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leval

 

Pierre N. Leval was appointed by President Bill Clinton to the Second Circuit in 1993 after serving nearly 17 years as a district judge in the Southern District of New York.

 

Leval was born in New York City in 1936 in a French- speaking family. His father was a Swiss-born, naturalized American citizen of an Alsatian Jewish family, which had moved from France to Switzerland as a result of the Franco-Prussian war. In his youth in the early years of the twentieth century, Leval’s father was sent from Paris to New York to tend to the U.S. affairs of a French international grain-trading firm and made his career in the United States as an executive of the firm. Leval’s mother, the daughter of Romanian and Russian immigrants, was born in New York but educated largely in Europe and fluent in French. During Leval’s childhood in the war years from 1939 to 1945, his New York home was a regular meeting place of French refugees from the Nazi occupation of France.

 

After the War, his family regularly traveled to France during his summer vacations from school, reuniting with Leval’s aunt (his father’s sister) and her son, Edouard Louis (Loulou) who, together with his older brother, served as a Resistance fighter against the Nazi occupation of France in hiding in the Free Zone, and who used his Resistance resources to arrange and guide his mother’s escape into Switzerland. The older brother was captured, tortured, and executed. Loulou escaped capture, sometimes narrowly, and survived. He and Leval remained close for nearly 70 years until his death at age 94.

 

Leval attended grade school at the Allen Stevenson School in New York, high school at Phillips Exeter Academy in New Hampshire, and college at Harvard. After college, he served in the Army and then got an internship in a Swiss bank in Geneva, learning something of international banking while awaiting the start of his first year of law school. He entered Harvard Law School in 1960.

 

He found his first law school year, taught at Harvard with commitment to the Socratic method (some professors rarely uttered a sentence that did not end with a question mark), to be the most exciting, mind-stretching year of his education. In those days, the course curriculum was largely prescribed, with limited opportunity for choice in the last year. Leval had heard that the best and most delightful course the school had to offer was Copyright, taught by the great Professor Ben Kaplan. He was tempted but resisted, making what he believed was the mature decision to choose “a course that would be useful to me in the future.” It was a bad decision. Fifteen years later, he began a career as a federal judge, exercising exclusive (but bewildered) jurisdiction over puzzling copyright matters.

 

Leval served on the Harvard Law Review as notes editor and graduated magna cum laude. In his estimation, the most important ingredient of his legal education was the time he spent working with Judge Richard Posner, who was the first ranking student and president of the law review in the preceding class. When Leval was a second-year junior editor and Posner was president, Posner took charge of editing all of Leval’s law review writings. Leval recalls with delight how he and Posner would spend endless hours late into the night, meticulously examining hypothetical variations to test the practical efficacy of every possible governing rule. In Leval’s view, these exchanges with so brilliant a mentor afforded him a glimpse of the fabled School of Athens.

 

His first law job was a summer internship after his first year of law school, working for Thurgood Marshall and Jack Greenberg at the NAACP Legal Defense and Education Fund, Inc., colloquially known as the Inc Fund. Barely six years after Marshall’s groundbreaking victory in Brown v. Board of Education, the Inc Fund was still a tiny, intimate office of six or seven lawyers, which meant a rewarding experience for a summer intern. He was assigned to write a cert petition for Ruth Tinsley, the wife of a Richmond, Virginia NAACP official, who had been convicted of loitering in a civil rights demonstration. The petition was assigned to the student-intern because the office’s lawyers believed that the case, taken as a courtesy, had no chance of success. Leval prided himself that his petition won an affirmative vote from Justice Douglas, until his bosses explained to him that the mere fact the petition sought to overturn the conviction of a civil rights demonstrator and was signed by the Inc Fund was sufficient to guarantee Justice Douglas’s vote.1

 

The judge’s first job as a law graduate was in this court, to which he would return as a judge 30 years later. He had the immense good fortune to be selected as the clerk to the great Judge Henry J. Friendly, the generally acknowledged genius of the federal judiciary. In those days, the judges left the selection of their clerks largely to trusted professors. Court of Appeals judges had only one clerk (as compared with four today), which was one more than Friendly needed. As law jobs go, it was in some ways easy work. Friendly carried virtually all of law in his head, hardly ever needed research, and wrote his opinions himself. Little was required of the law clerk, whose only significant utility to Friendly was to confront the judge occasionally with cogent disagreement on some aspect of the judge’s analysis. Friendly instantly understood all the implications of a criticism, as well as whether he liked the suggestion (in which case he loved it and glowed with pride in his clerk), or, as was more frequently the case, had no use for it. In that event, his indecipherable growl meant that the subject was closed. Leval remembers having heard a number of such growls. Although easy in some ways, the Friendly clerkship did present difficulties: Friendly was a gruff man, who had little tolerance for imperfection and made scant effort to conceal his displeasure when he encountered it. Notwithstanding occasional bruises during the clerkship, Leval developed a warm, filial relationship with the great judge, who, in his late years, often dined in the Leval household.

