(December 2, 1997)
Today is December 2, 1997, I believe this is the fifth
interview and it’s in Mr. Gardner’s office in Washington
D.C. Mr. Gardner, today I want to talk to you about Shea
& Gardner. You came to work here in 1947.
July of 1947.
Is that
What do you remember about the first few days?
We start with naivety, in that I had never been in a
private law office in my life and had no idea of what
they looked like. These were fairly humble quarters in a
little building down on 15th Street, the name of which I
forget. The entire process of a private law firm was to
me a mystery and it still is. Chiefly because my
partner, Shea, who had been at work for three months had
experience in some private law firms and he liked to
manage things while I didn’t. So I did nothing; he did
all the management and so it has continued for 50 years.
I can’t describe precisely what our total practice was
like. We had early on a number of fairly large
undertakings which kept us as busy as could be. I don’t
know what else you would want to know.
I remember reading in the book you wrote about the firm
that you didn’t have any of your own clients for your
first five years of practice.
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Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
No, one or two trifling ones, but none to speak of. No,
I had no clients of consequ ence until late 1950. I did
have• one man come to me who had been wronged, he felt, by
a decision at the Interior Department. They hunted
around for the best attorney to take on a major grievance
and he thought that I would be the ideal attorney to
attack a decision of Acting Secretary Gardner, as indeed
I suppose I would have been.
You declined?
I declined.
During those first years of practice, did you consider
accepting one of those teaching offers that periodically
were made to you?
Yes, I was essentially a back room assistant to my
partner Shea. The work was interesting, the cases
remarkably so, but I was not happy in a subordinate
position which I hadn’t been in since I could remember,
and I had an illusion that being a law school dean would
combine my interests in the law and research with a
certain practical underpinning to it. I did not realize
that the principal job of a Dean is raising money and,
secondly, trying to keep peace among a group of prima
donnas. It is a singularly unattractive job when you
took a realistic view of it.
I had indicated to Stanford that I could probably be
had for their deanship. I didn’t do anything about it
and they chose a different and probably a better man.
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The Berkeley and Boalt Hall story was rather different.
For some reason, Chief Justice Traynor, I suppose he was
on their board, was doing the recruiting, and he cruised
around to some eastern universities and came up at
several places that he said suggested me. I rather liked
the idea; I liked San Francisco and then thought that I
would like being a Dean. So he and I agreed subject to
the faculty clearance on his side and my wife’s clearance
on my side. That would have been a disastrous mistake.
I can’t think of anyone less equipped to handle the
disturbances of the 60’s or the SO’S, whatever it was,
than I, and Berkeley was about the worst in the country
for violent activism. In any event, I was saved by an
unexpected birth of twins. In those days, the expectant
parent didn;t know what was corning and what came was
twins. The idea of picking up four children all under
four and moving across the country and moving my wife who
was Bermudian, 3,000 miles farther from her home, was
overwhelming. I backed out of that one.
I had in the meantime agreed to go to Colwnbia and
teach during the summer term; it was still shortly after
the war and they had full terms in the summer. I was to
teach Gellhorn’s class in administrative law. When the
twins were born, I tried to back out of that but the Dean
was pretty hard-nosed about it and we ended up with a
compromise that the three-hour course could be one and a
half hours on Monday afternoons and one and a half
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Mr. Schultz:
Mr. Gardner:
hours on Tuesday mornings. So I could be gone only one
day. That was an awful burden both on me and on the
students, but we got through it. That was as close to
teaching as I came.
In subsequent years did you have any thoughts of going
back to teaching?
Yes, though they receded. When I moved out of the
government into this little firm, I was not a Frankfurter
protege as were so many people in town, although our
paths had crossed many times, but he never liked to see
anyone going off in their own without having Frankfurter
advice to support them. He was emphatic that I was meant
to be a teacher and not a practitioner and I expect he
was right. I didn’t give a serious consideration to the
academic inquiries and after about five years or so they
tapered off to virtually nothing except for Bill Warren
who was Dean of Columbia. The faculty wasn’t very fond
of him, but he was an enormously successful man at
raising money and in building on the side his own tax
practice. He showed his talent in his effort to recruit
me. Somewhere in the early fifties he telephoned and
said he was going to be in town the next day and could we
have lunch. So we had lunch and he put a maximum degree
of pressure on me. I discovered his talent in that he
came down from New York to Washington just to have lunch,
went back immediately after lunch. I don’t know anybody,
especially not me, who would undertake to devote a day
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
to travel, when there are perfectly good telephones, but
he did and he came a lot closer to getting me than he
would have on the telephone. But after, oh say
arbitrarily, seven years people stopped asking me and I
stopped thinking about it. I became rather doubtful that
I would be happy with the comparatively placid life of
the law professor. I rather liked getting up in the
morning and not knowing what was going to happen in the
afternoon and I liked the excitement of litigation.
