Over thirty-five years in both London and Miami I naturally acquired many friends, significant colleagues, outstanding students and splendid support from librarians and other staff. Not many overt critics, because the main technique of those from whom I differed most was Ignoring. That sometimes irritated me but, on the whole, I was pleased because I had plenty of sounding-boards and those with whom I had the most profound differences about the nature and roles of Jurisprudence tended not to move off their own confined territory. During the UCL period there were four people who were always present, sometimes in the foreground, more often just there as an important part of my intellectual milieu. Ambivalence marks my relations with Bentham; a sharp divide was apparent between Ronald Dworkin’s and my ideas; and with Neil MacCormick, a kindred spirit, I enjoyed a close friendship; as co-author, co-teacher, sounding-board and friend my relationship with Terry Anderson was even closer.1 These, including JB, are all contemporaries, in contrast with Hart, Collingwood and Llewellyn.
Sparring with JB
I am the very model of an ambivalent Benthamist – viewing him with awe, but treating him variously as inspiration, formidable opponent, useful sounding-board, and as a crackpot.
I am a jurist rather than a specialist Bentham scholar. My first encounter with JB was through Herbert Hart’s inaugural lecture at Oxford in 1954. In 2017 I still keep up with the Bentham Project website. During the interim I have gained an intimate knowledge of a few of his extensive texts, probably about 10 per cent of over a million words. I even tried my hand at editing, but wisely decided that this was not my métier. I have regularly taught about him at undergraduate and postgraduate levels, focusing mainly on the principle of utility, fallacies, fictions and evidence. The Bentham Committee was established in 1959 to oversee the production of the scholarly edition of his Collected Works. I joined the Committee in 1971, became Vice-Chairman from 1976 to 1982 (while Hart was Chairman), and Chair from 1982 to 2000.
I have written and spoken about many aspects of Bentham’s ideas but, except as an administrator and a rather ineffectual fund-raiser, my contributions to specialised Bentham Scholarship have been limited. I edited, published and commented on two manuscripts on torture;3 I wrote extensively about his writings on Evidence and Jurisprudence; I used Anarchical Fallacies4 as a launching-pad for exploring various forms of scepticism about human rights;5 and in the 1980s and 1990s I gave several public lectures on Bentham and his ideas, especially in 1998, when celebrating the one hundred and fiftieth anniversary of his birth. The second General Editor, John Dinwiddy, tragically died young and I edited a collection of his main writings on Bentham.6 Some of my writings involved explaining some of Bentham’s main ideas and eccentricities to non-specialist audiences rather than contributing much to specialised Bentham scholarship, except sometimes to place him in some broader contexts.
My relationship to Bentham – the man, the Auto-icon, his manuscripts and his ideas – is a bit of a puzzle. A friend called it ‘affectionate ambivalence’. I can understand Herbert Hart being mystified by my fascination with both Bentham and Llewellyn, two rather unlikely thought-mates. I can try to give a partial explanation. I have huge respect for Bentham – his unremitting rationality, his acuity, his foresight, his range, his originality, those of his values that are embodied in UCL’s mission statements, his constant movement from generality to detailed particularity and back, the relentless application of his general ideas to so many different issues and his integrity, even his foibles. But I am not a Benthamite. I have always been deeply ambivalent about him, rather less so about Llewellyn. Like Hart, I am an insecure modified utilitarian and I very much agree with Hart’s summing up: ‘[W]here Bentham fails to persuade, he still forces us to think.’7 In commenting on the torture manuscripts and his attacks on non-legal rights, I have explicitly distanced myself from some of his positions. I do not think that the main thing that is wrong with torture is its susceptibility to abuse; I do not accept that all talk about non-legal rights is mischievous nonsense – human rights discourse and human rights law can be useful and have sometimes probably had good consequences – but I agree with most of Bentham’s criticisms of loose rights-talk and I am not comfortable with ideas about inalienable, universal or absolute human rights.8 Digging deeper, for me one of the attractions of Bentham is that there are crucial tensions in his thought and he struggled with these.9 Was he an act-utilitarian or a rule-utilitarian – or does he undermine this distinction, which is, after all, a modern construction? Did he think that judges should be bound by rules in his ideal codes or should there always be some consequentialist leeway in judging in the particular circumstances of a case?10 Did he really believe that there should be no peremptory rules of evidence or procedure? He supported the French Revolution in the early days (he was made an honorary Citizen of France) but he attacked very sharply the revolutionaries’ manifestos – especially the Declarations of 1791–5. Was he in favour of their values, but shocked by their discourse or was there a deeper ambiguity in his thought? It is reasonably clear the Bentham was a radical rather than a revolutionary, usually giving a high priority to security, but there is room for different interpretations of his positions in this area. When security, subsistence, equality and abundance (the principles subordinate to utility) compete can one literally calculate what is the best course of action? Or is that just a metaphor? And how does liberty fit in? His ideas on democracy and constitutionalism provoke different interpretations. There are several quite illuminating debates within Bentham scholarship and there are always the possibilities that he changed his mind or that some of his central ideas are not coherent or even consistent.11
The first task of Bentham scholarship has been to establish, as far as is feasible, ‘authoritative’ texts (Bentham himself loathed authority). Begun modestly in 1959 and living a hand-to-mouth existence until recently, the Bentham Project had by June 2018 published thirty-three substantial volumes of The Collected Works (out of a projected eighty) and had done preparatory work on many more. It is more than half-way there, and it has an encouraging momentum. If Bentham had ‘belonged’ to France or Germany the project would have been state-funded and finished by now. Of course, Bentham studies will never be completed. Secondly, the publication of the Collected Works and the evolution of a transnational Bentham community has led to another kind of scholarship – revisionist interpretations and debates. Bentham himself sometimes distinguished between his ‘arcane’ and ‘popular’ writings; for example, An Introduction to the Principles of Morals and Legislation, perhaps the most studied utilitarian text of all, is much cruder and more easily criticised than his more arcane writings on utility. These are now accessible online, although not all are yet edited. A new, more complex, and for some less unattractive, Bentham is beginning to emerge, but we are some years off a fully reconstituted arcane version.12 Thirdly, a comprehensive contextual narrative of Bentham’s intellectual development has yet to be written. The historical and textual terrains are vast, sweeping across modern boundaries between disciplines, and a good deal has yet to be explored in detail. The challenges of Bentham scholarship are different from those confronting the Shakespeare industry, but hardly less daunting.13
I have often held imaginary conversations with the Auto-icon, sometimes standing in front of it/him, sometimes on buses or aeroplanes, sometimes lying in bed asking: ‘What would you have thought about this, JB?’ A quick look at the index in the Bowring edition or more expansive ones produced for the Collected Works may turn up some explicit references to his published works and now many more can be consulted online. But, using one’s imagination, it is also fun to ask: ‘What might JB have thought about this?’ For example, it is interesting to extrapolate (not merely speculate) plausible answers to such questions as: ‘What would JB have thought of using drones to bomb suspected terrorist targets with the risk of causing collateral damage?’ (a simple risk analysis?) or ‘How would JB have reacted to Brexit or Facebook or President Trump’s use of Twitter?’ There have been several Bentham blogs and many mentions of him in other ones and JB himself has made some contributions. Blogs tend to invite frivolity or vituperation, or alternative facts. They are used mainly for public relations purposes. JB would have enjoyed the gimmickry, he was, after all, quite nerdy, but he would almost certainly have been horrified by casual or deliberate disregard for truth. On the other hand, one can easily imagine his delight at ‘Transcribe Bentham’, the prize-winning scholarly crowd-sourcing initiative by the Project that has resulted in volunteers transcribing Bentham’s manuscripts with over 20,000 pages by May 2018. This surely ticks many of the boxes of Bentham’s springs of pleasure: vanity, gadgetry, cost-saving/economy, popular participation and, crucially important, publicity.14
For me the completion of the Bentham Project has been a cause. At my interview for the UCL Chair in 1982 I said that the completion of the Project during my lifetime was my main intellectual ambition. That bold aspiration will not be realised, but it may have helped to secure the job. At least we can claim to have kept the Project afloat in a period when it might well have foundered for lack of funds.
Passing each other by: Ronald Dworkin
During the UCL period another omnipresence, booming rather than brooding, was Ronald Dworkin, who was almost my exact contemporary. Born in Rhode Island in 1931 he came to Oxford as a Rhodes Scholar in 1953. We both sat for the final examination for the BA in Jurisprudence in 1955. Herbert Hart was so impressed by Dworkin’s paper in Jurisprudence that he purloined the script.15 He gave me an A, but did not steal mine. Dworkin’s script was the first frontal assault on Hart who became so obsessed with this relentless critique that he never paid much attention to other critics, especially more socially oriented jurists.
