Oral History of Abe Krash
August 13, 2013
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is Abe Krash, Esquire, and the interviewer is
Stuart Pierson, Esquire. The interview took place on August 13, 2013. This is the second
Mr. Pierson: It is August 13, 2013 and we are again in the conference room of Arnold &
Porter, LLP. Abe Krash and Stuart Pierson continuing in the second interview
about Abe’s life in law, and Abe will describe four things he wants to address.
Mr. Krash: Yes, I thought Stu that that it might be worthwhile in going forward to talk first
about my experience at the University of Chicago Law School; second, my
experience as a graduate student at the Yale Law School; third, my two years in
practice here in Washington, DC with Raoul Berger and then, fourth my
coming to Arnold, Fortas & Porter in March of 1953.
In reflecting about our first interview, I should emphasize two things I feel
greatly influenced my life. One was the depression. I was a young person
growing up in Cheyenne, Wyoming during the Depression. It very significantly
affected my life, no doubt about it, in terms of my father’s struggle to make a
living. It was a tough time.
Mr. Pierson: Was he a merchant?
Mr. Krash: He was a rabbi. It was a tough period economically. Second, the other event
which greatly affected my life was World War II. When World War II broke out
in 1941, I was 14 years old. I lived during the War years in Cheyenne,
Wyoming. As I discussed with you in our first interview, the war greatly
affected a lot of things. Those two events really profoundly influenced my life.
We stopped in our last interview at the point where I graduated from the
University of Chicago College in June of 1946. Then I took the summer off, and
I entered the University of Chicago Law School in the fall of 1946. I was 19
Mr. Pierson: You mentioned in our last interview that you were by comparison to many of
the students, immature and not having much experience.
Mr. Krash: Very much so, and I realized it then, and I realize it in looking back and thinking
about it now much more so. The entering class consisted of about 125 students.
Nearly all of them were men. There were, I believe, half a dozen women in my
class at the University of Chicago Law School. The law school admitted women
decades before, so it was not unusual that women went there. There were only a
few African American students in the class. In the class of 125, the vast majority
were veterans. They were men who were returning from their service in World
War II. They were four or five years older than I was. Many of them had gone to
four year colleges, whereas I had only gone two years to college. A number of
them were married. So they were much more mature than I was. They were very
anxious to complete their education and go forward with their lives and careers.
I was very much aware of the fact that many of them were older than I was.
There were a few younger men, like me, who came from the college at Chicago
but only a small number, a very small number. The University of Chicago Law
School building at that time was on what are called the Quadrangles. It was right
in the heart of the University buildings. It was an old building. The law school
curriculum was in large part mandatory. It was prescribed for us during the first
two years. You pretty much had to take what you were assigned to take except
that during the third year you had a little more freedom to do what you wanted.
As I said earlier, I had gone to law school under the conception that it was a
place to get an advanced liberal education. I had no idea of being a lawyer. The
first class which I had remains vivid in my mind after more than 65 years. It was
a course called Elements of the Law. It was taught by Edward Levi, who was
one of most remarkable teachers I met during my lifetime. The Elements course
was an introduction to law. It consisted of our reading papers by Plato, Aristotle
and by other philosophers, on the nature of justice, and we also had various
cases and materials relating to the relationship between a legislature and the
judiciary dealing with the difference between making law and interpreting the
law. I’ll take a minute or two to talk about Levi, because as I said he was one of
the most exceptional men I have known during my lifetime. When I knew him
first as a young professor in 1946, he was about 35 years old. He subsequently
became Dean of the University of Chicago Law School and thereafter the
President of the University of Chicago. In the mid-1970’s, he was appointed by
the Ford Administration as Attorney General. He was a brilliant person. Apart
from being very well educated, he was an absolutely marvelous Socratic Method
teacher. He was very quick witted and incisive in the way that he taught the
class. He was impatient with foolish or ridiculous answers. He was very much
interested in teaching, and he taught extremely well. His classes crackled with
intellectual excitement. People were on the edge of their seats, and I felt I
learned a lot. He also subsequently taught the antitrust course that I took in my
third year. He had been an Assistant to Thurman Arnold in the antitrust division
in the late 1930s and early 1940s. He later wrote that Arnold had a profound
influence on him, Levi was one of the pioneers in teaching Law and Economics.
He taught the antitrust course together with an economist, whose name was
Aaron Director, a very well-known economist. Director would gently chide Levi
and disagree with him about various things that Levi was saying. But they
agreed on many things also, especially about cartels. There was an amusing
episode involving Levi and me that I have always remembered. After we took
our exams, it was the practice in the law school that our grades would be posted
on a bulletin board near the Dean’s office. As students each of us had a number,
such as number 52, and you could tell what your grade was. They were publicly
posted by number, not by name. At any rate, I ran into Levi one day in the lobby
several weeks after the antitrust exam, and he said to me. “A terrible thing has
happened, Mr. Krash. I have lost your exam, paper. I can’t find it.” For once, I
had my wits about me and I said, “Oh that’s too bad because, it is one of the best
exam papers I have written since I have been in Law School.” I remember that
Levi didn’t say a word, he just looked at me for a moment, smiled and walked
off. A few days later the grades were posted, and I got a high grade. I must say,
65 years later, I am by no means confident that he found my paper, or whether
he gave me a grade based on my reply to him at that moment standing in the
lobby of the law school. He probably found it. I just don’t know. Another person
who influenced me was the Dean of the Law School, Wilbur Katz. He taught the
course in corporations that we were all required to take in the second year of law
school. The corporations course began with a required introduction of about six
weeks in accounting. We were expected to get an introduction to accounting,
and I must say I kind of dreaded that idea. I didn’t look forward to it all. I wasn’t
particularly interested in it. What I came to appreciate was what a marvelous
teacher Katz was. He was just superlative in his clarity and analysis and in
making accounting really interesting. I became very absorbed and interested in
the subject when he gave his presentation. In my early years at Arnold, Fortas &
Porter, we had a case where it was essential to cross examine an accountant.