Why didn’t you go to Columbia?
As I just said ….
Oh, I thought that was in hindsight.
No, no, I knew at the time, I had gone up there the
summer of 1948, largely as a test and it was inconclusive
in the rough sense where it was probably hard to separate
the inconvenience of the Monday afternoon Tuesday morning
regime from teaching generally, so I had about the same
open mind, undecided mind that I had before I had started
the teaching.
Tell me about your first big client. Who was that and
how did it happen?
Mr. Gardner: . The first and major client, directly and indirectly, in
my private practice was Ralph Davies. He had been
Executive Vice President of Standard Oil of California at
the start of the war and came to Washington to be Deputy
under Ickes, and actually running, the Petroleum
Ad ministration for War during the war, which I’m told (I
wasn’t around} was.a singularly effective operation. He
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had stayed on after the war largely to get an oil and gas
division organized in Interior and to get ratified an
Anglo-American oil treaty to provide for a concerted
action in the Middle East and other oil producing
countries. By a series of accidents, after Ickes had his
temper tantrum with Truman and left, there was virtually
no leadership in the Interior Department. Fortas the
Under Secretary had gone. Mike Strauss the leading
Assistant Secretary had gone down, or up as the case may
be, to run the Bureau of Reclamation, which was building
all those lovely dams, and Oscar Chapman, the perennial
bottom Assistant Secretary for thirteen years, was a
graceful and adept politician, but was not an executive.
The bureau heads, who were in an argument used to fight
for the privilege of being the second one to talk to
Chapman, because he always agreed with whoever last
talked to him. Not a unique failing in the government,
but carried on for thirteen years, it rather distorted
his internal effectiveness.
Ickes bad planned to move me to Under Secretary, but
left before prying it out. He would have had some
difficulty in that a young Easterner, who had already
offended some of the Western Senators, would not have
been very attractive to the Congress. There was in any
case, nobody there. After much stewing about we finally
persuaded Justice, or 0MB, whatever it was called then,
to issue an Executive Order authorizing me to act in the
absence of a Secretary or Assistant Secretary and I took
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the view that if Chapman wasn’t actually in my office, he
was absent. It was alright with him since I sent all the
important matters to him, and disposed of the
To get back to the Anglo-American oil treaty, the
State Department had as one of its ranking executives, a
man named Wilcox, who had taught me Economics at
Swarthmore, and whom I rather liked and rather admired.
He came over to persuade me that the oil treaty was a bad
idea. These great imperialist nations, United States and
Britain, were framing joint non-competitive approaches to
these poor, undeveloped mideastern countries. To my
shame, I rather agreed with him and said yes, we would
withdraw Interior support of the treaty, and thus would
kill it.
Then I had the unpleasant task of advising Davies of
our decision. His office was at the opposite corner of
the Interior building, and we were about a block apart.
I walked down to his office and explained my apostasy as
best I could. Two years later he remembered the
courtesy, which I’m ashamed to say is more less
unique in the bureaucracy, of the superior
officer walking down to the subordinate, more vividly
than he did the substantive offense. My conscience
didn’t really hurt me until the oil and gas shortages of
the late 70s when the oil countries decided they ought to
cut down on the gasoline available to us. When I sat in
the long lines outside filling stations hoping they’d
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still have gas by the time I worked my way up to the pump
I deeply, deeply regretted our 1946 solicitude for the
In any event, the Dollar family, a group of
enterprising thieves who had run the Dollar steamship
line, and much of San Francisco, for a good many decades
had been forced by Joe Kennedy when head of the Federal
Maritime Commission for a year or so, to hand over the
stock of this Dollar steamship line to discharge their
personal obligations to the . The Dollar line was
rechristened the American President Lines with virtually
all of its stock owned by the government. Davies had
gone back to San Francisco and had become a director of
the government-owned line. He considered returning it to
the Dollars would be very distasteful and would also
interfere with his own plans to acquire control of the
line. The Dollars brought suit on the ridiculous theory
that they hadn’t transferred the stock to the government.
It had been only a loan and not a sale. And, now APL,
after the war years, was prosperous and valuable, the
loan had been repaid in effect and their stock should be
returned. The U.S. Court of Appeals for the District,
with Prettyman who was able, but no crusader for social
justice, and with Clark, the ex-Senator who was neither
able nor blessed with any social conscience, thoroughly
disapproved of any socialistic enterprise, even though it
had been inaugurated by Joe Kennedy and, therefore, held
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Mr. Schultz:
Mr. Gardner:
Dollar to be right. The Supreme Court refused to review
what was essentially a factual dispute .
. navies thought the government might be helped by a
minority shareholder and he asked the people at Justice
who were working on it who would be a good attorney for
him. They gave him a few names and he selected me
chiefly, I learned after we had become very good friends,
because of that long walk down the hall to talk to him.
