This isn’t election-law related, but as a point of personal privilege, I want to highlight some parts of this excellent NYTimes Obituary of Yale Kamisar. Yale became my colleague when I began teaching at the University of Michigan Law School. He was not only one of the legal giants of his era, but a great man in every respect. May his memory be a blessing:
Yale Kamisar, a legal scholar whose work on civil liberties and criminal procedure had a profound influence on landmark Supreme Court decisions like Gideon v. Wainwright and Miranda v. Arizona, died on Sunday at his home in Ann Arbor, Mich. He was 92.
Professor Kamisar began to wrestle with the issues of criminal procedure — the rules under which the legal system adjudicates crimes — in the late 1950s, as a newly hired faculty member at the University of Minnesota.
At the time, the subject was considered largely a sideshow to the big questions in constitutional law. What few courses existed were sloughed off on new hires, and everyone expected Professor Kamisar to move quickly into teaching antitrust, an area he knew from his time working for a Washington law firm.
Instead, within a decade he established himself as the leading figure in an area of the law that, thanks in large part to his work, suddenly seemed not just important but intellectually vibrant. He continued that work at the University of Michigan, where he moved in 1965….
“He was writing articles about what the court should do and what the court had done recently, and they were in turn citing him,” Orin Kerr, a law professor at the University of California, Berkeley, said in an interview.
Professor Kamisar’s greatest impact on the court came in 1966, in its decision in Miranda.
The year before, he had published a lengthy essay in which he compared the American legal system to a gatehouse and a mansion — the gatehouse being the police interrogation room and the mansion being the courtroom.
“The courtroom is a splendid place where defense attorneys bellow and strut and prosecuting attorneys are hemmed in at many turns,” he wrote. “But what happens before an accused reaches the safety and enjoys the comfort of this veritable mansion? Ah, there’s the rub. Typically he must first pass through a much less pretentious edifice, a police station with bare back rooms and locked doors.”
The courts offered extensive protections, rooted in the Fifth Amendment, covering the right against self-incrimination. But no such protections existed in the police station, where interrogators could coerce a suspect to confess.
No system of justice could last long, Professor Kamisar argued, if it relied on the coerced flow of information from the accused. The court agreed. In a decision written by Chief Justice Warren and citing Professor Kamisar’s work, it ruled in 1966 that criminal defendants had to be informed of their rights before being questioned, especially their rights to remain silent and to legal counsel.
That same year Time magazine wrote that “at 37, Kamisar has already produced a torrent of speeches and endless writings that easily make him the most overpowering criminal-law scholar in the U.S.” Others called him the “father of Miranda.”