Tillers on Evidence and Inference: To Save the Memory of James H. Chadbourn

Sunday, June 12, 2011

To Save the Memory of James H. Chadbourn

Since the Wikipedia entry for James H. Chadbourn is in danger of being deleted or radically pruned, I will reproduce that entry here:

James Harmon Chadbourn (born Spartanburg, South Carolina, 1905; died, Cambridge, Massachusetts, 1982) was an American legal scholar and an expert in civil procedure, Federal jurisdiction and evidence.^[1]^[2]

He was a Fessenden Professor of law at Harvard University from 1963 until his retirement in 1974.^[2]

Education

Chadbourn received a B.A. from The Citadel, The Military College of South Carolina in 1926.
He received an LL.B. from the University of North Carolina at Chapel Hill School of Law in 1931.

Employment

Assistant Professor & ---, University of North Carolina School of Law, 19-- - 19--
Professor, University of Pennsylvania School of Law, 1940-1950
Professor, University of California at Los Angeles School of Law, 1950-1963
Visiting Professor, Harvard Law School, 1961-1963
Fessenden Professor of Law, Harvard Law School 1963-1974

Career

Chadbourn wrote about (and against) lynching when and where it took courage to do so. See James Chadbourn, Lynching and the Law (1933), reprinted in 2008 by the Lawbook Exchange, Ltd.; James Chadbourn, "Lynching and the Law," 20 American Bar Association Journal 71 (1934); Note (by James Chadbourn), "Plan for Survey of Lynching and the Judicial Process," 9 North Carolina Law Review 330 (1931). See also the blog post Tillers on Evidence and Inference (December 31, 2008), http://tillerstillers.blogspot.com/2008/12/james-h-chadbourn-lynching-and-law-1933.html

Chadbourn was a master teacher and an expert in several fields, particularly civil procedure and the law of evidence. He authored or co-authored numerous casebooks and articles in these fields.

Chadbourn's approach to his fields was—to put it mildly—historical. This was most apparent in his approach to the teaching of civil procedure. There have been three major phases of civil procedure in America: common law procedure, the nineteenth century Field Codes, and the Federal Rules of Civil Procedure. Chadbourn devoted a lot of time to common law procedure, a considerable amount of time to the code system of pleading and procedure, and only a little bit of time to the twentieth century Federal Rules of Civil Procedure. He had an "utterly mad" interest (so said his Harvard colleague John Dawson) in the common law forms of action. He delighted in constructing elaborate hypotheticals that illustrated how the vindication of seemingly valid claims could be frustrated at every conceivable turn by the intricate rules governing the common law forms of action.

One of Chadbourn's major accomplishments (not widely known by today's forgetful legal professoriate) was writing a series of preliminary studies http://www.clrc.ca.gov/Mreports-bkstudies.html for the California Law Revision Commission in the early 1960s on the then-pending proposal to codify California's law of evidence. Chadbourn can fairly be called the father of the California Evidence Code. This Code was one of the earliest codifications of American evidence law. It had a substantial influence on the codification of the federal law of evidence roughly a decade later.

Chabourn's most monumental accomplishment was the revision of almost all of the volumes of John Henry Wigmore's classic and mammoth multi-volume treatise on the American law of evidence, a treatise that is widely regarded as the greatest English-language legal treatise ever written. (Chadbourn managed to do much of this arduous work while fighting cancer.) Chadbourn was proud that readers found it hard to distinguish his additions to the treatise from Wigmore's original work.

Family, Personal, Extracurricular

Personal, Anecdotes:

Chadbourn liked to cook. He generally left work each day at 4:00 or 5:00 p.m. to go home and cook supper. (He was an excellent cook.)

Chadbourn liked to fish. On one occasion he went to New Hampshire on a fishing trip with a research assistant. Chadbourn rarely spoke about personal matters to other people. However, during this fishing trip he and his research assistant took a rowboat out to the middle of a small lake and there, while fishing, Chadbourn asked his assistant, "How can we keep doing this stuff?" Chabourn was referring to studying and writing about the law of evidence. There was a deep strain of skepticism in Chadbourn. (The befuddled research assistant, who did not know how to fish, did not answer the possibly-rhetorical question.)

