Dick Buxbaum’s life and work are legendary far beyond his home base at UC Berkeley Law School, where he’s been a member of the faculty, a brilliant scholar of comparative corporate law, and a mentor since 1961. Listeners will relish accounts about key twentieth-century figures – from Nabokov to Savio to Suharto – and stories told from Dick’s unique perspective defending free-speech protesters, anti-Vietnam war activists, Third-World student strikers and advocates of affirmative action. Reflections on escaping Hitler’s Germany as a child refugee, growing up in the village serving the Akwesasne Reservation of the Mohawk Nation, practicing cross-border diplomacy during the Cold War, and on the importance of sense of place in an atomized world round out the timely lessons of this special episode of Borderlines. Episode Four of Borderlines showcases a candid conversation with Dick Buxbaum, sharing his wisdom, internationalism, and Renaissance outlook with legions of fans old and new alike.
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Borderlines from Berkeley Law is a podcast about global problems in a world fragmented by national borders. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law.
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Episode Transcript
Katerina Linos (00:00):
Welcome to a special episode of Borderlines, focusing on the life and work of Professor Richard Buxbaum. I’m your host, Katerina Linos, Tragen Professor of International Law at UC Berkeley and Co-director of the Miller Center for Global Challenges and the Law. And this episode is a true treat. We get to speak to Dick Buxbaum, a leading international and comparative law specialist and the best storyteller I know — a refugee from Germany who went on to work as a research assistant to Vladimir Nabokov, as a defense attorney for hundreds of free speech protestors at Berkeley in the sixties and seventies, and a prominent scholar of comparative corporate law. Dick Buxbaum is with us here today to share some of his stories.
Katerina Linos (00:49):
Dick, let me start by asking you about your early life. You fled Germany, and yet you’ve since returned many times to win some of the country’s biggest awards. You go back, claim the Humboldt Prize, and make sure you talk to young children in the village you fled. Tell me about your early life and what you say when you return.
Dick Buxbaum (01:12):
Thank you, Katerina. I think this will be fun, but let’s see what is relevant. I was born in 1930, as you know, and what is relevant I think in terms of the early life are two factors. One is, my father was Jewish but my mother was not. She was nominally Catholic, though she was actually totally secular. When they married, they agreed that the children would be raised as Jews, and so that created an interesting situation for us. That is to say, it was what you might call a mixed marriage, Aryan in the terms of the day and Jewish.
Dick Buxbaum (01:49):
The second feature that was very important is that when I was six months old, my father bought a medical practice in the village of Griesheim, which is a farming village very near Darmstadt, which in turn is about 25 miles south of Frankfurt. Griesheim was unusual in the sense that it was a village with the kind of soil that allowed for market-valuable vegetables, things like onions, shallots, and so forth, and that resulted that the women of Griesheim, or many of them, like in Bertolt Brecht’s story, they became market tenders. They would travel all over Southern Germany in their wagons selling the Griesheim produce, which was quite famous. The Griesheim onions were a specialty.
Dick Buxbaum (02:40):
One result of this was that that village, unusual for Hesse, was social democratic, if not even communist, but at least it was totally social democratic. For instance, when the Nazi Party came into power in 1933, the share of the village that had voted for that party was under 20%, which was an anomaly in all of Hesse. That made the fact that my mother was not Jewish and the fact that we lived in, you might almost call it a bubble, through the thirties made for a surprisingly easy life for the children. I don’t say that for the adults. My father had a lot of difficulties, of course. He was the only doctor in the village when he bought that practice. It was socialized medicine, of course, the so-called Kassenpraxis. You bought your practice and then you were given a kind of a monopoly status for a certain region. No other doctor would be allowed to open such a Kassenpraxis in the same area.
Dick Buxbaum (03:41):
So in 1930, my father bought the Griesheim praxis. He was the only doctor there. It was a village close enough to Darmstadt that it didn’t really need to have the number of doctors that its population suggested. It was about 7,000 people. But because he was the only doctor, and especially because he was from that region, he was very comfortable there, and the patients were very comfortable with him. So it was viable for him, feasible for him to continue his practice after he was kicked out of the socialized medicine system in 1933, when one of the first acts of the new German government was to expel all Jewish doctors, lawyers, university professors, judges, and so forth from the higher civil service.
