April 1, 2006

Bernard Siegan, 81, Legal Scholar and Reagan Nominee, Dies

By MARGALIT FOX
The New York Times

Bernard H. Siegan, a conservative legal scholar whose unsuccessful nomination to a federal appellate judgeship was one of the most bitterly disputed judicial nominations of the Reagan era, died on Monday in Encinitas, Calif. He was 81 and lived in San Diego.

The cause was complications of a stroke he had last year, his wife, Shelley, said.

At his death, Professor Siegan was a distinguished professor of law at the University of San Diego, where he had taught for more than 30 years.

In early 1987, President Ronald Reagan nominated Professor Siegan to the United States Court of Appeals for the Ninth Circuit, which comprises nine Western states, Guam and the Northern Mariana Islands. In July 1988, after nearly a year and a half in which Professor Siegan was publicly denounced by liberals and also by some conservatives, the Senate Judiciary Committee rejected his nomination.

Professor Siegan was best known for his ardent libertarian views on economic matters, and on property rights in particular. In his many books and articles, he maintained that the Constitution protected what he called the "economic liberties" of individuals. The courts, he argued, should return to their pre-New Deal stance of enforcing such liberties.

Though Professor Siegan had his defenders, some conservatives considered his views extreme, seeing him as a "judicial activist" who thought the courts should invalidate much of the economic and social legislation of the modern era.

Judge Robert H. Bork, whose nomination to the Supreme Court was rejected by the Senate in 1987, had cautioned in a 1985 speech that Professor Siegan's economic ideas could engender "a massive shift away from democracy and toward judicial rule."

Testifying before the Judiciary Committee, Professor Siegan maintained that if appointed, he would uphold the legal precedents set by the Supreme Court, regardless of his personal views.

On July 14, 1988, the committee rejected Professor Siegan by a vote of 8 to 6, along party lines. Of the 340 judicial nominations made by President Reagan until then, Professor Siegan's was only the second to be defeated in the committee.

Bernard Herbert Siegan was born in Chicago on July 28, 1924; his undergraduate studies were interrupted by Army service in World War II.

He earned a law degree from the University of Chicago in 1949 and practiced law in Chicago before joining the University of San Diego School of Law in 1973. From 1979 to 1989, he directed the program in law and economic studies there.

Professor Siegan's first wife, Sharon Goldberg, died in 1985. In 1995, he married Shelley LeWinter Zifferblatt, a former student. She survives him, as does a stepson, Jon Zifferblatt, of San Diego.

After his nomination was defeated, Professor Siegan continued teaching and writing. His books include "Economic Liberties and the Constitution" (University of Chicago, 1980); "The Supreme Court's Constitution: An Inquiry Into Judicial Review and Its Impact on Society" (Transaction Books, 1987); and "Property Rights: From Magna Carta to the Fourteenth Amendment" (Transaction, 2001).


April 3, 2006

Caleb Foote, Law Professor and Pacifist Organizer, 88, Dies

By DOUGLAS MARTIN
The New York Times

Caleb Foote, whose moral sense influenced him to go to prison for refusing to do even noncombatant work in World War II, then led him to become a law professor known for advocacy of criminal rights, died on March 4 at a hospital in Santa Rosa, Calif. He was 88.

The cause was a blood infection, said his daughter, Heather Foote.

Mr. Foote was born in Cambridge, Mass., on March 26, 1917. He graduated in 1939 from Harvard, where he was managing editor of The Harvard Crimson, and earned a master's degree in economics in 1941.

The Quaker faith of his mother drew him to pacifism, and he was hired that year by the Fellowship of Reconciliation, a pacifist organization, to open its Northern California office. His draft board had denied his request for conscientious objector status in 1940, deciding that his religious argument for the status was based more on humanist principles than on theology.

Mr. Foote then refused an order to report to a camp to perform alternative service, and as a result in 1943 he was convicted for violations of the Selective Service Act.

"Only by my refusal to obey this order can I uphold my belief that evil must be opposed not by violence but by the creation of goodwill throughout the world," Mr. Foote said in an interview with The Associated Press.

He served six months at a federal prison camp, then resumed his work with the fellowship, spending much of his time speaking out against the internment of Japanese-Americans. In 1943, he helped produce a pamphlet on the subject, titled "Outcasts," with the photographer Dorothea Lange.

In 1945, Mr. Foote was again sentenced for draft law violations and served a year at a federal penitentiary. He was pardoned by President Harry S. Truman. From 1948 to 1950, Mr. Foote was executive director of the Central Committee for Conscientious Objectors.

He then decided to go to law school, inspired by the desire to address the racial and economic inequalities he had witnessed in the criminal justice system, his daughter said. In 1953, he graduated from the University of Pennsylvania Law School, where he was managing editor of the law review.

The next year, he became a professor at the University of Nebraska College of Law. He persuaded a federal judge to reverse the conviction of an American Indian man whose lawyer had been incompetent. At a law school convention in New York in 1954, Mr. Foote called for the strengthening of civil remedies for false arrest.

In 1956, he moved to Penn's law school, where he led a student team that studied New York City's bail system and recommended changes. He became a leader in bail reform, and, in 1966, his book, "Studies on Bail" was published. He argued that the bail system was biased against the poor and an unfair burden on falsely accused defendants. He even argued that bail was inherently unconstitutional.

In 1965, Mr. Foote became a professor at the Boalt School of Law at the University of California, Berkeley, where he specialized in family and criminal law.

In 1968, after student protests rocked Berkeley, he was a co-chairman of an investigative committee that recommended changes that including giving the campus autonomy from the rest of California's university system.

He retired in 1987 and moved to Point Reyes Station in Marin County, Calif., where he became active in local conservation efforts and lived until his death.

In 1993, he did a study for the Center on Juvenile and Criminal Justice in San Francisco showing that the corrections department's share of state expenditures had grown to 8.2 percent from 3.9 percent over the past 10 years, while higher education's part had fallen to 9.3 percent from 14.4 percent.

Besides his daughter, of Washington, Mr. Foote is survived by his wife of 63 years, the former Hope Stephens; their sons, Robert Foote of Copper Hill, Va.; Andrew Eliot Foote of Los Angeles; Ethan Foote of Santa Rosa; and David Foote of Volcano, Hawaii; and four grandchildren.