By good fortune, although it had been by that time
ten years since I’d left Justice, the people that were
working on the case both in the Civil Division and
Solicitor General’s office were people I had worked with
when I was at Justice and we fell into an easy and
complete partnership on it. I’d attend the government
conferences and draft some of the government briefs and
we were throughout all very congenial.
we started a litigation in California based on the
old United States against Lee case, which said that you
could sue any agent holding the property of the
government for his misconduct but you couldn’t affect the
title of the United States in that suit. It’s a highly
metaphysical doctrine. Anyway, we brought suit in San
Francisco to establish the title of the United States to
own the stock.
This is after the Supreme Court denied certiorari?
Yes, and we had again good fortune. Chief Judge Harris
of the District of California who was an old Democratic
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politician and inclined to be sympath etic with us, issued
a preliminary injunction pending trial to prevent
transfer of the stock to the Dollars. Well, that
infuriated the D.C. Court of Appeals. At one time,
George Killion, President of APL, was threatened by the
Court of Appeals with jail unless he turned over the
stock within ten days and he was under injunction, also
having a jail penalty, if he did turn over the stock. So
with that sort of conflict it finally got the Supreme
Court’s attention. The government filed a petition for
rehearing on the original denial of certiorari, which was
never acted on. They never granted or denied, so for
three years we had a petition for rehearing pending in
the Supreme Court.
In the Ninth Circuit we were getting along alright
until Judge Murphy, a protege of Senator Mccarren, who
was very active in support of the Dollars, managed to get
himself assigned to the case. Murphy entered summary
judgment for the Dollars. The Ninth Circuit
reversed him and sent the case back for trial. We were
virtually home free but at that moment Sawyer, who was
Secretary of Commerce and after some reorganizations in
charge of the Maritime agencies, settled with the
Dollars, aided by a new Attorney General who I’m clear
was committed to this course by Mccarren, who was
Chairman of the Judiciary Committee. Sawyer agreed to
put the stock up for sale and to split the proceeds 50/50
between the Dollars and the government. It was a
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
multi-million gift to the Dollars. Perlman, who was
Solicitor General, was so offended by it that he
What year was that?
Why don’t you describe the practice at Shea &
It was very heavily dominated by litigation. I would
suppose that 90 percent of our activity in the first
quarter century was litigation. We were very fortunate
in the early years in our recruiting. A majority of our
recruited associates were Supreme Court law clerks and
the rest of them were about equally talented.
I don’t believe our early successes would be
possible in the modern world where litigation itself has
more or less mushroomed. Documents resulting from
discovery are now numbered in the thousands if not the
millions and it is generally believed that only a large
firm can take on large litigation. That attitude, of
course, leads in turn to the multiplication of.the
discovery requests, and the magnification of every step.
I don’t believe that today it would be possible, as
it was in 1948, for the railroads of the country to
choose as counsel a two-man law firm to handle an
antitrust case involving the joint ownership by the Class
I railroads of Railway Express, which was at that time a
package freight operation. It was rather more fun in
those days but I believe that every aged lawyer
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considers that in his years things were much better.
Mr. Schultz: What stands out about Shea & Gardner?
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
What·were its unique characteristics?
I would put it in terms of ability which I think is not
universally recognized, but is broadly recognized. We
have, for example, a substantial practice representing
major law firms who come into difficulty with malpractice
suits or with internal disputes. That doesn’t happen on
account of good publicity. In general, I would say our
claims to uniqueness would be a higher level of ability
than is customary plus an attitude that in general has a
slightly higher flavoring of social responsibility than
is usual at a law firm.
I also want to ask you to reflect on how the practice of
law has changed in the past 50 years.
You may recall, in that little history that I tried to
write, the pleasure I had in finding the comments on the
50th Anniversary of Sidley & Austin in 1914. The senior
partner bewailed the fact that what had been a
gentlemen’s profession had turned into a greedy dogfight.
It is perversely reassuring to see that 80 years ago, as
today, the aged attorney feels that the contemporary
lawyers were interested to an immoderate degree in the
net income of their activities and to a much lesser
degree in the professional excellence they might attain.
Again, the bulk of the present practice by the
Washington firms is a corporate practice and the house
counsel are increasingly interested in accounting
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for the pennies and less interested in professional
capacity of their retained lawyers .
