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winter

 

Ralph K. Winter was born on July 30, 1935, in Waterbury, Connecticut. He grew up there and attended the Taft School in Watertown, a few miles away. For college he moved a little farther south, to Yale College, where he received an A.B. degree in 1957.

 

He remained in New Haven to attend Yale Law School, where he not only received a LL.B. degree in 1960, but also met his wife, the former Kathryn Higgins, a New Haven native who was working in the law school’s library.

 

Winter spent his first two years after law school as a federal judicial law clerk. The first year, from 1960 to 1961, he moved to Wilmington, and served as a law clerk to Chief Judge Caleb M. Wright, of the District Court for the District of Delaware.

 

The following year, from 1961 to 1962, Winter clerked for a new judge on the Second Circuit, the court on which he would ultimately serve. The new judge was Judge (and later, of course, Justice) Thurgood Marshall, with whom Winter would form a close, lifelong friendship. Judge Marshall was a recess appointment, southern Senators had balked at his nomination, and in late 1961 entered service in sudden and immediate need of help.

 

Winter came highly recommended by two Yale professors, Louis H. Pollak and Charles L. Black, Jr. It was a Wednesday or Thursday in October when Judge Marshall offered Winter the job. Winter thanked his new boss and mentioned as casually as he could that he was getting married to Kate on Friday. That was fine, Judge Marshall replied, Winter could come in on Tuesday, which he did.

 

And thus Winter became Thurgood Marshall’s first law clerk. Winter had moved back to Connecticut, but as Justice Marshall would recall two decades later at Winter’s induction, Winter “commuted from New Haven to New York daily to serve me,” something for which Justice Marshall always felt “indebted” to Winter.1

 

After clerking, Winter returned to Yale Law School, turning down offers to practice corporate law in Wilmington. Instead he would teach corporate law and a whole lot more. He served as a full-time member of the Yale Law faculty from 1962 until he entered judicial service in 1982, and at the time of his nomination as a judge was the William K. Townsend Professor of Law, a chair named in honor of an earlier Yale law professor who served on the Second Circuit.

 

As a law professor, Winter was a jack-of-all-trades—teaching not only corporations, but also torts, constitutional law, antitrust, labor law, and evidence, among other subjects. But as Dean Harry Wellington later observed, “Unlike many jacks of all trades, . . . Ralph [was] master of most. In almost all of his teaching fields he has committed original and important scholarship. His writings [were] stylish but, where appropriate, they reject[ed] conventional wisdom. His scholarship show[ed] his conservative bent, but it also demonstrat[ed] his receptivity to a good idea,” and “helped many . . . in the many areas of law he has illuminated, to understand better the relationship between good law and economic reality, and to comprehend the limits of all law in a free society.”2

 

Any good corporate law class today, for example, will teach its students about something called the “Cary-Winter debate.” There was no debate until Professor Winter came along: a Columbia law professor and former SEC Chairman, William Cary, had written an article in 1974 arguing that states had been engaging in a “race to the bottom” in corporate law: a competition to provide legal regimes that put managers’ interests over shareholders’ and urging the federalization of corporate law. Professor Winter responded in 1977 with the then-contrarian contention that regulatory competition was actually producing a race to the top: that corporations were economically incentivized to charter themselves in states providing legal regimes that lowered the cost of raising capital by maximizing shareholder value, and that states, seeking corporate franchise fees, responded accordingly.3 Almost four decades later, the debate continues, with legal empiricists continuing to conduct economic event studies on the efficiency of state corporate law. Most scholars today agree with Professor Winter’s remarkable and original insight. Judge Frank Easterbrook of the Court of Appeals for the Seventh Circuit has described the article expounding this insight as “the single most important contribution to the economic analysis of corporate law since Ronald Coase published The Nature of the Firm in 1937.”

 

In the realm of labor law, Professor Winter joined forces with Dean Wellington in 1971 to write a seminal Brookings Institution book on public-sector unionism, The Unions and the Cities. The book’s thesis: that government was not just another industry, and that politically powerful government-employee unions, through the use of a legal regime designed for private-sector labor, could distort the political process and divert public resources to their members to the detriment of the public.4

 

Professor Winter loved the intellectual give-and-take of the classroom, once telling a reporter, “Part of the fun is to be the devil’s advocate and say outrageous things and let them drive you back.”5 And he took great pride in his role as a teacher and scholar. At the hearing on his nomination to the Second Circuit, the chairman of the Senate Judiciary Committee asked, “Mr. Winter, you are a dean?” The nominee responded, “No. A professor.” That apparently disappointed the chair: “Oh, merely a professor? Not a dean?” To which Professor Winter replied, “No sir. A professor, not merely a dean.”6

 

Still, during his academic years, Winter did not confine himself to the ivory tower. He worked as a consultant to the Senate Judiciary Committee’s Subcommittee on Separation of Powers from 1968 to 1970. He was a senior fellow at The Brookings Institution from 1968 to 1970. And he served at the American Enterprise Institute as a John Simon Guggenheim fellow from 1971 to 1972, and as an adjunct scholar there from 1972 to 1981.

