Alumni on the Faculty: The View from Both Sides of the Podium
From its earliest days, the Law School has inspired its students not only to become professors but to join the faculty at their legal alma mater. Once they experienced the heady intellectual atmosphere of the Law School, many of them found it hard to imagine working anywhere else. The modern era is no exception, so Record editor Marsha Ferziger Nagorsky (herself an alumna of the Law School) sat down with five current faculty members who got their legal educations (and, in some cases, other degrees as well) from the University of Chicago to find out what it is like to stand on one side of the teaching desk when you once sat on the other side in the very same rooms. Joining her for the conversation were Dan Fischel, ’77, Todd Henderson, ’98, William Hubbard, ’00, Ed Morrison, ’00, and Randy Picker, ’85 (each pictured in their 1L Glass Menagerie photos and their current faculty head shots).
NAGORSKY: Let’s start from the very beginning. Why did you choose to attend the University of Chicago Law School?
MORRISON: In the early 1990s I was working in an economic research group and getting to the end of my undergraduate studies. My boss came by and said, “So, Ed, what are you going to do next?” I responded, “I don’t know. I really like studying economics, but law school seems very interesting too. My dad’s a lawyer. I kind of assumed I would become one too, but I’m tempted to pursue economics instead.” I shrugged, “I don’t know how you pick between the two.” He said, “hold on,” went back to his office, and brought back a copy of the Journal of Law and Economics. I remember looking at it and thinking, “Wow, I’ve never seen this.” I was particularly struck by the fact that the journal was published at the University of Chicago and featured the work of Becker, Stigler, and a lot of other Chicago people.
FISCHEL: Where were you at this point?
MORRISON: At the University of Utah, which had an Economics Department with a high concentration of Marxist economists.
FISCHEL: Oh, God, that’s so funny.
MORRISON: One of my advisors was actually a U of C graduate, but he was a macro scholar, so I really didn’t really get much exposure to Chicago and law and economics. Seeing the Journal of Law and Economics was sort of a transformative event, because I started reading the journal and feeling that, wow, this seems like the place where I should go.
PICKER: I have three degrees from the University so I came here as an undergraduate and I got in early decision at both Chicago and MIT. We came here to visit and Chicago seemed like a great place. I didn’t go to MIT, so I sometimes wonder how that would have turned out. I graduated early and so I had time to kill. I signed up for the LSAT but I didn’t take it and I went to econ school and so I graduated from the college in two years so...
HENDERSON: That’s so Picker.
FISCHEL: All the years I’ve known you, I didn’t know that.
PICKER: So then I went to econ school and I did that for two years and then having had four years, it was time to do something else. I was ready to go to law school. I only applied to one law school, and it’s not a strategy I recommend, but so this was easy for me and I wasn’t ready to leave after two years, but after four years I’m still in the middle of the econ program and it’s a great place.
HENDERSON: I was a dam engineer in California and I wanted to be a politician so I thought I had to go to law school. I went in to the Borders books in Pasadena and there was one book, An Insider’s Guide to Law Schools—there was so much less information back then for prospective students—and I started reading from the front. I had never heard of the University of Chicago or been to Chicago. I didn’t even know this university existed and the eight-sentence description, well, it had me at … hello. It said this is a hard-core, serious, rigorous place, something like that and I was just sold. I went to my boss who was an engineer and I told him I was going to be a lawyer. He was not happy. Then I told him I was going to go here and he had grown up in Chicago and knew the reputation of the place and said, well, if you’re going to go anywhere, that’s where you should go. That always meant a lot to me.
FISCHEL: For me it was a complete fluke. Unlike all of you, I applied to a lot of schools because my credentials weren’t that great and I wasn’t really expecting to get into Chicago, but Dick Badger, who was then Dean of Admissions, came to Brown where I was and interviewed and for whatever reason he let me in. I think I was the last person admitted in the class. I didn’t know the first thing about the University of Chicago. All I knew is it was several tiers above any other school that I got into. I came in 1974, which was right after the Watergate hearings and Phil Kurland was in the news all the time. So I thought I was coming to study constitutional law with Phil Kurland, so my story is very random. I mean, it was the best thing that ever happened to me, it completely changed my life, but it was really a fluke.