They wanted to know whether I could do that. I said, I’ve taken accounting and I
think I can talk to accountants; I knew the lingo. I knew what a P and L
statement was, and what a balance sheet was. And so I was asked to do the
cross-examination of the other side’s accountant. I did it mainly because I had
learned enough of accounting from Katz’s course. I’m very far from being an
accountant, but I did have an understanding of the fundamentals of accounting.
Mr. Pierson: Was that in the court room that you did the cross-examination?
Mr. Krash: I did this in the court room, the cross-examination.
Mr. Pierson: Was it here in DC?
Mr. Krash: I think it was in New York, as I recall. That experience left me with a lifelong
conviction that every student in law should be required to take accounting.
Accounting should be an element of a law school education. Every law student
should be required to take the fundamentals of accounting and know what a P
and L statement is, and what a balance sheet is and be able to talk to accountants
and understand the basic ideas of accounting. I think it is really invaluable. It is
the language of business, and it is essential to an understanding of corporation
and taxation law. Another professor who influenced my life was Harry Kalven.
In the first year of Law School, I was required to take a course in writing.
Kalven was a young professor, and I was assigned to his group. He was a very
nice and helpful person. I got to know him a little bit. He subsequently became
an eminent authority on Freedom of Speech and the First Amendment. He wrote
a book that was published after he died in the mid-1970s, regrettably very
young. The book was entitled A Worthy Tradition Freedom of Speech in
America. It is a classic in the literature of the First Amendment. Kalven was a
professor who was very helpful to me. Another professor whom I had great
regard for was Walter Blum. He taught taxation, bankruptcy and reorganization
courses. He was a born teacher. He was a very gifted, Socratic- method teacher.
His classes too were intellectually exciting. He was an excellent teacher.
Another professor who influenced me was Professor Sheldon Tefft, who taught
Property and Civil Procedure, and whom I liked. I thought he was a very good
teacher. Apart from Edward Levi, who greatly influenced me, my lifelong
thinking about law was influenced by Professor William Winslow Crosskey. He
came to Chicago as a professor in the early 1930s. He was a student at the Yale
Law School in the mid-20s where he was a student of legendary brilliance. He
became the law clerk to Chief Justice Taft after graduating from Law School.
He left the clerkship to join the Wall Street law firm of Davis Polk where he was
a special assistant working with John W. Davis, who had been the Solicitor
General and in 1924 the Democratic Party candidate for President. Davis
reportedly said that Crosskey possessed the best legal mind he had ever
encountered. Around 1935, he left the Davis Polk firm to accept a position as
Professor at the University of Chicago Law School. Crosskey was fascinated by
the arguments that were being made against the Federal Government’s power to
regulate securities. Some people were saying Congress did not have the
authority to do this. Crosskey began researching the original understanding of
the Commerce clause, and to make a long story short, he spent twenty years in
researching the original understanding of the Constitution. In 1953, he published
a book. There were two volumes entitled Politics and the Constitution. Crosskey
was both a historian and a lawyer. He was a genius in terms of his powers of
analysis, originality, and his ability to assimilate enormous masses of material.
The book he wrote, Politics and the Constitution, created a furor when it came
out. Some persons said it was among the best books ever written in American
Law, but others denounced the book. Crosskey in my time was regarded with
awe by the students and faculty in Chicago. He was enormously respected.
Crosskey sought to determine the original understanding of the constitution, that
is, how it was understood by intelligent, informed persons at the time the
document was written and ratified in 1787 and 1788. He felt it was essential to
understand the word usage and language during the colonial period. For
example, how did people understand the term “commerce?” In order to
determine that understanding, he travelled to libraries throughout the country
studying collections of colonial period documents such as newspapers,
pamphlets, and correspondence. One of Crosskey’s basic points was that the
powers vested in Congress by the Constitution “to regulate commerce among
the several states” was a power to regulate all gainful activity among the people
of the United States. That is to say, the word “states” was understood in a
multitudinal sense. That usage is still common today as when we speak of the
“state” of France we mean the people of France. The word “Commerce,” he
insisted, covered all gainful activities. Crosskey maintained that the founding
fathers intended to establish a national government that was fully empowered to
achieve all of the objectives recited in the preamble. The states were to occupy a
subordinate role. The conventional view is that the various powers of Congress
enumerated in Article I, Section 8 were designed to distinguish the powers of
the national government from those of the state governments. Crosskey rejected
that view. He explained that some of the powers were enumerated because they
were executive powers exercised by the King of England, and the draftsmen of
the constitution wanted to transfer those powers to the legislative branch, that is
to Congress. Other powers were enumerated because they had been enumerated
in the Articles of Constitution. Further powers were enumerated to express a
limitation of Congressional power, for example the power to pass uniform laws
of naturalization and uniform laws with respect to bankruptcies. Crosskey also
thought that the Fourteenth Amendment was designed to make all of the
limitations set out in the Bill of Rights which previously applied only to the
National government, applicable to the states. That was also the view of Justice
Hugo Black. His classes were absolutely fascinating to me. He was unlike
Edward Levi, who was a Socratic-method teacher. Crosskey lectured, telling us
about the research he was doing. I remember vividly the first day of his class in
the summer of 1945, a course in American Legal History. He began by saying to
the class, “You have all been brought up to believe that James Madison is the
father of the Constitution, that Oliver Wendell Holmes was a great jurist, and
that Louis Brandeis knew a lot about Federal jurisdiction.” He said, “Before we
finish, I will demonstrate to you that Madison forged some of his notes and
rewrote them to conform with his political ideas.” Crosskey went on to say that
Holmes was a great figure but he was ignorant about a lot of things about
American Constitutional law and that was equally true of Brandeis. Holmes and
Brandeis were demigods to me. What was important, I think, for a young
student was Crosskey’s anti-authoritarianism. That is to say, he would challenge
the ideas of people we accepted as axiomatic. You have to remember that in the
1940s when I went to law school, Holmes was a revered figure as was Brandeis.
