Oral History with Stewart Macaulay (2016)

University of Wisconsin Law School Library
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00:00:00 - Introduction / Stanford Law School

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Partial Transcript: (You have to hit this one twice.) Alright, okay. Today is April 8th, 2016. This is the first interview with Stewart Macaulay.

Segment Synopsis: Troy Reeves interviews Stuart Macaulay. They begin discussing SM's time at Stanford Law School; SM chose Stanford because it seemed like the default route. His father worked in business and fared well but did not enjoy his work; this dissuaded SM from pursuing business. SM entertained several of his interests before law school, including acting and radio.

SM's father took him to attend trials, where he could witness what he might do in his later career; this contrasted with his studies, which placed students in a "bubble," analyzing legal theory and the concepts invoked in appellant cases.

SM initially planned to practice law in California. He was influenced by several professors, notably Harold Shepherd in contract law. Shepherd employed in his teaching documents not typically found in law classes at the time. SM finished third in his class his first year.

Another professor, Keith Mann, influenced SM a lot. SM would later work as his research assistant. Mann was also a labor lawyer. SM was recruited to work as his RA after Mann's initial choice was drafted for the war in Korea. During his time as the RA, SM wrote and proofread opinion drafts and gave oral presentations of cases for the judge, who would proceed to critique them. As he continued, SM became better at drafting opinions.

SM believes that his training at Stanford prepared him well for his RA work, though the transition from theory to practice was abrupt. In hindsight, SM sees this transition as very helpful. It was also very stressful, however; SM made errors in his opinion drafts, which the judge did not hesitate to point out. Moreover, SM was married and had a daughter; he was advised not to neglect them.

SM initially attended a junior college to save money. During this time he met and dated his future wife, Jackie, who was from Racine, WI.

In sum, Stanford Law was an intense experience. Classes varied in their length but exams were always in June and given every other day. No practice exams were given since using prior exams would violate the honor code. Typically, one-third of the incoming class did not return the year following. SM recalls hearing a professor say, "Look to your left; look to your right; one of you will not be here next year." He wasn't sure how well he'd do but it turned out he did quite well.

Keywords: Harold Shepherd; Harvard University; Keith Mann; Stanford University

00:17:17 - San Francisco / Music

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Partial Transcript: Uh, I do want to ask, uh, having only visited but never lived there, living in San Francisco for the limited time that you did, um, your, your thoughts and memories about that city.

Segment Synopsis: SM enjoyed San Francisco but on a very limited income. He found myriad places to go and eat that were of little or no cost and attended musical performances of various sorts.

Keith Mann contacted SM while SM was clerking to ask if he'd be interested in a fellowship. SM had long been interested in teaching and saw this opportunity as a good springboard. He traveled to the Midwest for the year following.

Music plays a significant role in SM's life; he attended orchestra performances whenever he could. He enjoyed Beethoven and Vivaldi as well as contemporary musicians. He also appreciated big band jazz, attending live performances at clubs often. He took his wife-to-be out to performances to expose her to new music genres.

Keywords: Antonio Lucio Vivaldi; Antonio Vivaldi; Billie Holiday; Dave Brubeck; Duke Ellington; Ludwig van Beethoven; San Francisco; San Francisco Symphony

00:22:15 - University of Chicago

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Partial Transcript: Uh, so we're now at the University of Chicago and, before we turned the recorder on, you mentioned that this was important, for us to have a discussion about this time in your life.

Segment Synopsis: SM found the Chicago law school to be much more scholarly than Stanford, housing the names of many prospective lawyers and legal scholars, including Max Rheinstein and Max Weber. At the time SM was attending, the school had several interesting legal projects, including the jury project and the arbitration project, both of which exposed SM to conceptions of law far broader than he had had at Stanford.

Legal realism had taken hold in Chicago, which expanded the scope of teaching law from its abstraction and logic to its actual implementation outside the courts. Thitherto, SM's studies had comprised analyses of appellate decisions and statutory law. Hence he was very surprised to see so many more dimensions of the law, especially at a more pragmatic level.

SM served as a teaching fellow, assisting with research for Nick Katzenbach, whose primary interest at the time was the role of semantics and pragmatics in the titles taken by lawyers and other public officials. This work further expanded SM's horizons as SM worked in various legal institutions and libraries. In the latter, SM sought many resources on the societal role of the law and its application. He found it curious that the law faculty at Chicago were of various academic backgrounds, including comparative law and philosophy. With such intellectual diversity, SM found himself raising questions he might otherwise not have imagined.

SM wanted to go into teaching. He checked out the "meat market," the Association of American Law Schools, and made many appointments for prospective jobs, including those at all the California law schools. Alas, he had no luck and became jaded about the profession. He happened to run into Katzenbach one day; Katzenbach convinced SM to attend a Yale cocktail party. SM agreed to do so but not without some reservation. As luck had it, SM ran into a gentleman who revealed himself as Jack Ritchie, then Dean of the UW-Madison Law School. The two of them discussed job prospects; a couple weeks later, SM was offered a teaching position.

At the time SM began working at UW, Willard Hurst's pedagogy was coming to fruition, having acquired several grants for his pursuits. SM, who was teaching contract law in the meantime, was allocated some of this money specifically to study works from a reading list provided by Hurst. The selection covered a broad range of topics, exposing SM to such fields of study as sociology, history, and anthropology, and where they overlapped with law.