When Hart stepped down from the Corpus Chair of Jurisprudence in 1968 he encouraged and helped Dworkin (then at Yale, but still relatively unknown) to become his successor.16 Dworkin was brilliant, forceful and egocentric. He was a good debater, but I found it almost impossible to argue with him except on his own terms.17 For a number of years, while he was still at Oxford, we invited him to UCL to confront our undergraduate and postgraduate students. We primed them well, he handled the students gently, and it was good theatre. But the debate never strayed from Dworkin’s home territory – law as an argumentative practice grounded in basic principles of morality.
Almost the first time I encountered Ronnie was at a seminar in Nuffield College Oxford shortly after his appointment to the Chair of Jurisprudence in 1969. He began unexpectedly by saying that the central question in Jurisprudence is: ‘Who is the Top Banana?’ Brushing aside the impious thought that this is an example of a question-expecting-the-answer-‘ME’, one can infer that his answer to this ambiguous question was, and still is for his followers, political morality. All of his writings flow from that premise. Reasoning about and interpreting legal doctrine is a set of argumentative practices based on moral principles and located in the superior courts of the United States and perhaps some other common law countries. The ideal judge, to whose approach all judges should aspire, is Hercules.18
Despite his American accent, Hercules’ approach is general, but his application is particular, because the premises of a correct legal argument depend on the underlying ideology of a particular system:
If a judge accepts the settled practices of his system – if he accepts, that is, the autonomy provided by its distinctive constitutive and regulative rules – he must, according to the doctrine of political responsibility, accept some general political theory that justifies these practices.19
This is an important idea, fraught with difficulties, and the subject of much controversy. This ideal type may be one powerful model of how common law judges faced with difficult questions of law should reason. I find it useful, but it is not the only model; it is not an accurate description of how common law judges in fact reason in hard cases, but some approximation to it; it is not an adequate account of the position and roles of common law appellate judges, which are much more complex than this model suggests; it takes almost no account of the different situations, historical contexts, roles and problems of upper court judges elsewhere in the common law world, let alone ‘judges’ (however conceptualised) in other traditions;20 it equates law with legal doctrine; and it dismisses all other kinds of theoretical enquiry as philosophically uninteresting and not of practical importance.21
Dworkin, with typical chutzpah, claimed that his was the best theory of law. But is it a theory of law? It is not even adequate as a theory of appellate adjudication, still less of adjudication, still less of law. If it is a theory, it is an aspirational theory of what constitutes valid argumentation on questions of law in hard cases in some particular institutional contexts. It claims to be ‘practical’, but practical for whom? It does not claim to be realistic. It does not claim to give historical explanations of how particular traditions or institutions came to be. Nor does it make much allowance for different institutional structures and conventions in different legal traditions, cultures and municipal legal systems. Political morality is the Top Banana and understanding law involves looking through that lens alone.22
Dworkin’s main achievement was to highlight and develop a kind of normative theorising which is different from classical Natural Law. That is an important contribution. Some of Dworkin’s specific ideas were stimulating, even when wrong-headed: for example, the One Right Answer thesis, the idea of doctrinal integrity, the sharp, but in my view unstable, distinction between principle and policy.23 He revived debates about positivism, which soon became repetitive and sterile; he helped to distract Herbert Hart from engaging seriously with empirical and contextual legal studies;24 he fortified the tendency to treat abstract legal philosophy (positivist and anti-positivist) as co-extensive with Jurisprudence or as the only intellectually respectable part of it.25 Most surprising of all, he implied that there are no ‘philosophically’ interesting questions about understanding law other than moral ones.26 Everything else is subordinate, parasitical or of inferior interest to the Top Banana. This is an impoverished vision of the discipline of Law and of Jurisprudence as its theoretical part. And, of course, like most other canonical jurists, Dworkin roots his conception of law and the agenda of Jurisprudence firmly in the doctrinal tradition of substantive law.27 The Achilles heel of Dworkin’s Empire was making a distorted view of adjudication central to his vision of law.28 This criticism sounds rather harsh, but it is, for the most part, not disrespectful – we were just two different kinds of inhabitant within the broad landscape of political liberalism.