I must say, to this day, I have enormous regard for both of them. But Crosskey
forced us to think through and challenge their arguments and question them. His
book came out in 1952 and there were some people who said it was one of the
great books of American Law. It was very harshly criticized by Henry Hart, who
was a distinguished professor at Harvard and his colleague, Ernest Brown, and
by a professor at Columbia named Julius Goebel, They denounced the book
harshly. Crosskey’s work was enormously controversial. It slipped into obscurity
which is beyond the scope of what we’re talking about. I think that occurred, in
part, because he had no disciples who came along and carried on his work. He
was a solo figure, and his work was radical and revolutionary and it startled
people. By the 1950s, the Supreme Court indirectly had come pretty much to the
same conclusion about the commerce power that Crosskey did. The timelines of
his central theme had lost some of its force. Crosskey not only taught law but
history as well. He was kind of a gruff person personally, however, I got to
know him a little bit. He was really a very kindly person, and I grew to like him
a great deal. When his book came out, I wrote an article for The University of
Chicago Law Review summarizing his ideas; that was one of the first law review
articles I wrote. He died in the mid-60s, and after he died, a person who had
been a student of his, put together a third volume of his work which described
the events in the American Colonies beginning with agitation against Great
Britain in the 1760s and continuing up to the Constitutional Convention in 1787.
It is a history of the events in the colonies that led to the Constitutional
Convention. When this volume came out in the 1980s, I wrote a long book
review for The Yale Law Journal called The Legacy of William Crosskey, where
I discussed what his ideas were and why his ideas were not accepted. I also
wrote an article about Crosskey for the Record, an alumni magazine. I have
retained a lifelong interest in his work. I teach Constitutional Law in
Georgetown and I go back and reread some of the things he wrote. Some of his
insights are still very significant and interesting. I’ve never gotten over it. I am
afraid that I have spoken at too great a length about Crosskey. I was fascinated
by his work, and he greatly influenced my thinking. He is one of the foremost
figures in the law whom I ever encountered.
Mr. Pierson: Did you carry on a personal contact with him after you got out of law school?
Mr. Krash: Not very much. He came to Washington, and he taught at Howard for a
semester, and at that time I did see him and talk with him. I regret that I didn’t
know a lot more. I just didn’t know enough then. I wish I could have talked with
him with what I now know about his ideas, because he was so interesting,
challenging and provocative. The answer is I did not really keep contact with
him very much personally. No, I did not.
Mr. Pierson: Did you receive comments from him when you wrote your first article?
Mr. Krash: I don’t recall that I did. I have the two volumes in wrote in 1953. He inscribed
them to me, but I don’t think he ever said anything to me. I got very nice
comments later from various people about the Yale Law Journal review.
Interestingly enough, some people who now write about the Commerce clause
agree with him to some extent. They don’t agree with his point that the power to
regulate Commerce among the several states is a power to regulate all the
gainful activity among the people of the United States, but they agree that his
notion of the scope of the Commerce power was probably correct. He was cited
once by Justice Thomas in an opinion, but he is rarely cited today. Justice
Scalia, who is also an originalist, doesn’t cite him, but Justice Scalia would not
accept Crosskey’s ideas. His ideas are antithetical to those of Justice Scalia.
Someone who wanted to challenge the originalist ideas of Justice Scalia might
rely on Crosskey as an alternative understanding.
Mr. Pierson An outsider.
Mr. Krash: Even at the University of Chicago, where he was such a pillar in his time, at
present, they don’t pay a great deal of attention to him. I know from talking to
various Chicago professors they don’t even know about him, or they know very
little about him. His work takes a good deal of effort to read. You can’t just skip
over it. It is very tightly written, but it is enormously interesting. I would say
that the two people at the Chicago Law School who mostly influenced me were
Levi and Crosskey, though I did learn a lot from a number of other people, such
as Katz and Kalven and Blum. The faculty was relatively small. It is much
bigger now than it was then. The University of Chicago had a great tradition of
good teaching. Most of the classes were well taught. There was a great effort to
organize classes effectively and to teach them well. At the end of the first year,
persons at certain level of grades, were selected to be a candidate for the Law
Review, and I was selected to participate with the idea that I would write notes
on a case, and I did that. In my third, year I was one of the editors of the Law
Review. The Editor in Chief of the Law Review in my time was a man by the
name of Milton Shadur, who was the outstanding student in our class. Later he
became and still is a judge on the United States District Court in Chicago. I
count him as one of the most able lawyers I ever knew. He is an exceptionally
capable person. We have remained friends though I rarely see him. As I
explained in our first session, if you were a graduate from the University of
Chicago College, as I was, graduating after two years, the University of Chicago
Law School required that you go to law school for four years as opposed to three
years. The veteran who came back and who had been a college student, for
example, at the University of Michigan, or Tulane, or Stanford, only went to law
school for three years, but I was obliged to go to law school for four years. I
took courses in economics and other things. In the fourth year, I was running out
of courses to take and I went to see one of the professors whose name was Max
Rheinstein. He was a refugee from Germany and a very distinguished scholar. I
asked him if he would give me a seminar on Roman Law. He was delighted by
the idea because no one had come and approached like that. He gave me a book
by Jolowicz on Roman Law. I came to his office once a week, and we would
talk. I had this seminar with him my last summer in Chicago. I know very little
about Roman Law. It was a very nice experience with him because he was a
European scholar and a very highly cultivated person. I made a number of
friends with other students in the Law School, who have been friends for a life
time, particularly during my time on the Law Review. I would say that the
University of Chicago Law School during my years there was intellectually very
rigorous; it had very high standards. I neglected to mention that another
professor who greatly influenced me was Malcolm Sharp who taught contracts.
He was a very cultured and highly- sophisticated person. I greatly enjoyed his
course. The faculty was relatively small. It was probably about 20 people. One
of the things at Chicago was that they were beginning to develop Economics and
the law, and there was a lot of economics law ejected into our courses.
Mr. Pierson: Was there more emphasis to do that coming out of the Depression.
Mr. Krash: I think it really didn’t come until after the war. The University of Chicago had a
great Economics Department. Some of the people from the Economics
Department were involved in the Law School, including a man by the name of
Henry Simons and later Aaron Director. But there was a great openness to
economics in the Law School. There was not as much interaction with the rest of
the University and the Law School as I think there probably should have been.
