Tuesday, June 23, 2009

Robert Post Named Dean of Yale School Law, Gives Blogger Passing Grade

Sherman Oaks, California

Robert Post -- who today was named Dean of the Yale Law School -- is the nicest guy who ever terrified me. And, in the only extended conversation we ever had, he taught me a great lesson in being a lawyer.

All J.D. students at Berkeley were required to write a thesis paper, and Professor Post was my supervisor. Smart doesn't begin to describe the guy. Other faculty members were intimidated by him -- his brains, I hasten to add, not his manner, which was always kind and gracious to me.

The topic of my paper involved the legal history of the right of publicity, the laws that celebrities use to prevent the unauthorized commercial reproduction of their names and images. One of the elements of the law is that an image of a person must be "identifiable." So, if Cameron Diaz is watching a game in Dodger Stadium, you can use a photo of the crowd in an ad without her permission as long as you can't identify her among the faces. If you can, you may have to pay her.

The paper traced twentieth century court decisions and argued that the identifiability requirement was a direct descendent of the "of or concerning" requirement found in defamation law, which holds that a defamatory statement must be understood to be "of or concerning" the victim. I found early cases which, grappling with the then-novel idea of an enforceable right to a person's image, imported and adapted the prior defamation precedents.

I was jangly with nerves when I met with Professor Post to defend the paper and receive my grade. I had virtually memorized the thing and all of the underlying cases, as if I were preparing for the Moot Court from Hell. If he questioned the basis of any sentence in the paper, I was ready to cite him the exact supporting decision.

"You're absolutely right," he said. "The identifiability requirement comes from the 'of or concerning' requirement."

"Oh," I said, rudderless.

"But you seem to have overlooked the fact that your thesis raises several interesting doctrinal questions . . . ."

And, with that, we had a pleasant conversation, the thrust of which was that proving your case can become the first step in a longer intellectual inquiry. He discussed the way my thesis affected other types of claims -- but his overall point was that I shouldn't become so focused on the immediate goal that I don't see the larger ramifications.

"And what grade would you give this paper?" I asked as the conversation ran its course. In a chickenshit move at the beginning of the semester, I had registered for the paper as a Pass/No Pass, but I was worried, because that's what I do.

He lifted a pencil from his desk, wrote a P on the top, and handed it to me with a big smile, since it was the last grade I needed in order to graduate and become a lawyer.

I've always wondered what the letter grade would have been.

In any event, congratulations to Professor Post for landing the most prestigious job in the legal academy.


Anonymous Roger said...

ha ha ha.

8:47 PM  

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