In my personal view Dworkin was better as a performer than he was as a scholarly writer; his intense/marathon Legal Philosophy colloquia at NYU and UCL were perhaps his greatest achievements; he contributed some splendid polemical articles to the New York Review of Books. His books sold well, and he was much-cited, but his style was rather convoluted and he often appeared to be restating the same basic argument in different terms. For me, he seemed impressive as a moral philosopher, though I did not agree with him, but much less persuasive as a jurist: a hedgehog who claimed to know one Big Thing and replayed it constantly with subtle, barely discernible variations. From the standpoint of a jurist considering the health of the discipline of Law, and of Jurisprudence as its theoretical part, his contribution is at best just one limited, and not entirely convincing, part of what is involved in understanding law, especially in an era of accelerated ‘globalisation’.
My professional and personal relations with Ronnie can be dealt with quite briefly. As jurists we were obviously different kinds of animal. We were continually passing each other by physically as well as intellectually: he taught in Oxford and lived in London; I lived in Oxford and taught in London. I was usually in Miami when he held his colloquia in UCL; when I was at UCL, he was at NYU. Face to face we were civil; I encouraged his performances at UCL; intellectually he ignored me.29 I was generally more relieved rather than irritated by this. We just had different agendas and styles. Once over a drink he said something to the effect: ‘You know, Bill, I think we have different conceptions of the great issues of the age.’ That was clearly true. For him this meant, very largely, American political issues about race, inequality, abortion, euthanasia and other questions that had divided the US Supreme Court. His philosophical concerns were with equality and justice; his juristic focus was almost entirely on adjudication on questions of law. I do not think in terms of ‘great issues of the age’ and my concerns have been more with colonialism and decolonisation, nationalism, ethnocentrism, world poverty, terrorism and the survival of humankind. My juristic agenda is also quite different. After a few attempts to take him on I stopped trying. He was a poor listener, a non-reader, and very skilful at switching a discussion or debate onto his own ground. However, I did pay attention to Ronnie – how could one avoid it? – and I learned some things from him.30
Neil MacCormick: a kindred spirit and friend
While my relations with Ronnie Dworkin were incompatible intellectually and distant socially, Neil MacCormick and I developed an intellectual affinity and a warm friendship. I have written about the personal side at length elsewhere.31 Here I shall concentrate on our intellectual similarities and differences and the role this relationship played in my intellectual development.
Our backgrounds were significantly different. His family were committed Scottish Nationalists. His father had helped to found both the National Party of Scotland in 1928 and its successor, the Scottish National Party (SNP, 1934). Neil was active in national politics from early on, ran in hopeless seats in Westminster elections and then was elected and served with enthusiasm as a SNP Member of the European Parliament for five years (1999–2005). He had a degree in Philosophy and Literature from Glasgow before reading Law at Oxford. His education, culture, enthusiasms and accent were nearly all Scottish; he wore a kilt and played his bagpipes on festive occasions; we shared a taste for single malts. I would like to say that we had similar personalities, as he was widely admired and indeed loved, combining intelligence, hard work, energy, panache, a love of teaching, talking and writing, and a great joie de vivre; but that would be to claim too much.
We were both influenced by Hart, Neil more than I. After my return to UK in 1966 our career paths were similar except, having been elected to the Regius Chair of the Law of Nature and the Law of Nations in Edinburgh aged 31, he retained this as his base until retirement and afterwards. My first memory of him was of two young Professors of Jurisprudence playing frisbee in the grounds of Belfast Castle at a conference on Constitutional Law in 1972, shortly before I moved to Warwick. We immediately bonded. Thereafter we kept in close touch as best we could at academic events, commenting on each other’s drafts, seeking advice and staying at each other’s homes when we examined each other’s students.
Our views converged on many matters: we both were committed to liberal education,32 to stimulating our students to think and to a conception of understanding law that encompassed concepts, values, facts and rational discourse, combined with some emotional intelligence. I sympathised with his political commitments and learned from him the difference between ‘the dark side of nationalism’ and the empathetic kind that is the basis for recognition ‘as equally legitimate (because the same in kind) the love others bear for their own’.33 Neil was more a philosopher than I ever was. We seemingly had different conceptions of ‘legal philosophy’: I confined the concept to the most abstract kinds of thinking and argued that Legal Philosophy was only one part of legal theorising; Neil had a Scottish view of ‘philosophy’ that rejected any sharp divide between theory and practice, the general and the particular or the abstract and the concrete. When President of the SPTL in 1984 he criticised some ‘legal philosophers’ as inviting the criticism ‘that they lack any real interest in real law’.34 Our only jointly co-authored paper showed that we had similar views on education; on the what, why and how of teaching Jurisprudence; on theorising as an activity; and on many other points.35 Neil, in collaboration with Ota Weinberger, developed an institutional theory of law, which was the starting point of his ambitious quartet on Law, State and Practical Reason (1999–2008), completed not long before he died in April 2009. He acknowledged that his institutional approach was quite close to Llewellyn’s law jobs theory.36 Finally, although Neil’s focus was firmly on the European Union/Community, he acknowledged the significance of globalisation and gave me valuable encouragement in pursuing that project.