Keywords: Bronislaw Malinowski; Friedrich Kessler; Jack Ritchie; John Ritchie; John Ritchie III; Karl Llewellyn; Malcolm Sharp; Max Rheinstein; Max Weber; Neil J. Smelser; Neil Smelser; Nicholas Katzenbach; Nicholas deBelleville Katzenbach; Nick Katzenbach; Soia Mentschikoff; Stanford University; Stanford University Law School; Talcott Parsons; University of Chicago; University of Chicago Law School; Wilber Katz; Willard Hurst

00:38:27 - Family and social life in Madison

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Partial Transcript: Can I, uh, back you up just a touch, uh, because I, I know from you readings that, uh, your wife was a--wanted to be a big-city person.

Segment Synopsis: SM's wife, Jackie, wanted to live in a big city, plus she had family members with academic degrees from UW. SM's initial assumptions about Madison included caricatures of farm life. Upon arrival, however, he found the area to be very cosmopolitan, socially and intellectually, which intrigued him very much.

They initially lived in University Housing but eventually moved to the west side. Jackie grew to love Madison; the one thing she did not want was to become a suburban housewife, but she respected women who chose to do so. She eventually obtained a Ph.D. from UW--Madison.

Keywords: Adolf Hitler; Chicago; Frank Lloyd Wright; Jackie Macaulay; Madison; Taliesin; University of Wisconsin; University of Wisconsin--Madison; University of Wisconsin--Madison Law School; Yo-Yo Ma

00:44:33 - Teaching and publishing

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Partial Transcript: So, um, you talked a little bit about your initial time here, uh, I want to ask a couple more questions about that.

Segment Synopsis: SM recalls his time teaching at the University of Chicago, focusing on contract law. He states that, unlike many academic departments, law tends not to have outstanding scholars whose work defines the field; thus he read scholarship across a broad range of subjects. He recalls the scholarly influence of a paper entitled "The Reliance Interest in Contract Damages," which altered the area of contract law dramatically.

SM's father-in-law, Jack Ramsay, enlightened SM about the nature and scope of contract law and pointed out a distinction between short-term contracts and long-term continual relations. This distinction influenced SM's scholarship considerably. He had some difficulty understanding the terminology of social sciences; his wife, Jackie, who was pursuing a Ph.D. in psychology, helped him with those matters.

SM was invited to present his paper, "Non-Contractual Relations in Business: A Preliminary Study," at an annual meeting of the American Sociological Association, which published the paper in February of 1963. His presentation followed a speech given by Pitirim Sorokin, a major figure in sociology.

Keywords: Des Moines; Des Moines, IA; Duke University; Great Depression; Harvard University; Jack Ramsay; Jackie Macaulay; Karl Llewellyn; Longthorpe; Malcolm Sharp; New York City; New York, New York, Columbia University; Non-Contractual Relations in Business: A Preliminary Study; Pitirim Sorokin; Robert Merton; Social Science Research Council; Stanford University; The Reliance Interest in Contract Damages; Willard Hurst; William Perdue, Jr.; William R. Perdue, Jr.

00:55:10 - UW Law School building / Jackie's employment

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Partial Transcript: Mm-hmm. So, um, maybe just one more thing, and then, uh, you know, as…as things happen…my, my best game plan is to [inaudible] into the seventies

Segment Synopsis: SM describes the law building at the time he attended law school. It was made largely of wood, comprised 3-4 floors, and was decorated with gargoyles. Had the building not been property of the state, it likely would have been condemned due to its poor shape. The first-year classroom accommodated the typically large incoming student body; class seating was often arranged in a U-shape to facilitate discussion. Smoking was prohibited but professors smoked anyway; students also tended to smoke while taking their final exams, being a “God-given right,” as SM puts it. A wing of the library was attached to the building.

At this time—the early 1960s—SM and his wife, Jackie, were sure they wanted to stay in Madison; their main concern at that point was finding or building a house. Building a Taliesin house required serious commitment. In 1970, upon return from international travel, SM and Jackie were invited to SUNY—Buffalo. Giving incentive to visit, the dean promised Jackie an assistant professorship as part of a new “Law & Society” faculty, but did not follow through; hence SM and she returned to Madison. SM was quite irritated by the matter.

Keywords: Bascom Hall; Bascom Hill; Buffalo, New York; Chile; Gargoyle; George Young; John Steadman; Madison; Madison, WI; SUNY--Buffalo; Shirley Abrahamson; Taliesin; Taliesin Associated Architects; UW Law School; University at Buffalo, State University of New York; University of Wisconsin Law School; Willard Hurst

01:02:30 - Empirical research

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Partial Transcript: Uh, okay. Today is Tax Day except it’s really not Tax Day: April 15th, 2016.

Segment Synopsis: SM worked on two empirical pieces. Such work made his colleagues nervous because it was not the norm at the time. The work regarded the sociological functions of contracts. One piece was about the utility of contracts and involved interviews with lawyers and other legal professionals; it looked at long-term continual relations and the nature of deals made between parties involved. The other empirical piece looked at the role of law in regulating contracts between automobile manufacturers and dealers. SM found that such contracts involved a lot of bribery and other corruption. He asked his father, who worked for Chevrolet as a senior comptroller, to offer his perspective and review his manuscript. It turned out his father had much experience dealing with contract issues so he was able to give SM valuable insight.

SM also did a piece combining contract policy with empirical research regarding terms-and-conditions statements—e.g., the fine print found at the end of an account setup that new clients agree to “accept”—finding very few people read such things. This became important because the credit card industry was growing, which introduced a host of financial liability issues.