Peter Tillers recounts at http://tillerstillers.blogspot.com/2010/08/be-nice-on-your-way-up-but-kick-them.html:

I did research for James H. Chadbourn for a number of years while he taught at Harvard Law School. ... Chadbourn hated deans -- without exception. I still recall one day when a person, an administrator, dropped by his office at Harvard... (I was sitting behind a small desk doing research -- the old-fashioned way, by reading cases in "hard copy" form.) Chadbourn had been friendly with this administrator. She told him she had been named an assistant dean. From then on, Chadbourn was hostile to her. I don't know what lay at the root of Chadbourn's contempt for deans. Part of the reason may have been philosophical and temperamental: he was a curmudgeon -- a gentle curmudgeon -- and a skeptic, and he was generally distrustful of authority. Another part of the reason may have been his experiences with authority while he taught at UCLA: the story has it that he fought bitterly against a McCarthyite attempt to purge two junior faculty members who were accused of being Communist sympathizers. ...
...

... Toward the end of his life, Chadbourn's enmity toward deans abated a little. Initially Chadbourn did not like Dean Albert Sacks of Harvard Law School, particularly because Sacks (possibly on behalf of a law school committee) once chastised Chadbourn after Chadbourn ordered a rude grade-grubbing law student to leave his office. Chadbourn eventually got cancer. Sacks apparently visited Chadbourn often while Chabourn was ill. For this Chadbourn was grateful. To his great credit, Sacks wrote a touching tribute to Chadbourn, 96 Harvard Law Review 361 (1982). He wrote:

I came to know Jim well during the past decade -- the period when I was Dean. Clearly, he had established a very special relationship with his students. Year after year, one heard from excited, happy students of his colorful way of teaching, which combined meticulous care for content and pedagogy with a vivid style laced with humor and wit. ... Obviously, he had achieved a genuine mastery of his subjects and his craft. These accomplishments, impressive as they are, disclosed only one part of the man. Aside from what he revealed of himself in the classroom (and visitors were discouraged), Jim Chadbourn was essentially a private person. Instinctively modest, he preferred to speak little of achievements and undertakings. Sentimental or other emotive feelings were masked, if not buried, by the use of irony, recourse to wit, or a not very convincing display of grumbling. But he and I dealt with each other at a time when he confronted limitations of age and serious illness. I too had recently confronted a difficult illness, and so we were able to achieve a perhaps unusual openness. Jim Chadbourn revealed a clear-eyed sense of his vulnerability, a reluctantly exercised capacity to accept whatever limitations he had to face, accompanied by an unshakeable determination to achieve the goals dictated by his work. Notwithstanding his success as a teacher and the satisfaction it gave him, he chose to retire early in order to devote his time to Wigmore's treatise. His cancer required treatments that were temporarily debilitating. After each treatment, he would bide his time and then go back to work. What emerged for me was a picture of something more than the great professor and the master craftsman. Here was an indomitable spirit, quietly expressing itself in a cause that could have only one final outcome. Of course he was now limited and vulnerable -- aren't we all, ultimately? Still, he not only completed the work he had set for himself, but he also continued to appreciate the people and experiences around him for which he could still find time. Indeed, I sensed at times that in this period of trial and hardship he felt a special satisfaction, which he characteristically masked. His friends offered support and encouragement, but we were of little help. What help he received came from within and from one other person -- his remarkable wife, Erika, for whom this time was also one of great trial and, in the deepest sense, of triumph as well. I was not at all surprised that Jim's students left his classes with the sense that they had learned the subject and, beyond that, had been touched by a man of memorable character. And it was natural for him to tell his first-year classes, during their last hour together, that the students should become not only good lawyers -- that would not be hard for them -- but also good people. His contribution to us all -- his students, colleagues, family, and friends -- was the example he set of quiet professional excellence, of courage and determination in confronting adversity, and of an understanding and appreciation of life that were genuine and deep though not seen on the sleeve. This is the measure of our loss. This is also the measure of our gain.

