People Who Have Shaped the Teaching Careers of Our Faculty—Part 5: Walter Weyrauch, Mentor and Friend
The editors of this blog have asked a number of faculty members to write about those who have been influential in their understanding of the law. In this, the fifth post in the series, Professor Alison Barnes writes about her mentor and friend, Walter O. Weyrauch (1919-2008), who was Professor of Law at the University of Florida and Honorary Professor of Law at Johann Wolfgang Goethe University in Frankfurt am Main, Germany.
Walter Weyrauch remains a unique thinker in the law, known by many worldwide, and for more than two decades since I took his classes at University of Florida, my principal guide and inspiration in law and law teaching. Our dialogue, which included hundreds of snail mail letters on goofy art note cards, reflected Walter’s world view and legal philosophy, and confirmed and developed mine.
In demeanor, he had an impassive face and long pauses. What seems a dissonance in style became cause for student comment towards the very end of his teaching career. He said of his student evaluations: “They noticed I have a German accent” for the first time since he began to teach at University of Florida 50 years before. His chuckle over this was signature. Indeed, perception of him had evolved from the days when he was rumored to have been a lieutenant in the Luftwaffe. (Chuckle.) Well into his eighties, he negotiated his retirement three years away. He said, “I thought I would be ready; I am not ready.” In part, he feared he would have too much time to reflect on unresolved feelings about his own experience.
Walter provided to me two versions of his memoirs, one hard copy (typed on his manual typewriter) and a later electronic revision, scanned in by his assistant, for my editing. He had received annotations from several scholars, but these were the last so I have worked with them and hope they will be available for any who wish to read, search for their own names, comment.
Walter’s legal interests and philosophy were the product of his life, so I recount very briefly a few of his extraordinary experiences. Walter attended law school under Hitler’s rule, and told of the professors’ use of hypotheticals and veiled references to criticize the Reich while maintaining deniability if questioned. This method was used by dissident academics in regimes beginning at least in the middle ages, and can be observed now when online critics of the Chinese government use puns and humor to avoid censors. (See, e.g., Michael Wines, Crackdown on Chinese Bloggers Who Fight the Censors with Puns, N.Y. Times Int’l, May 29, 2012.) After graduation, he was drafted into the German army, quite different from the small Nazi military. He was certain he would rather die than kill another human being, so he resolved to starve himself until he might be released. Avoiding service by feigning disability was tempting to many, and cause for being shot without process if suspected. In constant company, Walter resolved to appear to eat while consuming as little as possible, returning his ration of stew to its metal container and purging any food he could not avoid swallowing. This is the pattern of serious eating disorder, and like such patients and many who fast for other reasons, he reported a remarkable calm and clarity of perception. He said he felt very guilty, though, when his fellow troops offered their food gifts from home to tempt his appetite, and he had to appear to eat with gusto. They also helped him as he wasted away by doing his work when he tried and failed. Army doctors warned him of the risks of malingering, but never identified the source of his failing health, which caused his discharge just before the surrender. At six feet four inches and heavy boned, he weighed less than 100 pounds.
His observations of a broken German society immediately after the war, in the absence of state legal authority, formed an important part of his legal scholarship in informal systems of law. He chronicled packs and cartons of cigarettes as the only currency of definable value, used to estimate the value of other goods and services, and the practice of welcoming young Allied soldiers into families as the lovers of wives or daughters, exchanging the emotional and practical comfort of home life for protection. He describes the immediate emergence of local leaders and rules of conduct to reduce violence, theft and vandalism, not unlike informal rules more recently observed in homeless groups and gangs. In 1945, as a former court official, Walter was appointed by the American Military Government and their German appointees to interrogate those with suspected Nazi ties for “dangerousness” and to examine Gestapo files. But soon he chose to emigrate to the U.S.
He recounts that he was unable to get work in firms despite excellent legal credentials, in significant part because hiring partners believed he must have been Jewish and had altered his date of immigration to hide flight from persecution. Walter also found problems in retooling his education holding a German doctorate in law, so he repeated his credentials with a master’s degree in law at Harvard and a doctorate in law at Yale, meeting extraordinary legal personalities while living in poverty throughout.