. One major company that we’ve represented for more
than quarter of a century, in one area of their work,
thought they ought to have competitive bidding for that
work and for some reason I got mixed into it. I rarely
am involved with any practical problem, but happened to
be here. We decided to reply that they could reduce any
billing that they didn’t like to whatever amount they
chose. That wouldn’t do. They had to have competitive
bidding in order to prove to the Chief Executive Officer
that they had indeed saved every penny that was
Brennan, Black and Douglas considered the commands
of the First Amendment to be stone tablets thrown down
from above, and had no place for flexibility or any
common sense. They managed single-handedly to destroy
the legal profession’s traditional aversion to
advertising. Twenty years ago a respectable firm
wouldn”t think about advertising its virtues, or having a
department called business development. We haven’t got
to the point where the large good firms are advertising
extensively. Yet they are beginning to. In the last
year or two, I forget the exact instances, but they were
chiefly in government contracting, oddly enough, there
were two or three respected firms who have bought space
to explain their skills in the government contracting
– 135
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
I have a son, who about 20 years ago left Cleary
Gottlieb when he concluded that he did not want to retire
after 50 years and say that his life’s achievement was
the deposit of a hundred tons of toxic material in the
rivers of the nation. So he went over to the EPA, to the
Chesapeake Bay Foundation and then to Legal Services in
Northern New York, two or three years ago, at about your
age I should guess.
Which son is this?
Richard Gardner.
You know, I went to camp with one of your sons.
Well, that was my non-scholar son, Bill, I think.
Oh, that 1 s right.
Dick was the son who went in private practice in Clinton,
New York, a few years ago.
A small practice?
He is alone, in a small town much of his work results
from the practice of New York state to farm out to
private counsel or pay private counsel for representing
indigent clients in contests over social security,
disablement, and other small stuff. But he, last fall,
complained that he was having three or four trials a
week, which is not a bad menu to have. So, I’ve
overstated myself when I say just the whole profession
has gone down hill.
For you, what have been the highlights of private
practice? You have handed me a list of cases. I would
like you to begin by talking about representation of
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Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
people who got caught up in the McCarthy investigation.
Chronologically. The people who were caught up with
McCa?thy come pretty early.
Okay, why don’t we start with that.
As I said, the first four or five years I had virtually
no clients of my own and I had accordingly, a somewhat
larger availability for the needs of people being
harassed by McCarthy for representation. The hysteria in
the government in respect to so-called subversives is
hard to understand now, but it was real and almost
violent. McCarthy could waive a paper in the air and
say, “I have a list of 50 communists in the State
Department, and no one is doing anything about it.”
Well, people started doing things about it.
Even officials as able and as well intentioned as
Dean Acheson, a distant friend of mine, gave into it
pretty thoroughly and joined in ruining the career of
John Service and a couple of other foreign service
officers because they had predicted that the communists
would defeat Chiang Chai Chek and take over China and
obviously, to McCarthy and his allies, that meant they
were responsible for the loss of China. They were
hounded out of service. If Acheson knew the man
personally, as in the case of Alger Hiss, he was
courageous enough, but if he didn’t know him, well he had
a lofty indifference to what sort of injustice may have
been worked upon them.
I represented a young lady who had, as many people
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had, joined the Young Communist League when in college.
After she left Vassar, fifteen years before, when nothing
she had done or said could have caused anyone any
trouble, a deranged woman, working at the Library of
Congress at the same time that my client had, included
her among her targets. She was pursued through two
hearings at the State Department and cleared, and then
McCarthy produced his list of 57 communists in the State
Department, including her, and the whole damn thing
started all over again.
The practice then was for the departments and
agencies to receive reports from the FBI that were
compiled with an incredible naivety if not malice. They
would pick up whole, not varying a word, the more extreme
right-wing publications of anything that undertook to
disparage anyone, and they would quote it without change
as a statement of a reliable informant. They wouldn’t
even tell the officials in the departments when they
asked who the “reliable informant” was. It was at about
the same time that the so-called Committee on Un-American
Activities in Congress was holding hearings and
conducting investigations where the greatest tangible sin
of their victim, was that the unhappy fellow refused to
list everybody he knew who was or might be a communist.
It was not a happy time.
I represented about five of those people, four of
them successfully and one State Department employee
unsuccessfully. I should have, in her case, gone on
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into court to contest it, but she had not been candid
with me in one or two unimportant respects, and things
would have had to be explained. I had no desire to take
on several years of litigation on behalf of someone I
wasn’t too sure of myself. Because of that lack of
candor, I didn’t do it, but gave up after the
administrative decisions.