The University of Chicago had a great History Department, but none of the
people in history taught in the law school. There was very little interest in my
time about bringing psychiatry into criminal law. I don’t know if that was done
afterwards. I think the University of Chicago’s attitude at that time was that that
are educating people to be practicing lawyers. At the Yale Law School, I think
the emphasis was on teaching people for public service and to become law
professors. The educational system of Chicago was characterized by very high
standards, and it was rigorous. It was a tough place in a lot of ways.
Mr. Pierson: What were your social circumstances during the four years you were in law
Mr. Krash: Well, I was single and I was living in a residence hall, Burton-Judson dormitory,
which is a University residence hall. I had long since given up my editorship of
the Maroon. I was involved in other activities in the University; I was active in
Hillel, the Jewish student organization. Many of my fellow students were
married. At the end of the day they would depart, and I’d go back to the dorm
where I stayed or work in the Law School’s library.
Mr. Pierson: Ever go to the football, basketball games?
Mr. Krash: Yes. I was a sports writer for the Chicago Tribune, so I covered the basketball
games at the University. The University of Chicago didn’t have a football team
at that point but they had a basketball team. I had some very close friends who
were part of a fraternity. I saw a great deal of them. I also had friends in the
residence hall. My social life centered around the dormitory and the residence
hall. I was shy about women, and I didn’t have any real girlfriends. I went out on
dates with different women to various events at the University. My friends and I
would go to the movies on 63rd Street. The south side of Chicago, Hyde Park,
we’re talking about the late 1940s, was still relatively a safe area to live in. It
became a troubled area in years subsequently. But at that time it was still a very
pleasant area actually.
Mr. Pierson: So you’ve come to the end of the law school. What are you thinking about going
into the work field?
Mr. Krash: I started Law School in 1946. I went to law school year round. I didn’t take off
during the summers. I went to law school continuously from 1946 to 1949 and
completed the four years at Chicago in the summer of 1949.
Mr. Pierson: How did you pay your bills for law school?
Mr. Krash: Well, that’s a good question, First of all, as I recall, the law school tuition was
about a $100 per quarter. There were three quarters. There was some additional
small fees. I had ceased waiting tables at the residence hall. There was a
synagogue in the neighborhood, where I worked at the Sunday school where I
taught. I made some small money writing articles for The Chicago Tribune. I
had a scholarship and my father was helping. I scrimped along. I didn’t have to
borrow money at that point. I was able to get along with my father helping me as
best he could.
Mr. Pierson: So you are in the spring of 1949 and you’ve decided what you’re going to do
with your life.
Mr. Krash: During the winter of 1949, I started to think of what to do when I graduated. I
had no intention of being a lawyer. I still had my eye on being a journalist. I was
interested in antitrust and Eugene Rostow, a professor at the Yale, was a very
distinguished antitrust guy. I was 22. I thought it would be desirable to spend a
graduate year at the Yale Law School if could get in. I didn’t want to practice
law in Chicago, which most of my classmates did. I began to think about what it
would be like to spend another year at the university studying. I decided to apply
to the Yale Law School as a graduate Fellow. I applied, and I was admitted to
Yale for the term beginning in September of 1949. I went to New Haven to the
Yale Law School for a year starting in September of 1949. I was at Yale for a
year as a graduate student during the fall of 1949 and the winter and spring of
Mr. Pierson: What did it entail?
Mr. Krash: It didn’t require anything. Some people tried to write a master’s thesis or do
something like that. I went to a number of classes. I was disappointed when I
arrived and discovered that Eugene Rostow had taken a leave of absence for that
academic year. You were invited to do whatever you wished. There were about
25 graduate fellows. Most of the graduate fellows were there with the
expectation of acquiring some additional academic credentials which would be
helpful to them in getting a teaching job. That’s what they wanted to do. I had in
my mind that I might also teach. I certainly didn’t have the idea of practicing
law. Many of the students lived in the Law School resident hall. That was a
much nicer social atmosphere than at the University of Chicago Law School.
There were some pre-fab houses at Chicago that they put up for veterans, but the
law school students were scattered throughout the city, and very few of my
classmates lived like I did in the residence hall. At Yale, the great majority of
students lived in the residence hall. We had a dining hall where we all ate. It was
a very pleasant and nice set up.
Mr. Pierson: So the professors lived there too?
Mr. Krash: Not the professors, No. The professors lived in the New Haven and in the
surrounding area. Most of the students lived in the residence hall and that was an
extremely nice thing. I tried to figure out what I wanted to do when and I
discovered Rostow wasn’t going to be there, I was kind of at a loss. I decided to
go to various classes. There were two classes in particular that I found extremely
rewarding. The Yale faculty was very distinguished. One professor I heard about
was Harry Shulman. Shulman taught labor law at Yale. I had heard he was an
interesting person and teacher, so I went to his classes. Unbeknown to me, he
was the arbitrator/mediator for the Ford Motor Company and the United Auto
Workers. He was a famous labor mediator. He was also an extremely thoughtful,
wise teacher. He was exceptional. He gave a lecture on secondary boycotts
which now after 65 years, I still remember. It was one of the best lectures I ever
heard in law school from anyone. He was just an exceptionally thoughtful,
judicious kind of person, and I greatly enjoyed his classes and went to listen to
him. I didn’t get to know him, but I was very interested in what he had to say.
Another professor who I liked a great deal was the Dean, Wesley Alba Sturges.
Sturges taught a course on Creditors Rights. My interest in that subject on a
scale from 0-10, would be about a 2.
Mr. Pierson: Sounds like mine.
Mr. Krash: I had little interest in the subject matter. However, people told me that he was an
exceptionally good teacher. I was interested in legal education and in teaching
so I went and I sat in the back of the class. He was a marvel. Sturges was a
realist in the way he thought about the law. That is to say he thought much of
the law was incoherent, irrational, inconsistent, illogical and …
Mr. Pierson: And vague.
Mr. Krash: What?
