More than once as I prepared it crossed my mind that maybe interviewing Arthur Miller wasn’t my brightest idea after all. He is known for throwing unprepared students out of class. He is believed to be the real-life Rudolph Perini, the fear-inducing law professor in Scott Turow’s classic One L, recounting the arduous life of the first year at Harvard Law School -- where Turow was a student of Miller’s. So I’m wondering if Miller is going to employ the Socratic Method -- and make me answer all of my own questions. I share this with him. He laughs it off.
The just-turned 82-year old Miller – his office awash in baseball memorabilia (and Fedex delivered more of it ten minutes after I arrived) – was no demanding law professor. Wearing a golf shirt – and not his trademark three-piece suit -- Miller was relaxed, forthcoming and put me at ease – so much so that after an hour I felt comfortable suggesting a design for his tombstone.
Wright & Miller: By The Numbers
I decided to open with a trivia question. I asked Miller if he knows how many judicial opinions have cited his treatise Federal Practice and Procedure (co-written with Charles Wright and often referred to as Wright & Miller). He doesn’t. He throws out 20,000. But it’s clear that he had no idea and just pulled the number out of the air. I inform him that he’s on the low side. Really low. It’s 78,847 (200+ more since then) (Source: Westlaw). Miller’s reaction was muted. There was no Tiger fist pump. Just a look on his face that conveyed, well, if that’s what it is.
But judicial citations aren’t the only incomprehensible statistic about Wright & Miller. The treatise is 57 volumes (originally intended to be between three and five, Miller told me) and covers 40,626 pages (not counting current pocket parts). Lined up on the shelf Federal Practice and Procedure (just Wright & Miller’s civil part) spans 7’9”. [Thankfully the Penn Law Library was empty that day so nobody saw me with a ruler taking the measurements.]
While some volumes of the treatise have co-authors, Miller still has tremendous responsibility for keeping it up to date (co-author Wright died in 2000). He isn’t sitting in Boca while ghost writers are busy at work. As Miller explains this process, it is clear that he retains a tight grip on his near half-century work. This, despite the fact that Miller is, he tells me, at the age where the publisher needs to think about succession. Miller’s pride is evident when he states that, in 47 years, the treatise has never missed annual pocket parts, making it a rarity amongst law books – it’s current. So while Miller didn’t offer any self-congratulations after hearing that his treatise has been cited in nearly 80,000 judicial opinions, he couldn’t be faulted if he had.
Television Legal Analyst, Winning An Emmy, Commander Of The Order Of The British Empire
The Juice ushered in the era of legal commentary on television. But long before lawyers were on news programs discussing bloody gloves, Arthur Miller was providing legal commentary on the airwaves. The man who teaches about International Shoe set the stage for others to discuss international shoes (Bruno Maglis).
Arthur Miller owes his television career to the FCC. He explained that Channel 5 in Boston, as part of winning a licensing fight (a rarity), pledged local programming. Having made that promise, the network needed to keep it. First up, a medical show, and then a law program was suggested. The idea was dismissed -- too boring -- but someone mentioned that there was a supposedly “exciting” law professor at Harvard. Two guys from the network showed up in Miller’s classroom one day. Despite the dull subject matter that they witnessed – taking depositions in foreign countries – the network boys saw the energy in the room. They offered Miller the chance to translate that to television. Miller’s Court, a recreation of his classroom, was born. It lasted eight years.
After this foreign concept -- law comes to television -- was covered by Newsweek and The Wall Street Journal, an invitation came from Good Morning America to do one segment. Then a few more. After a week Miller was introduced as GMA’s “legal expert,” a role he had for two decades.
While not everyone approved of what Miller was doing – this isn’t what Harvard Law School professors should do, one colleague told him – he believed in it firmly. The alternative, Miller explained, was to leave communication about the law to journalists, who he said don’t understand it.
Miller was involved in other television programs over the years. He won an Emmy Award for his work on PBS’s The Constitution: That Delicate Balance. I asked Miller where he keeps the statue. He points to a shelf three feet from where I was sitting. There it is. No fanfare. No special case. Just another of the scores of knickknacks in his office – sitting next to a box with the words Ruth Bader Ginsburg Bobblehead Doll writing on it.
