Oral History of Robert Pitofsky
Ms. Born: This is the fourth interview of Robert Pitofsky for the D.C. Circuit
Historical Society’s Oral History Project. Bob, I think the last time we talked about your years
as FTC Commissioner and ended as you were leaving that post. What did you do when you left?
Mr. Pitofsky: Well I returned to my life as it existed before I was a commissioner.
I returned to Georgetown to teach and I came back to Arnold & Porter as counsel.
What did you teach at that point?
It was about that time that I negotiated an arrangement that allowed
me to teach somewhat fewer hours than I previously had, so I taught then and consistently since
antitrust, constitutional law to first year students and a seminar each year. I tried to change the
seminar and not continue it more than two consecutive years. So, two courses and a seminar.
Ms. Born: A nice schedule.
It’s not a bad deal.
What kinds of research were you doing at that time?
Mr. Pitofsky: I started in research on an article on measuring market power, what
technically is called “definition of relevant market.” It was quite a hot subject at the time. Bill
Baxter who was head of the Antitrust Division had published guidelines that seemed to be quite
a departure from previous approaches to the subject. It was really one of the more ambitious
pieces of writing that I have undertaken. The reason I put it that way is that I started it in 1981
and finished it in 1989. That was because the deanship intervened.
Ms. Born: When you published it, where was it published?
Mr. Pitofsky: Columbia Law Review.
Ms. Born: What were you doing at the firm of Arnold & Porter during those
years before you became dean?
Mr. Pitofsky: Generally, the same thing I’ve been doing with rare exceptions ever
since I’ve been at the firm. Counseling clients on deals, generally speaking prior to litigation,
because if any transaction that I’m involved in turns to litigation, I drop out of the picture. The
firm was very busy in those days and I was quite active. I think that was the period, in fact I’m
quite sure it was, when I first secured General Electric as a client, and of course General Electric
is 15 different top firms in 15 different industries. So the fact is during those years 90 percent of
my work was probably for GE.
effective than it had been before?
Was this a period when your business development was more
Mr. Pitofsky: Yes. Coming out of the commission and with an academic
background, it seemed that people would more quickly think of me as an advisor or counselor
and I developed an arrangement with Mike Sohn, now chair of the firm, that we would take on
almost all projects together so that I had the advantage of having backup at all times and the
client had the advantage of having one of the best lawyers I’ve ever dealt with. It worked well.
Did this increase the time you were spending in practice or not?
I’ve always tried to put a cap at 500 hours, and yes, there would be a
year when I’d go to 600 but I know I’ve never gone to 700 or 750, and that’s why the firm is
such a comfortable place for me. I will say, look, I know its only June but I’m exceeding my
quota, and people were very understanding and said, so let’s get somebody else in to handle that.
Ms. Born: Were you active in the organized bar during this period?
Mr. Pitofsky: I’ve always been active in the Antitrust Section of the bar. I didn’t
go on the council of the ABA Antitrust Section until some years later. I had been the head of the
Consumer Protection Committee and I may have been active in other committees during that
period. That’s been a constant with me since 1970.
Weren’t you on the D.C. Bar board during that time too?
Yes, I was. Shortly after I left the commission, I ran for and was
elected to the D.C. bar. It was a very interesting three years. Jamie Gorelick was on that board,
David Isbell, Jodie Bernstein and other first-rate people. There were some very tough issues
about the extent to which the board was perceived to represent the large firms in Washington as
opposed to the smaller practitioners in the city. Each side had their candidate and their views on
practically every issue. Jake Stein became the president. By the time my three years were up we
had managed a modus vivendi on that issue which was quite successful. I was not a leader in
working this out, but I certainly was anxious to see that the bar not be divided on every issue
along that fault line between big firms and private practitioners. The fact of the matter is that we
did work it out.
Ms. Born: How?
Mr. Pitofsky: A lot of it has to do with who’s on the board, and I think as time
went on neither of those groups dominated the board. The president of the bar became quite
sensitive to the feelings of both groups. Much of the debate was over minor issues. It was really
just a question of each side regaining the confidence of the other side that they were not trying to
use the Bar and the board to the advantage of their style of practice of law.
What motivated you to run for the board?
I had not been active in local bar matters and I wanted to play a role.
I knew about the local bar’s work with indigent people who needed representation. I was very
anxious to be a part of that. I was encouraged to run by some people who had already been on
the board and felt that maybe I could be a moderating influence on what had become a very testy
relationship. Those are probably the two reasons.