Dick Buxbaum (04:29):
In the case of the liberal professions, like medicine, that was from the society that had the monopoly on the system of Kassenpraxis. So unlike all the others who had suffered this expulsion, since he was the only doctor there, the village — I don’t know who it was, a mayor or something — suggested that he take over a still legally existing but actually moribund mutual insurance company, which had been founded in the 1880s as an actual fire mutual. He did that and made that his personal social Kassenpraxis, and the upshot was that, like the norm for the Kassenpraxis, he did not receive money on calls. He received one Reichsmark, 25 Pfennig per household per month from this population. That’s quite interesting, because they were still paying the official Kassenpraxis. The patients couldn’t say, “We’re leaving it,” so they actually made what you might call a double payment, although his was quite reasonable.
Dick Buxbaum (05:37):
When I was six and could read, I was given his ledger and I would walk the village streets and collect, in case they hadn’t come to the office that month. I went there and collected the one Reichsmark, 25 Pfennig. That went on, believe it or not, even after 1936, when it was a criminal violation for a Jewish doctor to treat an Aryan patient and vice versa. The upshot was, he was the last Jewish doctor with a general practice in all of Southern Germany, and according to a historian friend of mine at Frankfurt, possibly in all of Germany. The difference was that, and I was old enough by then to recognize these issues, after 1936, he would only open his office in the evening, so as to avoid provoking the local Gauleiter, who knew, of course, this was going on but mainly said, “I don’t want this to be so visible.”
Dick Buxbaum (06:33):
But two other doctors then saw easy pickings in Griesheim, so he was no longer after ’36 the only doctor, so of course, he lost a lot of practice. Slowly the practice dwindled, so that in 1938, he decided to leave. Before that, he had decided we would go to Palestine, because he was a secular Jew but an ardent Zionist from his youth. He actually emigrated from Germany to Palestine in 1936, expecting to bring us all along, which was the plan, but he didn’t have the capitalist visa, as it was called, so he was expelled from Palestine by the British mandatory authorities after about four months. He also got a bad case of shigellosis and lost his appetite for bringing us to this difficult country.
Dick Buxbaum (07:21):
So he returned, and at that point came the project of finding a way to get out otherwise. He did that through a first cousin in New York, whom he had known when they were both younger, who had immigrated to the United States already earlier. In fact, he was born in the United States. His father had immigrated. They were able to get one affidavit of support. He didn’t have enough money, the cousin, to provide for the whole family, but he was able to provide one affidavit of support, which was required to be granted a visa. So my father did get a visa and left in late April 1938 for the United States.
Dick Buxbaum (08:02):
A couple of months later came the last of the Nazi laws in this, which revoked his medical license, but by then he was already gone, although my mother had to go to Darmstadt and collect the letter of revocation, I suppose, in case he came back. We were waiting to leave, and that was for us a somewhat difficult period. It was of course the height of the pre-war Nazi movement, and that was a hard time, because we were unsure when he could collect enough affidavits of support for the four of us, the three children and the mother. That finally happened in October of 1938. We went to Stuttgart to get our medical examinations, received our visas, and left Germany a month after the pogroms of November 1938. I still experienced that, because I was going to a Jewish school in Darmstadt, and the school was dynamited and blown up. We were not in it, as you can realize. So we left in December 1938, arriving in New York just before Christmas. So that’s the early period.
Katerina Linos (09:10):
Wow. When you arrived in New York, how did you settle? How did you end up becoming so assimilated in US society to be able to join the Army and the war effort and the post-war reconstruction effort? What were the next milestones?
Dick Buxbaum (09:29):
First, we had the benefit of very supportive, both housing and some finances, both from the UJA, the United Jewish Association, and from some very good Christian, I should say specifically Protestant, folks in the Long Island Sound area who provided a cottage for us so that we had a place to go after we arrived. Then he took the New York medical boards in 1940, in other words, about a year after we had managed to get a first foothold. Once he got notice that he had passed, since he had been a country doctor in Germany, he wanted to remain a country doctor in the United States. He also thought this was a good way to repay the country that had allowed us in.
Dick Buxbaum (10:18):
So he hitchhiked around Upstate New York, looking for the remote area that had no doctors. As I think I’ve told you once, he ended up being the doctor at the St. Regis Indian Reservation, a Mohawk reservation now called the Akwesasne Reservation, which straddles the St. Lawrence River and is the only bi-national reservation in the United States. That is to say, part of it is in Ontario and Quebec and part of it is in the United States. You couldn’t live on the reservation as a non-Indian, but we lived in the service village, which had a population of 180 people. If you want to be assimilated fast, that’s the place to go. Don’t go to New York, to the Fourth Reich in upper Manhattan and remember when everything was better back home. You have to start afresh, and this was about as fresh a start as the family could possibly have had.
