Robert Pitofsky October 28, 2003 Interview

Oral History of Robert Pitofsky
First Interview
October 28,2003
Ms. Born: This is the first interview of Robert Pitofsky for the Oral History
Project of the Historical Society of the District of Columbia Circuit. It is being held on
October 28,2003, in a conference room at Arnold & Porter, 555 12th Street, NW, Washington,
DC, 20004. The interviewer is Brooksley Born and we’ll begin the interview by asking Bob his
name and date and place of birth.
Mr. Pitofsky: Robert Pitofsky, and I was born on December 27, 1929, in Paterson,
New Jersey.
Ms. Born:
Mr. Pitofsky:
Tell me about your family.
I never knew any of my grandparents. On my father’s side, they
both remained in Poland and died as part of the Holocaust, along with many uncles, aunts and
cousins who stayed in Poland. My father was lucky enough to have gotten along badly with his
father and he ran away from home when he was about 14 and drove a taxi in a large city in
Poland. My grandmother, who was quite a gentle soul, felt that that was no life for a young man
and somehow scraped the money together to send him to the United States. He and a much
younger brother were the only ones that got out of Europe and came to the United States before
World War 11.
Ms. Born: How old were they when they came to the United States, Bob?
Mr. Pitofsky: My father ran away from home at 14; he must have come over here
at about 16. No language, no education, no money in his pocket. No one really to pay much
attention to him. It’s a remarkable, private drama of what that generation went through in order
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to achieve a base for their families. On my mother’s side, both her parents were born in Europe,
in a city called Brest Litovsk, which changed sides from Russia to Poland, whoever won the
most recent war. They lived in Passaic, New Jersey, which was near Paterson, in very poor
circumstances-large family, poor circumstances. My mother had a little education although
she left high school after she had finished the second year. So, when people say I’m the first in
my family to go to college, I think, that’s not much, I’m the first in my family to ever go beyond
the second year of high school.
Ms. Born: Tell me how your father made his way in the States when he got
here.
Mr. Pitofsky: He did have an uncle who was financially secure and he lived with
that uncle for about a year. He learned English by going to the movies in the afternoon. Also,
they put him in an immigrant class and he learned a little bit of English there.
Ms. Born:
Mr. Pitofsky:
Was this in New Jersey?
This would have been in New York. And then, the unclepossibly
because the family in Poland had some kind of connections with the silk business; they were
what we call teamsters, they carried silk around from city to city-sent my father to Paterson to
become a worker in a silk factory. He stayed there for a few years and then, in a very surprising
departure, joined the British army and went to fight in Palestine during World War I. He was
not a very belligerent man and even 40 years later, he was hard-put to explain exactly what he
was doing. One explanation was that he’d been promised that if he fought in the Jewish Legion
of the British army, his parents in Poland would be given land in Israel, and of course, that was a
promise that was broken shortly after the war. My father hated the English with a passion for the
rest of his life.
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Ms. Born:
Mr. Pitofsky:
How did he meet your mother?
Through mutual friends. A family that my mother and father were
separately close to brought them together, and those people remained close fhends for the next
60 or 70 years.
Ms. Born:
Mr. Pitofsky:
Was this after he was fighting in Palestine?
Yes, it was after he came back. He went back to Paterson to resume
his career, He found himself a slightly higher niche among workers in silk mills, and my mother
by then was working in a dress shop and these good, close fhends of theirs, who remained
saviors of theirs through the depression and later years, brought them together.
Ms. Born: Did you know your great-uncle or any other collateral relatives on
your father’s side?
Mr. Pitofsky: I met him late in life. He was, to me, enormously wealthy. He was
probably just well-off. And they had a summer place on Long Island somewhere. And he had a
tiny little woman as his wife, who never learned English and just spent her time cooking old
European-type foods. And they had one son, who was my father’s age, and they were
reasonably close. But then the family split apart and even though there were many cousins on
either side, it’s only in the last year or two or three that I’ve reconnected with any of those
people.
Ms. Born:
Mr. Pitofsky:
How about on your mother’s side?
My mother’s side is the classic American story. These poor people
in Passaic-my grandfather was a tailor, my grandmother stayed at home-had seven or eight
children, and most of them went to school, not the best schools. They didn’t go to Harvard and
Yale; they went to Fordham and St. Johns, but they became prominent lawyers and doctors and
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accountants and real estate people.
Ms. Born: So, tell me about when you were born. Were you the oldest child in
your family?
Mr. Pitofsky:
Ms. Born:
Mr. Pitofsky:
I’m the only child.
Was your mother still working in the dress shop at that point?
Yes. My father and mother at that time had a reasonably successful
business in Paterson, New Jersey, selling slightly upscale coats and dresses. But as you recall, I
was born in December 1929, just as the Depression started. Within a year, they had gone broke
in that business, lost all their money, were not able to pull anything out of it. My father went
back to working in the silk mills part-time and eventually they moved to Manhattan where my
mother had a sister and brother-in-law who owned some real estate, so that they could have a
roof over their heads. And my father went into a succession of 1930s businesses, like selling
popcorn, selling candy, selling fudge; one was worse than the other and he just went downhill. It
was a very, very difficult decade for them. Eventually, in order to stay afloat, my father began
dealing with loan sharks in Manhattan. He couldn’t deal with it and one morning, very early,
they put a lock on the door of their store, left all the equipment, and an uncle came in a car and
helped put their furniture in storage and came and took us to New Jersey. And, the Koslow
family, the people who had brought my parents together in the first place, gave my father a job
working nights in a silk mill.
Ms. Born:
Mr. Pitofsky:
How did this affect you? What age were you?
Third grade. I knew that it was very difficult on my parents. I think
we moved three times in the last year in New York because, when you went to a new apartment,
they gave you a month or two of fkee rent. I mean, it was that bad. But it was a very loving
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family, very supportive. I never felt that I was deprived. And after a summer of living with an
uncle, we moved to Paterson. My father got a good job in a silk mill. My mother got a job in a
prominent department store in town. And things took very much a turn for the better. And more
by luck than anything else, we lived in the part of the city which itself was not very upgrade but
was connected to the best public schools in the city. So, I am a great admirer of the public
school system in a city like Paterson. As I said once in an interview, the richest kids and the
poorest kids in town went to the same school-Protestants, Catholics and Jews-all went to the
same school. The teachers were people who, if they’d had a better chance in life, would have
been doctors and lawyers. But they were all women and they were first-rate teachers and I
thought that we, all of us, received an excellent education.