Peter Tillers reports that he heard from Chadbourn's family or friends, not only that Chadbourn came to detest the dean that he initially served under at UCLA, but also that Chadbourn, after declining to become one of the law school's founding faculty members, agreed to join the law school in 1950. Chadbourn, who had been teaching at the University of Pennsylvania, thought he would become one of the senior faculty members at UCLA. But on arriving at UCLA, he discovered, to his horror, that Roscoe Pound had become a faculty member at UCLA's new law school. Chadbourn - for some reason - detested Roscoe Pound.

It turned out that Chadbourn had ample reason to detest both Roscoe Pound and the first dean of UCLA Law School, L. Dale Coffman. The wave of the post-World War II anti-communist fervor had reached California by 1050. The board of regents of the University of California resolved that all faculty members had to take loyalty oaths. Dean Coffman and Roscoe Pound agreed that law faculty members should also be required to do so.^[3]

Chadbourn was renowned for his dry wit. In a civil procedure class at Harvard Law School Chadbourn was discussing the common law action of trespass. In the course of doing this, he mentioned the common law maxim that the possessory rights of an owner of a fee simple absolute extend from heaven to hell. ("It is one of the oldest rules of property known to the law that the title of the owner of the soil extends, not only downward to the center of the earth, but upward usque ad coelum." Hannabalson v. Sessions, 116 Iowa 457 (1902).) A student raised his hand and earnestly asked (roughly), "But Professor Chadbourn, planes fly over land all the time. How high do the rights of a property owner extend?" Chadbourn paused, furrowed his eyebrows, looked down at his notes, and then said, "Real high."

Publications

Books, treatises, casebooks & reports:

Chadbourn revised seven volumes (turning them into eight) of the third edition of the classic treatise John H. Wigmore, Evidence in Trials at Common Law (3d ed. 1940).
J. Chabourn, Lynching and the Law (1933), reprinted in 2008 by the Lawbook Exchange, Ltd; T. Atkinson & J. Chadbourn, Cases and Other Materials on Civil Procedure (1948); T. Atkinson & J. Chadbourn, Introduction to Civil Procedure (1948); J. Chadbourn, L. Levin & P. Shuchman, Cases and Materials on Civil Procedure (2d ed. 1974) (original edition published by Chadbourn and Levin in 1961); R. Magill & J. Chadbourn, Cases and Civil Procedure Preface (3d ed. 1939); J. Chadbourn & L. Levin, Procedure Portfolio: Pleadings, Process and Appeal Papers in Facsimile (1962); J. Chadbourn, H. Grossman & A. Van Alstyne, California Pleading -- Civil Actions (1961); J. Chadbourn, A. Van Alstyne & H. Grossman, California Discovery Practice (1972); C. McCormick, J. Chadbourn & C. Wright, Cases and Materials on Federal Courts (6th ed. 1976) (federal courts casebook first published by McCormick and Chadbourn in 1946); 6 California Law Revision Commission Reports 39-45, 58-74, 133-69, 307-09, 328-416, 439-80, 509-25, 627-79, 727-71, 831-60, 925-50, 1049-107 (1964).