Katerina Linos (11:10):
Actually, I don’t think I knew that about your arrival in the U.S. I don’t think I had heard that story about living, if not in, but very close to a bi-national reservation. How did you enter the practice of law, and how did you end up working with the US Army?
Dick Buxbaum (11:28):
Well, we were up there until I was entering my junior year in high school. The problem was, there was no real education there. I mean, we were educated, but the entire high school was one room. The first, second, and third grades were one room; fourth, fifth, and sixth were one room, and the seventh and eighth had the privilege of having only two classes in one room. So it was not a very good basic education. By the time I reached middle of high school, my father did get concerned that this was not the place for the children, I’m the oldest of the three, to get ready for the American life.
Dick Buxbaum (12:06):
So he bought a practice in the Finger Lakes, the City of Canandaigua, wonderful area, and we moved there in late 1944. From then on, I would say my life was as regular as any American’s. That is to say, I went to the rest of high school. I went to Cornell University first for my undergraduate then for my law school. I came out to Berkeley in ’52 for an LL.M., and then went back for some years. Then I was drafted and served in the Army in Europe for not quite four years. Then I had three years in Rochester, New York, and then I came here in 1961.
Katerina Linos (12:43):
And was it at Cornell that you met Vladimir Nabokov?
Dick Buxbaum (12:47):
Yes. I was nominally majoring in economics, but my heart wasn’t really in it, although I did finish the major, but my real love was for Slavic literature. I started learning Russian first, and then Nabokov arrived at Cornell in 1948 when I was a junior, and by then I had enough Russian that he admitted me to his Russian literature survey held in Russian, whereas he of course had much bigger Russian literature survey and comparative literature survey in English. That was his big course load, but he always kept that seminar. There were always a few people in it. In fact, the late Justice Ginsburg and I once talked about it. She did that about eight or 10 years later when she was at Cornell. She studied with Nabokov at that time.
Katerina Linos (13:34):
I did not know you had that in common. So German, English, Russian — you seem to be picking up a lot of languages and experiences. You said earlier on that you started your work in East Germany when you returned with the U.S. Army. How did that happen?
Dick Buxbaum (13:54):
After I finished my LL.B. at Cornell in 1952, I was able to get a year’s deferment of the draft. It was the Korean War, remember. And I got my LL.M. at Berkeley. As soon as that was finished, I was drafted, and after some service as a regular draftee, I was given a commission in the JAG Corps. I went through that training, and in the summer of 1954, at the end of it, we got our assignments, and I was assigned to the European headquarters of the U.S. Army in Heidelberg. That was how the Army service began.
Dick Buxbaum (14:32):
And you had mentioned this question of when I had any connection or knew anything about the German Democratic Republic. In the fall of 1954, I was sent to Berlin. I think we were finagling an American deserter out of an East German prison. I think that’s what it was. And I was up there in a sense to help receive him once he came out. I was interested, of course, in what was going on there. My professor here at Berkeley in the LL.M. year, Albert Ehrenzweig, he had developed a nice relationship with a young East German scholar who had actually been allowed to come over here for a year. And while I hadn’t met him, because that was after I finished my LL.M., Albert suggested I go to East Berlin, which as an American Army person I was entitled to do, because Berlin was a four-power occupation, and there was an American sector. Even though you had to either fly in or go by special train, American military could not be kept out of Berlin.
Dick Buxbaum (15:36):
So when I came there for other reasons, I had this young man’s name. He lived out in the Soviet Zone, and I went to visit him, and that led me then, he suggested a couple of people at the Humboldt University — it was now a communist university — whom it might be interesting to interview as to the changes after Humboldt was in the East Zone. It had been the oldest . . . not the oldest university, it was not that old — but it had been the Berlin centerpiece. That was my first meeting with some East German academics, and that interested me enough that I stayed to some degree connected.
Dick Buxbaum (16:15):
In later years when I was in Germany, and I was there often in West Germany, I would make a point of visiting both East Berlin and other cities in East Germany. In fact, I was invited a couple of times, which also took some doing, to give a couple of presentations at East German universities in the height of the Cold War, 1970, 1971, and so forth. That connection stayed active. And if I may jump ahead, because it’ll continue this particular path, I had become, again through Albert Ehrenzweig, friendly with a young Hungarian, Ferenc Madl, M-A-D-L, who had actually had a year or six months in Berkeley after 1956, because the Kádár regime in Hungary took the very sensible approach that if you’re not against us, you’re with us, so they relaxed the hold they had on the young academics. They were able to come, for example, to England and to West Germany, and in two or three cases to the United States.