Ms. Born:
Mr. Pitofsky: Third grade.
Ms. Born:
Mr. Pitofsky: Right.
Ms. Born:
What grade were you in when you went back to Paterson?
So you went through grammar school in Paterson?
Were there particular teachers that you remember as being
influential?
Mr. Pitofsky: I don’t think influential. My reaction is more that they all set a
rigorous, demanding, competent standard. I once went to a lunch in Washington, with
Washingtonians from Paterson, including Senator Frank Lautenberg, Justice Brennan and six or
eight other journalists, lawyers and business people, and they all had the same thing to say about
the education system. Most grew up poor, but they went on to college and they all looked back
on that level of education as golden years.
Ms. Born: A significant molding effect?
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Mr. Pitofsky:
Ms. Born:
Mr. Pitofsky:
Yes. I’m afraid it’s not like that anymore.
Do you remember what your interests were in grammar school?
I traveled from puberty to teenage with sports and reading. That’s
what we did. I always took school seriously. I always worked hard in school. I don’t know
why, that was just in the blood. It was never an issue.
Ms. Born:
Mr. Pitofsky:
Did your parents encourage that?
My mother was committed to the educational approach to getting
along in life, and at every turning point, she and my father came around to support education.
Ms. Born:
Mr. Pitofsky:
What kind of influence did religion have in those early years?
My parents were not religious. They attended synagogue on the
High Holy Days and that was just about it. I was bar mitzvahed just like all the other Jewish
kids in town, but it wasn’t a significant matter in my home or in that society.
Ms. Born:
Mr. Pitofsky:
Was politics important to them?
That’s interesting. It was not. I had uncles and cousins who were
fanatics of the left, right and center. But my father, for whatever reason, just stepped out of it.
They all loved Franklin Roosevelt; that was their politics, that he was the great man who was
going to save the country. But beyond that, my immediate family was not interested in politics.
Ms. Born:
Mr. Pitofsky:
Ms. Born:
Mr. Pitofsky:
Was your health good during the early years?
Always has been good, fortunately.
What kind of reading did you do?
I started very early reading pulp fiction and sports books of various
kinds. I remember when I was about 12, as a present someone gave me A Tule of Two Cities and
Kidnapped and I read them immediately and I’ve been interested in fiction ever since. A
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neighbor in the building we lived in had a breakfront with all sorts of 18th- and 1 9th-century
novels and I just started at one end and went through the whole bookcase.
Ms. Born:
Mr. Pitofsky:
What kind of sports did you do?
A little of everything but I eventually played baseball and basketball
for my high school. So even in grade school I was playing, mainly baseball and basketball. I
never cared for football; it looked to me like a sport where you could get seriously hurt.
Ms. Born:
Mr. Pitofsky:
Do you have any interest in music or other hobbies?
There’s stamp collecting. And since my early teenage years were
co-extensive with the Second World War, I had vast scrapbooks of World War I1 battles and
other events. I don’t know what’s happened to them, but I’d certainly like to see them now.
Ms. Born:
Mr. Pitofsky: Right. Exactly.
Ms. Born:
Mr. Pitofsky:
And they were quite different countries, weren’t they?
Tell me about your high school years.
It was a good high school. It was, I think it’s fair to say, the best
high school in town.
Ms. Born:
Mr. Pitofsky:
What was its name?
It’s called Eastside High School. There were two-Eastside and
Central-and Eastside had the advantage of being on the more affluent side of the city. The
teachers were good. I had already developed an interest in literature so, if given an option, I
would take a literature class. As I said, I played sports. I read a lot and I always had a part-time
job.
Ms. Born:
Mr. Pitofsky:
What kinds of jobs did you have?
Well, the job I liked best was just being a soda jerk. I was that
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fellow with the white cap behind the counter and I would go directly from school to the
drug store and I would serve sodas for the rest of the afternoon. What else did I do? Oddly
enough, a little later on, I became a Sunday school teacher. It’s not that I was extremely
religious; it was really a slightly secular Sunday school that taught reading, history and the Bible.
It was more secular than religious but it paid very well and I did that all through college and law
school. I came back on Sundays, even though I was in college at NYU and law school at
Columbia and continued that work. I worked behind a fruit stand, selling potatoes and bananas
to people. I, quite early, obtained a lifeguard’s equivalent at the local Y and as a result, in the
summertime, I often worked as a lifeguard in lakes around Northern New Jersey.
Ms. Born: Were there any classes in high school that were of particular
interest-English literature, I suppose.
Mr. Pitofsky: I liked literature; I didn’t like foreign language. I’m not good at
languages. I’ve learned that, to my disappointment, over the years.
Ms. Born:
Mr. Pitofsky:
How about science or history?
I liked them all. I’m sort of a characteristic student. I enjoy learning
things, studying things, I even enjoy taking exams.
Ms. Born:
Mr. Pitofsky:
What language did you take?
I took Spanish. I took three years of Spanish and Latin in high
school-three years of Spanish in high school, another year in college. And when my wife,
Sally, and I visited Spain, we could barely order a cheese sandwich.
Ms. Born:
Mr. Pitofsky:
Did you have any opportunities to travel at all?
None. First travel I ever took was when I was 26 and a private in the
army. I was never out of New York and New Jersey until then.
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Ms. Born:
Mr. Pitofsky:
What made you interested in going to college?
Oh, that came with the territory as far as immigrant families were
concerned. My mother was the youngest of about eight children. My father was the oldest of
about ten children. The result was that all of my cousins on my mother’s side were 20 or 30
years older than me and most or all had gone to college. They had all done well. They were all
prospering. So, that was the model that we looked to in that why wouldn’t I have a similar
progression from high school to college to some professional school.
Ms. Born:
Mr. Pitofsky:
What was the impact on you and your family of World War II?
You can look at it in several different ways. First of all, financially,
it helped. My father didn’t go into the defense industry. He stayed in textiles but the wages
increased to the point where we lived much more comfortably. The same thing with my mother.
Sad to say, it was a prosperous time for the people who were not in the military but stayed home.
But it made a difference.
Ms. Born: Were you at all aware of the effects of the Holocaust on family that
had stayed behind in Europe?