Keywords: Alaska; Amazon.com; Automotive News; Chevrolet; General Motors; Great Depression; Hawaii; Racine, WI; Racine, Wisconsin; Stanford University; Stanford University Law School; World War 2; World War II

01:12:21 - Teaching with Lawrence Friedman

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Partial Transcript: The point of this is I was doing empirical things.

Segment Synopsis: As a result of his empirical research, SM was invited to the Center for Advanced Study in the Behavioral Sciences at Stanford. SM was excited to return to California for a year. He planned to continue reading and expanding his academic horizons. What happened, however, was that, after a sociology professor left the law department, an associate dean, Lawrence Friedman, was asked to teach in his stead. SM had been asked likewise. The two of them decided to teach together.

Hence SM and Friedman collaborated to create and teach a class. They needed to start from scratch, conjuring up a class that fell along the intersection of law and behavioral sciences. They met weekly at the Mandarin Restaurant to discuss and plan class matters. They spent much of the afternoons in the restaurant, working on what was to become the first edition of a book entitled "Law and Society."

Because such an interdisciplinary course was relatively new at the time, it was a challenge for SM and Friedman to collect reference materials. The book sold well; many people told SM that they enjoyed it and photocopied it, which humored SM since it showed how little many people knew about copyright law. Along the way, he discovered that the cost of producing new editions of books has increased dramatically.

Keywords: Center for Advanced Study in the Behavioral Sciences; Law and Society; Lawrence Friedman; Stanford Law School; Stanford University

01:20:32 - Vietnam protests on campus

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Partial Transcript: When we talked in the pre-interview, you, you talked about perhaps not being deeply involved in politics but ‘66-‘67, in northern California, uh, my guess is there’s clamoring’s about what’s going on in Vietnam.

Segment Synopsis: SM remarks on Vietnam protests. He mentions that he supported President Lyndon Johnson’s domestic policy—the Civil Rights Act, specifically, which he had actively advocated. He was not thrilled about the escalation of intervention in Vietnam, however, which happened under both Johnson’s and then Richard Nixon’s authority. SM criticizes the “Southern strategy”—the political practice of appealing to racism to gain votes from certain demographics—of the Nixon campaign.

SM recalls an incident one winter while he was teaching a contract law class at UW: a student, Paul Soglin, notified that class that there were protesters being beaten near the business school; several students then left the classroom to attend to the matter. The law school had to cancel classes and evacuate the building because the air conditioning system was drawing in tear gas that was being used to incapacitate protesters on Bascom Hill. SM also recalls a group of students picketing the law school in March; they vilified law students as “the dominant class.”

Keywords: Berkeley, CA; Berkeley, California; California; Civil Rights Act; Civil Rights Act of 1964; Lyndon Johnson; Paul Soglin; Richard Nixon; UC-Berkeley; University of California, Berkeley; Vietnam

01:26:41 - Visiting Chile: Language and politics

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Partial Transcript: So let’s, uh, let’s talk about Chile, then, unless you think there’s something else.

Segment Synopsis: SM and his family traveled to Chile for about a year and a half. They wanted their children to experience places outside the United States. Initially, SM considered going to England but there were logistical hurdles he didn't want to jump. He then came across an opening for a year-long position in Chile. The program showed interest in him and his empirical work; they recruited him to study the effects of political and educational reform.

SM faced some linguistic obstacles, not faring well in Spanish back in high school and feeling nervous about trying to learn it at such a late age. His wife already knew French and Italian, so she had a better propensity to learn a new language.

Due to recent protests and tragic events on several campuses (e.g., Kent State shootings), worry arose among college administrators about student politics. They feared students would engage in violent behavior at night; thus they encouraged faculty to travel and research abroad.

SM realized there were many Spanish dialects—variations of Spanish between Mexico, Chile, Cambodia, and elsewhere. He also learned that cuisine and dining were different: dinner tended to be very late in the evening. He heard about the campus shootings via radio while he was dining one evening; he tried to reach people in Madison to get further information on the incident but to no avail.

Keywords: Bogota; Bogota, Columbia; Chile; Communism; Dane County Sherriff; Don Quixote; Eduardo Frei; England; Ford Foundation; Guadalajara; International Legal Center; Jackie Macaulay; Mexico City; New York; Ohio National Guard; Park St; Park Street; Santiago; Santiago, Chile; Second World War; UW Law School; University Ave; University Avenue; University of Puerto Rico; University of Wisconsin Law School; Vilas Hall; Wisconsin School of Business; World War 2; World War II; anti-Communist

01:38:56 - Visiting Chile: Research

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Partial Transcript: Well, uh, so you’re, you’re in Santiago, um…what, how, how would you describe or how could you describe the work that you’re doing there?

Segment Synopsis: SM remarks on his work in Chile. He studied the impact of various economic and political reforms on the state. After about 1-2 months, Salvador Allende was elected president of Chile, much to everyone’s surprise. He was the first Marxist elected to high office in Latin America via open elections. This change gave SM trouble because Chilean political leftists were suspicious of the Ford Foundation—SM’s primary source of funding for his work there—believing it was little more than an extension of the CIA.

A few months later, SM came across people in the Ministry of Justice who had aligned with Allende and negotiated with them to ease his studies. At about the same time, a new administrator of the Ford Foundation sought critical reports on the Chilean law program with the International Legal Center. This placed SM between the Chilean representative of the Ford Foundation and the head of the International Legal Center of New York, who had conflicting views of how to present the reports: the former wanted a positive review and the latter wanted something more critical and honest.