John Service, the unfortunate State Department man
that had predicted the communist victory in China, was
represented by Ed Rhetts, a friend of mine. The Civil
Service Commission took with deadly earnestness all the
FBI reports and in Service’s case they reversed the State
Department and said he should be discharged because of
doubts as to his loyalty. Dean Acheson, within two hours
after the report of reversal reached his department, sure
enough discharged Service. Rhetts then went into court
and lost in the District Court and the Court of Appeals
and asked me to help on the Supreme Court certiorari
where we rewrote his work and I have no doubt that we
were, indeed, helpful. He had, quite justifiably,
attacked Acheson as the perpetrator of the injustice, but
I had only too good a picture of tall Dean Acheson and
short Felix Frankfurter walking to work every morning and
did not think it would be at all helpful. So we found
that the State Department, in one respect or another,
violated their own regulations and while there was an
undertone that no decent man could support the
results, the specific arguments were based on
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
the violation of their own procedural regulations. The
court granted certiorari and reversed. I have no doubt
it did so because the majority of them thought it was an
outrage, but the opinion centered on the violation of the
regulations. By this time the Secretary was John Foster
Dulles, who no one had ever suggested was a man of
liberal or overly decent convictions. So they restored
Service to his job, but assigned him, he who was the most
promising of his class of Foreign Service officers, the
job of shipping furniture, which had no doubt its
responsibilities, but they were not very high.
What _explains Dean Acheson’s conduct?
I don’t know. He was of a skeptical frame of mind, and
it was not conviction. It could easily have been that he
had larger fish to fry such as the Marshall Plan.
Did you represent any of these people before a
Congressional Committee?
No. Not in private practice. I did at the Interior
Department. The FBI reports and the hysteria had no
reception in the Interior Department.
Did you get paid for this representation.
No. I’m sorry to say the girl that I failed to get
cleared, at some point, had a pang of conscience and sent
in what for her was a large sum of money, $1,500, as I
recall as a fee. Bill Warne wanted to pay me a fee, and
I said, “Oh no, no.” He said, “Oh yes, I want to, what
about $100, would that be alright?” So I said,
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“Yes.” He did most of the important work himself. Fulton
Lewis was a radio commentator who worked hand and glove
with-McCarthy and followed the same tactics. I’m sure
they consulted almost daily. To one television audience
he had waved a piece of paper which he said was from an
Interior Department file on Warne. Warne had succeeded
me as Assistant Secretary and had then gone off to Iran,
of all places, on a Foreign Development project. In any
event, Lewis said this piece of paper showed that Warne
was a communist and a thief.
I thought that I would go see this piece of paper to
start with. I went to the Solicitor of the Interior
Department and saw hanging on the wall of the anteroom a
large picture of me, which made me rather uncomfortable.
I told the Solicitor what I wanted. He got all nervous
and said he couldn’t let me into an Interior Department
file without the approval of the Secretary. I said,
“It’s Warne’s file, I’m his attorney.” He said, “No,
So I came back a week later after he had consulted
the Secretary. The Secretary told the Solicitor that I
couldn’t get into his file. I also noticed that my
picture was gone from the anteroom. Whether they burnt
it or sent it off to storage, I do not know after I
fussed around one place or another, including the
McCarthy committee, which was quite unsatisfactory.
Bill Warne, himself, solved the problem. He went to
the television station and had the tape rerun. As
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Lewis waived that paper in the air the camera caught it
square-on in one still and it could easily be read. It
was perfectly routine advice from Warne who was taking a
week’s holiday period, nothing else. I regret to say we
didn’t put it to public use, but we did write a rather
pointed letter to Lewis and nothing was ever heard of it
What factors during that time allowed McCarthy’s efforts
to be so successful?
The start and the shock of the Cold War, the ambition and
the depravity of Russia. Russia made a large, popular
impression, and also I don’t believe it was realized, or
generally realized, the degree of irresponsibility found
in McCarthy and the Dies Committee, along with a few
others who were discovering the political values in the
denunciation of people thought to be agents of Russia. I
think it reached extraordinary lengths. Oppenheimer, for
example, was in effect drummed out of the government as
disloyal because of trifling indiscretions unrelated to
the charge.
Or you can make a case that the tides of history
flowed as a matter of nature. At the end of the first
World War we had a similar period of hysteria where the
detail, which I haven’t in mind now, but was closely
comparable to what followed WWII. There’s no logical or
rationale way to tie the two together, but it is as good
an explanation as any.
Let’s talk about some of your cases and other projects.
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Mr. Gardner: There are too many of them there, many of no particular
interest. I’ve told you about the Dollar litigation.
The Gerlach case was interesting and it had to do with
whether or not the government had to compensate the
ranchers who were dependent upon the waters of San
Joaquin River in California.
Interior had dammed the river and converted it into
agricultural irrigation. They were pumping up water from
the Sacramento which drained the northern part of
California. In any event, it was a major project. The
ranchers had filed suit for compensation for the water
lost and the principal water attorney in California had
the initial case which had been argued and decided in the
Court of Claims on a wonderfully interesting point, to
wit, whether or not the government’s control of navigable
waters meant that they could take the navigable waters
without paying compensation.
At this point we took on a client, after the Court
of Claims decision. The petitioned for certiorari in
the Supreme Court on this highly interesting question of
liability for taking navigable waters. I filed a brief
amicus which pointed out that the issue wasn’t there.