HUBBARD: Coming out of undergrad I was interested in law, I was interested in economics. I didn’t apply to many law schools—I just took the U.S. News rankings, started at the top, and applied to four schools. I ended up visiting Harvard, Yale, and Chicago. When I told a friend of mine at USC that I had gotten into these three schools, he said, “Oh, congratulations! It’s so exciting that you’ll be going to Harvard!” I had to tell him that I hadn’t made up my mind yet. What made me come to Chicago was visiting the schools. At each school, I made an effort to talk to random students. What I found at Chicago was the students all looked really tired! I got the sense that people worked harder at Chicago.
PICKER: That’s funny. Certainly right.
NAGORSKY: Who were your favorite teachers?
PICKER: That’s a tricky question … especially since they’re my colleagues.
MORRISON: One of my teachers is sitting right here.
FISCHEL: That’s okay, nothing personal.
NAGORSKY: Let’s put it this way: what lessons did you learn from them that you’re still using in your teaching?
HENDERSON:Well, I think my favorite was Richard Epstein and one of the reasons is that I took three classes from him: Land Use Planning, Telecommunications, and Roman Law—and they were all the same class.
PICKER: That’s what I would have figured.
HENDERSON: It was just Richard on Richard and just the show of it, the flamboyance, the ability to construct full paragraphs without even catching a breath, and his facility with cases and connections with all different areas of law, it was just absolutely amazing to see that. So the lesson I took from that, although I could never be like that, is that being articulate and that the rhetoric in class is extremely important. So in class, I’m thinking about what I’m going to say, I’m doing it extemporaneously, but I’m very consciously thinking about everything that I’m saying because it had a tremendous impact on me to sit there and look at someone who I thought was very brilliant.
PICKER: I would think of influence more than favorite because I practiced law for three years doing bankruptcy and debt restructuring and I got there because I spent my second summer at Sidley & Austin in Chicago. I did a bunch of bankruptcy stuff that summer and the 1978 bankruptcy code was six years old at that point, so the statute was very fresh. I had taken two classes from Douglas [Baird] and one from Walter Blum in those areas, and that really shaped the area that I ended up going into for an extended period of time. I obviously have taught in those areas, written case books, done research in those areas, so that I think had the single greatest influence. Richard [Epstein], obviously, I think of Richard as an art form and there’s no question that Richard has a distinctively powerful tug … but it didn’t have quite the same substantive effect that the Baird and Blum stuff did.
NAGORSKY: Were you interested in those areas before you took the classes?
PICKER: Oh, I didn’t know anything about them. I was coming out of econ. The natural thing for an econ person to do is to go into something like maybe antitrust. Now, that was a big of a judgment call in the sense that I thought at that point in the midst of the Reagan administration that antitrust wasn’t the thing to do. That was really just a judgment call, and I had Diane [Wood], Bill [Landes], and Frank [Easterbook] for antitrust. That was a good experience, so I think back to that now as someone who has taught antitrust for some time.
MORRISON: Douglas Baird had a big influence on my scholarly path and teaching. I was impressed by the way he devotes himself to students and the amount of preparation he puts into every class. As a young professor, I frequently called him for advice on how to teach. I would sometimes run into other professors who, after teaching a subject for a bunch of years, would spend only 10 minutes or so preparing for a class. But Douglas was different. Even after years—decades—teaching a subject, he was still spending hours to prepare for each class, and you could tell. What I’m saying is that he had influence not just on scholarly writing but also on my approach to teaching. He treated every class, no matter how many times he taught it, as a maiden voyage. I remember a time when I was preparing myself for my first presentation at a major academic conference. Douglas was coaching me, helping me prepare. He told me to think about an actor playing Hamlet on stage. That actor has rehearsed those lines countless times, and yet when you hear him on stage, he imbues the lines with such life that you would think he’s speaking them for the first time. Douglas said that’s the way I’ve got to be presenting papers and class lectures.
HUBBARD: It’s hard to answer because I was one of those students in law school who worshipped all his professors. I just loved law school, and I guess that’s why I came back. In terms of most influential on my teaching style, I can’t say yet because I’m only in my second year teaching. I’m still developing how I present the material to students and probably will be for a long time. But one thing that I did learn from seeing professors in action as a student was how there are so many different ways to be effective as a teacher. I often bring up the juxtaposition between Dick Helmholz and David Strauss as the two poles of the spectrum in terms of style. What’s amazing is that they’re both incredibly effective, they’re both beloved by students, and yet their delivery could not be more different. That gives me some reassurance that I can find a place along that spectrum where my own style fits.
