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May|June 2002

Legal Affairs: Lincoln Caplan

In 1994, when Boris Bittker was 78 and more than a decade into retirement from teaching at Yale Law School, he decided to start a new kind of publication. He had grown concerned about legal scholars' lack of interest in what he called "the link between law and actual life," and the undigestible writing in law reviews that often betrayed the writers' indifference.

Boris spent about a year developing and then published an issue of a journal titled The Yale Survey of Current Legal Issues, which aimed "to bring the fruits of academic legal scholarship" to the attention of lawyers outside the academy. Seven years later, we introduce a new magazine, Legal Affairs, which grows from Boris's initial vision. It has an expanded purpose: to get lawyers and judges, authors and journalists, scholars and other writers to reach and engage a general readership about what we call "the intersection of law and life."

Our premise is that law and lawyers matter deeply in the United States and around the world and that literate, probing, wonderful writing about the law is found too rarely in even the best general newspapers and magazines. Our goal is to present this kind of writing regularly and to stir a challenging, vibrant conversation about the law—broadly defined to include everything from the increasingly political nature of state courts due to the rising expense of campaigns for state judgeships, to the role of adoption in settling disputes in Micronesia.

Legal Affairs is a nonprofit venture that enjoys the privilege of Yale Law School's start-up support and of association with that institution, but it must succeed in the marketplace to have a long life. The magazine is separately incorporated, housed, and run, and editorially independent. Boris eventually bowed out of this project so he could get back to his own writing. But about Legal Affairs and how it should operate, his view still prevails. In an early memo, he wrote, "1. EDITORIAL INDEPENDENCE is a sine qua non of any arrangement."

In his career, Boris has shown what independence means. He clerked for Judge Jerome Frank, a giant of the federal bench (and author of a classic of iconoclasm called Law and the Modern Mind); he earned a Purple Heart in the 42nd Infantry Division during World War II; and he became a professor at Yale in 1946. Among his 14 books are treatises that made Boris pre-eminent among American tax scholars. He also became known for his tart, slashing criticism about tax policy—including policies devised by people whose general goals he shared. In scholarship and teaching, a colleague of his once observed, he acted on the old-fashioned belief that ideology had no place in his field and that technical mastery was paramount. The chair his achievements earned him at Yale was a Sterling professorship, the university's most prestigious.

Boris's most dramatic piece of scholarship was not about tax law but about the Constitution. It was astonishingly far ahead of its time. In 1973, Random House published his book The Case for Black Reparations, which is still the only major piece of research to address the question systematically. Boris argued that, "far from bizarre or unprecedented," the concept of reparations for American blacks follows a well-developed model of compensation for misconduct by the U.S. government. The heart of his proposal was a lawsuit that would be based on Brown v. Board of Education, which outlawed segregation in public schools. The idea was to seek payment for at least the black Americans who had been forced to attend segregated schools. A generation later, his case has helped build a national movement.

Boris has also exercised his independence by taking photographs that record his diverse adventures and humanist's instincts. One of his best photographic inspirations exists only in his mind's eye, but provides a captivating glimpse of Boris's appreciation for life as well as the law—appreciation with which he has endowed this magazine.

One winter Sunday several years ago, for the only time in Boris's 50 years as a passionate New England skater, large parts of Long Island Sound froze solid enough to be skated. He and a friend and colleague, Ralph Brown, rushed to meet at the shore near New Haven, set off on their blades, and were soon a long way out. When they finally turned back, they found themselves on an ice floe, separated from land by a "daunting expanse" of water. They figured out how to rescue themselves—by heading for a pier—and Boris had to cover the last few feet hip-deep in the very cold drink. It was the image of his friend gliding along the still unbroken ice that stuck with him. "Even now," Boris wrote recently, "I can see Ralph as though etched on a gleaming chunk of Steuben glass, skating with grace and verve on the Sound."

Lincoln Caplan is the editor and president of Legal Affairs.

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