Mr. Pierson: And vague
Mr. Krash: And vague, exactly. His teaching method reflected his philosophy of the law. He
would assign the third year students who were in the class to read two cases in
his case book. The cases were diametrically opposite. He was trying to get these
third year students to reconcile them. They would bust their jaws in class trying
to make reconcile them, and they couldn’t. What Sturges was doing by his
methods of teaching was reflecting his realist philosophy, the inconsistencies,
the irrationalities in the law. I don’t think Sturges covered more than a 100 pages
in his case book during the entire course. All he did by a Socratic method was to
get students to try and reconcile the cases he assigned. He was exemplifying
how a realist would think about the law. I began to grow aware of what he was
doing. He was trying to cultivate the notion or idea of how irrational and
inconsistent and illogical the law was. I thought he was extraordinary. He was
one of the most gifted teachers I ever encountered. I watched with great
admiration his skills and insights as a teacher. There were some other very good
teachers at Yale. There was one professor who was influential among the
graduate fellows. His name was Myers McDougal, who was trying to inject
ideas of social policy into law. He was working together with Harold Laswell, a
famous political scientist. The two of them together taught a course. Laswell
subsequently wrote a book together with my uncle, Abraham Kaplan, regarding
political theory. But I never got to know Laswell or McDougal very well. I went
to their classes and listened with interest to what they had to say. There were
several things about the Yale law school that I would emphasize. Yale provided
a social setting which was special and different from University of Chicago Law
School. It was meaningful to me. I had fellow students all around.
Mr. Pierson: Were there any African American students?
Mr. Krash: Very few. There were a small number of women in law school. One of the
women at Yale was Patricia McGowan, who married Robert Wald.
Mr. Pierson: Ohhhhh
Mr. Krash: I knew her only slightly. One of the things was that this dormitory environment
permitted me to become friends with a number of people. You saw them not just
in class, but you saw them in the dining hall or you could go out and have a bite
to eat, or socialize, or go to a dance. I made a number of very good friends. I
became very friendly with a fellow by the name of Daniel Freed, who later
became a professor at the Yale Law School and an expert on sentencing. Sadly,
he died several years ago. Another person with whom I became friendly in the
residence hall was a man by the name of Sherman Sass. He became a labor
lawyer in Boston. I was also friendly with a fellow by the name Kurt Melchior,
who became a prominent San Francisco lawyer. Apart from the social setting,
there were several things about the Yale law school that I thought were special.
First of all, there was no question that Yale was interested in encouraging people
to think of a career in public service. That was less true of Chicago in my time.
Today, I suspect that Chicago is much like that too, but no question that at Yale,
they were interested in encouraging people to think of a career in public service,
to go into the Government or do other public service. Secondly, Yale was
teaching also people to go out and teach law. A number of students left to teach
law. I would also say that students at Yale were economically more secure than
in Chicago. The fellows in Chicago were very anxious about their professional
careers. Their uppermost thought was, “Will I get a job?” At Yale, there was a
considerably more secure feeling that we’ll get a job. Particularly, they felt they
would get jobs in the Wall Street law firms. In other words, there wasn’t the
anxiety about future jobs that I think permeated the atmosphere in Chicago in
my time. At Yale, that was less true. That’s not to say there was no anxiety about
jobs among Yale students. But there was a feeling they were going to Wall
Street firms. So there was more economic security there. I had been going to a
university continuously since 1944 and now it is the spring of 1950, and I
realized that I’m going to have to get a job and do something. I wanted to teach.
What you have to realize is that I was only 22, and it was very difficult for
young Jewish guys to be hired to teach in law schools at that time. There were
Jewish guys teaching in Chicago, at Yale, and at Harvard, but if you tried to go
to other places, it was very difficult. The Dean of Minnesota came to Yale, and I
had a long talk with him. It was obvious that he was interested in my possibly
coming to the University of Minnesota Law School. I learned later he talked to
Charles Clark, who was a judge on the Court of Appeals for the Second Circuit.
He also had been the Dean at Yale. Clark recommended to the Minnesota dean
that he hire his law clerk. He was hired under Clark’s recommendation. Other
graduate fellows were getting offers, but I wasn’t. One day in the spring of 1950,
I decided I would go to Washington, DC to try to find a job in the government.
Mr. Pierson: Was there a process of interviewing?
Mr. Krash: Yes, Various deans of laws schools throughout the country would come to Yale
and interview the graduate students.
Mr. Pierson: Was that for a lot of Wall Street firms as well?
Mr. Krash: I don’t think that they came at that time. But the undergraduate students knew
that they would get a job in Wall Street. There was just such an assumption. It
was true. At any rate, one day one of the professors at Yale who I barely knew,
Boris Bittker, who taught Taxation, spoke to me. He later became a major figure
in taxation. He was then a young professor at Yale. Bittker said that he had
heard through the grapevine that I hadn’t gotten any offers to teach. He said he
had heard that I was going to go to Washington, DC, and he would be happy to
give me a letter of recommendation. He said he knew someone in Washington.
This is out of the blue really.
Mr. Pierson: So you hadn’t decided to go to Washington?
Mr. Krash: No, I had decided that I was going to go to Washington and try to get a job with
the government. Bittker said I’ll give you a reference letter. He said, I don’t
know how valuable it will be but I’ll give you a letter of recommendation to this
person I know in Washington, DC. His name is Raoul Berger. I was grateful, but
I didn’t pay much attention to the letter. It was an exceptionally thoughtful thing
for Bittker to do. I remained forever grateful to him for that. Now, it is 1950 and
I’m broke, and I have made up my mind to come to Washington, DC. I thought I
would try to find a job as a lawyer with the government. I finally made up my
mind to try and be a lawyer, though I didn’t have the foggiest idea what that
meant. I left Yale in the spring of 1950. The war gin Korea had just broken out.
There was a freeze on jobs in the Government. I went to various places in the
government to try and get a job. By this time, I had pretty good credentials. I
was a University of Chicago college graduate, University of Chicago Law
school Graduate, and a Graduate Fellow from Yale. I had been on the Law
Review. The job market was extremely tight. I went to various places in the
government to try and get a job. Clearly, some people were interested in me, but
there was all kinds of constraints. Anyway, I had this letter from Boris Bittker to
Raoul Berger, so I called and made an appointment with Berger. His office was
in the Ring Building on 18th Street. I went to see him, not knowing anything
about him or his practice. Berger at first was very businesslike and cool. I then
said I have this letter from Boris Bittker and immediately that changed the
whole atmosphere of the interview. He said that he thought the world of Bittker.