Miller’s television work also came to the attention of Queen Elizabeth, who named him a Commander of the Order of the British Empire – one of only a few Americans to have this honor bestowed upon them. Miller was recognized by Her Majesty for a generous donation of Japanese woodblock prints to the American Friends of the British Museum, as well as fifteen years of moderating public policy issues on the BBC and Granada Television. [“All your law profs may be called Esquire. But I am a Commander of the British Empire.” – Lyrics from a very clever student music video tribute to Miller.]
Prophet Of Privacy And Technology – Move Over Al Gore
Arthur Miller was ahead of his time as a television legal analyst. But that wasn’t his only soothsaying. Miller authored a book about the encroachment of computers on individuals’ privacy. I know that doesn’t exactly sound like stop-the-presses stuff. Except Miller published his work in 1971! That’s a year before Pong was invented and a decade before the Commodore 64 hit shelves. I have a hard time getting my head around it.
Forty-five years ago, when a stamp cost eight cents, Miller wrote this in The Assault on Privacy: Computers, Data Banks, and Dossiers: “[O]nce personal information has been entered into a computerized file, the data subject and, to a lesser degree, the system’s operators have little capacity to control who will be able to peruse it. Perhaps the most significant reason why the individual is so impotent is the vulnerability of machine components and software to accident, malfunctioning, or intrusion.”
Not long after The Assault on Privacy was published the book caught the attention of the U.S. Supreme Court. In U.S. v. White, 401 U.S. 745 (1971), the Court held that the Fourth Amendment was not violated when government agents listened to the defendant’s conversations through a transmitter that was concealed on an informant. Justice Douglas, in a dissent, included a cautionary note: “Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman’s master. Any doubters should read Arthur R. Miller’s The Assault on Privacy (1971).”
But Miller does more than simply discuss the impact of computers on privacy in his book’s 300 pages with tiny font. He also made this prediction: “I . . . can foresee a time when today’s brick-and-mortar library will be obsolete. Our primary source of knowledge will be electronic information nodes or communications centers located in our homes, schools, and offices that are connected to international, national, regional, and local computer-based data networks. Through these systems will come the newspapers and magazines of the future, the literature and arts of the world, and the intellectual achievements of society. Much of the recorded experience of mankind literally will be at our fingertips.”
But despite Miller’s incredible prescience in the area of privacy, he admits that it’s been a long time since he’s contributed much to the debate. Nonetheless, just as Miller was ahead of his time as a television legal analyst, he was busy predicting the internet while the rest of us were marveling at our new pocket calculators. [I asked Miller who he liked that day in the 5th at Belmont.]
Decline Of Access To The Courtroom And The Class Action
I’ve never been in a courtroom in twenty-five years as a lawyer. The last civil procedure book I opened had the word Barbri written on the cover. So maybe talking about civil procedure with Arthur Miller is a bad idea. But of course I had to. It would be like spending an hour with Ali and not asking about boxing.
But I knew enough not to get into the weeds with the guy. So I stuck to subjects that are broad and important ones for Miller: the decline of access to the courtroom and the class action, of which he is considered an architect.
Miller, both to me and in published works, laments that courts are not discharging their obligations to provide citizen access and full adjudication on the merits. The jury trial is “drying up to a shocking degree” Miller tells me. And it is not simply borne out in the statistics, he says, but the judicial attitude regarding what is a triable issue of fact. Miller says that “there is no getting around the fact that some judges have become fact finders very early.” While this used to exist at the summary judgment stage, he now says it’s happening at the pleadings stage with Rule 12(b)(6) motions.
Miller says that the drafters of the Federal Rules of Civil Procedure believed in citizen access to the courts and resolution of disputes on their merits. He likes to say that the Rules’ notice pleading requirement “demanded very little of the pleader. Just tell us where it hurts.” The merits will be dealt with in discovery and resolved by the “gold resolution standard:” trial. But this, he says, is no longer the case.
Miller is critical of the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). These cases established pleading requirements that are far from “just tell us where it hurts.” Instead, the plaintiff must plead facts showing that the claim is plausible – there is a reasonable possibility of relief. As Miller explains it, as a result, pleadings must now contain much more information, than the rule drafters intended, to avoid being dismissed on a 12(b)(6) motion. Miller says that “the motion to dismiss may well become a trial-type hearing at the outset of a case based solely on the complaint.” As a result, “we are moving slowly toward a system in which an increasing number of civil actions may be stillborn.”