Did you play a moderating influence, do you think?
I don’t want to give myself too much credit. But I think, Jodie and I
and Lois Schiffer and Jamie and David Isbell, as a group, did manage to ease what had
previously been absolutely unnecessary tensions.
Ms. Born: When did the opportunity to become dean at the law school come
Mr. Pitofsky: The previous dean had been David McCarthy, and he had served
seven or eight years and I think was worn out and announced that he would step down at the end
of the then academic year which I guess was 1983. I was not the most aggressive candidate for
the position at that time. My position was that it might be interesting. On the other hand, if I
didn’t become dean, I would continue with what was a very satisfactory teaching and scholarly
life. I do feel that if you’ve been in academia for a lifetime, which is practically the case with
me, you owe it to yourself and to your ideas about the way a law school should run to take a shot
at being a dean somewhere along the line. Terms are five years long. It doesn’t have to be 15
years, it doesn’t have to be 20 years. But you come in and you try to change things or introduce
ideas that you think are important, and it was on that basis that I accepted the president of the
university’s offer to become dean.
What was the selection process that went on?
The same as it is now. A committee is elected by the faculty to do
the screening. They usually cut to perhaps five candidates. Those candidates are interviewed by
the faculty, by the students and eventually by a collection of executives on the main campus and
then the president of the university. Georgetown, unlike almost any other law school I’m aware
of in this country, automatically makes a law school dean a high official in the university.
You’re an executive vice-president. I would say 20 to 25 percent of your time is addressed to
university, not law school, issues. So, it is important that the people at the university are
comfortable with the person who is going to become the dean.
Mr. Pitofsky: Right.
So you were one of the five chosen by the selection committee?
And then did the selection committee choose you?
That’s the president’s call. In fact, I am now the chair of a new
committee and the president said now what I believe the president said then, give me a minimum
of three names, at least one outsider, and do not rank them unless one person is vastly better than
everyone else whose name you are submitting. I think it was probably done that way. And I had
a very nice talk with the then president of the university who later became a close fkend.
Ms. Born: Who was that?
Mr. Pitofsky: Father Healy. Tim Healy. And, to tell you the truth, his being the
president of the university made my being dean of the law school the gratifjmg and enlarging
experience that it was.
Ms. Born: Why was that?
Mr. Pitofsky: He was one of the most extraordinary people I’ve ever met. It was
just fun to be with him. He also had very high standards and he was a great supporter of the law
school. My view of deanships is, if the president of the university isn’t prepared to back you
when he has doubts about what you’re doing, the job isn’t worth having, and he certainly backed
the law school.
Ms. Born: Before we get into the details of being the dean of the law school,
tell me about the role of executive vice president of the university and what that entailed,
because this is unusual.
Mr. Pitofsky: It is. It involves one or two long meetings a week and it’s a lot of
reading before that meeting.
Is that a long meeting with the president?
The president, the provost, the head of the medical school, the chief
financial officer, and the dean of students. There are probably about a dozen people. There’s
also another meeting and that only involves the provost, the head of the medical school and the
head of the law school. So there are two meetings a week. Candidly, a lot of it is about money.
It’s about how you raise it, which foundations you approach, and how you spend it. There were
other issues. We’ll talk before the end of the day today about my role in settling the gay rights
case, but that was perhaps the most memorable and the most substantial commitment of my time
and energy to anything that I did as an EVP. There are constant reports about what the law
school is doing and why they’re doing it and so forth, so, as far as actually discussing issues on
the main campus or very occasionally voting, it’s usually about money one way or the other.
Ms. Born: What is the reason that Georgetown has this special role for the dean
of the law school and the dean of the medical school too?
Mr. Pitofsky: I’m not sure. It goes back so far that people I’ve asked that question
don’t know. They don’t know exactly what the reasons were. One factor is that all of the
university is in the western part of the District of Columbia, and the law school is all by itself
over in the eastern part. So you would expect the dean to have a role at the university. You
wouldn’t expect the dean to be an executive vice president, except for the fact that it was a way
of bringing the law school into the loop with the rest of the university.
Ms. Born: Is the dean of the medical school an executive vice president as
Mr. Pitofsky: Yes. There are three executive vice presidents, the provost, the head
of the medical school who they call chancellor of the medical school, and dean of the law school.