SM discovered that administration was not his forte; he did not enjoy acting as a political mediator and found he was not good at delegating tasks to others. His temperament was more in line with scholarly work than with litigation and mediation.

SM’s daughter graduated from high school about this time. She found a niche with linguistics while attending UC-Berkeley; she now is a professor in linguistics. Around the time SM and his family returned from Chile, the military overthrew Allende and his administration. Communist sympathizers usurped his power in an effort toward global communism. Whether the CIA played a role in the overthrow remains a question for SM. He believes not enough political credit is given to Chilean politicians.

Keywords: Australia; CIA; California; Canada; Central Intelligence Agency; Chile; Christian Democrats; Communism; Democrats; Don Quixote; Fidel Castro; Ford Foundation; Henry Kissinger; International Legal Center; John Howard; Latin America; New York; New York State; Richard Nixon; Salvador Allende; Santa Barbara; Santiago; Santiago, Chile; Socialism; Valparaíso

01:48:18 - Visiting Chile: Culture

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Partial Transcript: What a, what about your cultural experience in, in Chile?

Segment Synopsis: SM remarks on Chilean culture. He states that Chileans were fascinated with American culture but adamantly against the war in Vietnam. The country fascinated SM, reminding him of California with similar climates and flora. It reminded him of when he had a victory garden with its variety of fruits and vegetables.

Visually, the country was very impressive; the Andes were beautiful and shrank the Rockies in comparison. SM compares Chile’s geography to that of the United States. In hindsight, the trip to Chile was academically unsuccessful for SM; politics at the time were anti-intellectual.

SM recalls the assassinations of General Pinochet and the Chilean ambassador. It was a great time for the family, however, and offered them a chance to see a different legal and political system.

Keywords: Andes; Andes Mountain Range; Andes Mountains; Andes Range; Argentina; Augusto José Ramón Pinochet Ugarte; Augusto Pinochet; Australia; Bolivia; Buenos Aires; California; Canada; Canadians; Chile; Chileans; Colorado Springs; Colorado Springs, CO; Colorado Springs, Colorado; General Pinochet; Latin America; Mapocho River; Rockies; Rocky Mountain Range; Rocky Mountains; Salvador Allende; Santa Barbara; Santa Barbara, CA; Santa Barbara, California; Santiago; Santiago, Chile; Second World War; United States; University of Chile; Valparaíso; Valparaíso, Chile; Vietnam; Vietnamese; Washington, D.C.; World War 2; World War II

01:55:23 - Time in Buffalo, New York

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Partial Transcript: So we came back. My wife had run into the problem, she got a PhD...um, she was in social psychology...

Segment Synopsis: Upon returning to the United States, SM and his wife, Jackie, headed up to Buffalo, New York, where they believed a professorship awaited Jackie. SM took a visiting appointment there. Alas, no such opening was available; Red Schwartz, the dean of the SUNY Buffalo Law School, had promised a position for Jackie but failed to follow up. There was no assistant professorship, no psychology office, and no contact in the department for Jackie to reach. SM and she went to Schwartz and showed him the letter he had sent, promising an opening, but he responded that he simply forgot. This did not please SM or Jackie in the least. SM was disappointed also because he was eager about the many cultural opportunities in Buffalo. Given the unfortunate event, however, SM did not look forward to work during his visiting appointment. Jackie became involved in a feminist group, which helped her morale after being let down.

Keywords: Albright-Knox Art Gallery; Buffalo Symphony; Buffalo, New York; Jackie Macaulay; Louis Sullivan; Madison; Madison, WI; Madison, Wisconsin; Michael Tilson Thomas; Northwestern University; Pete Seeger; Philadelphia Orchestra; Philadelphia Symphony; Red Schwartz; SUNY Buffalo Law School; San Francisco; San Francisco, CA; San Francisco, California; Santiago; Santiago, Chile; State University of New York at Buffalo Law School; State University of New York at Buffalo School of Law; UB Law; UW-Madison; University at Buffalo Law School; University of Wisconsin; University of Wisconsin, Madison; Vienna; Vienna, Austria; Wisconsin Union Theatre; Yale University

02:04:20 - Return to teaching at the University of Wisconsin

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Partial Transcript: Um, alright, so today is, yup today is April 22nd, 2016. This is now the third interview with Stuart Macaulay.

Segment Synopsis: Beginning of the third session. SM met Marc Galanter and Bob Gordon, faculty members at the SUNY-Buffalo Law School, and brought them to the attention of the UW-Law School’s hiring committee. Both of them joined shortly thereafter. David Trubek left Yale and joined UW also. He became very interested in critical legal studies, a school of thought that emerged in the 1970s and questioned the socioeconomic foundations of Western legal institutions. SM found the school interesting but disagreed with its lack of trust in empirical studies. Several civil and political rights movements were happening at this time (early 70's); many minorities believed the law was not treating them fairly.

When SM resumed teaching at UW, he found he needed to change the content of his courses in accordance with the way the law was being altered and executed. He believed the standard set of legal cases taught in contract courses needed to be updated. He was skeptical of the case selection norm at the time, believing it was out of touch with contemporary law and politics. Law scholarship had expanded greatly, increasing the challenge of selecting useful readings for courses. SM also taught an interdisciplinary seminar with his wife, Jackie, called psychology and the law. He drew from the work of Wallace Loh and used Jackie’s comments to improve his teaching.

