. "He is someone who cares enormously about the intellectual life of the institution."

All of that experience is good preparation for being dean of Stanford Law School, but it is not a formula that can simply be imposed. "The main lesson I took out of all my experience is that you have to figure out what works best for your school," said Kramer. "What worked at NYU would not have worked at Michigan, and neither would have worked at Chicago," said Kramer. "What will work at Stanford will be what best suits our students, our faculty, and our institution."

So is Kramer going to stir things up at Stanford? Yes and no. He is highly respectful of Stanford's past, but he's also not afraid to try new things. Just ask the folks at NYU. As Kramer wrote in his "From the Dean" column in this issue of Stanford Lawyer, "The world continues rapidly to change, and Stanford Law School must change with it."

The People Themselves: Popular Constitutionalism and Judicial Review

By Larry D. Kramer, Oxford University Press, May 2004, 363 pages

In The People Themselves, Larry Kramer argues that Americans have come to treat the Constitution as something beyond their competence, something whose meaning should be decided by judges, assisted by a cadre of lawyers and academics. Yet this submission to a lawyerly elite is a radical and troublesome departure from what was originally the case. In the early years, ordinary Americans exercised active control and sovereignty over their Constitution. The constitutionality of governmental action met with vigorous public debate in struggles whose outcomes might be greeted with celebratory feasts and bonfires, or with belligerent resistance. The Constitution remained, fundamentally, an act of popular will: the people's charter, made by the people.

Editor: How did you become interested in this subject?

Kramer: Early in my career I studied conflict of laws. After a while I felt I had said what I had to say about state-state conflicts, which is what conflict of laws is mostly about, and I got interested in federal-state conflicts, which is federalism. But I soon realized I couldn't make sense of it ahistorically. So I started to look at the history of federalism, and I noticed something surprising in reading the sources, which was that courts were never mentioned. You read the constitutional debates and the discussion about how the Constitution was going to be enforced, and no one said "courts," which of course is what we think of first today. I thought that was curious. So I started looking deeper to understand why. This book is what emerged.

Why do you focus so much on the early history of the nation?
The first eight chapters of the book tell the history of constitutionalism in great detail from about 1760 to the election of 1840. That history was designed to show how the idea of popular constitutionalism was preserved under changing political, social, cultural, and economic circumstances. In each stage there were institutional adaptations to make popular constitutionalism workable in a more complicated world. This was enough to make my basic point while still keeping the book to a readable length. I hope others will be interested enough in the idea to do further work in the later periods.

Why should one believe that the average citizen is going to be a better interpreter of the Constitution than someone who has spent years studying it?
Do I really have a reason to think that Dick Posner or Nino Scalia is going to make a better judgment about whether women should be allowed to get an abortion than my mother? The answer, I believe, is "no." There are a whole slew of legal questions, which are highly technical, which the population at large is never going to care about or pay attention to. With respect to all those questions, the Court will hand down its ruling and that's going to stick because nobody's going to care. But to use that as a lever to say that the Court should have final say over nontechnical questions of basic principle and commitment makes no sense.

Isn't there a danger that the general population can be more reactionary than the judiciary, particularly during times of crisis?
For what it is worth, historically, the Court has generally been far more reactionary. But that doesn't seem to me to be the right question. These are hard questions to which there is seldom a clearly right answer. They are questions about which both elites and nonelites are divided. Look at all the important Supreme Court cases. The votes are invariably 5-4 or 6-3. The question is, do we trust the majority of nine more than the majority of 250 million on questions over which we are going to inevitably be divided?

What is the alternative to judicial supremacy?
The problem is to find a proper balance between independence and accountability. The Europeans who wrote constitutions after World War II did a better job in finding this balance for their courts, because they had our experience upon which to build. So they separated constitutional adjudication from ordinary law and delegated it to a specialized court; they gave the justices on these constitutional courts limited terms; they staggered the terms; they required supermajorities to get judges appointed, which forces moderation; and they made their constitutions easier to amend. Taken together, these sorts of institutional structures produce a different balance and a different kind of court. Ideally we would think about adopting some of the European innovations. But if that's not going to happen—and it's not going to happen, because our Constitution is so hard to amend—then at the very least we should restore and preserve the system that we did develop in the first 150 years for controlling our Court, rather than just letting the justices run wild.