Ms. Born: Back to your role as dean of the law school, what did you hope to
accomplish, what did you think the needs were when you became dean?
Mr. Pitofsky: Let me answer it this way. The first thing that I did was I created a
committee of perhaps 20 of what I thought were the best faculty members at the school, the most
perceptive and the ones with the highest standards, to give me their views on what my priorities
should be. The overwhelming priority was construction of a new library. The result was that
five of my six years as dean, I was a real estate client. I didn’t take the job to do that. But, they
were absolutely right. The school was the largest in the United States and was in one building,
where everyone was crammed together. So, if you could construct another building and move
the library and some offices across the street, close the street down and put some grass between
the two buildings, you would have a different atmosphere entirely. One of the things that I had
said to the president when he offered me a deanship was that I don’t want to sound as if I’m
making non-negotiable demands, but I must tell you that the present system where all fundraising on behalf of the law school is handled by the university is not common in the United
States and is unacceptable. He said to me, “I’ve always wondered why your predecessors didn’t
make the same demand,” and we got off to a fabulous start in that way. The library was a $25
million project that actually ended up being a little more, and we were raising $1 million a year.
Another decision that I’ve always been grateful for is the president, against the advice of quite a
number of his other colleagues, gave the law school the go ahead to construct this very ambitious
library building before we had anything like the money necessary. But he was a great fundraiser, and he said he would devote his energy, as well as mine and others in the law school, to
raising money for the school. So there I was, I’d become the dean, I had all sorts of ideas about
curriculum, students and so forth and, immediately, priority number one became raising the
money and constructing a building.
Ms. Born: So how did you raise the money, obviously partly with the
Mr. Pitofsky: First of all, we took over our own fund-raising. Second, he and I
jointly approached foundations and were very successful. Kresge gave us the largest grant they
had ever given any school for a building. Third, the Williams family, Edward Bennett Williams,
for whom the library is named, immediately pledged a substantial amount of money. It was
nothing unusual about our fund-raising except we had such a good story to tell. Our case was
very powerful. Here was a first rate law school, a student body that was getting better by leaps
and bounds all stuffed into one building. Therefore, while I was apprehensive about how I
would feel about fund-raising, I’ve never raised a nickel in my life, I was so convinced of the
legitimacy of our claims, especially on foundation money, that I thved on the fund-raising. I
keep mentioning foundations because they’re going to give their money away, anyway. It’s just
a question of who they’re going to endow. And we were very successful in persuading the
foundations of the need to expand this particular facility.
Ms. Born: Do you remember what proportion of your money came from
Mr. Pitofsky: I don’t. It’s probably less than half, but it was far more than we
budgeted when we started. There were individual benefactors, who were persuaded that their old
school was going in the right direction and they were prepared to support it.
Did you already have the land?
We had all of the land except one building and the man would not
sell out. So the president of the university sent me to visit him in his home and said don’t come
back without that land. I kept raising the price and raising the price, the man’s wife kept saying
what in the world are you doing, accept the offer, but he wouldn’t do it. He had a grievance
against the Catholic Church, and it wasn’t about money. It was about his hostility to the
university. And then, the irony of it all, I think this has been made public before, is he and his
family got into some tax trouble, and they ended up selling us that property for substantially less
than I had offered that evening at his home.
So did that difficulty with him delay the building?
No, we were going to build around him. It was going to be
awkward. There would be a silly enclave at the side of the library, but we were going forward,
that was clear. And maybe he didn’t realize that. He may have felt that he could hold up the
entire parade. But, anyway, there was already a substantial hole in the ground before we ever
obtained that last piece of land.
And did you work with the architects, the builders and all that?
Hartman and Cox were the architects. They were younger men but
of increasing prominence. The construction manager was a group from Baltimore and they were
outstanding. In fact the university still uses them constantly, and yes, absolutely, I learned more
about buildings and pipes and electrical connections than I ever knew before.
And so this project took five years about?
Yes. From the time the president said to his group, we’re going to
go ahead with this, until the inauguration when Justice Brennan and Joe Califano spoke, that was
just about five years.
Has it improved the law school?
It made an immediate difference, but it was only a launching pad for
my successor Judy Areen to go on with the construction program. We had already bought the
land and she then managed to raise the money and built a very attractive dormitory and now,
we’re just finishing two more buildings. So Georgetown which possibly had the least impressive
physical plant in 1970, now as far as urban schools are concerned is probably as good as any.