Dick Buxbaum (17:23):
We were age mates. I became a good friend of his, really. That was in the mid-sixties. And we met again in 1970, when we were both invited to an East-West conference in West Germany, in Goettingen, for some discussions of developments. I chose company law, which was my field, and he was in the same field. He was also the first person in the Eastern Bloc to work seriously with the new European Economic Community, made his mark in that field, and so that created a much thicker connection with the late period of the Soviet zone of influence. I was back in Hungary three or four times in the seventies and in the eighties, and that led me, of course, then also to be able to visit a couple of the other countries in the region.
Katerina Linos (18:11):
How common was it for people to be able to crisscross in different periods of the Cold War from one side to another? It sounds like there was a thaw in the Cold War in the fifties in Hungary, and then things became hotter. How unusual were your experiences?
Dick Buxbaum (18:28):
Well, at the beginning, I think they were unusual, but by the seventies, there were a number of people. My late colleague, Gerry Feldman, who was a historian of modern German history, he spent an entire year at an East German academy, a think tank, you might say, around 1985. There were these strands. Even if they developed much more strongly after ’85, when it became clear that East Germany was on its last legs, there was a fair amount of ability to cross that border, and Americans always had a kind of a, the Germans called it Narrenfreiheit, a fool’s freedom. That is to say, they were liked because they also had money, compared with what they had. So no, I knew a number of American academics who had had some good connection with. . . You may know Inga Markovits from Texas.
Katerina Linos (19:19):
I do, yes. And her work on the East German archives seems just very different from the typical comparative law scholarship we see. Yeah, so I consider her work quite unusual. I also wanted to ask about your work. I know that a theme throughout your career that you’ve picked up now again is on bonds and war debt and reparations. How did that interest develop?
Dick Buxbaum (19:45):
Well, part of it, believe it or not, was family. My father was the only surviving member of his side of the family, with the exception of one first cousin of mine. One nephew of a very large tribe survived. Actually, he had been shipped to the United States just before the war. They had restitution claims in Germany for a house that had been taken, and I was in the Army then just at the time that these restitution claims were being processed, so I took on the job as their agent of really trying to shepherd this thing through the process.
Dick Buxbaum (20:20):
That got me quite interested in how both the East and the West in a sense were competing on this restitution issue. Then of course came, and that was just about the time I graduated from law school, so it was a little earlier, came the German compensation statute for victims, that is to say, loss of life, loss of liberty, loss of health, loss of opportunity, and so forth, which had first been enacted by the three Western powers during their substitution for a German government. That was before 1949. And then as a condition of Germany’s re-transfer of sovereignty to West Germany, West Germany had to adopt the same legislation. So they had this very active program.
Dick Buxbaum (21:05):
But the other one, the NATO Status of Forces Agreement, was of course a very important agreement, in terms of creating the division of authority between the host country and the US military sitting in that host country when it came to things like criminal prosecutions and also some civil matters. Well, I’d become the chief prosecutor in the U.S. Headquarters in Heidelberg, and then I was appointed the liaison to the German judiciary, because I spoke German and I was in the headquarters, which is important, because I now had access to the top of the military brass. And that led me to a lot of understanding of the German criminal and other laws.
Katerina Linos (21:50):
Then you moved from prosecution to defense when you came to Berkeley as a professor, and then as defense counsel of the hundreds of Free Speech Movement students in the 1960s. How did you join the Berkeley faculty, and what did you find in the sixties that shocked you or interested you most?
Dick Buxbaum (22:09):
Well, I joined the Berkeley faculty because I was asked. I said yes before I knew what the salary would be. I was not a negotiator. I didn’t care to be a negotiator about that. No, what had happened there was that Dick Jennings had convinced the faculty that he being the only teacher of corporation law was impossible now, as it was growing. And since I had done my master’s thesis on corporation law when I was out here in 1952, he suggested me to the faculty. They looked at me at one of the markets, I remember it was in Philadelphia, and so they asked me to join. I said yes.
Dick Buxbaum (22:44):
So that got me out here, and I was really just doing my job, trying to get tenure. I got in on a couple of articles, one in antitrust law that was the big one, and a smaller one in corporation law, then a third one on some procedural issues. In any event, then came the Free Speech Movement, and there were not terribly many law students in it, which I always thought was a blot on the law students, that more of them didn’t join it. I was sympathetic to it. I had no particular brief about it.