Mr. Pitofsky: No. None of us. I read these stories about Roosevelt should have
done this, Roosevelt should have done that, but the truth of the matter is, the evidence of the
Final Solution was really rather flimsy until 1944 and 1945. And it came as such a blow to my
father to learn that both his parents and all of his sisters and one or two brothers had perished in
the concentration camps. I remember the horrible grieving that took place when they found out
about that.
Ms. Born:
Mr. Pitofsky:
How did it affect you?
I would have been about 13. I don’t know if I really took the
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measure of it. Of course, I saw how it affected people that I cared for, but I don’t think I really
understood what had happened or the immensity of the event.
Ms. Born: What were your aspirations as a high school senior? What did you
see yourself doing at that point in your life?
Mr. Pitofsky: It was understood I would go to college. Finances were a problem
and therefore, at least in college, I lived at home and commuted to NYU. It was going to be
NYU or St. John’s or Fordham or something like that. New Jersey didn’t have a very good
college system. It was Princeton, which was out of sight, and Rutgers, which was not very
aggressive in making its existence known. Besides, you couldn’t commute to Rutgers; you could
commute to NYU. I knew I was going to go to college and I wasn’t the greatest of students in
the first year, but once I got settled, I did well. Once again, I thought I received an exceptionally
good education at that school. You had to pick your teachers carefully because NYU in those
days was uneven but there were extraordinary academics on that faculty.
Ms. Born:
Mr. Pitofsky:
Did you have scholarships or loans to go to college?
I did have a scholarship to NYU. No, there weren’t loans in those
days. It wasn’t a full scholarship. I’m not sure it was even half scholarship, but it was
substantial and made all the difference to my family.
Ms. Born: Was that a factor in deciding among the New York city schools or
how did you decide on NYU?
Mr. Pitofsky: I’m not clear about that. I’m sure I knew that for someone at our
economic level there would be some financial help and I think I knew from other people in the
community that as compared to the other New York schools, Columbia was the best and NYU
was the second best. Interestingly, I applied to Columbia but they offered no financial help. The
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same thing happened more elaborately when I applied to law schools. So I went to the school
that had offered the most financial help.
Ms. Born:
Mr. Pitofsky:
Tell me about what was important to you during your college years.
I was very active in college. I was a joiner of clubs, like the history
club and the English club, but not a political joiner, although I was aware of the intense political
situation between the right and the left during those years. I went through college in three-and-ahalf years because I had started in February. In my last year I became part of a group called the
English Honors Society in which members rarely attended regular classes. You only read books
and came in and discussed the books with the best person on the faculty for that subject. That
was a deliriously happy year. Even now, some of the books I remember best were part of that
program. Years later, I sent a note to the woman who ran the program saying, I’ve forgotten
almost everything about history, philosophy, sociology, but I remember all the things that you
said. She had been awarded a Best Teacher’s Award and somehow that came across my desk
and I sent her a note. And it is true, it was a wonderful program.
Ms. Born:
Mr. Pitofsky:
Ms. Born:
That’s wonderful. Did you do any athletics in college?
Not at NYU. NYU was a semi-pro operation by the time I got there.
Were there particular professors-obviously, this one you just
described-who had a great impact on you?
Mr. Pitofsky: The woman who ran the honors program, a relatively young woman,
was very good.
Ms. Born:
Mr. Pitofsky:
Do you remember her name?
Her name was Lind. Dorothy Lind. I haven’t thought about her in
40 years. But there was a history professor, well to the left of center, who left NYU to teach in
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Rochester and I saw an obituary for him not too long ago. Left, center, right-that man was a
super history teacher. And all of the better students took that class and if they could take a
second class with him, they did that. And that was first-rate education. You couldn’t do better
in any school in the United States. There were some other teachers at NYU who were not as
well qualified but you did your best to avoid them.
Ms. Born:
Mr. Pitofsky:
So you majored in English lit. andHistory. I had a dual major. Because I wanted to graduate in threeand-a-half years, I went one summer to Wisconsin, to their summer school. It’s the first
traveling I had done. I’m sorry, I did do some traveling before the army. I went to Wisconsin.
Ms. Born:
Mr. Pitofsky:
What made you choose Wisconsin?
I heard it was a summer playground where you could acquire a few
academic credits. And it was. It was a lovely place and attracted interesting people. I lived in a
dorm for the first time and drove out there with some fnends in an old, old car; we must have
taken four days to drive from New Jersey to Madison, Wisconsin. Maybe five.
(End of Tape 1, Side A)
Ms. Born: Tell me about the teachers that had the greatest influence on you,
Bob.
Mr. Pitofsky: I think it was probably the assortment of literature teachers.
Although I had a double major, I must have put twice as much time into literature as I did
history. I remember there was an extraordinary Shakespeare course that I found very exciting.
And then the last year was nothing but literature. It was just literature all day long.
Ms. Born:
Mr. Pitofsky:
What influenced you to go into history as well?
I think I had an idea that that faculty at NYU was better than, for
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example, the philosophy faculty. Or the economics faculty. If I were career-oriented,
I probably would have leaned more toward economics. I always advise other people, and I gave
myself the same advice, you take courses according to the teacher, not the subject, and there was
at that time a solid history department there.
Ms. Born: While you were an undergraduate, were you influenced by what you
thought your long-term professional goals were?
Mr. Pitofsky: Not very much because I was of a divided mind. I wasn’t at all sure
that I would go to law school or I would take a Ph.D. in literature.
Ms. Born:
Mr. Pitofsky:
But those were the two options?
Those were the only two I considered. And it’s very interesting that
my older son became a lawyer, but he’s now teaching literature.
Ms. Born:
Mr. Pitofsky:
What made you decide in favor of law school?
It was a close call. I worried about whether or not the practical side
of my make-up would be fully satisfied spending the rest of my life teaching literature. I didn’t
have to be a literature teacher to read literature, to care about it. And today I belong to several
book club discussion groups. But if you’re a literature teacher, it takes you out of the day-to-day
practical world and I think that was the edge that led me to try law school. My attitude
going into law school was I’m going to do this for a year and if it turns out I’m not good at it or I
don’t like it, I’m going to reconsider. But more than almost anyone I knew, I liked the first year
of law school. I enjoyed it.
Ms. Born: Before we get to law school, let me just go back and cover a couple
additional things in college. Obviously, you were academically very gifted because you got
honors in history and English and Phi Beta Kappa. What do you think was motivating you?