Berger had been the General Counsel of the Office of Alien Property Custodian
during the war and Bittker worked under him in that office. Berger had great
affection and regard for Bittker, who Berger regarded as a superlative lawyer.
Mr. Pierson: Was Berger practicing long?
Mr. Krash: For only several years. He had been a partner with a man by the name of Donald
Cook. The firm was Cook and Berger. After the war, Berger and Cook set up
this law firm, the two of them together. Cook generated most of the business. He
had been with the SEC. Berger was the lawyer, and Cook was the rain maker.
By the time I arrived there, in the summer of 1950, Cook had gone back into the
government in some capacity. Berger was alone with a practice that he had
developed with Cook. The head of the Office of Alien Property in the
Department of Justice during the War was David Bazelon. In 1949, Bazelon was
appointed to the U.S. Court of Appeals for the D.C. Circuit by President
Truman. Bazelon called up Berger, who had been his General Counsel, and said
I need some help in finding a law clerk, can you help me? A young fellow was
working as an associate for Berger, his name was Abraham Goldstein; he was a
recent law school graduate from Yale. Berger told Bazelon, “I will lend you my
associate, Abraham Goldstein to be your law clerk.” The expectation was that
Goldstein would come back after his clerkship. I arrived shortly after Goldstein
left to become a clerk for Judge Bazelon. Berger was looking for a young fellow
to replace him. To make a long story short, Berger offered me a job for fifty
dollars a week. At that point, I was broke. As I said, I was hired by Berger to
take Abe Goldstein’s place. Berger was a unique figure. He had been a
professional musician, a violinist, and he had played with the Cincinnati
Symphony and the Cleveland Symphony. He was a very good violinist, but he
felt he would never be a soloist and that he would always just be a member of a
symphony. He decided to give up music and become a lawyer. By the time I
knew him, Berger was in his 50s. He had this practice representing clients who
were seeking to recover assets that the government had seized as alien property
during World War II. Prior to the war, Germans who owned assets in the United
States had transferred those assets to U.S. citizens because they were concerned
that their property would be seized in the event of the war. Some of these
transfers were bona fide; some were a sham. People who claimed they were
bona fide buyers were now trying get their property back, but the Government
claimed these were sham deals and had seized the property during the war.
Berger represented these people. That was the core of his practice. He asked me
if I would draft some briefs and do some research. He was extremely an
exacting task master. He had very high standards of craftsmanship and if the
work product wasn’t any good he would reject it. I learned a great deal from him
because I was working directly with the person who had these very exacting and
demanding standards of craftsmanship. Because there was just the two of us, we
would frequently go to lunch together. He also took me to concerts at the
Library of Congress where the Budapest Quartet was playing. He knew those
guys. I think they would play together at his home. When I was going to college,
I’d listen to music on the radio. However, I didn’t know much about music. But
Berger took me to these concerts. He would talk to me about the music, about
the quartets or trios that were being played. I owe a lot to him about my musical
education and enhancing my great love of music which is a very important part
of my life. When I drive my car, I usually do so with a CD playing classical
music. One day, Berger summoned me to his office. He had three violins on his
couch, and he said sit down, I want you to listen to something. He picked up the
first violin, and he played a little excerpt from the Tchaikovsky violin concerto.
He said do you hear that? I listened, and he said that violin is called a Guarneri.
He picked up the second violin, and he played the same passage. Let me tell
you, my ear wasn’t sophisticated, so I didn’t recognize much of a difference, but
I listened very intently. He said do you hear that? He said that’s Guadagnini. I
didn’t know much about it, but later I learned that that was really something. He
said, now I want you to listen to the third violin. He played the same excerpt
from the concerto, and he asked me were the violins the same or could I tell the
difference? Well I could see there was a difference. The third one he said, you
see how velvety it is? It is a Stradivarius. He liked that one, and he bought it. As
I said, he cultivated my interest in music. I learned a great deal from him,
particularly how to write a memorandum and to draft a brief and how to
organize things. He showed me the craft of being a lawyer.
Mr. Pierson: Didn’t you learn something about writing in Chicago, I presume?
Mr. Krash: Well, not much. You didn’t learn to write, carefully either at Chicago or Yale.
Apart from the Law Review, there wasn’t much writing really either in the
Chicago Law School or at Yale. But here I learned to work carefully. Berger and
I wrote a couple of law review articles together, and I began to learn the craft of
being a lawyer. In November of 1952, there was a presidential election, and
Eisenhower was elected. Berger had been counting on Donald Cook returning to
practice with him. Cook essentially was the business generator there. However,
Cook decided not to come back to practice in Washington, DC, but instead to go
to New York as a corporate executive. At that point, I think, Berger concluded
that there was no future for him in practicing any further. He didn’t confide in
me, but he made clear that he didn’t see a future in his practice.
Mr. Pierson: Closing up shop.
Mr. Krash: He closed up the shop. He told me in November, 1952, that I’ll be closing up
shop at the end of the year. He went to the West Coast to the University of
California where he thought he would do some writing. He ultimately went to
the Harvard Law School where he became the Charles Warren Senior Fellow in
American Legal History. He spent the period beginning around 1960s at
Harvard until he died in the late 1990s. He wrote a number of books pertaining
to issues of constitutional law. He was the total opposite of Crosskey. He
believed in states right; he felt the powers of the National government were
limited. He also felt that the scope of the Fourteenth Amendment was much
more narrow than Crosskey did.
Mr. Pierson: Did you have a debate with him about some of these things?
Mr. Krash: No, but I disagreed with him. He was very conservative. I didn’t agree with him.
I saw very little of him after he left Washington in 1952. After his first book
came out, there was a reception for him at the Cosmos Club. He was very
cordial when I saw him there. At the end of December, 1952, when Berger
closed his office, I was without a job. It was a very tough time to be a lawyer in
Washington without a job because what was happening at the time was that the
administration changed, and many of the lawyers who worked in the Democratic
administration were leaving the government. The supply of lawyers was very
high but the demand was not. It was tough, and I was scrambling around to try
to find something to do.