Dick Buxbaum (23:13):
But a couple of them had girlfriends who were in sororities here, and they were picked up in the famous Sproul Hall sit-in and taken out to Santa Rita Prison. One of my students, whose girlfriend was at Santa Rita, said, “Would you see if you can get out there and bail her out?” and so on. And now it becomes a story of the frog in the pot of water. At first it was just warm, and then it got hotter and hotter. But by that time I was into it, not from my ankles, but all the way, because you were asked to then join in some of the pretrial proceedings and so on. So it ended up, without my actually having intended it, that I was one of the five defense counsel in the Free Speech Movement, which was a disaster from the point of view of legal procedure. From the defendant’s point of view, we picked the absolutely worst concept. I’ll give you two minutes on that, if you like.
Katerina Linos (24:06):
I’d love that.
Dick Buxbaum (24:07):
At that time, the general understanding was that the California Supreme Court would not allow a trial of more than 10 persons on a single issue, like having trespassed together or something like that. We knew that since we had 773 trespassers that this could sink the Alameda County prosecutor’s office. I mean, they were intelligent enough. They would take the leadership first, and once they had 10 of those and presumably got a conviction, it should be easier to get the next. So it made sense, but they didn’t want it. They were afraid that it would create a mess, a terrible mess.
Dick Buxbaum (24:53):
But for us, the problem was we didn’t have any power. We had no lawyers. We had five of us finally. I reluctantly agreed to be the fifth, because I realized that we had to have some legal support. When that happened, of course, the five of us were also not in a position to spend six and a half years at defending 77 criminal cases. So we worked out, and of course it was only with the agreement of the defendants who controlled us. We were very bad lawyers, in the sense — we couldn’t control our clients. They would meet every night, three nights a week at some church and have a committee of the whole, and they would decide what the next strategy was, and we were simply their pawns to help them carry out that strategy.
Dick Buxbaum (25:39):
When they learned that they could have a show trial of a select number of them in a non-jury system, with the others having to agree ahead of time, which of course they could have avoided that afterwards but they didn’t, to abide by the verdict of that hundred or so people, that’s the direction we took. We had 125 people sitting in the old veterans’ auditorium on Addison Street or Center Street, and the late Judge Rupert Crittenden serving without a jury. Of course, at first it was a great, great thing. All the newspapers carried the first day and the second day, and the DA of Alameda County showed up for the first day, because he got a lot of publicity.
Dick Buxbaum (26:24):
And after that, he only showed up once when they were sentencing Mario Savio. He left it to a very good team, led by the way by Lowell Jensen, who of course later became both FBI director and then federal judge in San Francisco, a very straight arrow. You could really work with him. It was a fine situation professionally. I mean, he didn’t give you anything easy, but they weren’t playing games either. So we had this trial, and by about the third or fourth week, it had descended into . . . I wouldn’t say a farce, it was never a farce, but the main issue for Judge Crittenden was, he would open the court and look around, and instead of seeing 125 defendants, he might see 10. The others had chosen not to show up, and that would get him upset. We had to delay the proceedings until our team had hustled out some people to show up.
Dick Buxbaum (27:19):
It was in that sense ridiculous that they went through this, but it wasn’t funny. I mean, there were real sentences coming out of it. In the end they were found guilty of resisting arrest, which was the one charge we didn’t want. Of course, we were foolishly thinking that simply going limp and doing nothing couldn’t be resisting. Well, I know better, and I knew better then, but it was a good shot. Well, he didn’t buy it, and the appellate courts didn’t buy it either. Lying there and not cooperating in your arrest is resisting arrest. Just in case it ever happens to any friends of yours, you should know that.
Katerina Linos (27:54):
Good takeaway point. You were then defense counsel again with criminal proceedings that accompanied the Third World strike in the ’69-’70 era, and I think in 1969, you started your work in Indonesia. How did you develop those interests?
Dick Buxbaum (28:12):
Let me go back, though. There was a large, large issue before that. That was the anti-Vietnam War group. We had that almost back-to-back. In 1965, when the sentencing came down in the FSM Movement, the Vietnam War crisis had begun to hit. I was representing the ASUC, the Associated Students group, and faculty members, because it was basically the whole academy was in resistance against it, or at least against the war. I wouldn’t say in resistance. And so we did have a large number of people. Most of that, however, was civil, because the Alameda County Board of Supervisors convinced a federal judge to issue an injunction against any group meetings on the campus to protest the Vietnam War, because the argument was that this often leaked out then afterwards into the surrounding community and caused vandalism and so on and so on.