Quite a change, and it has changed the life of the school immensely.
Ms. Born: What did this project do to your other goals and aspirations for your
Mr. Pitofsky: I still tried to do many of the things that I had in mind. I think a law
school should buzz with the excitement. There should be visiting scholars, holding work in
progress discussions, almost every week. The faculty should be meeting in brown bag sessions,
to discuss what they’re doing virtually every week. I’m not the most ardent fan of clinical
education but I fall very much on the side of being in favor of it, and we added a few clinics
during my tenure. We revised some aspects of the curriculum. We began to enlarge the faculty,
now that we had some room. The faculty was less than fifty when I assumed deanship1 think
it was 48 or 49. It’s now about a 100, and I would say that 15 or 20 of those additional faculty
members were hired during my deanship. We cut back on the number of hours that teachers had
to spend in the classroom. We put an emphasis on scholarship. I did something that I’m not
sure was entirely popular, but I went to a merit system of salary adjustments and then put quite a
heavy emphasis on scholarship. In terms of time, EVP responsibilities, traveling around the
country, hnd-raising, addressing construction issues of the school had to be 60 or 70 percent of
what I did.
How did you recruit new faculty and visiting scholars?
We were much more aggressive in reaching out to other schools and
much more aggressive in inviting the faculty who knew first rate scholars in their field to be in
touch with that person and say, we have an endowed lectureship, we have the opportunity for
you to visit the school for a week. These were all in place before I took over the deanship, and I
just added to the opportunity of people to come to the school and to add spice to the academic
life of the law school and it worked very well. Actually, Judy Areen has outstripped me in this
regard. So it’s really a place that’s buzzing at all times now.
Well you laid the foundation.
We got it started. Actually Dave McCarthy, my predecessor, had
started it but it was at a relatively low level.
Ms. Born: What changes in the curriculum?
(End of Tape 1 , Side A)
Mr. Pitofsky: Curriculum changes were not very substantial during my tenure as
dean. There had been curriculum changes but they happened after I was dean, I think the main
difference was our energy and ability in inviting younger first rate faculty to come to
Georgetown. Now, we had a great advantage in that Washington had become a preferred place
to both study and teach law. There were people who came to Georgetown, who perhaps
wouldn’t have even dreamed of it, a generation earlier. We’ve always had the most brilliant
lawyers and judges who come to teach as adjuncts at Georgetown, but we didn’t let them know
that that was a possibility as much as we should have. When we invited Judges Harry Edwards
and Larry Silberman and others, they agreed to teach a course for us. So, it was in the quality of
both the younger faculty and the adjunct faculty that I think changes were made.
Ms. Born: Did you in any way put more emphasis on interdisciplinary work or
Mr. Pitofsky: That wasn’t a special goal of mine. There already were some
interdisciplinary programs and degrees. Once again, you have to face the fact that the law
school is ten miles away from the university, and so it’s very difficult to run some of these
interdisciplinary programs. We do a little more now than we did then, but it’s not a school like
Harvard, Yale, Columbia and to a lesser extent NYU that can easily construct interdisciplinary
programs and make them work. We have a great geographic disadvantage.
Did you do any teaching while you were a dean?
I did. Not the first year.
Where did you find the time?
I’ll tell you how I did it. I taught antitrust at nine o’clock on
Monday morning and I was usually finished by eleven. (And another two hours on a nonMonday every other week.) We cut it back to a three credit course and I taught antitrust on the
theory that I really didn’t have to prepare all that much for those classes. I just felt that a dean
who doesn’t teach-welcomes the students the day they arrive and presides over their
graduation-it’s very possible that the overwhelming majority of the students will never know
who you are. You’re in a nice corner office on the top floor and you’re not a part of the
academic life of the school. So, it really wasn’t very difficult, my responsibilities were over by
eleven o’clock on Monday morning. But I thought that was the right thing to do. One of the
candidates for deanship today teaches a full academic schedule. I don’t know how in the world
he can do that. That seems beyond me.
Ms. Born: But at least this gave you some interaction with the students. Was
this the main interaction you had as dean with the students?