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Mr. Pitofsky: My son asked me that fairly recently. There are two things. One is,
I’m a natural-born student. The other is, I knew that the way, not out of poverty because I never
thought that we were exactly in poverty, but the way to a more interesting life, a life where you
would have as colleagues more interesting people was to do well in college and professional
school. And I wanted to be a part of that life.
Ms. Born:
Mr. Pitofsky:
So, what made you decide to go to Columbia for law school?
Well, that takes a bit of explaining. I applied to four schools and I
was admitted to all four. I had done very well on the LSAT, and NYU offered me a full
scholarship. My father, quite understandably, thought I should go to NYU. Columbia offered
me a half-scholarship. Harvard offered me no scholarship, but the opportunity to work in the
cafeteria to pay my way through. Yale offered me nothing. I wanted to go to Harvard. My
father wanted me to go to NYU. It was really one of the most difficult family exchanges we ever
had. And we finally compromised on Columbia. It did mean that my father who was just
coming out of very, very difficult circumstances because he was still paying off loans that he had
made five, six or seven years earlier, had to worry about getting me through college. But I
worked every summer. I worked during the year and I was able, pretty much, to pay my own
way through law school.
Ms. Born: What kind of jobs did you have during the summers and during the
year?
Mr. Pitofsky: In various forms, I was a teaching instructor at camps. Day camp
twice, overnight camp three times.
Ms. Born:
Mr. Pitofsky:
In the New York/New Jersey area?
New Jersey/Pennsylvania. It was an easy job for me to get because
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somehow other people didn’t try to get their lifesaver certificate and I had one. I always had a
choice of which camp I wanted to go to, and I enjoyed teaching swimming.
Ms. Born:
Mr. Pitofsky:
What did you do during the school year?
Taught Sunday school. They were paying me the princely rate of
$10.00 a week.
Ms. Born:
Mr. Pitofsky:
Do you think it was an attempt to subsidize bright, young minds?
The person who hired me may have had that in mind, but he was fine
enough never to suggest it to me. And I was one of a dozen teachers in that program.
Ms. Born:
Mr. Pitofsky:
Ms. Born:
Mr. Pitofsky:
So you say you actually liked your first year of law school?
More than that. I loved it.
What did you love about it?
My academic life had been literature. Literature is creative, it’s
expansionist, it is in the best sense of the word, a little soft. Then you go to law school and it’s
rigorous, rigorous, rigorous. And I remember the first month in Columbia, I said, ah-h, this is
what it’s about. This is what really demanding analytical approaches to issues require and I
found it very attractive, very interesting.
Ms. Born: Were there professors during your first year that had particular
influence on you?
Mr. Pitofsky: Yes. Herbert Wechsler. Among the people who were demanding at
the highest level was Wechsler. Walter Gelhorn, who I came to know as a fhend later in life.
Milton Handler was not a first-year teacher, but very good in class. There were several. There
was a man named Michael, who many people didn’t care for. He died a long time ago but I
thought from the point of view of clean thinking that he was as good as any of them.
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Ms. Born:
Mr. Pitofsky: Civil Procedure.
Ms. Born:
What did he teach?
Did you find the other students and discussions with them
stimulating?
Mr. Pitofsky: Very much so. I lived on a floor with some really outstanding
students.
Ms. Born:
Mr. Pitofsky:
By this time, you were actually living atOh, I was living in a dorm. I wasn’t part of a formal study group,
but I was part of an informal group-did you understand that, what did you think that was all
about-and that helped a great deal. I made up my mind to devote that year to law and nothing
else and I cut way back on any other activities. It helped a lot.
Ms. Born:
Mr. Pitofsky: To stay?
Ms. Born:
Mr. Pitofsky:
Was it an easy decision at the end of the year to just continue on?
Rather than to rethink your decision?
I graduated high in the first-year class. I was invited to be on the
law review. I enjoyed the work. I thought I would only enjoy the second and third year more.
Columbia in those days was very Wall Street-oriented. It was in the air that if you were a good
student and you really did well, perhaps you’d get an offer from Cravath. Well I wasn’t
interested in an offer from Cravath at that time. I was more interested in government or public
interest work or U.S. attorney work. And getting away from that commercial outlook and
toward more policy-oriented courses-antitrust, labor law, constitutional law-was even more
interesting to me than the first year.
Ms. Born: What was your experience like on the law review?
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Mr. Pitofsky: I thought it was one of the best forms of training I was ever exposed
to. At the time, it was quite exasperating. The draft that you would submit would be reviewed
by a third-year member of the law review, word-by-word, comma-by-comma. And I just wasn’t
accustomed to that kind of review. I can only say I wish current law reviews were like that. I
doubt they are. So, it was excellent training although there were times when I got exasperated
with people. What difference does it make if the comma goes here or there. And then in my
third year, I was put in charge of a very long and elaborate review of the Rosenberg case,
published in the Columbia Law Review, quite controversial at the time, in which the students
concluded that the Rosenbergs were guilty but they hadn’t received a fair trial. That was quite a
project.
Ms. Born:
Mr. Pitofsky:
What was your role? Were you in charge of many students?
I think about seven or eight people were involved in writing that
piece. “Note” doesn’t quite describe it. It was half the law review. And I’m not sure the dean of
the school was crazy about our doing that.
Ms. Born:
Mr. Pitofsky:
Who was the dean?
I’m not sure. Young B. Smith was the dean when I started, Warren
was the dean when I left and I’m not sure who would have been the dean. It was written during
the transition. But the article held up rather well. I read it again a year or two ago and for
students, I thought it was a very moderate, thoughtful piece. I had a chance to interview the
lawyers for both sides in the trial. I wrote the fact part of that article and edited all the other
parts but I didn’t write any of the other parts.
Ms. Born: I know you took Milton Handler’s antitrust class. Did that have a
particular effect on you? Were you especially interested in antitrust as early as that?
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Mr. Pitofsky: I was especially interested although I didn’t think of it as a career.
Handler was a first-rate teacher. He was a dramatic crowd-pleaser and he taught at nine o’clock
in the morning. To persuade third-year students to come to a class at nine o’clock in the
morning-that’s a tribute to the teacher. And I enjoyed it very much and as we’ll discuss later
on, I became later on in life, a good hend of Handler’s. But if you had asked me at the time, are
you going to try to become an antitrust lawyer, I would have said no.