Dick Buxbaum (29:05):
I had to try to get that injunction lifted, and the chief judge wouldn’t think of it. So we had a big problem there, and that took us a while. Then I’m going to delay here for a minute, because what then happened in the one you are mentioning, that is to say, the Third World strike in the summer of 1968, which dragged into the fall, was that there, it was the first time that there was some physical ugliness. That is to say, the strikers — it was Black, Chicano, as it was called then, and a few Asian students — they would block the Telegraph Avenue entrance to the campus every noon and really link arms and prevent people from going in. After a few days of that, some of the fraternity and sport types developed a counter group who would then rush that, and so it would descend into a kind of a waterfront brawl, even picket sticks being used in the fight.
Dick Buxbaum (30:01):
And that of course brought the sheriffs, and at that point we had 148 arrests, all of them charged as felonies, which was an absurdity. That would never be charged in a fight. The only reason they were charged as felonies was that way they had a $5,000 bond to put up if they wanted to go out on bail. We were at the same time for other reasons working on “own recognizance” as a substitute for bonds. That had nothing to do with these events. That was just something that was in the air, and I was working with Stiles Hall on an innovative program that the Alameda County Board wanted to see whether it would work. And it did work. We were able to get as the default position for anybody arrested in Alameda County, subject, of course, to judgment on that, whether or not they were a flight risk and so forth. But bail became a very minor thing.
Dick Buxbaum (30:53):
But to come back to the Third World strike, the trouble with the felony charges had nothing to do with the severity of the case, but to keep these kids away from the campus, because if they couldn’t put up the bail, they would be put in a temporary prison for a while. Well, a very courageous bail bondsman named Leo Brown decided that this was nonsense, and he issued bonds. The bail bond system charges 10% of what the bail is supposed to be, so each bail bond would’ve been $500. Well, we had 148 or 150 people, so that was impossible to raise. On his own — we didn’t even push him on this, he was so outraged by this, he was Black — that he took his job on the line and he issued the bonds for nothing, only saying, “You’ve got to be sure they make every appearance or else I’ve lost my job. I will be in prison myself, because my bail bond company, which will suddenly find it’s owing money that they have no premium for — have in other words, a terrible issue — will see to it that I’m out.”
Dick Buxbaum (32:01):
I didn’t want to be too close to that. I was a licensed attorney here, and that was a delicate line. And you knew it, but you didn’t know it, because it wasn’t done by us. It was done by the leadership of the Third World strike. But the fact is, they got everybody out on bail and nobody ever defaulted. So he saved his license, and people were out. Yeah, it was an interesting story. It hasn’t really been told, because, well, he’s gone, and I’m sure the leadership of the strike movement who arranged this are scattered, if they’re even around. After all, this is now also 50 years ago.
Katerina Linos (32:37):
But it does seem that both of these issues come back, both bail reform is a topic today and kind of knowing that 50 years ago there were progressive movements that had some success in Alameda County, and the results of this Third World strike in terms of programming and the campus, I think is great thing to recollect. Maybe first I’ll ask you a little bit about what impact these strikes had on campus life and admission decisions in the seventies, and then go back to your work in Indonesia and legal training there.
Dick Buxbaum (33:12):
Well, obviously they had a very significant effect, because we might have had three or four African American students in the entering class in 1968, but in 1969, I know it very well, we had 25. And from then on, there was a very substantial minority enrollment at Boalt/ex-Boalt. And I have to say that the faculty found that on the whole very good. I mean, there were one or two outliers, but that was not resisted on the law faculty. And of course, it also applied elsewhere in the program. By the mid-seventies or late seventies, that had become part of the routine, you might almost say. All of that held until, of course, Prop 209 and the Regents’ own initiative, which was a setback, but that was in the late nineties. I mean, that was a crucial, crucial situation in terms of increasing minority representation at the bar. Just can’t underestimate it.
Katerina Linos (34:07):
Absolutely. And at the same time, as you were training law students here and making the Berkeley faculty more diverse, the Berkeley student body more diverse, you were also training Indonesian civil servants. How did you get connected to Indonesia?
Dick Buxbaum (34:22):
In the 1960s, there was a lot of discussion about law and development, and a lot of it was very top down. The World Bank had its views of what kind of legislation should be adopted and so forth. I had given a few talks on the fact that we should be listening to the people involved in those countries, sort of a bottom up approach. The Ford Foundation rep in Jakarta, terrific guy, he learned of this and he convinced the Foundation headquarters that they should start a program on training. Well, no, I have to back up. My argument was that we should listen to them as to what kind of legal system they wanted, and if they wanted a free enterprise system in a developing country — I hadn’t picked Indonesia, I was just saying this generally — that’s something that our AID should be listening to and our foundational support should be listening to.