There were naturally some matters on which we differed. Two are quite significant and stimulated me to clarify my own position.37 First, in his later work Neil called himself a ‘post-positivist’. He claimed that he had moved away from Hart’s positivism and much closer to Dworkin’s rejection of any sharp distinction between law and morality. It is true that in the first edition of his excellent book H. L. A. Hart (1981) MacCormick defended his mentor against Dworkin’s criticisms, and that in the second edition (2008) he was more critical of Hart and seemed to be moving towards Dworkin.38 Indeed, in Rhetoric and the Rule of Law he came close to Dworkin’s thesis that there is a right answer to almost every disputed question of law, even in hard cases. In my view, Neil exaggerated the significance of the change. On the one hand, when he returned to Edinburgh he rediscovered his roots in the tradition of the Scottish Enlightenment, especially Smith, Stair and Hume. That tradition just does not fit most versions of the positivist/anti-positivist dichotomy. On the other hand, while in Oxford he could adopt the posture of a detached observer, but I have argued that his seeming change of view represented a gradual shift from that standpoint towards a greater emphasis on participant standpoints, reflecting his much greater involvement in activist affairs in his later years.39 Neil once told me that often when shaving, he looked in the mirror and asked himself: ‘Am I really a positivist?’ The question clearly bugged him for a long time. If I had stood near him while he was shaving, I would have commented: ‘Silly question.’ If, as I believe, the positivist/anti-positivist divide is an obfuscating fog, his re-labelling himself is not very significant except when it obscures the point that he returned to his roots in neo-Kantianism and the Scottish intellectual tradition.
A second difference was that I failed to persuade Neil to take seriously the thesis that the mainstream literature on ‘legal reasoning’ is not only unduly narrowly focused, but also misleading about the place and role of practical reason in law. In the second edition of Legal Reasoning and Legal Theory he made a small concession to me by including a brief discussion of issues of fact.40 Not long before his death he wrote some preliminary sketches on coherence which might well have led him to explore the relationship between narrative and argument in practical reason in greater depth. But he did not live to complete this. In my view this is significant because there is a hint of a lurking doctrinalism in his work on reasoning which fits uneasily with his institutional theory of law.
Neil did not live to engage with Amartya Sen’s The Idea of Justice (2009), but I am confident that he would have sympathised with Sen’s critique of ‘ideal theory’, exemplified by Rawls, in contrast with the Scottish emphasis on practical reason that engages with ‘real world’ issues. The central question of his last book, Practical Reason in Law and Morality (2009), was: ‘Can reason be practical?’ MacCormick’s unequivocal response was: ‘Most certainly it can!’41
Terry Anderson
In my faculty seminar in Miami in 1978, I was rash enough to claim that I was the only person other than John Henry Wigmore himself to try to teach his chart method more than once.42 There was a growl from the end of the table, which sounded something like this: ‘Not true. I have been doing this for years and I am doing it HERE AND NOW.’43 This was Terry Anderson whom I had met briefly in Chicago in 1964. We joined forces and soon agreed to collaborate on a set of teaching materials based on our courses in Miami and England. I thought that we could toss this off in a few months; seventeen years later in 1991, it was published as a book, with a second substantially revised edition in 2005 (with David Schum as the third author) – a total period of twenty-seven years of collaboration on one project.44 1978 was the start of a special relationship which is still continuing.
Our collaboration broadened out to include co-teaching (mainly Analysis of Evidence, but also Elements on two occasions), sharing his house and an apartment in his bachelor days, being the two anglophone members of a team studying Dutch Criminal Procedure in the Netherlands in 1994–5, much dining out and drinking and nearly thirty years of hotly contested ping-pong – on which more later. From 1978 until now nearly everything that we have written on Evidence has been as co-authors, or contributing linked papers to a joint project, or at least having drafts rigorously and ruthlessly commented on by each other, often after lengthy discussion.