MORRISON: The Todd test is how many times you took a course from a person. I think I took three courses with David Currie: Civ Pro, Con Law IV, and Federal Jurisdiction. These are pretty far afield of what I care about, but I took them because he was the teacher. In Civ Pro, I did not do well, but it was still a magical experience with Currie. It was magical in the sense that he expected a level preparation from students that very few professors demanded of me in the classroom. I did not feel burdened or annoyed by the Socratic method as practiced by Currie, even as a 3L. It was inspiring. It was really heavy lifting, but it was really mind expanding. Every course was like that, and that’s what I dream of bringing to my classes.
FISCHEL: On the one hand I would just say everyone. I also just loved law school. I went to two Ivy League schools before I came to Chicago and I sort of just passed through them. They didn’t really leave much of an impression on me and when I got here I just loved law school. I loved every minute of it and, in fact, I remember my two first-quarter grades from Elements and Civil Procedure, I got 75 in one and a 76 in the other, which was exactly the median in both classes. To this day that’s one of my proudest intellectual accomplishments because I thought these professors were so great and the students were so smart that I was thrilled just to be able just to hold my own.
PICKER: Who did you have for Elements?
FISCHEL: For Elements I had Phil Neal. For Civil Procedure I had Stan Katz. There are all kinds of different styles and just to me they were all great. I thought almost from the beginning of law school that the highest professional aspiration I could possibly have was to be like them, to be a member of the faculty. Somebody who was one of the most unpopular teachers at the time, Ed Kitch, had a tremendous influence on me because he was so creative and so smart and he took a real interest in me and I probably took as many courses from him as from anyone. Epstein … I was just completely dazzled by him and what he taught me, which is something that really was unique at Chicago, is the interdisciplinary approach to law, much less unique now because of the schools that have modeled themselves after Chicago. To do law really well as a scholar, as a teacher, even as a practicing lawyer, you couldn’t just view law as a completely self-contained field. As I always tell my students now, questions for which there are clear answers are not issues where people can make great careers by knowing, because anybody can look them up. So the issue is being able to conceptualize and think creatively about problems where there are no obvious answers. That’s what a University of Chicago education taught me, and that is why even though I went to great schools my whole life, all of them pale in comparison to the role that the University of Chicago had on my intellectual development and, I suspect, that of generations of people before me and after me.
NAGORSKY: How did you end up a law professor and how did you end up a law professor here? Was it always the goal?
FISCHEL: That’s an interesting question too.
HENDERSON: I agree with Dan, I coasted through college and it made no impression on me. I came here and it was transformative. It was the single biggest inflection point in my entire life. I had no interest in being a professor. If you’d asked me when I was a student what the chances I was going to be a professor were: zero, less than zero … but once I was practicing as a lawyer and as a consultant, although those had their virtues, I was pretty miserable. I was here for my fifth law school reunion and I was sitting at a Cubs game, my wife was sitting next to Saul Levmore who was then the dean, but who was not here when I was here. Saul said to my wife, “What is Todd doing now?” and she said, “He’s a management consultant, but he’s not as happy as he was when he was a law student. His time in law school was the happiest time in his life.” And at that reunion weekend I sat in a presentation by Randy Picker and a new professor named Lior Strahilevitz about something related to internet privacy and … it was like Proust’s madeleines, I was just transformed.
PICKER: (sarcastically) That’s how I think of it, too.
HENDERSON: All of a sudden I was back in this magical time. I went home to Boston and two weeks later the telephone rang in my office and it was Saul Levmore and he said, you should come here and teach a class and I did and then that led to a year-long thing and then I went on the job market and won the lottery.
FISCHEL: My story is again somewhat odd. By the time I graduated I had a really strong record. I published two comments and an article while I was a student. And had a Supreme Court clerkship.
HENDERSON:Weren’t you earlier making fun of Picker for graduating from the college in two years?