Dick Buxbaum (35:20):
And the Ford Foundation was very much in favor of this, so I got called there and we discussed how to handle this. They gave me a commission to go to Indonesia, I took a short leave to do that, and to start looking for young people, young lawyers who might get some of this modern training, because the Indonesian legal system was simply stuck in the Dutch models of 1922. I mean, they had had no serious evolution of legal systems in anything other than, say, constitutional structures. Commercial law, company law, taxation law, and so forth were just nowhere.
Dick Buxbaum (35:58):
So we started that program, and the only condition I set for the Ford Foundation was that yes, they wanted to train government lawyers so they could meet on an equal plane with the incoming hordes of potential investors, now that the new order of President Suharto had arrived, the Orde Baru. My only condition was that they had to allow us to also add a couple of academics to each of those pools. So they sent over between 10 and 20 Indonesians, and after a first experience with government officials trying to decide whom to bring, which was not a very clean, or let’s say effective, thing, we insisted that we do the choosing. Partly I did that on trips, but more to the point, we had a couple of Ford Foundation Fellows and Asia Foundation Fellows who were law trained, who were in Jakarta, and we commissioned them to do the interviewing.
Dick Buxbaum (36:58):
Out of that, we got a much more varied and more interesting group of young people to come, and that lasted about 10 years, so we managed to train about a hundred or so Indonesian lawyers, and many of them became senior people, executive director of the central bank. That was a successful thing, and after the first couple of years, AID liked it so much they asked to take it over. For a number of years, AID had a ledger item on this, which then they had extended actually to other Southeast Asian countries, although we were not the ones who could handle that. We had enough to do handling 10 or 20 Indonesians on a non-degree program. But they needed a special curriculum, so I ran that curriculum with the late Ken Phillips, and that served for quite a number of years.
Katerina Linos (37:50):
Wonderful. And I know your connections to Germany are ongoing, that in 1992 you received the Alexander von Humboldt Award. When Germany reunified, when it became kind of the heart of the EU once more, how did your work there continue?
Dick Buxbaum (38:09):
Well, largely it was really academic. That is to say, putting aside these earlier excursions into East German territory and so forth, after 1990, it was a very normal situation. Berkeley had a disproportionately high number of German LL.M. students specifically, because historically back in 1955 or so, the Ford Foundation had decided that the American law schools were too parochial and needed to expand in the modern world more into international and comparative fields. Berkeley, under the influence of Albert Ehrenzweig and Stefan Riesenfeld, persuaded our dean, at that time, [William] Prosser. Ford asked for a competition, so our competition was that we would train a new generation of German academics here. Degree or non-degree, it didn’t matter. Most took some degree, because they would be the reproduction for the first post-war generation.
Dick Buxbaum (39:08):
These were people at the beginning who had been actually soldiers in World War II. Within a couple of years, of course, that became a younger group who had not. Like my generation, the birth year 1930 became a kind of a cutoff between those who had actually had some experience in the war and those who had avoided it or were born too late to be in it. That was accepted by the Ford Foundation and led to a jumelage with Cologne, where there was a very good professor, Kegel, who was clean. Our group knew him, our colleagues knew him well, and that was a wonderful program. So the Berkeley-Cologne program ran on Ford Foundation money, not only for the first five years, but they got a 10-year renewal.
Dick Buxbaum (39:54):
So up until around 1970, I would say our Berkeley LL.M. proportions of new German academics in the faculties was five times as high as our proportions would be in a normal sense. Since then, it’s come back down, normal. And of course, being in the Pacific, we also, after about 1990, ’95, moved our attention to the developing relationships with the East Asian nations, as we should, so the German component of that ran out. Well anyway, I mean, the money ran out, so it wasn’t done on that basis, but we still get a lot of Germans, and with that, interestingly, a lot of Swiss and a lot of Austrians and some Scandinavians, Belgians, and Dutch. Something in that program helped create a sense of Berkeley as a good place to be. You see it in the elemental programs yourself.
Katerina Linos (40:52):
I see it, yeah. But I do have worries and wanted to ask you about the future. The idea that American law school are a little parochial and an infusion of foreign lawyers would do us a great service, that doesn’t seem to be pushed as much now.
Dick Buxbaum (41:07):
It has never been.
Katerina Linos (41:07):
Or would you say that because of the size of our LL.M. programs we do in fact have the kinds of exchanges we need?
Dick Buxbaum (41:14):
No, I think it’s not done very well. There are some interesting developments. For example, if you look at the number of South Asian young persons who trained in great part in the United States and now have faculty positions here, if you look, although it’s a smaller number, at the Israeli group who trained and now have some faculty positions here, you see that those two bodies in particular have been quite successful in coming into the American scene. That’s been difficult. Well, I’m still hoping that some of this will change, but no, the law is still heavily national here, in my book.