Keywords: Bob Gordon; Buffalo; Buffalo Law School; Buffalo, NY; Buffalo, New York; Center for Advanced Studies; Chile; David Trubek; Jackie Macaulay; Lawrence Friedman; Marc Galanter; Robert Gordon; SUNY Buffalo Law School; Stanford; Stanford Law School; Stanford University; UB Law; UW-Law School; UW-Madison; University at Buffalo Law School; University at Buffalo School of Law; University of Washington; University of Washington Law School; University of Washington School of Law; University of Wisconsin; University of Wisconsin Law School; University of Wisconsin, Madison; Wallace Loh (?); Yale; Yale Law School; Yale University

02:13:33 - Jackie Macaulay

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Partial Transcript: Part of what we've been doing here is, is talking not only about your life but also your wife's, and I wonder--

Segment Synopsis: SM’s wife, Jackie, and he taught a class about psychology and the law at the University of Wisconsin. This played a factor in Jackie’s decision to pursue a law degree. At this time, however, gender discrimination within the UW system was abound, among administrators and faculty alike, making it unreasonably difficult for a women to pursue work in law and academia. Jackie became involved in several political movements, including poverty reduction and gender equality. She was very knowledgeable in law and passed the LSAT with high marks, opening the doors to myriad teaching and research opportunities. They had two kids in college, so teaching outside WI was not feasible.

Keywords: Jackie Macaulay; LSAT; UW-Madison; University of Wisconsin; University of Wisconsin, Madison; law school aptitude test

02:19:03 - Teaching methods

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Partial Transcript: Well, um, can I ask one more question about your teaching and that's, uh, if you've thought about or considered your style of teaching was.

Segment Synopsis: SM describes his teaching methods. He recalls his instructors at Stanford Law using the Socratic Method, which he did not appreciate because it involved much humiliation; hence he avoided using such tactics as an instructor himself. Instead he lectured and asked questions, not necessarily seeking answers then and there but rather giving his students something to ponder, perhaps responding at a later class. He wanted to present law as a tool for solving or avoiding problems.

The class materials included casebooks and statutory law references; SM sought to use these as the basis for discussion on a more practical level, asking questions about the “who,” “when,” “where,” and “why” of the law.

He employed empirical research to guide his teaching methods and to clarify if and when certain types of laws would be used and how they affected the lives of ordinary folk. He pushed for a contrast between the concept of law and it implication. This empirical teaching tendency grew among faculty in the 70s and 80s, though it never was a majority favorite. In the 80s, a contracts group visited UW to teach law; this group helped SM and some colleagues of his in making and publishing a book on contract law. The task was a rewarding challenge.

Keywords: Bill Whitford; John Kidwell; Socratic Method; Stanford; Stanford Law School; Stanford University; William Whitford

02:25:15 - Legal and academic service

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Partial Transcript: So, I know a, a couple other things I wanted to, to talk about from this time period.

Segment Synopsis: SM served on the Law and Society Association, an organization that comprises people of different disciplines who have a common interest in the purpose of the law. SM believed he was out of place volunteering for such a surprisingly doctrinal organization, but he found it served him well, providing him with valuable experience. The American Law Institute regularly publishes information on common law, including contracts; SM wrote reports commenting on the meetings and their agendas. After attending advisory committee meetings, SM would frequent jazz performances. SM also served on committees for the National Science Foundation, which had a law and society program that helped determine how money would be appropriated. He was elected president for the Law and Society Association at a time when it was in dire need of funding; hence SM’s tenure was often preoccupied with financial issues. At one point he needed to search for an executive director.

As for campus service, SM served on the Social Sciences Divisional Committee, signing off on tenure for faculty candidates; the research committee for the Graduate School; and a special committee that decided tenure policy for the then-new UW-Green Bay campus. He also served on various law school committees, including those that hired new professors and decided tenure.

Keywords: Allan Farnsworth; American Law Institute; Columbia Law School; Green Bay; John Coltrane; Law and Society Association; National Science Foundation; Social Studies Divisional Committee; Thelonious Monk; University of Wisconsin; University of Wisconsin, Green Bay; University of Wisconsin, Madison

02:31:30 - Other publications

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Partial Transcript: Um, I did want to ask, too, about, um, you've already mentioned a couple of them, but, if there are any other publications from this, this mid-career time period.

Segment Synopsis: SM recalls some of his publications, including those regarding consumer protection law. He inquired colleagues and lawyers about how they responded to this new set of laws; he found that many people were only vaguely aware of these laws if at all. He took note of the fact that lawyers in consumer protection law in less populous places tend to be more familiar with the constituency; thus they were better able to help clients on a more personal level.

SM recalls writing a paper with his wife, Jackie, on interracial adoption, specifically, whether a white parent should ever adopt a black child. They answered in the affirmative, writing it partly in response to allegedly scientific claims made by social workers that such adoption was culturally improper.

SM then discusses “Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports,” a book he wrote stemming from a talk he gave while president of the Law and Society Association. He asked various questions such as how much students learn about the law in primary and secondary education, finding it surprising how little of it was taught. He also studied how people tend to manipulate or avoid rules and regulations while still formally complying with them; he highlighted how inaccurately pop culture—especially television programs—portrays the legal procedure. In general, SM’s aim was to study and illuminate the misunderstanding of the law in non-legal contexts.