Mr. Pierson: Where were you living?
Mr. Krash: At this time I was living in an efficiency apartment at McLean Gardens on
Wisconsin Avenue. But I was almost broke. I didn’t have anything to do. I was
running around trying to find a job after 2 1/2 years out of law school. One day,
I received a call from Patricia Wald I had known her in Yale as Patricia
McGowan. She had married Bob Wald. After she left Yale, she clerked for
Judge Jerome Frank on the Court of Appeals for the Second Circuit. She was
hired by Arnold, Fortas & Porter as an associate. I got this call from her one
afternoon. I hadn’t seen much of her at all since leaving Yale. This was out of
the blue. She said to me that I am an associate at Arnold, Fortas & Porter; I am
going to have a baby, and I’m going to take a leave of absence. She then asked
me whether I would be willing to come over and substitute for her for six
months on a temporary basis. If she had called and asked me if I would come
and sweep the floors, I would have come because I was broke. She said, I’ll pass
your name on. When I arrived at the office, Abe Fortas wanted to see me. I saw
him for 5 or 10 minutes. He told me he wanted me to come to the firm with the
understanding that I was a temporary associate. I would get a considerably
higher salary that I had received previously when working with Berger.
Mr. Pierson: How many lawyers were there on staff?
Mr. Krash: There were then eleven lawyers in the firm. The firm was composed of the three
senior partners, Thurman Arnold, Abe Fortas, Paul Porter, and in addition,
Walton Hamilton, who had been a professor at Yale. Hamilton wasn’t a lawyer,
he was an economist. The other four partners were Milton Freeman who had
been with the SEC; Norman Diamond who had been in various government
positions; Harry Plotkin who was a communications lawyer; and Bill
McGovern, who had been a lawyer in the Antitrust Division. There were three
associates. There was a fellow by the name of Reed Miller, who was a
communications lawyer; an associate by the name of George Bunn, who later
became Dean of the University of Wisconsin Law School; and one other
associate, Duane (Bud) Vieth. I was the twelfth lawyer. All of the persons I have
mentioned are now deceased, with the exception of Bud Vieth, who later
became the Chairman of the firm. He is now 90 years old. He is an exceptionally
fine person. He is the only person now surviving who was at the firm when I
came. I was given an office on the 4th floor of the town house on 19th Street
that the firm occupied. The firm was representing Lever Brothers in an antitrust
suit brought by the Department of Justice against Procter & Gamble, Colgate
and Lever charging them with a conspiracy to monopolize the soap and
detergent business in violation of the Sherman Act. This was the major case in
the firm. Fortas was lawyer in charge of the Lever Brothers matters; he was
assisted in this case by McGovern whose office was on the 4th floor next to the
office I was given. I was supposed to work with McGovern as his associate
helping him. When I arrived, I was immediately put to work on this antitrust
case. I was the youngest associate, but I quickly made friends. I became good
friends with McGovern, who was about a decade older than I was. He was a
Yale Law School graduate who had been in World War II in the Far East. I also
became very friendly with Norman Diamond and Bud Vieth and with the other
younger men. The firm had a weekly luncheon downstairs in the basement, and
we would sit around talking about our cases. Somebody would talk about the
case they had. It was called the Garden Room. In any event, I was working on
this antitrust case. McGovern supervised me.
Mr. Pierson: Was there anything in your educational experience that particularly helped you
on that first case?
Mr. Krash: Well, first I had some antitrust background. That was number one. I went to
Levi’s course. Two, the training with Berger was very important because I was
being asked to write memos and briefs. Berger had taught me how to write a
memo; how to organize one. He really taught me that. I want to go back before I
forget. I mentioned that that Berger had an associate, Abe Goldstein. As I said,
he sent Goldstein to clerk for Judge Bazelon. Goldstein never came back after
the clerkship. He joined Jiggs Donohue, who was kind of a mayor of
Washington, for a period of time. He had a small law firm in Washington, and
Goldstein practiced there for several years. Then he was invited by Eugene
Rostow to join the Yale faculty. He spent the rest of his career there, and he
became the Dean at Yale. To make a long story short, Goldstein and I became
lifelong friends. He died about five years ago. We remained friends for a
lifetime. Later in the 1970s, he invited me to come to Yale and teach seminars.
He was an exceptionally fine and able person. At any rate, here I am, at Arnold,
Fortas & Porter in the spring of 1953 working basically with Bill McGovern and
Fortas on this government monopoly case against Lever Brothers. That is what I
was doing pretty much exclusively. Then, in the summer of 1953, the U.S. Court
of Appeals for the Columbia Circuit appointed Fortas as counsel for an indigent
petitioner in a case called Durham v. United States. The Durham case raised the
question of how to define the standard of criminal responsibility. That is, how
do you define the insanity defense? Judge Bazelon was enormously interested in
the relationship between psychiatry and law, and I believe he was instrumental
in having Fortas selected as the counsel for this indigent petitioner, Durham.
Fortas was very friendly with a number of psychoanalysts and psychiatrists in
Washington. So I think that probably had something to do why he was asked.
I’m not sure. Fortas called me to his office and he said I have been appointed as
counsel for the petitioner in this case, Durham v. United States. The case raises
the question, how should the Court define the insanity defense; what must a
defendant who pleads insanity show? He said he wanted to take a fresh look at
this and to see if we could change the existing standard to make it compatible
with modern psychiatry. I knew zilch about the insanity defense. In 1953, there
was very little literature about it. There had been a Royal Commission in
England that had issued a report, but there were very few cases. The standard in
1953 in the District of Columbia was whether the accused knew the difference
between right and wrong. It was a test formulated in England in the middle of
the 19th Century known as the M’Naghten test. The psychiatrist called to testify
as an expert witness in a criminal case was required to give his opinion whether
the defendant knew the difference between right and wrong. He was very
restricted in his testimony by this test. The question of whether the accused
knew the differences between right from wrong was an irrelevant question for
most psychiatrists. Anyway, Fortas said, I want you to write me a draft of a
brief, and this was my first assignment directly from him.