Katerina Linos (41:53):
Thank you so much. Those were the questions I had, Dick, but I know there are some really good stories, and I just wanted to open up. Usually with other interviewees, I say, “Those were the questions I have. What did I miss?” And then people say amazing stuff. So I don’t know if I should ask you, what did I miss? What are some really good stories? I didn’t ask about Greece, because I know some of that, and your work with people who fled the dictatorship with Papandreou when he was here. I’m just curious, what really good stories should I ask about?
Dick Buxbaum (42:23):
Well, since you speak of that, it was a very hairy thing at the start, when one of our Berkeley people, Stanley Sheinbaum, actually went illegally into Greece and managed to spirit out three of the crown witnesses whom the junta was going to use against the Papandreous and the Simitis and so forth people.
Katerina Linos (42:47):
So what happened? What year are we in?
Dick Buxbaum (42:47):
Around ’68 or so Sheinbaum spirited these two or three crown witnesses out to Germany, and then our former dean, the late Frank Newman, went to Germany and got arrangements made to have them brought here. They then came to Berkeley, but Stanford was also involved in that. John Merriman was involved. They came to Berkeley, and my job was to, in a sense, debrief them, which really meant I had to take, under oath, long statements from them, which were set up so that if they ever returned and contradicted what they were saying now, that was all phony, the arguments made against Papandreou. “We had to make some statements, because we were under threat, but they were false,” and so forth. We wanted to get that on the record, in case they went back and had to go back to the old statements.
Dick Buxbaum (43:41):
I was the one who had the most contact with them, because I had them in my office first for these long . . . I mean, God, these interviews took weeks. We were going through every detail of the junta. And after we were done, they kind of made this their home away from home. They didn’t know what they were going to do. They didn’t have much money. They were supported to some degree here by some of the community. One of them tried to open a restaurant in San Francisco. It was a disaster. But in the end, they both decided for various reasons, they wanted to go back to Greece, even though the junta was not yet out. And so I had to go back and do all those things over again, to be sure now that they were surely going back, that we had them in a situation where they could not credibly counter there. So that’s the Greek story on that. But it made for some good friendships, Costas Simitis.
Dick Buxbaum (44:33):
But I go back to Germany. What I find interesting, as you mentioned earlier, is whenever I’m there, I make a point of going to the grade school and high schools in this old village of Griesheim and making some presentations to their classes. The college-bound system over there in high school is very interesting, because each student at sort of 11th and 12th grades gets to pick a special course where they want to delve more deeply. They actually do research, which is not the usual high school story. I usually then meet with this research component of the school, and we agree on a topic and work through it, and also I tell them, of course, a lot about the situation in the thirties.
Dick Buxbaum (45:18):
But not so much the Nazi as what the village was like, because as all of Germany, the percentage of high school students in that village whose grandparents are from Griesheim is maybe be 20%. It’s now a suburb of Darmstadt, and that’s a typical fate of these villages. Most of them have no Griesheim connection beyond maybe their parents, as much as that. I’ve felt it interesting, and especially the historical groups in these villages, they are very lively about their past. They’re very interested in seeing to it that these school children understand the terrain they’re in.
Dick Buxbaum (46:00):
There is something to that, a sense of place. They’re not just accidentally floating in this village of Griesheim and then they’re going to go off and do something with MIT or in the government. They should know something. It sounds silly, but a sense of place for these children is important. Otherwise, you get too deracinated in the population. I feel that very strongly. I’ve felt it here in the United States in the various towns I’ve worked in. I don’t know how you feel about that, but I think there is something to keeping that concept alive.
Katerina Linos (46:31):
It is so wonderful to end on that note, because as an international law scholar and a comparative law scholar, and as someone who has built ties with leaders and lawyers and criminal defendants in so many different parts of the world, it’s interesting and awe-inspiring to see how each of these connections is not superficial and goes back to time and forward to time. It’s amazing to see that continuity and the local combining with the transnational in that way. I’m so inspired, Dick.
Dick Buxbaum (47:06):
Well, you know, the older you get, the more you’re like a potato. Your eyes are always looking backwards. And it’s true, you see more of the past, although I like to think I’m going forward too. But thanks anyway for making this possible for me.
Katerina Linos (47:20):
Thank you so much, Dick. I hope you enjoyed this conversation with Dick Buxbaum, one of many I’ve had the privilege to have with him over the years. If you enjoyed this episode of Borderlines, please subscribe.
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