Ms. Born: You said you were particularly interested in policy and courses like
antitrust law and constitutional law rather than the commercial and business side of law.
Mr. Pitofsky: Very much so.
Ms. Born:
Mr. Pitofsky:
Where do you think that bent came from?
Out of my background. I didn’t know what a check was when I
went to law school. My family never had a checking account. I didn’t know anything about
Wall Street, the financial district-stocks or bonds. It was like Mars to me. So, no background
in it and then, you know, I was politically active. I was a Democrat, maybe even a liberal
Democrat, but not a Marxist, not a Socialist. The course I had the most difficulty with in my
first year of law school was contracts. It’s because I didn’t care.
Ms. Born:
Mr. Pitofsky:
Social policy was more important to you than money?
My best courses in law school were constitutional law and federal
courts. And that tells you something about where my energy and interest was.
Ms. Born: When you were in law school, what were your aspirations in terms
of jobs? Did you think about clerkships? Did you think about other alternatives?
Mr. Pitofsky: I thought about clerkships. Clerkships, of course, were much, much
harder to get then than they are now. I thought about it but I was drafted three weeks after I
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graduated. I knew that was going to happen, so, there was no possibility of my getting a
clerkship and then I vegetated for two years in the military. I really just didn’t think about it.
And we’re getting, again, a little ahead of the story but the reason I went to the Justice
Department in a way was to tread water because I didn’t know what I wanted to do. And it
seemed to me that I would learn something and it was a good place to be and I was proud of
being associated with the Department of Justice. But I knew I wasn’t going to be a career Justice
person. Less than my colleagues, some of whom I occasionally see, I had no idea the day we
graduated in which direction I would go.
Ms. Born: Were any of your other professors particularly influential in your
thinking and development?
Mr. Pitofsky: Professor Dowling taught constitutional law. He was at the end of
his career and he was a moderate New Dealer. You would compare him today to Gerry Gunther.
And I loved that man and I loved that class. Charles Black, who you may know, became a bit of
a friend. He was much younger than the rest of the faculty and I knew him a little more
personally than others. But he was having such a difficult time in his own life at that time that
the courses he taught were not terribly influential. Gelhorn’s administrative law led me to think
about the possibilities of government service. I don’t know about the rest of the class-I
wouldn’t have a clue about what the FTC, the FCC or the SEC were. I was a very
unsophisticated graduate of a law school, even by standards of sophistication that applied to
many other people.
Ms. Born: Were there friends that you made on the law review or in law school
generally that had a significant influence on you? Have you kept up with people?
Mr. Pitofsky: I’ve kept up with far more of my law school colleagues than my
-19-
college colleagues. I don’t know if they had an influence on me. I don’t think they did, but
we’ve remained in touch and remain hends for many decades.
Ms. Born: Did you know any lawyers when you were in law school and were
there lawyers outside the law school who were important to your development?
Mr. Pitofsky: As a family matter, my extended family produced one lawyer and he
was the most prominent lawyer of Passaic, New Jersey. And it was sort of common family
talk-could Bob ever achieve as much as this gentleman has in Passaic, New Jersey. He’s the
only lawyer I knew.
Ms. Born:
Mr. Pitofsky:
was a cousin. Nice man.
Was he a cousin?
He was a cousin, although he was 25, 30 years older than me, but he
Ms. Born: Did you know as you were approaching the end of law school that
being drafted into the military was likely?
Mr. Pitofsky: Yes. In fact I had received deferments three times.
Ms. Born: Student deferments?
Mr. Pitofsky: Yes. Student deferments to finish law school and the last time they
gave me a deferment, they said, we’ll see you just as soon as you graduate.
Ms. Born:
Mr. Pitofsky:
So when did you get your draft notice, Bob?
Well, I don’t know the dates. If I graduated law school on June first,
I was in the army by June 23rd. Probably had my draft notice before graduation day.
Ms. Born:
Mr. Pitofsky:
Where did you go to boot camp?
I went to what is now Fort Dix, which is near Trenton. And then I
was trained as a clerk in Maryland, Aberdeen Proving Grounds in Maryland. So I had eight
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weeks’ boot camp and then eight weeks of clerk training.
Ms. Born: Being a clerk was essentially an administrative job-typing and
filing and things like that?
Mr. Pitofsky: Very much so. It was not formally, but de facto, it was the
peacetime army. Fighting in Korea had stopped.
Ms. Born: How long was the commitment when you were drafted? Was it
minimum two years?
Mr. Pitofsky: Two years. If you try to go to officers’ school it would have been
three. If you try to go into the Navy or the Marines, it would have been three, so that was part of
the reason that I stayed with the Army.
Ms. Born:
Mr. Pitofsky:
What did you do during those two years?
I had a very fortunate military career. First of all, I was assigned to
Munich, Germany, which is an interesting place. Secondly, I was the clerk in a headquarters
company and therefore had far more fi-eedom from the military regimen than most. And third, I
did a great deal of travel in Europe. It was the first time I’d ever been turned loose to do that
kind of travel. Army life was often boring but for the most part, I knew I was fortunate and even
though for a young, Jewish man, any part of Germany was difficult. Still, Bavaria had been less
supportive of Hitler than most parts of the country and the German people I got to know there
persuaded me that they didn’t know what was going on and they were very anti-Nazi. So I did
odd things. I saw a lot of opera. I traveled a lot. I went to the University of Munich to try to
learn German but my problem with languages arose again. Even after a year of living in the
country, I still was pathetic in my ability to speak German.
Ms. Born: Was it frustrating for you to suspend your legal career for this two-
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year period?
Mr. Pitofsky: Yes and no. In the back of my mind, I knew that others of my
graduating class were U.S. attorneys, they were working in the Justice Department, they were
progressing at the great law firms in the country. On the other hand, the idea of having an
opportunity to see a great German city and travel in Europe was very attractive. So, the problem
of falling behind was more acute when I got back and then the question was, what was I going to
do. To seek out a clerkship at that point after I had been out of law school for more than two
years-two-and-a-half years-I never tried. I wanted to get going so in that sense, the two years
influenced some of my thoughts.
Ms. Born:
Mr. Pitofsky:
Tell me about your admission to the New York bar.
There was some question about whether I was truly a New Yorker
because my family still lived in New Jersey and I had grown up in New Jersey. But I lived in
Manhattan for three years, I’ve worked there both summers and there was a little hss about it
but not much. They accepted me as having been drafted. I was drafted in New York.