Congress had enacted that the water was to be paid for
and there was no way to get to the issue which
preoccupied the parties in the Court of Claims. I don’t
believe, contrary to the position of everybody else in
this firm or indeed in the legal
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profession, that briefs aroicus curiae get much attention.
In any event, that aroicus brief was just ignored, and
they· granted certiorari.
The fifteen western states had joined in filing a
amicus brief on the merits to support the land owners,
not the government. California was the leader there and
I talked to the Deputy Attorney General in California,
again whose name I forget, and suggested to him that
quite possibly we would be granted oral argument if I
could say that I was speaking for the western states and
he also thought that I might have a better chance because
I was known to the Court as just having left the Interior
Department. So we agreed to try it. I moved for leave
to participate in oral argument on behalf of my client
and speaking also for the fifteen states. The states
ought to try this more often; generally they are just a
long footnote.
In any event, it worked and the court granted me 10
or 15 minutes for oral argument and I presented again the
facts which showed that the Congress had authorized
payment. Neither the government nor the private attorney
paid any attention to my argument. They had a nice
constitutional issue and they weren’t going to give it
up. The Court apparently felt unable either to accept or
reject my position. So they sent it down for reargument
in the next Term, and again I came up with my argument
that Congress had removed any issue. After that
argument the Court, on an opinion by Jackson, which
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Mr. Schultz:
Mr. Gardner:.
in effect followed my brief, held that the Congress had
indeed authorized the payment. So I found that one to be
a fair amount of fun.
Do you have any other cases that are as interesting or
were so successful?
Most of my cases were successful. APL, against Federal
Maritime Board is an example of a man inflicting major
injury on himself. After Davies took control of APL and
I became his counsel, we departed from the inflexible
tradition that one does not sue Santa Claus. The
subsidized lines had always thought that it was not only
risky but absurd to take a dispute with the Maritime
Agency into court. Well, we didn’t quite believe that so
we took them into court. We got Holtzoff who, one, said
we did have standing to sue, but two, we were wrong on
the merits. We took an appeal. In the meantime, the
Federal Maritime Board had begun to demonstrate why the
tradition arose that you didn’t sue Santa Claus. They
told us that we would not be eligible to purchase any of
the new vessels that the government had built. They were
advanced and very good freighters. They had about twenty
of them and in the normal course APL would have bought
two or three, but they said you don’t buy any as long as
you’re suing us. They also indicated they might force
APL to live up to its contract and build combination
vessels, passenger and freighter, for its
round-the-world service, which was certain bankruptcy
because by then the jet aircraft was coming in. The
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Mr. Schultz:
Mr. Gardner:
business community had abandoned the use of passenger
I told APL we had only about a 50 percent chance of
winning anyway. We abandoned our appeal. It’s an
important case in that ever after the shipping industry,
and in particular their attor neys, were running into
court on the slightest provocation and the maritime
agencies themselves became completely frozen with fear of
court litigation. In result, things that often had been
done in a month could now take some years. I spent five
years, at least, in petitions for rulemaking or
litigation, trying to get the agency to see they ought to
do the quick and sensible thing, proceed by summary
judgments and orders to show cause and so on so as to get
the work done in a matter of months rather than three
years which was the norm. The opposing attorneys, of
course, lawyers being what they are, would invariably
advise litigation. They had two objectives, one,
embarrassing or handicapping a competitor and, the
second, helping out the law firm.
Not until about 1980 or even later did the Maritime
Agency finally accept our proposal for show cause
proceedings by which they announced they were going to do
this unless somebody had a good reason why not. So that
was the level of success met by brave men going into
What do you recollect of Judge Holtzoff?
(Laugh) I knew him at Justice when we were both at
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
Oh, he was at Justice?
Oh yes, he buzzed around as a sort of a roving assistant
to the Attorney General and he was fairly volatile, hardworking
and his instincts were by-and-large good. He and
I tried, for one example, to establish a filing system by
which research done in one case would be available in
another instead of being done all over again. It was too
ambitious a job, we didn’t get very far.
Then, when he got on the court, he became completely
irascible. I was down there once to present a motion to
him and the man before me was standing there being
denounced vigorously by Holtzoff. He thought that every
lawyer knew better than that, what did he mean by filing
such a motion. He finally said, “Now what do you have to
say for yourself?” And the man said, “Only this, your
Honor, it’s not my motion, it’s my opponent’s motion.”
Now what else?
Another maritime case that went to the Supreme Court.