FISCHEL: I was lucky to graduate in four! I also wanted to practice because I was interested in business law. I thought it was important to have some practical experience and I wanted to be in Chicago. Then an opening came up in business law at Northwestern, but, of course, my loyalties were at Chicago. I thought my record was really, really strong so I thought I would leave practice earlier than I thought and Chicago would be interested in me, but, of course, they weren’t. So I took the job at Northwestern and had a strong couple of years in terms of publications.
PICKER: Were you and Frank writing together at that point?
FISCHEL: Yes. Then, as now, it was very hard to recruit people who are interested in business law. At that time law and economics was much more unique than it is now for people interested in business law, so basically I had visiting offers from everywhere. I got tenure at Northwestern in my second year.
FISCHEL: And the only school I was really interested in was Chicago. So I came as a visitor, I taught Corporations, and the class was so unbelievably unsuccessful—there were practically student riots—I think I had the lowest teacher ratings in the history of the school. So I was told that I wasn’t going to get an offer for the second time, but I still had the rest of the year at Chicago. The second half of the year, my classes were much more successful, so I was somewhat rescuedb y reputation as a teacher because teaching was considered so important in the appointments process.
NAGORSKY: What went wrong in the Corporations class?
FISCHEL: Early in my career I was a proselytizer. I used the hard sell in classes and I remember I once got a teacher evaluation that just said for what you want to accomplish in your classes, the soft sell is much more effective. That teacher evaluation has always stuck in my mind because early in my career I was always perceived as rigid, dogmatic, uninterested in what students had to say, intolerant of dissenting opinions. When you try and cram things down people’s throats even if students agree with you they push back. That’s what happened to me and the lesson I learned over time.
HENDERSON: The soft sell worked on me in 1996, so here’s living proof.
MORRISON: Like Todd, I never thought of myself as an academic. I got a lot of consumption value out of going to law school and getting my PhD. There was a turning point when I was a teaching assistant for Gary Becker. He would regularly ask how I was doing in law school, what was I thinking about, who was I talking to. At some point, I thought about focusing my research on labor economics questions that had little or no connection to law. Gary thought this would be a mistake. He said something along the lines of, “You have training in law and economics. That’s a really valuable combination. To focus on purely economics questions—with no relation to the law—would be a waste of potential.” He steered me back to law and economics. Later, there came a point in his office where he said, “Ed, you should think about academia.” That was the validation I needed. At that point I think I started enjoying school more. I recall the final year of law school being one of the happiest years of my training here because I had a pretty clear sense of where I wanted this legal training to take me. A few years later, when I started interviewing for academic jobs, I talked to Eric Posner about coming back, but I felt that it might be healthy for me to have a bit of distance from Chicago. Gary Becker spent time away and he always said that was a healthy experience for him. Douglas, my other mentor, was very supportive of taking time away from Chicago to explore research and teaching on my own. But Chicago always felt like home. Coming back is one of those rare moments where my expectations have been exceeded along nearly every dimension—scholarly life, teaching, personal life, everything.
HUBBARD: Unlike some of the other folks here, I guess I always had aspirations of teaching, but I did feel this big gap between myself as a student and these wonderful professors. But working for several years in private practice really helped crystalize in my mind what kinds of questions I thought were worth examining and what I needed to learn in order to be able to contribute to answering those questions. I came back to the University of Chicago to get my PhD in economics—actually, Ed was the TA in my price theory class. He reminded me the other day.
MORRISON: You’d forgotten, which hurt my feelings.
HUBBARD: I was very embarrassed.
MORRISON: I thought I had tortured you in a way that you would always remember and sure enough, no.
HUBBARD: The scars healed! It was a wonderful experience and I like to say I came to the University of Chicago for law school and just kept coming back. As I finished up my dissertation I got a fellowship here thanks in large part to Gary Becker, and then I got an offer to teach here, so everything just worked out very well.
PICKER: It certainly would never have occurred to me that I was going to be a professor, never in a million years. I grew up in a very middle class background and I was vaguely aware of two kinds of professionals—doctors and lawyers. I knew I wasn’t going to be a doctor so I was going to law school. It never occurred to me that I would be a law professor when I was in law school. The notion of the separation, the sense that these were sort of Olympians and I was just a guy, so that never would have occurred to me. I clerked for Dick Posner and Dick’s influential that way. I think schools looked at Dick’s clerks, but I wanted to practice law. How could you not go practice law? That was the whole point of going to law school. I was at Sidley doing debt restructuring and I had a great time, but eventually I saw an ad in the National Law Journal. The University of Chicago was looking for law professors. So I called up Douglas and had a conversation with him, came down and had lunch at the Quad Club and I applied to teach at one law school. And here I am. Mind-boggling still.