Ms. Born:
Mr. Pitofsky:
And so you never were required to take the bar exam?
Never took the bar. And then I was admitted on motion here (in the
District of Columbia) and to the Supreme Court. So I’m a member of three bars without ever
taking a bar exam.
Ms. Born: And this was a policy that the New York bar had for students who’d
been drafted?
Mr. Pitofsky: Yes. I think it may have been within 90 days of your graduation. I
was drafted so quickly that that really was never an issue there.
Ms. Born: Now I realize we didn’t discuss the jobs you had during the summers
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while you were at law school.
Mr. Pitofsky: Oh, while at law school? After my first year, I did the summer
instruction at a camp. The second year, I was a research assistant for Professor Wechsler.
Ms. Born:
Mr. Pitofsky:
At the law school?
Yes. He was writing the model penal code and I worked on that.
And then the third year, I had something lined up, but I got drafted within two or three weeks.
Ms. Born:
Mr. Pitofsky:
When did you decide what to do at the end of the Army?
I actually did not finish my tour of duty in Europe. I was transferred
for several months to Fort Ord, California, so that thinking took place in California. I
interviewed a few firms in San Francisco and they wondered why an Easterner would want to be
on the west coast, but they suggested that I would be hired as an associate. But I wasn’t ready to
commit to a firm.
Ms. Born: Why not?
Mr. Pitofsky: I didn’t know much about what that life was and I wondered if I
wouldn’t be better trying to be in a U.S. attorney’s office or government service. But those were
the main options. First of all, there was a very small public interest sector in those years. The
ACLU, I suppose, but not much else. But it was between government and firm, west coast and
east coast. I knew about the Honors Program at the Department of Justice so I applied for it and
was accepted and I decided to put off whether I would go to a firm and spend a few years of
apprenticeship at the Department of Justice.
Ms. Born:
Mr. Pitofsky:
Had you ever been to Washington before?
Never. There’s an interesting little story about that. They sort of
killed me with kindness. When I arrived at the Justice Department, I was assigned to the Civil
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Appellate Division and within the Civil Appellate Division, there were three or four people who
worked with the SG’s office on the Supreme Court briefs. So, it was very complimentary in a
way that I would be in Civil Appellate and I would be doing Supreme Court work. But after I’d
been doing it for a few months, I realized it was just the wrong thing for me to do.
(End of tape I, side B)
Ms. Born:
Mr. Pitofsky:
Why was it the wrong thing for you to do?
Looking back on it, I would not have put it in these words at the
time. I shouldn’t be doing first drafts of Supreme Court briefs; I should be taking somebody’s
deposition, or drafting a subpoena, or doing motion practice in connection with litigation. I had
incidentally done some trial work in the military as a defense attorney for people who were
court-martialed and had found that extremely interesting. This was too rarified for me at that
time-the Supreme Court briefs. And even though I’ve really marveled at the skill of these
lawyers in the Solicitor General’s office, I thought I was moving in the wrong direction. It
wasn’t the apprenticeship that I had expected.
Ms. Born:
Mr. Pitofsky:
Who were you working with?
The one I remember best is Phil Elman, who was a Deputy in the
SGs office. I wrote a cert. petition on “a takings clause” case involving gold mines. The U.S.
Government had seized the gold mines during the Second World War. It was a very tricky brief
to write and in one sense, the skill that Phil and others demonstrated about how to present the
issue was breathtaking. On the other hand, it was a con law case right out of the case book. It’s
in all the casebooks now-Central Eureka Gold Mining. So I stayed less than a year and
decided that, much as I liked the people and enjoyed the work, I thought it was the wrong place
for me to be.
-24-
Ms. Born: You decided that you needed something other than appellate brief
writing?
Mr. Pitofsky: That’s right. It’s one of the reasons I tell young people graduating
fiom law school, don’t pass over too quickly the opportunity to be a clerk to a district judge and
leap at the chance to be a clerk to an appellate judge. That’s the parallel to what I was feeling in
that year in the Justice Department.
Ms. Born:
Mr. Pitofsky:
A fourth year of law school, in a way?
More than in a way. That’s what it felt like. And a fourth year of
law school at a very theoretical level.
Ms. Born:
Mr. Pitofsky:
So as a result, you decided that you should try the life at a firm?
I did and I wanted to be back in New York. I had personal reasons
for that. So I went to New York one week and interviewed at three or four firms. The people I
met at Dewey Ballantine seemed very interesting. The firm had just been turned around by
Governor Dewey and was prospering beyond other firms in New York, but I didn’t know much
about one firm or the other anyway. We were as a group so much less sophisticated about law
firms than the people coming out of law school today. I think I was lucky. I accepted the offer
at Dewey Ballantine.
Ms. Born: Who were the people that you interviewed with when you were
interviewing for the job? Did you meet Governor Dewey?
Mr. Pitofsky: No I didn’t. I met Dewey soon after I began working there, and
that’s an interesting story that we’ll get into, but there were two people I remember. One was
Leonard Joseph who was a super lawyer, one of the best. And then there was Charles Stewart,
who became a judge. And they were both charming men who I regarded as friends after awhile.
-25-
Maybe I spoke to other people during the interview phase, but I don’t recall.
Ms. Born: In this time period, Bob, were you at all affected by McCarthyism
and the issues of the day arising from McCarthyism?
Mr. Pitofsky: Looking back on it, not as much as one might expect. I think by the
time I had left the government and gone back to New York, McCarthy had lost some of his
political power. Remember it was in ‘54 that we wrote the Rosenberg note and provoked such a
strong reaction. By ‘57, the country had quieted down, Eisenhower was the President. McCarthy
was still a factor, but one had the feeling that that phenomenon wasn’t nearly as threatening as it
may have appeared a few years earlier.
Ms. Born: Back to the Rosenberg article, you said that the dean probably would
have been just as happy if the law review hadn’t done that project. Was there reaction from
alumni or outside interests?
Mr. Pitofsky: I think there was. I think some alums wondered what a bunch of
kids were doing, writing about this. But the faculty, the dean, the stronger members of the
alumni behaved so admirably in defending the right of the law review to pick its topics and write
as they saw fit. There was never a serious threat of either suppressing our article or modifymg
our conclusions.
Ms. Born: I assume that the law review at Columbia was historically and at that
time relatively independent and treated as independent?
Mr. Pitofsky: Yes.