Oh that’s the Isbrandtsen case. That, too, has its
interesting points. we had represented, back when I was
Shea’s assistant, International Relief Organization, who
had been defrauded of about $800,000 in the repair and
rehabilitation of a ship. After many cases in many
courts, we had recovered about 60 percent of it, mostly
through a fraud suit that was in San Francisco, against
the shipyard and their attorneys, Graham and Morse, and
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Mr. Schultz:
Mr. Gardner:
Mr. Schultz:
Mr. Gardner:
the Bank of America. The defendants settled the fraud
case. When Morse came to Washington as General Counsel
of the Maritime Board, and then its Chairman, I wondered
whether I should tell my clients that there was a
probability of my being in disfavor because of that fraud
case. I decided that, no, because the President of APL,
whom I did not admire, would be in a large tizzy over it,
more than necessary, I didn’t tell them. I never found
any indication that Morse didn’t deal with me perfectly
fairly. Well, the Isbrandtsen case put an end to all
those worries. It was the most important case the
Maritime Board had had and he didn’t trust his agency
General Counsel very thoroughly, correctly, because he
wasn’t very competent. So he retained me to represent
the Board in the Supreme court.
You were saying the Maritime Board arranged for you to
represent them in the Supreme Court, which does not often
As far as I know, it’s never happened.
Before or since?
The WINAC case is also interesting. Two lines, American
Export Line and American President Lines represented the
U.S.-flag trade from Italy to the United States, the
westbound trade. APL was in it with its round-the-world
vessels. The two principal offenses under the Shipping
Act were (1) agreements between steamship lines that were
not filed with the Board for approval, and (2) rebate
from the published tariff rates.
– :48 –
Export and APL had managed to violate both of them. They
formed an agreement to the effect that they would not pay
more. than 3 percent rebates and those only to designated
freight forwarders in Italy. So the concept of an
unapproved agreement to violate the law was rather
shocking to the Board, and they instituted proceedings.
I went over to Genoa and spent a week there getting
the full facts. My witness, the APL manager there, had
died between my week there and the time of the hearing,
so I filed a document said to be the intended testimony
of William H. Sharon. One hundred and fifty pages
relating every detail. The government attorney, who had
no other evidence, had to agree to accept it, though
“Only against APL.” In any event, the main thrust of my
case was the Maritime Board had, from the beginning,
accepted the rebate system. I had letters indicating
that. They had done nothing about it. In fact, they had
done nothing about any control of practices followed
abroad and they couldn’t.
I said that APL and Export by this agreement had
done more to control foreign rebating than the Maritime
Board had in its entire history and in result they were
threatened with fines including the loss of subsidy which
exceeded the fines that the Maritime Board had collected
from the entire industry in its whole history. It wasn’t
very appealing to the Conunission but it was effective.
They and the Maritime Administration ended up saying
that there would not be any fines or loss of
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subsidy on the quaint ground that the misconduct had
ceased. But, we also enraged the other lines who’d
figured in my little account of what Sharon would have
testified to. So, we had no penalty, but universal
condemnation as a result.
Piper Aircraft v. Reyno, is probably the most widely
important of the cases I’ve had. That involved a crash
of a small plane which is conducting a shuttle service
between Bristol and Edinburgh. It went down over the
Scottish mountains, and all concerned were killed. One
of the professional aircraft plaintiff’s lawyers by the
name of Cat hcart very graciously sent over to Scotland
his personal engineer, apparently the one he uses in
these cases, to help the authorities in the investigation
and, incidentally, to sign up the beneficiaries of those
who were killed, which he did. I think there were 9 or
10 passengers. He returned to Los Angeles with all of
their estates committed to Cathcart. Cathcart had a
trustee pendente lite appointed. By some coincidence the
trustee was his secretary and by another coincidence she
retained Cathcart to present the claims against the
manufacturer of the airplane and the manufacturer of
the propeller. We had, at that time, been representing,
occasionally and only in the appellate courts, the
American Aircraft insurance underwriters or some
similarly complicated name, a combination of the
insurance companies who covered the aircraft
industry. My partner, Rich Sharp, had been doing
– 150 –
their work on one or two of the maj or crashes. They
considered him a little young for the Supreme Court so I
took. that one on. A few years later Sharp was able to do
the Supreme Court work himself.
There were two counsel, one representing Lloyds and
I re presenting the propeller company. The Lloyds counsel
had no business whatsoever being in the Supreme Court.
It made him enormously nervous to the point where
rational thought was difficult for him. At the same time
he had a trial scheduled in Denver for the next day and
he was going into what would be a two-week trial without
any prep aration and no qualms whatever. He had an
assistant he said that had been working on the record and
he’d be with him in court. If I had had that trial I
would have spent at least two or three weeks in preparing
for it, getting all the facts carefully organized and
strategies developed. It all goes to show, I think, that
your own barnyard is a familiar one. Anyway, he did such
a bad job that I had to spend of my fifteen minutes the
first twelve minutes straightening out the mistakes that
he had made in trying to explain rudiments. Fortunatel y,
there came the luncheon recess. When we started
after that the Marshall told me that I had 3 minutes and
36 seconds left in my argument. I announced that I
thought that I could make the six indispensable points in
that time, and the Court shut up. They didn’t ask me a
question. They thus got a coherent and fairly
effective 3-minute argument. And, they decided
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Mr. Schultz:
in that case that foreigners could not sue the American
manufacturers in Armerican courts on foreign accidents.