Of course, we are unlikely twins, not only in respect of height and appearance. Terry is a stocky mid-Westerner; a pragmatic, relentless litigator who is at heart a romantic and an idealist. I am taller, an English intellectual, an unrepentant theorist with a tendency to sit on the fence, and quite sceptical to boot. We had different teaching styles. Our cultural tastes – especially in literature – barely overlap, though Terry did convert me to John Grisham, Robert Parker and other crime writers. I liked Elmore Leonard, but Terry did not. On one occasion I tried to sum up our relationship:
The contrast in our table tennis styles epitomize our differences: Terry played a steady game with a persistent straight bat until he saw an opportunity where he [could] ruthlessly, like a good advocate, go for the jugular; I favored swerve and spin and nifty placement, with an occasional wild smash. We are both intensely competitive, but gentlemanly about lets and scoring. Over the years neither has dominated the other for very long – and on our kitchen table in Wassenaar – our only level playing field, but a bit small – we successfully played co-operative ping pong trying to extend the length of each rally.45
To some, the most unlikely aspect of our bond is this lengthy collaboration between a pragmatic, competitive American litigator and [someone perceived as] an Oxford ‘legal philosopher’.
The key is, of course, we were both students of Llewellyn and Mentschikoff, both of whom rejected any sharp distinction between theory and practice – as did we. Because of that background we complemented each other, mostly sang from the same hymn sheet, and learned a lot from the experience.
Perhaps the most fruitful period of collaboration was our months together at the Netherlands Institute for Advanced Study in 1994–5. Freed from administration, teaching, litigation, and other distractions, Terry went Dutch. He learned the language fanatically, he cycled long distances, and he suffered and administered repeated culture shocks:46 he was amazed to find that there were no juries in the Netherlands, that judges intervened actively and defence lawyers were frustratingly passive, that almost all serious criminal convictions were reviewed by an appellate court, mainly through a dossier that included prior convictions and depositions translated into legalese and so on. In November 1994, when it seemed that the whole local population were glued to their television sets following the O. J. Simpson trial, Terry administered culture shock by giving (well-attended) public lectures in which he tried to explain American criminal process while correctly predicting that O. J. would be acquitted. The Dutch found this incredible. Terry spent some weeks ‘doing a Wigmore’ on the inaugural lecture of Mark Geller, Professor of Assyriology at UCL.47 The NIAS year also turned Terry into a comparative lawyer and led to his developing an ‘audit model’ which brilliantly explained how the Dutch system of criminal procedure was different, but not necessarily inferior to, the American adversarial system.48
A highlight of our relationship was the Alcee Hastings case in which one of the first ever black Federal Judges was indicted in 1981, and later impeached, on charges of conspiracy to solicit and accept a bribe.49 Terry represented him pro bono for over a decade, often as the sole lawyer, with only some voluntary help from friends.50 I was part of his legal team in the proceedings in the Senate in 1989, so that the only major case I was involved in was the impeachment of a Federal Judge who, having been acquitted by a jury and nearly absolved by the Senate Impeachment Trial Committee that studied the evidence, was convicted by a clear majority by those Senators who had not. Even the Chair of the Senate Committee, Senator Jeff Bingaman (D-NM), voted for his acquittal. Unusually Hastings was not disqualified from holding federal office (nor was he disbarred in Florida) and shortly after his conviction he was elected to the House of Representatives in 1993 and has been subsequently re-elected ever since. Alcee Hastings’s character and story are almost as remarkable as his case.
I cannot go into detail about this epic here. There were multiple proceedings for over a decade. There were complex issues of Constitutional Law, Procedure, Criminal Law as well as extremely strongly contested issues of fact; there were political and racial undertones especially in the pursuit of impeachment after a jury acquittal and unresolved questions about the standard of proof in impeachment proceedings – I personally suspect that many Senators voted for conviction on the basis of ‘Caesar’s wife’ concerns; and I remain convinced that this was an extraordinary miscarriage of justice.
During my visits to Miami I was able to observe Terry at close quarters working as a litigator, drafting and compiling reams of documents, discussing strategy, making tactical decisions, presenting arguments and never losing sight of the political and personal dimensions of the case, even when arguing abstruse questions of constitutional doctrine. I expected him to be single-minded, dogged, precise, thorough and craftsman-like. He was all of these things and more. He often seemed obsessive, but rarely skewed in his judgement. But I have never witnessed such relentless commitment, driven in part by a sense of injustice and in part by a concern to do his best as a lawyer. Karl Llewellyn would have been proud of him.