Ms. Born:
Mr. Pitofsky:
And that the independence was thought to be important?
Looking back on it, I don’t think there was a faculty advisor. I don’t
think anybody knew what was coming out in the law review until it came out. I don’t think
-26-
that’s true at many schools today.
Ms. Born:
Mr. Pitofsky:
Back to Dewey Ballantine, tell me what kind of work you did there?
What we’re going to talk about now is a major turning point in my
career, although I had absolutely nothing to do with it. Literally, the week I arrived at Dewey
Ballantine to start as an associate, the firm was hired by Eli Lilly to represent it in a government
criminal price-fixing case, and unlike most criminal cases these days that get settled, this case
was not going to be settled. Many of the very best lawyers in New York were involved. There
were five defendants, five major drug companies. Major lawyers and law firms were involved.
The lead defendant was Lilly because it had the largest market share and the lead lawyer was
Thomas Dewey.
Ms. Born:
Mr. Pitofsky:
What was the product?
Polio vaccine, something that attracted the attention of the press, so
this was a big case involving high stakes with major defendants, and-I think this is fair to
say-I was fortunate in the sense that I was low man on this very high totem pole. There were at
least three or four partners. There were at least three or four associates working for Lilly. I was
the newest. This project took two years. I worked on nothing else for two years. No one ever
asked me to write a thoughtful, economic analysis of signaling and price-fixing. They asked me
to write memos on what discount was offered to which buyer on what date. I was a principal
person on the facts. And that stood me in very good stead once we went to trial. Though it was
one case for two years, as far as antitrust was concerned, the case had everything. It didn’t have
mergers in it, but so many issues that I worked on, written on, including the case work since then
were in that trial. So it was a very fortunate first experience in private practice.
Ms. Born: It was like a primer on antitrust laws.
-27-
Mr. Pitofsky: A primer with high visibility and skilled people. It had all the things
that I really wanted. How do you prepare somebody for a grand jury appearance. How do the
documents link together. All of the skills that I felt I was not strong enough on was essentially
what I was asked to do. And we won. So that helped a great deal. And some of the people that
you know-for example, Gerry Gesell represented Parke Davis; Steve Pollak was his principal
associate. Unlike Dewey Ballantine that had seven or eight people on the team, they had two
people. Some of the other lawyers were Shorty Irvine of Donovan, Leisure, Newton & Irvine,
and other excellent partners, good associates. The government was represented by Lewis
Bernstein and I had the honor to deliver the Lewis Bernstein Memorial lecture last year. He was
what you think of as a first rate govemment lawyer-lifetime commitment, skilled lawyer, fair
as fair could be. And we had a good judge. So those were two interesting years.
Ms. Born:
Mr. Pitofsky:
Tell me about Governor Dewey.
I came to know Governor Dewey very well, perhaps better than
almost any other associate in the firm. And the reason was that the further the trial went on, the
more he depended on someone who knew the facts inside and out. So we would often actually
go off in the evening by ourselves, just the two of us, to prepare for the next day. It was such an
odd couple because I’m a Democrat, left of center, and in his later years, Dewey took on some of
the color of his more conservative clients, and he became more conservative after his political
career was over. But we got along famously and as you’ll hear later, he helped me immensely to
get into teaching. I told him that I thought I’d be a happier person as a teacher than as a lawyer.
And that was hard for him to swallow, but he did. I don’t think I could have been appointed to a
faculty like NYU without his support at that time. But anyway, he was not an intellectual of the
law, but he was as street smart, foxy, shrewd, people sensitive as anyone you’re ever going to
-28-
find, And of course many people have commented about the fact-I hope this doesn’t sound
like I’m bragging about myself-he always surrounded himself with A-plus people regardless of
race, religion, economics, and so forth.
Ms. Born: Or politics.
Mr. Pitofsky: Or politics. When he was DA in New York, he had one of the
greatest staff of assistants that anyone had ever put together. They all became judges or heads of
major law firms. So he picked people well, was very clever in front of a jury, and this was a jury
trial, and had a retentive mind.
Ms. Born:
Mr. Pitofsky:
Ms. Born:
Mr. Pitofsky:
How did you get chosen to work on the case?
Chosen? Oh, because I walked in that week.
Just the right time?
Exactly. They were searching-they had already assigned at least
two, maybe three associates and needed another one. Where were they going to find them?
Well, look who just came through the door.
Ms. Born:
Mr. Pitofsky:
Who was the trial judge?
I can’t remember his name, but he was the Chief Judge of that
district in New Jersey.
Ms. Born:
Mr. Pitofsky:
Was he a good judge?
He was outstanding. Not just because he decided for us. He kept
control of that courtroom. Some of these lawyers could be fairly extravagant in their
examinations; just low key, totally in control. And he wrote a good opinion. I think the
government did not prove their case.
Ms. Born: Did he not let it go to the jury?
-29-
Mr. Pitofsky:
Ms. Born:
Mr. Pitofsky:
Yes. He took it away at the end of the government’s case.
So the defendants never had to put on their case?
Gerry Gesell gets credit for this. He said, “Let’s put our case on
through cross-examination right away. Let’s not wait.” And he put on some of the best crossexamination performances I think I’ve ever seen. A tough man. And Dewey did some first rate
work in court. William Peale was a Sullivan and Cromwell lawyer. Shorty Irvine and another
good younger lawyer. There were five sets of lawyers in that courtroom composing the
argument. And we were down there for several months with pretrial and trial. I’ve never been
in a trial since. (laughter) Well, at Arnold & Porter when we go to trial, I drop out, and
everything else I ever did at Dewey Ballantine settled the week before trial.
Ms. Born:
Mr. Pitofsky:
So this launched you on your antitrust career?
It did. I was perfectly happy to stay with antitrust. Dewey wanted
me to spread myself around more with non-antitrust partners. He felt that if only they knew me,
that would be to my disadvantage. But the truth is the firm was just bursting at the seams with
interesting antitrust work-oil companies, drug companies, and so forth. So I did a little
corporate work, but very little. Well over 90 percent of what I did at that firm was antitrust.
And indeed when I came back after starting teaching and worked as a consultant to the firm, it
was all antitrust.
Ms. Born:
Mr. Pitofsky:
Had you taken any economics in college?