I won that case unanimously on the points that had been
included in the petition for certiorari on three related
points not included in the petition, I won only four to
three the dissenters complained that the issue hadn’t
been in the petition. So I thought on the whole that was
a rather successful little venture.
I spent almost ten years after my flight from APL
representing Peabody Coal Company, chiefly in respect of
the Surface Mining Act of 1978 which was vastly
complicated and vastly expensive and undoubtedly vastly
needed. The open-pit coal mining was devastating the
terrain in large parts of the country. The litigation
was significant to me chiefly in the fact that we worked
out, after some bit of floundering among dozens of
companies, an arrangement by which we carried on the
litigation jointly, Crowell & Moring representing the
Coal Association and I representing Peabody (who also
paid its part of the Coal Association’s bills). It was
an exceedingly pleasant, and we like to think effective,
cooperation between Crowell & Moring and ourselves. I
haven’t had, at any time, the same sort of relaxed
feeling in inter-firm cooperation that I had with them.
We would split up topics, one would do one and one would
do the other, divide oral arguments and arrange
everything for our mutual satisfaction.
Who were the lawyers at Crowell & Moring?
– 152 –
Mr. Gardner: Chiefly, John MacLeod. They being a much larger and much
more specialized firm, he was their mining man.
Oh dear, Abercrombie v. Davies, deserves a moment’s
mention. After my client, Ralph Davies left the
government Standard Oil refused to make him president
when they had a vacancy. He would have succeeded
normally, as Executive Vice President, but he had
antagonized much of the oil industry as Petroleum
Administrator for War. It was a source of pride rather
than regret that they wouldn’t take him back.
In any event, he formed something called American
Independent Oil Company consisting of one wealthy
individual in addition to himself and, I think, eight of
the then smaller oil companies, such as Ashland and
Signal Oil & Gas, and also one virtual, if not complete
major at that time, Phillips Oil Company. As it later
developed, it was an impossible combination because
neither Phillips nor Davies were at all accustomed to
having anyone differ with them and the internal quarrels
grew great. Davies had attempted to build a firm
alliance of the smaller companies against Phillips’
domination and had agreements that they would both vote
together and their representatives on the board of
directors would act together.
Ashland, I think, decided to break the agreement
and then to join the Phillips side of the controversy
and there followed an enormous amount of litigation
starting in California. The board was meeting in
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Chicago, when Ashland defected. I went out there and
spent a day drafting a complaint, and dictated it over
the telephone to a friend in the Mccutcheon office. I
went on to San Francisco the next day, and got the
injunction from the state court in California.
But then the Phillips group began litigation in
Delaware, which went on for a year or two through all the
Delaware courts. In the end we lost. And, I think,
probably inevitably had to lose. In the first place, you
can’t make an agreement binding the directors’ discretion
and in the second place, the stockholders agreement
required under Delaware law that it be posted and made
public in either Wilmington or Dover, I forget. So we
lost it, but then there was a face-saving agreement
settling some additional litigation we had brought in
California. The agreement settled that Davies remained
as chairman and maybe one or two minor things. As
chairman Davies was entitled to bring an attorney to the
directors’ meetings, which is an odd quirk of the law.
The reason it was the rule was itself an oddity;
there was a large treatise on corporation law, a standard
treatise, the name of which again I forget, but they had
reported a Louisiana lower court case in the middle of
the 19th Century where the court held that chairman of
the board could, of course, bring his attorney to the
board. There was no other law other than that
Louisiana case which had been embalmed in the
– 154 –
corporate treatise.
I was allowed to attend and it was a delightful
experience. The directors were each the chief operating
officers of the oil companies and they had an expertise
in the oil business no other board of directors had ever
had. They worked in complete, expert harmony. Unless it
got to be an issue involving Phillips’ control or Davies’
control in which case the animosity was extraordinary,
and so extraordinary indeed that the rest of the
companies eventually bought out Davies stock. I guess
the amounts are relevant. He had paid $1 million for it
in a non-recourse note and hadn’t repaid the note, of
course, but they bought the stock for $10 million. And,
got rid of a thoroughly disagreeable addition to the
board and there my knowledge of the oil industry stopped.
No, actually it didn’t, I was later on the board of
Natomas, but that was after a ten year interval. Aminoil
found oil in Kuwait and built quite a large operation
there. Davies would never go to Kuwait. He never saw
his project underway because he had a conviction that if
he went there he would have to go to gala dinners in
which Arabs with unwashed hands would dip into the pot
and pull out sheep eyes.