Third National Symposium: Remembering Robert MacCrate — Randy Hertz

by Paul Maharg on 12/06/2016

Stephen Ellmann introduced this lunch session, with Randy Hertz describing Robert MacCrate, who died earlier this year, and his legal educational achievement, largely but by no means only the MacCrate Report.  How did he accomplish what he did on the famous Task Force?  He built the group, drawing together the academy and practice worlds.  He also gathered data on what was done in law schools, in clinical courses, etc.  Roy Stuckey and others were instrumental in that.  Reports were put together on that empirical data.  The main report was subtly handled.  The statement on skills and values, eg, was sent out to all law schools, affiliate organisations, bar associations, etc.  He made it clear he wanted to hear comment.  The second version contained annotations and participants’ feedback.  Before the Report was issued there were plans to have discussions to discuss the report.  He invited deans to meet with judges and members of the bars in the state.  He was brilliant at defusing resistance.  The ABA accreditation standards were to be rewritten as a result in the 1990s.  All that movement began with the MacCrate Report, and the new standards were to be adopted by the ABA.  He was a remarkable planner, not least for unintended consequences.  We’re a lot better off now than we were then, in part because of Robert MacCrate’s efforts.  Randy told us of how Robert planned for free copies of the Report to be given to all staff in all law schools, along with free copies for students; but that in a number of law schools (how many he didn’t say) the copies never reached their readers — they were locked in cupboards by deans and others.

But there was another side to Bob MacCrate — exposing the massacre at My Lai, March 1968, its whitewashes, and the truth of the killing of around 140 people, in an Army Investigative Panel.  The panel issued a report after an exhaustive report, recommending charges against 14 people.  But only Lieutenant Calley was indicted — and was later pardoned.  Bob’s part in gathering information, naming names and speaking truth to power as to the extent of the massacre, according to Randy, helped shape the national consciousness.  He helped us through this terrible episode and showed us how to deal with it.

Randy then gave a brief resumption of Robert MacCrate’s career as a lawyer — and noted that it was while having this career eg at Sullivan & Cromwell that he did all the other things he is known for.  And that as a result he is an excellent model of pro bono work for our students.  He worked for so many different pro bono causes, too — this, Randy said, was what students should be told about.

Randy then invited stories about Bob from the floor, and there were some wonderful personal stories of the great man.  I’d like to add to this posting my own view of his Report.  For me as a legal educator working across many different jurisdictions, MacCrate and the Report was an inspiration.  It was a massive (in every sense) document that inspired me to think large, to look anew at outcomes, to adapt and adopt for other jurisdictions and in my work with regulators.  I owe him a profound debt of gratitude.

Thereafter Randy invited representatives from California to comment upon pro bono requirements.  In New York the Ct of Appeals ‘requested’ that all NY law schools explain which one pathway of three they were using through the JD to practice (I gather there are specialist rules regarding LLMs who take the Bar and want to be part of the Bar of their state).  Not a detailed statement, but some prospectus.  Some plans have been filed — every school?  Still unclear.  Stephen Ellman pointed out that Pathway 5 was in fact an apprenticeship model — possibly the first one in the US modelled upon an articling system.  Very interesting point, particularly given the status of articling and articles in Canada; and the status of traineeships in England vs the SRA’s Solicitors’ Qualifying Examination, etc.  Randy predicted that if California and NY change their rules on pro bono etc, it will put pressure on other Bars throughout the country.

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