Keywords: CSI; Camp Randall Stadium; Crime Scene Investigation; Foley & Lardner; Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports; Jackie Macaulay; Law and Society Association; Lawyers and Consumer Protection Laws: An Empirical Study; Magnuson–Moss Warranty Act; Milwaukee; Ralph Nader; USC; University of Southern California

02:43:45 - Traveling and settling

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Partial Transcript: So, um, maybe one more thing this time and that was—I noticed in your CV that, uh, after Chile, at least uh, uh, three or four times in the seventies and eighties you continued to go abroad.

Segment Synopsis: SM discusses travelling abroad. Initially, as a pure contracts teacher, SM had few opportunities to teach abroad—contract law did not exactly appeal to a wide audience. Once he became involved in Law and Society, however, doors opened to other parts of the world where he could present papers and attend conferences. Among such opportunities that SM took were visiting professorships at the Center of Socio-Legal Studies, Oxford University and the University of Western Australia.

Jackie accompanied SM when she could but she was busy with her own law firm and academic pursuits. Their children usually did not join them. The family thus was very busy, especially when the kids were transitioning to or from college. SM and Jackie would still meet regularly but usually in the late evening, once they both were done with daily obligations. In recognition of Jackie’s public service, the Social Justice Center created an art gallery in her name. The SJC also provided law students with service opportunities and gave an award to the student with the most impressive work.

In 2004, SM became a board member for the Frank Lloyd Wright Wisconsin organization; the group traveled throughout the state to show residents the many buildings designed by Wright. SM also joined the board of the Frank Lloyd School of Architecture. He met many politicians along the way. Jackie and SM’s house in Madison was of a Frank Lloyd Wright design, shaped like a parallelogram along a hillside; it served as an anchor for both of them despite their travels. SM had received several offers, such as the teaching position at SUNY-Buffalo, but had to turn most of them down because it was not feasible: wherever they went, both SM and Jackie needed to be employed; moreover, their kids were in the transitional phases in their lives and SM was in the middle of some projects of his own. Among those offers he turned down were a visit to Yale and a teaching position at Stanford.

Keywords: Center of Socio-legal Studies; Chile; Frank Lloyd Wright; Frank Lloyd Wright School of Architecture; Jackie Macaulay; Jackie Macaulay Award; Jackie Macaulay Gallery; Law and Society Association; Lisbon; Madison; Madison, WI; Milwaukee; Oxford University; Paps Mansion; Perth; Portugal; Public Interest Law Foundation; Racine; S. C. Johnson & Son; Social Justice Center; Stanford University; Taliesin; Western Australia; Yale University

02:56:20 - Endowed professorships

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Partial Transcript: [Stuart Macaulay:] --are we? I mean what, what year are we sort of up to? [Troy Reeves:] We are in the nineties.

Segment Synopsis: SM received several endowed professorships, which are given to faculty in recognition of their exceptional scholarship and to provide them with permanent funding for their work. These included a Hilldale professorship, one of the highest honors on the UW campus, and a law professorship. SM had the opportunity to name the former honor after a person of his own choice (so long as they had some connection to UW Law); he chose Malcolm Pitman Sharp, who held a master’s degree from UW. For the latter honor, SM received money for research and to attend meetings, among other things. SM was very frugal with his research money, noting he found colleagues of his using money toward non-academic expenses.

SM put much of his endowment money toward editing and publishing Law and Society, of which he made four editions over the years. The work included collecting articles to present conflicting view on legal matters and public policy. The cost of publishing increased significantly over the years: the first edition in 1967 cost little, since at that time re-printing an article required little more than permission from the author; at the time of the 2007 edition, permission regularly cost around five hundred dollars. This forced SM to select articles very carefully and to buy the rights to facilitate publishing. He found along the way, however, that some publishers were willing to reduce charges if and when they found out the purpose of the book. SM hired research assistants to help in the effort. He appreciated the endowment funds especially at this time because it enable him to continue publishing the book.

Keywords: Cliff Thompson; Hilldale Professorship; Law and Society; Malcolm Pitman Sharp; UW Law School; University of Chicago Law School; University of Wisconsin Law School

03:01:42 - UW Law School building update

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Partial Transcript: So, just going down my list here, I noticed when I checked, uh, our records, uh, there was on more update to the law school in the, in the nineties.

Segment Synopsis: A major revision was made to the law school building in the nineties. SM recalls the construction work made teaching a challenge because of the disruptive noises and ubiquitous dust. Thus the classes were moved to leftover classrooms, which were not of the best quality. SM recalls his daughter, who studied at UW at this time, found a place in the Wisconsin Historical Society building to retreat from the disruptions.

SM frequently joked that the best thing to be done for the law school was a replacement of the first-year classroom, which he found terribly designed: It did not acoustically suit lectures and discussions typical of a law class; SM found it impossible for students to hear peers talking elsewhere in the room. Sure enough, the room was redone with the addition of a patio, which was eventually enclosed in an atrium due to the Wisconsin climate.

The redesign brought many of the clinical law faculty back to the building; they had been located in state offices near the Capitol. This allowed for more interaction between the academic and clinical faculty: SM got to know Louise Trubek and Michele Lavigne better, among others.

Keywords: Jackie Macaulay; Louise Trubek; Michele Lavigne; UW Law School; University of Wisconsin Law School; Wisconsin Historical Society

03:06:26 - Recent publications / Correspondence with Frank Lloyd Wright

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Partial Transcript: Ok. So, uh, I want to move to talk about publications.

