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Thursday, February 28, 2019

Prof. Thomas L. Shaffer, RIP

My colleague -- and friend, teacher, mentor, inspiration -- Prof. Thomas Shaffer died on Tuesday. A former dean of the Notre Dame Law School, he was a creative, provocative, and incredibly prolific scholar. His writings on legal ethics, narrative, literature, poverty, religion, clinical teaching, and other things are a wonderful legacy.  I recommend this lovely remembrance by Tom's student and friend, Prof. Robert Cochran (Pepperdine). 

I first discovered his work during my second year of law school, when I was in a (great) seminar taught by David Luban on "The Legal Profession."  He assigned an article of Tom's called The Legal Ethics of Radical Individualism.  The piece's claims, tones, and premises were very different from most of what I was reading as a law student, and his unapologetic transparency about the relevance to lawyering of one's religious faith and commitments was welcome and inspiring.  It opened with this:

Most of what American lawyers and law teachers call legal ethics is not ethics. . . .  Its appeal is not to conscience, but to sanction. It seems mandate rather than insight.  [It] rests on two doctrines:  first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. . . .

Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. . . .  [O]rganic communities of persons are prior to life and in culture to individuals-- in other words, . . . the moral agent is not alone.    

This article led me to Tom's books, American Lawyers and Their CommunitiesOn Being a Christian and a Lawyer, Faith and the Professions, and then to his radically (think Hauerwas, etc.) Christian brand of communitarianism more generally. I wrote a paper for Luban's seminar on the legal ethics issues raised by representing so-called "death row volunteers" that became, eventually, this early article of mine. I mailed my paper to Tom -- whom I'd never met and who was, after all, being paid to teach other students, not me! -- and he wrote me back a three-page, single-spaced letter with helpful feedback, comments, and encouragement.  I was so happy to be able thank him, five years later, when I came to Notre Dame to be his colleague.

Tom was a deeply good person with a genuine heart for those on the margins. He was a chaired professor, but insisted on working and teaching in the Legal Aid Clinic. I believe that I very well might not be a legal academic today, but for him, and I'm very grateful to him for that (and many other things). RIP.

Posted by Rick Garnett on February 28, 2019 at 11:07 AM in Rick Garnett | Permalink

Comments

A beautiful legacy. May he rest In The Peace Of Christ.

This paper will serve as a complement to “The Legal Ethics Of Radical Individualism”.

https://scholar.valpo.edu/cgi/viewcontent.cgi?article=2112&context=vulr

Posted by: Nancy | Mar 1, 2019 8:46:01 AM

i still use the basic hypo from "The Legal Ethics of Radical Individualism" every year i teach PR and we go on to discuss the Model Rules' foundational presumption of individualism.

Posted by: anon | Feb 28, 2019 11:39:35 PM

Thanks for sharing this lovely eulogy. I will read his paper "The Legal Ethics of Radical Individualism" in his memory. It sounds excellent.

Posted by: Brian L. Frye | Feb 28, 2019 4:10:22 PM

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