Mr. Pierson: So when he asked you to do the brief, had you and he discussed what the
standard should be?
Mr. Krash I don’t recall that he suggested a particular new test. I think he knew what the
existing standard was. He knew the psychiatrist were very critical of it. He said
we have to see if there is a better approach. It took me several weeks to read the
literature there was on it. There wasn’t very much on it. I wrote a draft brief, and
I really worked hard on it because I wanted to impress him.
Mr. Pierson: How much of what you used was psychiatric and how much was law?
Mr. Krash: Well most of it was law, but I was beginning to sift through the psychiatric
literature, but it wasn’t a lot. I wrote a brief urging that a different test be
adopted. I gave him the draft of the brief.
Mr. Pierson: Which test did you propose?
Mr. Krash: I can’t recall which test I proposed. I think I followed the English suggestion at
that time. Anyway, I gave Fortas the draft and about 2-3 days later he called me
to his office and said to me the draft looks pretty good. He said this is about
what I would have expected from a good young man at Covington & Burling.
C&B was the big law firm in Washington, DC at that time. He then said that he
wanted me to take the draft back and put some poetry into it. He said I want you
to broaden your scope. I went back, and I revised it. I incorporated some of the
things he suggested. Then he took my draft and revised it extensively. Fortas
argued the case in the Court of Appeals. The Court issued an opinion in Durham
v. The United States announcing a new test, that is, whether the offense was the
product of mental disease or defect. The opinion was widely discussed. It was a
sensation. In the fall of 1953, my six months’ period as a substitute for Pat Wald
was up. I had become very friendly with McGovern and some of the other men
in the firm. I felt I would need to look around for a job, and I asked McGovern if
he would give me a reference letter. He said no, don’t look around. A few days
later, he came back and said that they would like to offer me a permanent
position with the firm. This would have been in the fall of 1953. I began as a
temporary employee and remained with the firm for 65 years. Patricia Wald,
later Judge Wald. She and I have remained friends for life. She has had a very
distinguished career. I have great regard for her. Just last week, she was awarded
the Medal of Freedom by President Obama. Her husband, Bob and I became
friends as well; sadly, he died a couple of years ago. Pat Wald never came back
to the firm after having her first child. She had a daughter, Sarah, and then she
had other children later. Her son, Douglas Wald, is a partner in our firm. So here
I am in 1953, the l2th lawyer at the firm. It is a small firm. I’m getting to get to
know the various people better. First, let me speak of Judge Arnold; he grew up
in Laramie, Wyoming. I grew up in Cheyenne. He was born a half a century
before me. He was practicing law in the 1920s in Laramie and teaching at the
University of Wyoming Law School. A friend of his heard there was a position
as Dean open at the University of West Virginia Law School and urged him to
take it. Arnold moved there as Dean. Charles Clark, who was then Dean of the
Yale Law School, saw articles that Arnold was writing on procedure. Clark
liked them and invited Arnold to come to Yale. This was around 1930-31.
Arnold became a wonderful teacher at Yale. It was there that he wrote two
books. One was The Symbols of Capitalism and the other was The Folklore of
Capitalism, which was his most famous book and is still read today. He then
came to Washington, DC to work in the New Deal. He was nominated to be
head of the Antitrust Division around 1938, as I recall. The New Deal, which
had been in favor of government regulation now shifted to being in favor of
competition. Arnold was a hell-raiser. He sued everybody in sight. He
revolutionized antitrust law enforcement. When the World War II broke out, it
became clear that the antitrust practice had to be shelved because you couldn’t
go after these people making war materials. Arnold was nominated to be a judge
on the Court of Appeals for the D.C. Circuit. He was on the Court around three
years. By temperament, he wasn’t cut out to be a judge. He didn’t really enjoy it
because he was an active type of guy. Judging was much too passive for him. He
resigned as a judge in 1945, and for the rest of his life he was called Judge
Arnold. He then started a law firm with another man by the name of Wiprud.
That relationship broke up in about a year. Then Fortas came out of the
government, and he and Arnold teamed up. Fortas had been one of Arnold’s
students at Yale. Of all the hundreds of people at Arnold & Porter, and I’ve been
here for 65 years, I regard Arnold as the greatest person in the firm. He was
extraordinarily generous. He was very funny. He had a Mark Twain originality
about him. He was enormously well educated. I would come into his office and
he’d ask if I read this book or that book. When we went to New York together to
try a case, he would pick out a good restaurant. He loved to go to the theatre and
get a front row seat. After that, he would like to go to our hotel for a drink and
talk for a while. He was very creative and imaginative. During the 1950s he was
asked to act as a lawyer for the poet, Ezra Pound. During the War, Pound was in
Italy, and he made radio speeches supportive of the Fascists that were antiRoosevelt and anti-Semitic. Near the end of the war, the U.S. troops picked
Pound up in Italy and brought him back to the U.S. where he was indicted for
treason. He was found mentally incompetent to stand trial, and was confined to
St. Elizabeth’s Hospital. Robert Frost and others came to Arnold to help get
Pound released. He had been confined in the hospital for several years. Some of
the young Turks in the office who heard about this were aghast. Arnold learned
about this, and he summoned me to his office. He said he had heard that I was
among those raising questions about our representing Pound on a pro bono
basis. He said to me, “Look sonny boy, you like to think of yourself as being a
civil liberties lawyer, don’t you? It is very easy to be a civil liberties lawyer if
you are representing people with whom you agree and whom you like. The real
test is whether you stand up for people who you don’t like and whose opinion
you detest.” He told me, “You have to learn to stand up as a lawyer for such
people.” He taught me a very important lesson. I worked a lot with him on many
matters until his death in 1969. A number of us would come down after work to
our Garden Room for a cocktail and he would say to the persons there: “You
should see the brief that Abe has written. It is the best since the firm was
started.” I would go home walking on air. Two weeks later, he’d be saying the
same thing about something Bud Vieth or Stuart Land had written. He had the
capacity to make people feel good, which is a great gift. I admired and liked him
enormously. I learned a great deal from him.