Arthur Miller is an architect of the modern class action, having served on the Advisory Committee on Civil Rules of the Judicial Conference. The Committee’s work led to the class action rule’s revamping in 1966 – to create a vehicle for the explosion of civil rights cases and to allow for the joinder of modest-sized claims, held by many people, that are not economically viable to be brought individually. I mention to Miller that lots of class actions are money grabs for lawyers who have chosen to sue over minor corporate foot faults. The old story -- lawyer gets millions and class member gets enough to buy a latte.
Miller acknowledges that there have been some “awfully mediocre to bad class actions.” And some have been “downright silly.” But he pushes back at my general characterization of them. He reminds me that “virtually every social movement since the 1950s has been augmented through class actions.” He points to class actions being behind Brown v. Board of Education and several other instances of constitutional rights being protected. “These were not money grabs,” he says.
All things considered – the good and the bad -- what grade does Arthur Miller give to the class action? An A-minus he tells me -- and refers back to an earlier theme: “I believe in citizen access.”
Leaving Harvard Square For Washington Square And Sports
Anytime someone leaves Harvard Law School the question has to be asked: why? This is especially so when they pack their boxes after 36 years. For Miller it was a combination of things that brought him to NYU: coming home to New York; death or retirement of Harvard’s great proceduralists; NYU’s fantastic procedure group; and the university’s president being a former student. I suspect that Miller was also happy to no longer have to live as a “stealth Yankee’s fan.” Miller believes that, if word about his Yankees allegiance got out, there would have been pressure to take his Boston television show off the air.
NYU has also given Miller the opportunity to pursue his love of sports and the law (he tweets under the name @sportsarmiller). In 2014 Miller was named associate dean and director of the school’s Tisch Institute for Sports Management, Media, and Business. According to the university’s news release announcing it, Miller “will oversee the development of several courses of study that will be added to the Tisch Institute’s existing sports management graduate, undergraduate, and noncredit programs to ensure that its offerings represent the vast breadth of sports-related careers that now exist, and that cater to the needs of professionals in a competitive career environment.”
Earlier this year Miller moderated a Tisch Institute program with Major League Baseball Commissioner Rob Manfred. Miller has also been involved in several programs addressing the NFL concussion litigation. In May he published an Op-Ed in The Wall Street Journal, expressing concern that objections by a few dissenting players, to the judicially approved concussion settlement, could result in delays for the 99% of the retired players, who support the settlement, in receiving compensation.
The Other Arthur Miller
Miller doesn’t have a monopoly on famous people with the name Arthur Miller. Of course it is shared with the playwright and one-time husband of Marilyn Monroe. Surely Arthur Miller, the lawyer, has been confused with the author of The Crucible and Death of a Salesman. I ask Miller for his best confusion story. He has a few, including Good Morning America drivers -- often out of work actors -- auditioning for the mistaken-playwright while ferreting him between hotel, studio and airport. Incredibly the lawyer and playwright with the same name both attended the same high school in Brooklyn.
The Retirement Question
Arthur Miller doesn’t look 82. And he doesn’t act 82. But he is 82. So I have to ask the obvious question – how much longer does he plan to go at it? I have some insight into the question. He told this to NYU Law Magazine in 2007 when he arrived at the school: “When you stop being apprehensive about being the best you can be, that’s when you retire. I’m not ready just yet.”
I read Miler his own words from a decade ago and ask if he’s any closer. While he tells me that he’s still not ready, he admits that he thinks about it more now than he did ten years ago. He mentions his age and wonders what he’s losing. He asks rhetorically is there still a thrill when a new civil procedure decision comes down? Miller looks ahead to the end of August, when he is going to walk into a classroom and teach Pennoyer v. Neff, and whispers to me: “Can I do it anymore?”
Arthur Miller’s Tombstone
There is one interview question that I never ask: What do you want written on your tombstone? It is the mother of all cliché interview questions. In Miller’s case I came close. While not asking him about substance, I suggested that he have the information on his tombstone written on three lines. The first designated with an (a). The second indented and starting with (1). The last is further indented and designated with (A). What better way for a man who spent a lifetime studying the Federal Rules of Civil Procedure to sign off. Miller isn’t ready to jump on the idea. But he seemed to think about it.
A Parting Gift
A three-piece suit isn’t Arthur Miller’s only trademark attire. It is always accompanied by a red tie and red pocket square. To pay tribute I wore a red bow tie and red pocket square to meet him. As I was leaving Miller’s office I told him that I wanted to give him my pocket square, explaining that it would be a thrill to know that he was wearing it. He said it wasn’t necessary -- but I insisted that he took it. “I’ll wear it when I’m teaching Pennoyer v. Neff.” |