 

Clerking for Friendly was an amazing education because the judge brought to bear on every judicial decision a profound, organic understanding of the meaning, function, and limits of every legal doctrine. His decisions were a teaching tool. Every subject he addressed emerged better explained and better understood. During the clerkship, Leval turned down offers to clerk the next year on the Supreme Court. The decision was motivated in part by impatience, after three years of scholarly remoteness in law review work and clerkship, to get into the rough-and-tumble of criminal prosecution as an Assistant United States Attorney, and in part because of the sense that no Supreme Court justice was the equal of the judge for whom he had already clerked. He later recognized that it was foolish and arrogant to pass up the Supreme Court experience (even accepting the correctness of his assessment of the relative merits of the judges).

 

But, as the path of his life could scarcely have been more fortunate, he does not regret even his silliest decisions along the way. As an example, had he chosen the Supreme Court clerkship, he thinks it unlikely his path would have led to the Second Circuit.

 

Following the advice of one of our most famous savants— that one who comes on a fork in the road should take it—Leval instead became an Assistant United States Attorney prosecuting criminal cases under the inspiring leadership of United States Attorney Robert M. Morgenthau. Within his first weeks in the office, arrests were made in the most sensational case of its day, a plot to blow up the Statue of Liberty. The case was assigned to Stephen E. Kaufman, then chief of the Criminal Division and one of the office’s outstanding and universally respected lawyers.

 

Kaufman chose the two most junior assistants, Leval and his officemate, the super-talented Franklin A. Thomas (who later became president of the Ford Foundation), to assist him in the prosecution. Kaufman was a great teacher and a generous mentor. The trio’s intense work together on the case led to a deep and lifelong three-way friendship. Leval worked for four years in the Morgenthau office, eventually serving as chief of appeals. Like many others who served in that office, he thinks the job may have been the best and most exciting of his career.

 

In 1969, he entered private practice at Cleary Gottlieb Steen & Hamilton, which had been cofounded in the late 1940s by Judge Friendly. He practiced six years with the firm, three as an associate, three as a partner. He worked primarily on matters of international finance and business litigation. While he derived immense pleasure and pride from working with the firm’s congenial and superb lawyers, he ultimately decided (oddly) that he got greater pleasure from the meager rewards of public service than the copious rewards of private practice. In 1974, Leval’s old boss, Morgenthau, who was famed as a person to whom it was impossible to say no, made Leval “the kind of offer you can’t refuse”—to take a leave from his well-compensated law partnership to work instead as unpaid campaign manager, directing Morgenthau’s bid to follow in the fabled Dewey-Hogan succession as district attorney of New York County. After Morgenthau’s election victory, Leval joined him in the D.A.’s office, where he worked for three years as first assistant and chief assistant. It was an exciting time, as Morgenthau, at the start of what became a 34-year career as D.A., modernized the outdated structures and procedures of the office.

 

The 1976 national elections brought a new Democratic President Jimmy Carter and a new Democratic New York Senator Daniel Patrick Moynihan. Although appointments to the federal courts are technically made by the President, with the advice and consent of the Senate, for many years the effective power to select district judges has lain with the home State’s senators of the President’s party. Traditionally, senators had approached this function through procedures veiled in secrecy, taking whispered advice from undisclosed confidants. The newly elected Moynihan did an unheard-of thing—appointing a bipartisan committee that would accept applications, interview candidates, and recommend to the senator. On learning that Moynihan had instituted this open procedure, Friendly called Leval to urge him to apply. Leval put in his application, backed by supporting letters from Friendly and Morgenthau, and had the good luck to emerge with Moynihan’s blessing as Carter’s first appointee to the District Court for the Southern District of New York.