Segment Synopsis: SM discusses some of his more recent publications. He begins talking about materials he put together for teaching contracts law in collaboration with colleagues William Whitford, Marc Galanter, and John Kidwell. Eventually the materials were put together and published as a single volume. This book emphasized taking a realist view of the law, i.e., looking at the law in practice in everyday life. SM wanted this to happen because he believed that law had been taught hitherto in a rather impractical manner.

SM mentions a particular case, Hadley v. Baxendale, an English law case that addressed the issue of damages from a breach of contract and the extent to which parties involved are liable for those damages. SM's text introduces this case in conjunction with much more modern cases addressing similar issues; the purpose is to present readers with historical context to see how the law develops outside the court as well as inside it. SM and his colleagues are working on a fourth edition of this book which they just sent to the publisher.

SM also enjoyed working on "Organic Transactions: Contract, Frank Lloyd Wright and the Johnson Building." It makes up an important part of his scholarship and derives from the important relationship he made with Frank Lloyd Wright. Jackie Macaulay facilitated her husband's correspondence with Wright and Jack Ramsey, then Dean of the Law School, which concerned structural matters about the Johnson building, among other things. This connection led to myriad jobs for Wright that led to the creation of several historically and aesthetically important buildings in Wisconsin.

Another paper, "Contracts, New Legal Realism, and Improving the Navigation of the Yellow Submarine," regarded the many unforeseen obstacles typical of contract law and titularly alluded to the USS San Francisco, which encountered problems due to poor charting. Students, SM believed, were positions not unlike those of the officers aboard the submarine. SM was partial to using song titles for his articles.

Keywords: Contracts, New Legal Realism, and Improving the Navigation of the Yellow Submarine; Duke Ellington; Federal Express; Frank Lloyd Wright; Hadley v. Baxendale; I'm Beginning to See the Light; Jack Ramsey; Jackie Macaulay; John Kidwell; Law and Society; LoPucki (?); Marc Galanter; Organic Transactions: Contract, Frank Lloyd Wright and the Johnson Building; Racine; S.C. Johnson & Son; Scottsdale; Spring Green; Taliesin; Taliesin School of Architecture; Things Ain't What They Used to Be; USS San Francisco; William Whitford

03:20:25 - Writings about Macaulay's work

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Partial Transcript: Uh, so along with a, a few of the-the articles that you wrote that you mentioned, um, towards the end of your, uh--er, er, recently I should say, people started writing things about you.

Segment Synopsis: SM recalls several works written about him and his work. He mentions two in particular, one of which--The Canon of American Legal Thought, an anthology that included what the editors deemed the most important pieces of American legal scholarship--included his article called "Non-contractual Relations in Business." Also included was a piece by Marc Galanter, "Why the 'Haves' Come Out Ahead." SM found it both amazing and humbling to have his work included in an Ivy League publication.

Bill Whitford, a fellow law professor, arranged a for a conference to look at SM's scholarship as a whole. It was called "On the Empirical and the Lyrical," in allusion to the nature of SM's work and his tendency to use song titles for it. It included about fifteen papers and eventually become a book. SM was very honored by the occasion and noticed that, despite it, much of his work has been superseded by modern scholarship. He is is not upset but rather glad to see this because the law is such an organic thing: it is only natural that work about it eventually becomes outdated or in need of revision.

SM returned the favor to Jean Braucher, who had played a major role in creating the aforementioned conference. She died rather young; SM was asked to attend a memorial at Arizona and talk about her. He spoke about his experience as both her mentor and colleague. The University of Cincinnati made a named professorship in her honor.

Keywords: Harriet Beecher Stowe; Harvard Law School; Jean Braucher; John Kidwell; Marc Galanter; Non-Contractual Relations in Business: A Preliminary Study; On the Empirical and the Lyrical: Revisiting the Contracts Scholarship of Stewart Macaulay; Temple University; University of Cincinnatti; William Whitford

03:29:21 - Remembering Jackie

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Partial Transcript: Um, well I guess since we're on the topic of loss, um, I'd like to ask about your wife's passing.

Segment Synopsis: SM recalls his wife, Jackie, who died in 2000 at the age of 67. He states they were partners; they were not affluent but not poor either; they took good care of their children; they spent a lot of time and energy together. SM's work life and marriage were always intertwined. He appreciated Jackie's input on his work; she did not pull punches when giving critiques. This helped prepare SM for fire from official reviewers.

They did a great deal together, professionally and leisurely. Jackie got a PhD in social psychology from UW-Madison but could not seek work outside of the area because they needed to tend to their kids. SM recalls the incident when the dean of SUNY-Buffalo failed to hold a faculty opening for Jackie as he had promised; the dean seemed to think little of it, presuming that Jackie could fare finding something more suiting to her femininity. This presumption reflected the sexist attitude prevalent among academia.

Jackie became involved in affirmative action programs, discovering that the UW System badly failed to adhere to its own policies. She gained notoriety from the administration for her outspokenness on the matter. She counselled female faculty who believed they had been treated unfairly by their colleagues and administrators.

Several people encouraged Jackie to go to law school; she, herself, did not care for the idea but she took the LSAT and aced it. Because of their family situation, Jackie was confined to the Madison area, where she counselled for battery victims and people in unfortunate family situations.

The UW law faculty union hired Jackie several times to represent them. Tammy Baldwin worked under her as an associate. At Jackie's memorial, Tammy remarked that Jackie taught her how to practice law and still have a heart. SM said that Jackie would have very much appreciated that comment.