Mr. Pitofsky: Yes. There were always student committees complaining about this
and that. They certainly were complaining a great deal about the physical plant, when I first
took over the deanship, and the level of safety in that part of the city. I don’t think that’s an
issue any longer, now that all these upscale hotels are in that part of town. But the students did
not give me a hard time. This was not the late 1960s. And I can’t remember a single matter in
which there was a lingering tension between the senior officers of the law school and the
students during that period. They were amazing in their willingness to suffer inconvenience
while we built that library. We didn’t just build the library; we redid the main building and the
noise and the dust made teaching very difficult. But the students knew which direction we were
going, and they supported it.
Did you do anything to address their safety concerns?
We did. We doubled or tripled the number of guards in the area.
We developed a bus system that would take the students to the subway station. We gave them
all sorts of warnings about not walking around that area after nightfall. And there were some
terrible episodes including one young man who was killed. I must say that was as difficult an
experience as I’ve ever been thorough. Mostly someone was struck and their purse was
snatched. No one else was seriously injured that I can recall except this one young man who I
didn’t know but I later learned was just an extraordinary person: generous, thoughtful, headed
for a career in public interest law.
Ms. Born: It’s hard to lose anybody but particularly hard to lose him, it sounds
like. What was your relationship with the faculty and your main interactions with them?
Mr. Pitofsky: We got along reasonably well. The business about salaries
depending on productivity created some tension between me and a few faculty members who
were retired in place. I just felt very strongly before and since, that part of the role the dean must
play is to reward the active, constructive, productive, members of the faculty and that means
curtailing the rewards of others. There were at least a half dozen people on that faculty who had
been hired 30 years earlier, when Georgetown was a regional school preparing young people to
take the bar. And I was directed by the president of the university to negotiate very generous
deals that would allow them to retire. I must say all six of them behaved so well. They knew it
wasn’t their kind of school any longer and we worked that out. That allowed us six slots to go
out and hire six really first rate young people. So, in general, I thought the faculty did not give
me a hard time. Who could be opposed to raising money to build a library? And everybody
knew that was the main thing I was doing.
Ms. Born: It sounds like a lot of your role was making use of your skills as a
executive vice president, wasn’t it?
That certainly was true when we get to this gay rights episode.
Tell me about the gay rights episode. This was part of your role as
Mr. Pitofsky: Quite an experience, one of the most memorable that I can recall. In
the late OS, the law school had made a decision that it would not subsidize gay and lesbian
organizations on the law school campus because their goal is inconsistent with Catholic precepts.
We’re talking about small subsidies of perhaps $125 a year. The students, not unexpectedly,
took the law school to court, to the D.C. court system not the federal court system, and sued for
violation of the D.C. human rights statute. That case kicked around in the courts for seven or
eight years. First the university would win, then it would be reversed and remanded. Then the
students would win and that would be appealed and then remanded. But the last decision came
out in favor of the students. There were at least three or four opinions. It was a close call, but
the next step was to take the case to the Supreme Court. That’s where we were, and the
president of the university called me in one day and said, “I want you to go out and bring back to
the board of the university the best settlement that you can negotiate. I don’t want to leave either
side, committed Catholics or gays and lesbians, humiliated. I want a compromise.” That’s what
I did for a day or more every week for the next six months. The present president of the
university was Tim Healy’s administrative assistant, and he joined me for these discussions.
What was his name?
Jack de Gioia. The gays were represented by Williams & Connelly,
Vince Fuller, one of the best lawyers in Washington and two other junior attorneys from that
firm. There were two groups of gays and the second was represented by Rick Gross-a partner
at the Wald firm and one of the toughest negotiators I’ve ever met in my life. The three groups
would meet at least once a week and hammer out the details of what a compromise would be.
We gave away early that the university would provide the subsidy. That goes without saying.
But then there were questions about what the students would do. Would they be allowed a
newspaper that proselytizes a gay and lesbian way of life? Some threatened they would use the
facilities of the university to conduct a black mass, something that goes back to the Middle Ages
and is a form of devil worship. There were all sorts of speech and behavior issues-could they
run a parade through the middle of the main campus? Could they celebrate certain days that
were important to them? When we were finished, we came back with a settlement that must
have been 50 pages and the president took it to his board for what I thought was one of the most
eloquent debates I’ve ever participated in. I spoke briefly and a lawyer named John Kirby really
carried the ball for settling the case. The issue was, do you go to the Supreme Court or do you
take this deal.
Was John Kirby a lawyer for the university?
He was a partner at Mudge, Rose in New York. And very active.
Was he on the board?