Law review articles:

J. Chadbourn, "Lynching and the Law," 20 A.B.A. J. 71 (1934); Note (by Chadbourn), "Plan for Survey of Lynching and the Judicial Process," 9 North Carolina Law Review 330 (1931); Chadbourn, "A Summary Judgment Procedure for North Carolina," 14 North Carolina Law Review 211 (1936); Chadbourn, "Trial by Jury Under the Seventh Amendment," 92 University of Pennsylvania Law Review 92 (1943); Chadbourn, Book Review, 41 Iowa Law Review 719 (1956); Chadbourn, Book Review, 33 Texas Law Review 151 (1954); Chadbourn, Book Review, 87 University of Pennsylvania Law Review 633 (1939); James Chadbourn & Leo Levin, "Original Jurisdiction of Federal Questions," 90 University of Pennsylvania Law Review (1942; James Chadbourn, Book Review, 29 Tulane Law Review 608 (1955); James Chadbourn, Book Review, 98 University of Pennsylvania Law Review 455 (1950); Chadbourn, "The Activities of the North Carolina Bar Association in Stimulating Legislation," 8 North Carolina Law Review 101 (1929); Chadbourn, "High Ethical Standards and Professional Ideals -- The Problem of Inculcation at the Student Level: Teaching Legal Ethics in Law School," BRIEF, Fall 1955, at 17; Comment (by Chadbourn), "Taxation -- Patents and Copyrights as Immune Federal Instrumentalities," 9 North Carolina Law Review 475 (1931), reprinted in 14 Journal of the Patent Office Society 421 (1932); Comment (by Chadbourn), "Evidence -- Impeaching Witness by Showing Religious Belief," 9 North Carolina Law Review 77 9 (1930); Comment (by Chadbourn), "Quasi-Contracts -- Liability of Municipality for Benefits Conferred Under Illegal Contract," 8 North Carolina Law Review (1930); Comment (by Chadbourn), "Public Utilities -- Distinction Between License and Franchise -- Cotton Ginning as a Business Affected with a Public Interest," 8 North Carolina Law Review 87 (1929); Comment (by Chadbourn), "Criminal Law -- Self-Defense -- Duty to Retreat -- Reasonableness of Appearance of Necessity," 7 North Carolina Law Review 460 (1929); Chadbourn, Book Review, 8 North Carolina Law Review 228 (1930); Chadbourn, "Bentham and the Hearsay Rule -- A Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence," 75 Harvard Law Review 932 (1962); Chadbourn, "History and Interpretation of the California Dead Man Statute: A Proposal for Liberalization,' 4 UCLA Law Review 175 (1957); Chadbourn, "The 'Uniform Rules' and the California Law of Evidence," 2 UCLA Law Review 1 (1954); Chadbourn, Book Review, 43 California Law Review 365 (1955); Chadbourn, Book Review, 29 California State Bar Journal 501 (1954); Chadbourn, Book Review, 98 University of Pennsylvania Law Review 610 (1950); Chadbourn, Book Review, 89 University of Pennsylvania Law Review 256 (1940); Chadbourn, Book Review, 10 Tulane Law Review 480 (1936); Chadbourn, Book Review, 30 Illinois Law Review 128 (1935).

References

^ JAMES H. CHADBOURN obituary, New York Times, October 1, 1982. Accessed June 9, 2011
^ ^a ^b James Chadbourn, Retried Professor, Dies of Cancer, Harvard Crimson, September 30, 1982. Accessed June 9, 2011
^ Renee Y. Rastorfer, "THOMAS S. DABAGH AND THE INSTITUTIONAL BEGINNINGS OF THE UCLA LAW LIBRARY: A CAUTIONARY TALE," 95 Law Library Journal 347, 357 (2003) ("[T[he dean of the law school, L. Dale Coffman, became a vocal supporter of the loyalty oath. In later years, he recalled that Regent Edward Dickson was unhappy about the controversy embroiling the system. 'Indeed so. As a matter of fact, that's why he came to me to see if [Roscoe] Pound and I and other members of the faculty would make public statements in that regard. I did to the Examiner. Pound did, too .... I stated publicly that I'm not a communist, I never have been, I never expect to be, and I don't see where in it interferes with my academic freedom to say so.') See generally, N.E.H. Hull, Chapter 6 ("Pound Moves to the Right and Llewellyn Applies Himself") in Roscoe Pound and Karl Llewellyn: searching for an American jurisprudence (Chicago, 1997).