NAGORSKY: So think back—you walk in those doors the first day, not as a student, but now you work here. What does that feel like?
PICKER: After I got hired I actually just came down and walked around the campus and I felt like electricity was going through my body. The whole idea that they were going to let me be a professor here was just completely mindblowing. Just a palpable sense of … wow, really! Super exciting. I still feel that way, so …
FISCHEL: Yeah, that did it for me. Those words perfectly capture my feeling.
HENDERSON: I was suffering from the imposter syndrome so I just felt like …
PICKER: (laughs) Me, too!
FISCHEL: Yeah, like someone was gonna figure it out.
HENDERSON: I was a lawyer for three years; I was a management consultant for four years. I’d not been in a law school class in 10 years and I’d just kind of forgotten so I went and sat in on a class that Richard Epstein was teaching. It was a Torts class and I sat in the back and I was just scared to death because I had no idea what he was talking about. I was petrified so I went up to my office and panicked that I wasn’t up to it. I have to say that I’ve been here a little while and I still felt the same way this morning; I went to teach Torts for the first class of the new quarter and I couldn’t sleep last night. I feel that way when I give presentations here, too. I don’t feel that way when I go and give papers at other schools. Here I’m a completely different person and I’m totally petrified, but I think it’s a good thing.
NAGORSKY: Is that because they were your professors?
HENDERSON: No, because there aren’t that many around anymore. Interestingly, the ones that were my professors are the ones that I’m the least likely to feel that way about and they are some of my closest friends on the faculty so it’s not that. I just think the standard here is so much higher than anywhere else. The level of engagement is so much higher with both the students and faculty that it just is a completely different atmosphere.
MORRISON: I am coming back to Chicago after spending 10 years at Columbia and after visiting Chicago for a quarter back in Spring 2008. Even so, a lot of questions entered my mind as I returned here permanently. Will I be able to rise to the level of excellence that I observed as a student? Can I inspire students as I was inspired when I studied here? Can I challenge people and make them want to rise to the challenge, not rebel? Will I be as interesting as my professors? Will I be as supportive and accessible? William Landes was a huge mentor my first year. He didn’t even know me. I hadn’t even taken a course from him. Just the fact that I was interested in law and economics was enough reason for him to talk to me. He’s the reason I got into the PhD program here. A few years later, a PhD student asked me a question about contract law. I didn’t know the answer, so I went to Douglas Baird. I had never had him for a course, but I knew that he was around and often available. I thought I’d just knock on his door and maybe get a quick answer. Douglas gave me the quick answer and then said, “Let me ask you a question. Here’s a problem I’m thinking about. It involves bankruptcy law.” He described this problem and I said, “I think I could write an economic model that analyzes this problem.” He said, “Why don’t you write that down and come back?” I had never taken a bankruptcy course, never taken a course from him, but he still thought it would be interesting to have a deep conversation. That was the beginning of my scholarly career in bankruptcy. And that was, for me, the classic Chicago experience: I could just stop by a professor’s office—even a professor who didn’t know me, never taught me, never seen me prove myself—and still be taken seriously.
HUBBARD: When I first returned to the Law School, I was apprehensive about whether I would be able to interact with his faculty as colleagues rather than as … overlords. [Laughs.] But that emotion was very quickly replaced by one of relief. Once I started actually interacting with everybody I discovered that we’re all just here trying to learn about the law and there wasn’t the sense of hierarchy that I had perceived as a student.
NAGORSKY: What was the first class you taught here?
PICKER: I taught Civ Pro I, and I’d had David Currie for Civ Pro. I taught Civ Pro I, so they were fresh and I was fresh. My oldest son at that point was all of two weeks old so it was an adventure.
NAGORSKY: What was it like to be on the other side of the same room?