He had been on the board, but by the time of the debate I think he
had stepped down. You’re talking about some of the best lawyers that I’ve ever dealt with. The
board consisted of about 30 people, 30 to35. Six of them were priests. They all voted to settle
the case. But there were many Catholics on the board who felt very strongly about this in the
most understandable way. One person who I respect enormously said these are our children, do
not think that we are hostile to them, but this is our religion and we are committed to support the
precepts of our religion. Before this meeting, we had authorized a clerical investigation of the
Catholic Church’s treatment of gay and lesbian people starting about the 12th or 13th century,
and it concluded that gay thoughts were not a sin, were not a violation of God’s rule. It’s only
acting on them that was. To make a wonderful story a little shorter, the vote was 18 to 17 to
accept the settlement. And I remember still who the deciding votes were. Joe Califano was a
deciding vote. He spoke at the end. He was on the board and he said, “I’ve sat in the White
House for years and I’ve never heard anything quite like this debate.” I asked the dean of
students ten years later, was there any part of that settlement that didn’t work and became a bone
of contention, and he said no, no one has ever challenged the terms of that settlement. It made
me very happy.
Ms. Born: One of the things that I was going to ask you about was your
relationship with the president of the university and your relationship with the board.
Mr. Pitofsky: My close relationship was with the president, and I think I can fairly
say we became good friends. I admired him enormously. It was beyond professional-we
talked books, plays, he was a poet, he taught poetry and wrote poetry. He was very close to Bill
Clinton so he knew a lot of politics. My wife Sally enjoyed being a dean’s wife immensely. She
socialized more regularly and comfortably than I did, and she and the president of the university
got along. So it was a good relationship. As far as the board was concerned, I knew individuals
but, except on extraordinary occasions like the gay rights matter, I never said a word at board
meetings. I sat and listened.
Did you enjoy being dean?
Yes, but I have to admit that I also enjoyed stepping down. I am
very glad that I was dean. The university relationship was extraordinary. I stayed an extra year
to finish the library and to preside over its inauguration.
So, it was a total of six years?
A total of six. I didn’t want another five-year term. I have no
regrets for having done that, although, the truth of the matter is, I didn’t write a word during
those six years and as I’ve said to many other people, it’s not just that you stop writing, you stop
reading. There’s all sorts of new scholarship that emerges in your field. A deanship is an 11-
month a year job. But I still think that committed academics should do it. I don’t think they
should stay as I think Dean Griswold did at Harvard for over 20 years. Judy Areen, my
successor, was very generous in having stayed 15. Because she was ready to step down five
Ms. Born: So there was no difficulty in making your decision to step down?
You really wanted to and stayed on an extra year, basically?
Mr. Pitofsky: Most deans stay one long term. It’s exceptional when they take a
second term or a third term. Judy might be the longest serving dean in the country right now.
Ms. Born: Tell me about the mechanics of your stepping down and the
choosing of your successor? Of Judy.
Mr. Pitofsky: I announced in September as I recall that I would step down as dean
and then I was probably kept at arm’s length in the selection of my successor more than almost
anyone else. I never doubted there were good candidates who were available to step into the job,
and I didn’t think it was right, especially because I had such a close relationship to the president
of the university, that I should not be involved in the selection. When it’s all over at the end, you
put your two cents in, but I was not active in the selection of the possible candidates or the
selection of the committee that chose the candidates. Judy’s done the same thing this time
Mr. Pitofsky: Exactly.
It avoids the appearance of trying to continue your role.
Were there other activities you had while you were dean? Outside
of the university?
Mr. Pitofsky: One activity that I came a little bit to regret is I accepted, against my
better judgment, an appointment to the council of the Antitrust Section of the ABA. I should
have been smarter than that. There is no way I could attend all those meetings or stay up and
read all those reports. I confess that I came around to the view that I hadn’t done an adequate
job in that role. I felt badly about it. Did I do anything else while I was dean? Not much.