 

Winter even took time out from teaching and scholarship to actually practice law. Nearly a decade and a half after graduating from law school, he finally decided to take the bar examination. He had a client who needed his help in an important case. The client was James L. Buckley, then the junior United States senator from New York, and today a senior judge on the D.C. Circuit. The case was Buckley v. Valeo, the landmark First Amendment challenge to numerous provisions of the Federal Election Campaign Act of 1971.7 Winter passed the Connecticut bar, argued the case in the Supreme Court of the United States and won.

 

On November 18, 1981, President Ronald Reagan nominated Winter to serve on the Court of Appeals for the Second Circuit, and the Senate that day unanimously confirmed him.8 Judge Winter entered judicial service on January 5, 1982. From July 1, 1997 to September 30, 2000, he served as chief judge of the Second Circuit. He took senior status on October 1, 2000.

 

Judge Winter served from 1987 to 1992 as a member of the Judicial Conference Advisory Committee on the Rules of Civil Procedure. In that capacity, he played a critical role in crafting important discovery reforms: most notably, the revolutionary 1993 amendments to the Federal Rules of Civil Procedure that require parties to exchange relevant information with adversaries at the outset of civil cases.

 

Judge Winter also served as chair of the Judicial Conference Advisory Committee on the Rules of Evidence from 1992 to 1996. In 1998, he was appointed to the Executive Committee of the United States Judicial Conference, and in 1999 and 9000, was appointed chair of that Executive Committee by Chief Justice William Rehnquist. And from 2003 to 2010, Judge Winter served by appointment of Chief Justice Rehnquist as a member of the three-judge Foreign Intelligence Surveillance Court of Review. Judge Winter also served as chair of the United States Judicial Conference Committee to Review Circuit Council Conduct and Disability Orders from 2005 to 2008. During his tenure, the Committee promulgated extensive rules governing misconduct and disability proceedings that brought about a uniformity in practice and vitalized the scheme governing the federal judiciary’s regulation of judicial misconduct and disability.

 

Meanwhile, he continued to teach. During his judicial tenure, he served as an adjunct professor at Yale Law School—teaching corporations, securities regulation, antitrust, evidence, and sports law. He also served for many years as a trustee of Brooklyn Law School. In 1996, Judge Winter received the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence. He has also received the Yale Law School Association’s Award of Merit, the Connecticut Law Review Award, and honorary degrees from Brooklyn Law School and New York Law School.

 

Judge Winter’s marriage to Kate Winter ended after 50 years when she passed away in 2012. They have a son, Andrew, and a granddaughter, Kiersten.

 

1. Circuit Justice Thurgood Marshall, Remarks at the Proceedings Held on the Occasion of the Induction of Honorable Ralph K. Winter as a United States Circuit Judge of the United States Court of Appeals for the Second Circuit 11 (Jan. 5, 1982) (transcript on file with the United States Courts Library for the Second Circuit).
2. Harry Wellington, Remarks at the Proceedings Held on the Occasion of the Induction of Honorable Ralph K. Winter as a United States Circuit Judge of the United States Court of Appeals for the Second Circuit 9 (Jan. 5, 1982) (transcript on file with the United States Courts Library for the Second Circuit). Wellington was dean of Yale Law School.
3. Ralph K. Winter, Jr., State Law, Shareholder Protection, and the Theory of the Corporation, 6 J. LEGAL STUD. 251 (1977).
4. RALPH K. WINTER, JR., & HARRY H. WELLINGTON, THE UNIONS AND THE CITIES: STUDIES OF UNIONISM IN GOVERNMENT (1971).
5. Richard L. Madden, A Yale Professor of Law Sworn In as U.S. Judge, N.Y. TIMES, Jan. 6, 1982, at B2.
6. Wellington, Remarks, supra note 2, at 8.
7. 424 U.S. 1 (1976).
8. PN843 — Ralph K. Winter Jr. — The Judiciary, U.S. CONGRESS, http://www.congress.gov/ nomination/97th-congress/843.