I took the basic courses and I took one advanced course, but you
would hardly think of me as an economic expert. Although here’s an interesting little thing I
was reminded of recently: The firm wanted someone who could act as liaison between this
growing crowd of economic consultant firms and the law firm, and they asked me the same
-30-
question you just did. You know anything about economics? Economics 101. So they sent me
to the New York public library to sit in on some rather low-level courses and to just read
economics for a month to learn the jargon. I pulled out Samuelson’s book and I read it from
cover to cover. And really that’s the fundamental basis of any economic training I have and it is
what I called upon as Chairman of the FTC when I was supervising the Bureau of Economics.
At least I could understand what they were saying, even if I couldn’t talk their language.
Ms. Born:
Mr. Pitofsky:
How long did you stay with the firm?
I stayed seven years, but that’s deceptive, because I had been hired
by NYU over a year earlier, but NYU didn’t have a slot. So they asked me to sit tight, which I
did.
Ms. Born:
Mr. Pitofsky:
And you continued full time at the firm?
Yes. I was an adjunct professor at NYU by then anyway. That’s
how I got into teaching. So essentially I stayed five and a half years and stayed another year and
a half waiting to move on to NYU.
Ms. Born:
Mr. Pitofsky:
Did you work primarily with Tom Dewey during the entire period?
No, I didn’t. I did some other work for him and I actually got into
the business of writing speeches for him. It’s such a strange combination that I would be writing
speeches for Dewey. I guess I did do one or two projects for him. But it was the other partners
in the firm who were the antitrust partners. There was a gentleman who wasn’t too prominent.
The firm was Dewey, Ballantine, Bushly, Palmer and Wood. This man, Wood, was as good a
lawyer as I’ve ever seen and he did antitrust work and I did a good deal of work for him.
Ms. Born:
Mr. Pitofsky:
What kind of cases were they, criminal or civil?
Almost all merger cases. That’s what was going on then. It doesn’t
-3 1-
compare to the merger wave from the last decade, but there were many mergers going on,
especially in the oil industry, and that firm had several clients-Sinclair, Continental, among
others. That was primarily what I did. Then I had one monopoly case where the violation had
occurred in Billings, Montana, and the trial was in Denver. I was married by then and my first
child was due, and I was getting up at four o’clock every Monday morning and flying to Denver
or Billings-returning late Friday nights. That was the last straw in terms of trying to decide
between teaching and remaining a practicing lawyer. And that’s when I went to Dewey and said
I’d really like some help in becoming a law professor because I’d already been an adjunct and I
was enjoying that very much. That case went on for the better part of a year but settled on the
courthouse steps.
Ms. Born:
Mr. Pitofsky:
When did you meet your wife Sally?
I met Sally in 1960. She was serving lemonade for a political
candidate, Bill Vandenhuevel, and my good friend, Norman Dorsen, was Vandenhuevel’s
campaign manager. So I went to see Norman and I met Sally. And then we saw each other
during the summer because Norman and I and about four other people had one of those group
houses in the Hamptons and Sally was visiting one of the other people in the house. So the
answer is 1960, lemonade, 67th Street.
Ms. Born:
Mr. Pitofsky:
(laughter) So you got married how much later?
We became engaged a few months later, but we didn’t get married
until June because it was the only time I could get away for a long European honeymoon.
What was Sally’s background?
Sally grew up in Savannah, Georgia. Her father was a lawyer, but he
Ms. Born:
Mr. Pitofsky:
soon stopped practicing and became a dress wholesaler-bad business being squeezed by the
-32-
retailers and the manufacturers. She attended Vanderbilt-also an English major-Radcliffe to
get a teaching degree, spent a year or two teaching high school in Savannah, Georgia, escaped to
New York and she worked for a book publishing house, Macmillan Publishing Company. One
of her friends knew Vandenhuevel, so the two of them went up to try to help out on the
campaign. But Sally and I and all three of our children are English majors, and all three of my
children went to law school, graduated from law school, and there’s a chance one of them will
practice law.
Ms. Born: So then you lived in New York City itself during your early years
with Dewey Ballantine?
Mr. Pitofsky: When we were married, I was still at Dewey Ballantine waiting for
my slot at NYU and we lived in Gramercy Park, and then when I did switch to NYU, we moved
into the wonderful I.M. Pei buildings on Bleeker Street, which were for faculty and were heavily
subsidized and extremely comfortable. So we lived in New York for about nine years, first
while I was at the law firm and then while I was teaching at NYU.
Ms. Born: When you were a bachelor and had first gone to New York, where
did you live?
Mr. Pitofsky: I had a roommate and I lived in Greenwich Village on Houston
Street, and then that broke up-so I joined another friend from Paterson in a very nice apartment
on York, on the East side of town. And I guess I was living there when I met Sally.
Ms. Born:
Mr. Pitofsky:
What made you decide to begin teaching as an adjunct professor?
I was persuaded to do it by my good fhend, Norman Dorsen. He had
started at Dewey Ballantine just about the same time I had, along with Joe Califano-the three of
us started within a week or two. He was not happy there and promptly began looking for a
-33-
teaching position and obtained a teaching position at NYU. He’s really a constitutional law
scholar of the first order, but they had him teaching antitrust. So he asked me if I would come
up. The first year he said come up and teach one class. I did. The next year he said why don’t
you come up and teach a segment? I did. The third year the school invited me to teach antitrust.
And this did not happen overnight because I still thought I would be a lawyer at a firm. But I
began to think and to say to Sally, you know, I’m enjoying the evenings at NYU. It’s not that I
dislike practice, it’s not like my son who felt he had to get out of it. I enjoy practice a lot, but I
enjoy teaching more. J. Lee Rankin had been teaching antitrust at NYU and became the head of
the Warren Commission just in time for me to be available for them to hire for the full-time
faculty. So you can see, I’ve had some very fortunate turns here considering what the other
possibilities might have been. And then when I arrived at NYU and began teaching and I was at
NYU for a month-I think I said to someone, why did I take all that time vacillating. (laughter)
It’s so clear that this is the right place for me and that I’ll be happy teaching and writing.
Ms. Born: It’s a wonderful luxury to have found something that you enjoy that
much.
Mr. Pitofsky: Absolutely, absolutely.
Ms. Born:
Mr. Pitofsky:
Well, at the next interview, we’ll go into this in a lot more depth.
This is sort of fun talking about the youth and early years. I’ll have
a lot to say about the FTC, but I don’t think it’s as much fun.
(End of Tape 2)
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