Ms. Born: Tell me about the Georgetown Study of Private Antitrust Litigation
and the board of the Craig Corporation,
Mr. Pitofsky: Okay. The Georgetown study was initiated while I was dean, but
two other people wrote it. Some prominent lawyers in the city, especially Joe Sims who’s at
Jones Day, felt that there was a lot of heat underlying different views of private antitrust trebledamage litigation. They were people who were opposed to mandatory treble damages. But there
was very little reliable data on any of these subjects. Sims and his colleagues raised a very
substantial amount of money, hired an economist, hired two lawyers and looked at the records of
treble-damage litigation throughout the country to examine the state of affairs. For example,
there was a theory that judges were reluctant to dismiss antitrust cases on a motion to dismiss or
summary judgment and the result was that, if you brought one of these cases, the only way for
the defendant to get rid of it was to pay some kind of blackmail settlement. This study showed
that it was absolutely not true. It may have been true 20 or 25 years ago because of an opinion
that Justice Douglas wrote saying you ought to dismiss antitrust cases during motion practice
very cautiously. But the fact of the matter was judges were dismissing antitrust cases left and
right. It was not a blackmail factory. There were many other issues the study addressed. We
published it. I still see it cited regularly as a source. Craig Corporation was very interesting.
Jim Cotter was a student who had attended Georgetown University and its law school with
absolutely no money. I think he may have played football for the university, but he was on
scholarship, and he was on scholarship at the law school and working nights for the Internal
Revenue Service. He is the classic case of a poor kid who graduated from law school. He came
out of the law school, worked for a while for the IRS, then went off into business for himself,
and became a very successful entrepreneur. We became friends. I’m sure I was trying to raise
money from him. I visited him in California. He eventually contributed a million dollars to
name a room in the library. But the main point is we got along very well and he asked me to join
the board of his corporation, which was at that time a conglomerate. Now it’s almost entirely a
movie company. I only did it out of loyalty to the university, and it was a wonderful experience
for me. Most lawyers never see a corporation from the inside. They see the issues after they
have been framed, as opposed to being on the board of a corporation and participating in the
initiation of programs and framing of issues. So I learned a lot. The problem was that, since it
was a conglomerate, he was invested in all sorts of things, many of which were very prosperous.
But he took over control of a savings and loan and that was the time when people’s careers were
being destroyed simply by knowing Keating, much less being on the board of an S&L. I said to
him, life’s too short. First of all, I don’t understand the economics of a savings and loan
company, unlike your other companies, and I just can’t bring myself to be responsible for
decisions relating to the savings and loan business. He tried to argue me out of it, but he was
very generous, and I stepped away. But I’d been on that board for eight or ten years. I learned a
So you stayed on the board even after your deanship?
I don’t think I went on the board until more or less in the middle or
the end of my deanship.
Ms. Born: Is there anything else we should discuss about your deanship or
about the executive vice presidency of Georgetown?
Mr. Pitofsky: I don’t think so. Another major project that I was asked to do was to
sell the hospital, because the hospital was an economic drag on the whole university. I spent
quite a bit of time, and I thought I had the hospital sold, but the deal collapsed and the university
is still struggling to get out from under this extremely unfortunate economic relationship. The
hospital’s budget is larger than the university’s budget. As the president said, “When the
hospital sneezes, we get pneumonia.” It’s well known now that the university, over the last half
dozen years, has probably averaged $1 5 million a year in red ink because of the hospital. That’s
almost the entire financial problem of that university.
I thought they had sold it.
We had sold it, but there were strings attached. And the university is
still responsible economically for some aspects of the hospital. I regard that as a failure. I
wasn’t the only one out there trying to sell the hospital. But it’s too bad that we didn’t succeed.
I don’t recall any other major matter, and the Craig Corporation Board and the hospital were
minor compared to the constant responsibility for fund-raising. We ended up with a building
and we were a million dollars short. And the Williams’ family came to our rescue. It was the
opposite of being risk averse to start this construction with no history of fund-raising. The only
thing we had was the property on which the SEC stands today, which is a great piece of land and
a constant annual source of revenue. So actually we were raising more than a million a year: we
were raising three million a year because of that land rent. But there was no endowment for the
law school and a very modest annual income, one of the smallest in America, at that time.
Ms. Born: In your fund-raising efforts, did you need to travel a lot? Did you
visit with a lot of alumni as well as foundations?
Mr. Pitofsky: In the first year I traveled an enormous amount, because I felt people
had the right to see the new dean. After that, I came up with a strategy, which I think was
successful, and that is I asked five senior members of my faculty, Father Drinan and Sam Dash
are two that I recall, whether they would be willing in my place to handle some of these alumni
and fund-raising relationships. For them, it was two trips a year; for me, it was 20 trips a year.
And they agreed, I had the right people and they were extremely successful.
(End of Tape)
Oral History of Robert Pitofsky