Walter’s first book (his dissertation) was based on interviews with German lawyers (see The Personality of Lawyers: A Comparative Study of Subjective Factors in the Law (Yale Univ. Press, 1964) (noting that the sense of being a fraud, a false personality, was common even among well-established practitioners)). He had a great interest in the development of law and its enforcement processes in isolated societies, particularly islands such as Tristan da Cunha in the south Atlantic (see Unwritten Constitutions, Unwritten Law, 56 Wash. & Lee L. Rev. 1211 (1999)). He brought his interest to NASA research for space exploration in the 1960s by defining the informal law developed among young men confined for months in an apartment, ostensibly to measure the impact of diet but also to observe human interaction in isolation (briefly described in the article just cited and manuscript on file “The Law of a Small Group: A Report on the Berkeley Penthouse Experiments,” Univ. of California Berkeley (Mar. 1987)). With former student Lynn LoPucki (Professor of Law at UCLA and visitor at Harvard Law School), he published A Theory of Legal Strategy, 49 Duke L.J. 1405 (2000), with his long-standing conviction that formality, ritual and strategic deviations from them were powerful tools of the law (see Oral Legal Traditions of Gypsies and Some American Equivalents 45 Am. J. Comp. L. 407 (1997), especially about rituals before the U.S. Supreme Court). He had developed his ideas about legal ritual in a book review essay, Taboo and Magic in Law, 25 Stan. L. Rev. 782 (1977) (reviewing Albert A. Ehrenzweig, Psychoanalytic Jurisprudence: On Ethics, Aesthetics, and Law (1971)).
Walter’s last book was an unprecedented examination of “gypsy law,” a never-recorded but strong system of behavior control and courts that serves the Roma throughout the world where they live among, but separate from, non-Roma or gaje society (see Autonomous Lawmaking: The Case of the “Gypsies,” 103 Yale L.J. 323 (1993) (co-authored with his student Maureen Bell)). The book, which included work by Roma scholars, opened the Romany world to further exploration, as seen this spring in three parts in the National Geographic Channel’s American Gypsy. The book was released the week of September 11, 2001, and found no place in any literature. He called me to talk about his distress that it would become “old news” and never get any attention. Would I write a review? I am glad to say the Marquette Law Review quickly published my review essay (see 86 Marq. L. Rev. 215 (2003) (reviewing Gypsy Law: Romani Legal Traditions and Culture (Univ. of Calif. Press, Walter O. Weyrauch ed., 2002))), and other recognition has followed.
My frame of reference in law and teaching is evident in the observations here about current analogies to his interests in informal law and rituals. Cultural clues and interests determine what is working or failing in society, in education and counseling, and in court, and how to respond. Academically, my work begins with the publication of the first casebook in Elder Law, now in its 5th edition. Walter thought it was a remarkable synthesis of fields of law and other scholarship. He maintained that the American preoccupation with youth was misplaced, preferring the European view that a person only starts to be interesting at 40. His own best scholarship began after age 40. (In contrast, he was thoroughly uninterested in my stint as U.S. Senate Committee on Aging staff, and indeed my role in the development of detailed nursing home quality regulations prevented me from meeting his mind in our only explicit joint manuscript “The Unwritten Law of Nursing Homes,” begun after he had spent time in rehabilitation.)
In health law, especially chronic illness and disability, I recall the lifelong impact of Walter’s enforced “rest cures” in Davos, Switzerland, likely due to tuberculosis, and the problems of a health care system that rewards immediate intervention that might heal by surgery and chemistry but doesn’t heal the psyche or the mind.
My fields of teaching cut across the doctrinal fields, with Health Law, International Comparative Law. By design and by interests, I proceed through the course material in a pattern described by one student (who had several graduate degrees) as “focus in, focus out.” Focus in on the detailed facts, the impact of decisions in the lower courts and strategies that might have changed the result, focus out on the social context of the case and the holding, and how law and policy respond. My exams, like his, use fact patterns from the media – but this is a different era, and I can’t give just one story straight from the news that students must analyze as they might. This is the change in education generally to subjective accuracy and rationally accountable process and results. Walter recognized that rational thinking is only a limited and relatively weak part of thinking and motivation for the individual and the society.
I remain interested, as Walter was, in race and class distinctions. He taught in a Southern town when racial divisions in a Southern state school were assumed, and when differences in class were largely denied because of American democratic values. He was, I note, very proud to be a naturalized American citizen, and decades later spoke at a naturalization ceremony (see An Immigrant’s Encounters with Race in America, 48 Fla. L. Rev. 445 (1996), and Florida Bar article with his remarks (on file)). I can still say with astonishment that he was the only person I have known who recognized that one could tell a truly lower class household because the bathtub is full of stuff like old car parts and debris. Because I had visited homes in that hungriest county in the U.S. to assist poor elderly people, I knew it was true, but I had no idea what it implied in terms of values and interventions. And, finally, I note that Walter names as his defining influence at the beginning of his intellectual life his Aunt Coca, who lived with the family because of a condition somewhat like Down syndrome. She would recite poetry whenever he wanted, take endless walks, answer his endless questions, and didn’t distinguish between intellectual and other thinking. She provided him with his lens on the world.
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