 

He served in the district court for over 16 years, writing close to 1000 opinions. Cases are distributed among the judges in the Southern District at random, by the spin of the wheel in the Clerk’s office. Over a period of years, every judge will inevitably receive a share of cases that attract public attention. Leval’s most widely publicized cases were General William Westmoreland’s libel suit against CBS and Mike Wallace, based on a telecast that accused the general of manipulating intelligence reports to underrepresent the enemy strength in Vietnam, so as to guarantee White House support for the war effort; the 17-month-long Pizza Connection trial of 22 Sicilian Mafiosi involving a ten-year conspiracy to import drugs from South America; and J.D. Salinger’s suit for copyright infringement, seeking to enjoin publication of a biographical book by Ian Hamilton, which took extensively from Salinger’s letters. That case had a tortuous history. The publisher’s defense, that the quotations were justified as fair use, prevailed before Leval in the district court, but Leval’s ruling was overturned by the Court of Appeals. Then, in response to an outcry from the publishing industry, Congress amended the copyright statute to reject the theory underlying the Court of Appeals decision.

 

In 1993, the newly elected President Clinton named Leval to the Second Circuit where he has served for 23 years, most recently in senior status. Like all judges, he has drawn responsibility for, and written opinions on, a wide variety of subjects, including torts, contracts, criminal law, securities markets, insurance, constitutional law, antitrust, taxation, copyright, trademark, and human rights.

 

The judge is perhaps most known for his writings on copyright. When he was in the district court, random distribution sent him a statistically improbable number of fascinating cases involving claims of fair use, including, in addition to Salinger’s suit, claims by the heirs of Igor Stravinsky and L. Ron Hubbard against biographical books that quoted from their letters, and a suit by the publisher of a scientific journal against a major oil exploration company, protesting the defendant corporation’s practice of repeatedly photocopying articles relevant to the research of its nearly 90 geologists. His work on these cases led Leval to recognize that neither statutory nor decisional law explained how to identify fair use, and to write an article proposing standards. His proposals were largely adopted by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.2 His article, Toward a Fair Use Standard, published in the Harvard Law Review,3 is identified by a Harvard statistical study as the most frequently cited law review article on a private law subject in 25 years.4 Another of his publications, Dicta about Dicta,5 originally delivered as New York University School of Law’s James Madison Lecture, helped persuade the Supreme Court to abandon its recently adopted mandate that the inferior courts, when considering a claim of a constitutional tort, were required to first answer the potentially difficult question whether the complaint stated a constitutional claim, before turning to the often easy, decisive question whether the case needed to be dismissed on grounds of qualified immunity because the specific right asserted was not clearly established at the time.6 Leval argued, and the Supreme Court eventually agreed, that the obligation often compelled courts to sow confusion in the law and in the administration of governmental agencies by declaring the unconstitutionality of governmental practices in dictum that would have no effect on the case, where the merits of that question had been poorly briefed—in part because the defendant had no practical interest in it. In another widely noted article published in the wake of his Westmoreland v. CBS trial,7 Leval argued that the essential elements of a claim of libel, brought by a public figure who renounces any claim for a monetary award and seeks only a ruling that the defamatory publication was false, should not include an obligation to satisfy the actual malice standard adopted by the Supreme Court in New York Times Co. v. Sullivan.8

 

The judge has often been invited to lecture at law schools – most frequently on issues of intellectual property law and human rights. He is an emeritus member of the Council of the American Law Institute. Awards to him have included honorary degrees of the Vermont Law School and New York Law School, the Learned Hand Medal for Excellence in Federal Jurisprudence of the Federal Bar Council, and the Henry J. Friendly Medal of the American Law Institute.

 

1. Judge Leval recently attended a talk by Risa Goluboff, Dean of the Virginia Law School and a former clerk of Judge Calabresi, on her new book “Vagrant Nation,” which examines the widespread use of vagrancy laws to suppress civil rights demonstrations in the 1960s, and the eventual invalidation of these laws. After the talk he told Dean Goluboff of his summer job with the Inc Fund and the Tinsley cert petition, he was amazed to learn that her book discusses the unsuccessful cert petition and reveals that, a few years later, the Virginia statute under which Ruth Tinsley was convicted was held unconstitutional and was repealed by the Virginia Legislature.
2. 510 U.S. 569 (1994).
3. Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990).
4. Ted Sichelman, Most Cited Private Law Articles Published in the Last 25 Years, NEW PRIV. L. (Apr. 22, 2015), https://blogs.harvard.edu/nplblog/2015/04/22/most-cited-private-law-articles-published- in-the-last-25-years/.
5. Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV. 1249 (2006).
6. Saucier v. Katz , 533 U.S. 194 (2001); abrogated by Pearson v. Callahan, 555 U.S. 223 (2009).
7. 752 F.2d 16 (2d Cir. 1984); see also Pierre N. Leval, The No-Money, No-Fault Libel Suit: Keeping Sullivan in Its Proper Place, 101 HARV. L. REV. 1287 (1988).
8. 376 U.S. 254 (1964).