The Law: A Gifted Gadfly

Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure (1965).

—Footnote to Miranda v. Arizona.

When knowing readers spotted that reference on page 2 of the Supreme Court’s Miranda decision last June, they could well infer the impact of a zesty, gabby, witty Michigan law professor named Yale Kamisar. At 37, Kamisar has already produced a torrent of speech and endless writings that easily make him the most overpowering criminal-law scholar in the U.S.

Kamisar’s article was only one of scores cited in Chief Justice Warren’s opinion that spelled out strict new rules for police treatment of suspects. But it was there because its 95 pages powerfully dramatized a yawning gulf in U.S. justice: the honoring of constitutional rights in what Kamisar called the “mansion” of the courtroom, contrasted with the dishonoring of those rights in the “gatehouse” of the police station. Indeed, Miranda’s whole purpose was to protect an accused in the gatehouse as well as the mansion.

Brains & Blood. In a sense, Kamisar has already achieved a similar equalization between the classroom and the courtroom. So has many another activist law scholar these days: by intense teaching, they influence U.S. judging. Kamisar may not be the brightest, the deepest, or the most influential. But in criminal law, at least, he is the nation’s loudest and most visible scholar—quite a feat considering his unpromising start.

Son of a Ukrainian-born bakery-supply salesman with an eighth-grade education, Kamisar grew up playing stickball in The Bronx. He had no plans, no money. Dreaming of becoming a sportswriter, he drifted through New York University (’50) as an English major and picked up a Phi Beta Kappa key in the process. His parents’ all-but-ritual desire would have had him study medicine. Instead, he grabbed a Columbia Law School scholarship. As he puts it: “Every Jewish boy who can’t stand blood goes to law school.”

No sooner had he started assaulting casebooks than Kamisar was yanked out of class to start assaulting T-Bone Hill as an ROTC shavetail in Korea. When one of his men killed a Communist who was about to kill Kamisar, the future advocate showed his talents by so embellishing his savior’s deed in a written report that the startled soldier got a Distinguished Service Cross. Back at Columbia (’55), Kamisar unleashed his towering energy on the law review, and in an early article brashly “proved” that one top member of the faculty was “confused.” The prof now calls him “one of the most effective gadflies in the country.”

Dissents & Dragons. With $7 in cash and a new wife, Kamisar went to work for Washington’s lofty law firm of Covington and Burling. He soon found his “credentials” insufficient. “The younger men had all clerked for Frankfurter, the older men for Brandeis.” More important, it might be years before he would get to argue a case. Kamisar switched to teaching criminal law at the University of Minnesota. Avid to improve what was then the lowliest subject in the curriculum, he wrote, wrote, wrote.

In ten years, Kamisar has turned out three books, countless speeches and 13 legal articles reflecting ferocious research. His first effort began as a brief book review on the subject of mercy killing, plunged him into six months’ research and produced a 60-page article with 250 footnotes. His next piece, on search and seizure, took seven months, ran up to 125 pages with 400 footnotes. In 1964 he was co-author of a pamphlet on Modern Criminal Procedure that has since grown to 875 pages. He is also coauthor of a constitutional casebook used in 50 law schools. He has another 1,000 pages ready for a book on substantive criminal law. He also dreams of annually publishing the transcripts of perhaps 40 of the Supreme Court’s most significant oral arguments—a valuable legal service now almost totally unavailable.

No sooner had Minnesota lent Kamisar to Harvard as a visiting professor in 1964, than the University of Michigan hired him for the year after. No matter. Like a Bronx Socrates, he harangues entranced students in thunderous tones that surely reach all three campuses. Kamisar has two passions: “translating” how Supreme Court decisions affect all Americans’ liberties—and blasting polemicists who accuse the court of “coddling criminals.” A dangerous counterpuncher in any argument, Kamisar plays no favorites: he has fought American Law Institute conservatives who sought tough model rules of police questioning, while he “gags” at Supreme Court Justices who rewrite history to fit libertarian opinions.

Over the past year, Kamisar has slain assorted dragons at 13 high-powered “confession” conferences from Arizona to New Jersey. As a debater, he sometimes verges on logomania—while disarming even his worst enemies with veracity as well as vivacity. As former U.S. Solicitor General (now Federal

Judge) Simon Sobeloff puts it: “Many people think quickly but inaccurately, or perceive clearly but take too long getting there. Kamisar combines the two virtues.”