PICKER: Civ Pro I has the great virtue of being a nice, internally defined set of materials, and the rules are pretty simple as statutes go. But the other thing is you feel like you’re given the chance to introduce them to how to read that kind of well-defined text. They don’t do that much statutory reading in first year and that’s such an important part of what it means to be a law student, law professor, and lawyer. It’s also an intensely practical course so there was a lot I liked about that course. First-year students— teaching them fall quarter, it’s like watching time lapse photography. They learn so much so rapidly. That’s always very exciting. I’m not academically that interested in Civ Pro, but I understood the virtues of that class and I was hoping to be worthy of David Currie, since I’ve had him for Civ Pro and I’m sure I was never worthy of him then.
HUBBARD: I taught Advanced Civil Procedure, and that was a lot of fun. I got to make up the syllabus because it hadn’t been offered before. It was a lot of work selecting readings and edited cases, but it was a great experience, and I was really impressed by the students. I’d always—ever since I was a student in law school, I dreamed about teaching a class at Chicago and yes, it lived up to my expectations.
HENDERSON: Corporations. I still remember, I held up Dan and Frank [Easterbrook]’s book and I said I had the great fortune of having this guy as my Corporations teacher and you guys are stuck with me, but if I fail, just read this and you’ll have gotten everything you need to know. In retrospect I know how terrible I was and how much I’ve learned and gotten better. I still interact with a lot of the students I had in that first class and they said I didn’t do quite as badly as I thought I did, but I had big shoes to fall.
NAGORSKY: How do you think your students differ from your classmates?
PICKER: There’s so much more other stuff that goes on at the law school now than there used to be. I don’t think I got any free lunches and I was self-supporting in law school so I could have used a few free lunches. Now, I don’t know how the students do it. They’ve got so many more activities going on simultaneously than we had back then.
FISCHEL: There was no such thing as teacher ratings. It’s much more consumer friendly now. There are trade-offs to that.
HENDERSON: It seems like there’s less controversy today. I remember as a student being involved in all kinds of big, huge fights between political parts of the student body and in class I remember on many occasions intellectual fights breaking out. Maybe it’s because the stuff I’m teaching is not amenable to that. The students are engaged with material, but it doesn’t seem quite as political to me as when I was a student.
HUBBARD: The big difference I noticed has to do with business cycles. I was in law school from 1997 to 2000 and that was the great associate feeding frenzy of the tech bubble. Today, of course, is a very different employment market and a much more stressful time to be a law student.
MORRISON: One of my biggest fears is that the dismal job market may generate an unhealthy seriousness among students. I fear that, because students are stressed about jobs, they may not relish the learning experience the way that I did. I think that’s part of our mission now: in a world of scarce jobs, to still make law school an experience that they find transformative, not …
HENDERSON: Paralyzing …
PICKER: Merely instrumental.
MORRISON: Yes, merely instrumental.
NAGORSKY: What do your classmates think about you teaching here?
PICKER: To the extent I’ve talked to anyone about it, I think it’s a bit of a point of pride. I think they like having someone from the class at the Law School. I think that people think fondly of the Law School on the whole, so it’s the chance for the class to, as it were, make an in-kind contribution to the Law School.
FISCHEL: My class probably produced more professors than any class in the history of the Law School. I think the people in the class, many of whom have gone on to equal distinction as judges or named partners in law firms, always regarded it as sort of a privilege to be in a class where there are a lot of their classmates who are academics and particularly academics at the Law School.
NAGORSKY: What is it that makes Chicago Law different?
FISCHEL: Having not just taught at another school, but seeing all the different statistics from different schools, there’s nothing that’s inherently better about Chicago students when they get here. I think what makes Chicago unique is the value added and the education.
PICKER: I think that emerges from the shared culture, right? The students work hard, the professors work hard, and I think we all do better.
HENDERSON: I look at the way I approach problems today and it is very much a way that was crafted by Dan Fischel and Randy Picker and Richard Epstein—there is a “Chicago way.” I’m sure they were tremendously influenced by Stigler and Director and Levi and the people who came before them … To be a part of that chain, I feel an overwhelming sense of responsibility. When I go to my students I’m not only giving them my perspectives for what they’re worth, but I am an instrument for delivering them this tradition that has been handed to me, a tradition of not only ideas, but of analytical and methodological approaches to solving problems. I very much feel like I’m carrying the water for these people. That is a very heavy burden.