SM and Jackie shared many interests, including architecture and the performing arts. Jackie especially enjoyed the theatre; when SM and she went to New York, she arranged to see as many performances as she could.

Jackie was very active in social justice, being highly suspicious of people in power when they seemed to exploit ordinary folk. She recognized the fact that non-academic people could be every bit as intelligent as she.

At the end of World War II, Jackie found herself in Europe while her father tried to revive his businesses there. She attended an English girls' school and a Swiss girls' school while there. During this experience, she learned to treat people as individuals and not assume anything of them due to their demographics.

After Jackie passed, SM created a pamphlet about her. He had asked several to speak at her memorial and recorded them for the sake of making a booklet about her. He collected pictures also and worked with some local publishers to create and edit the booklet. This task was one of SM's means of coping with the situation. He mailed copies to various people, including close friends and family members. Reception of the booklet led to more stories about Jackie from readers. SM also collected and preserved some family slides and attempted to create a family history.

Jackie would have celebrated the election of President Barack Obama but deplored the political climate today. She also would have objected to the recent anti-intellectual politics in Wisconsin and its financial effects on the UW System and Colleges

Keywords: Buffalo; Europe; Frank Lloyd Wright; Italian; Italy; Jackie Macaulay; Lake Michigan; Madison; New York; Racine; South America; Tammy Baldwin; University of Wisconsin

03:48:41 - Law and modern technology

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Partial Transcript: Um, so I want to ask one more thing that I forgot to write down here.

Segment Synopsis: SM remarks on the impact of modern technology on contract law, transitioning from an age of postal service to digital technology. He points out that very few people bother to read the fine print today (e.g., "I agree..." on Amazon.com) and points out that they consequently know nothing about the terms and limits to which they ostensibly agree.

SM also comments on the value of library reference services, facilitating his research and efforts to keep up with modern technology. He mentions "fugitive materials," i.e., documents that were far and few between and which could not be reproduced. He valued these materials and the library's services to provide them. Nowadays, we may have an overload of information, which calls for different services from librarians, namely to sort out the best and most legitimate resources and point patrons to them, among many other things.

SM appreciates his connections with staff in the law library, who facilitate his research and show him new ways to do and digitize his work.

Despite this help, technological transformations pose challenges to contract law and intellectual property. One example SM mentions is the transformation from vinyl to CD's to digital music; such changes demand a lot from legal professionals as they adapt to such rapid changes.

Keywords: Amazon.com, Cindy May; University of Wisconsin, Madison Law Library

03:54:31 - General reflection on career

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Partial Transcript: Okay, uh, today is, um, May 12th, 2016. This is the fifth and final, uh, oral history interview with Stewart Macaulay.

Segment Synopsis: SM makes general remarks on the law school. He appreciates his time there, feeling very lucky to have found a job. He recalls Willard Hurst and his pragmatic transformation in teaching law, which SM appreciated and imitated in his own teaching. SM wanted to teach students about the legal practice, not just theory, and its implications for everyday life.

SM recalls UW Law School's stunning victory over Harvard for the Rockefeller Foundation scholarship. He compares Hurst's mentality to that of Vince Lombardi, having a pragmatic curiosity about the legal practice and history.

Frank Remington was a notable student of Hurst's who went on to become a well-respected professor of criminal law; he eventually drafted the Wisconsin criminal code. SM suggests riding in the back of a squad car on a hot summer night to get a better sense of the law in practice. The general idea was to see how classroom instruction played out in the courtroom and elsewhere in the world. Few law schools other than UW were asking such questions at the time.

SM comments on working at UW as a Midwestern school. Ivy Leagues tended to set the agenda for all other schools; hence it was all the more significant that a Midwestern school was leading a new pedagogy. Moreover, the notion of the "law professor's wife" was dissipating as women sought their own jobs and careers, becoming more independent intellectually, economically, and otherwise.

SM notes a gap in the UW law school, given many notable professors emeriti and new assistant professors but few therebetween. Given this fact, the unfavorable climate, and that the UW Law School has less funding (and thus less to offer faculty) than many competitors, it has been a struggle for the school to retain its unique profile, which in turn will challenge future efforts to attract new faculty.

Keywords: Big Ten; Brown v. Board of Education of Topeka; Frank Remington; Green Bay Packers; Harvard Law School; Indiana University School of Law; Jackie Macaulay; Jake Beuscher; Lon Luvois Fuller; Northwestern University; Rockefeller Foundation; SUNY-Buffalo; University of Buffalo; University of California at Berkeley; University of Denver; University of Wisconsin Law School; Vince Lombardi; Willard Hurst; Wisconsin State Supreme Court

04:09:28 - Memories: Pearl Harbor attacks

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Partial Transcript: Well, Stuart, thank you for that, um, beginning there. We're now going to completely switch gears.

Segment Synopsis: SM lived through three notable events in American history: the Japanese attacks at Pearl Harbor, 12/07/41; the assassination of President John F. Kennedy, 11/22/63; and the 9/11 attacks, 9/11/01.

SM recalls the Pearl Harbor attacks: he was 10 years old; upon returning from a ride on his father's boss's yacht, SM heard the radio blaring about the attack. At the age of only ten, SM was perplexed but interested in what was going on. He was removed from the bar (being only ten years old) and listened to the radio in the car as he rode back to his house with his father.

While creating victory gardens, SM had to adjust his appetite from one of meat and potatoes to one of fresh produce. Living in southern California, SM saw many such gardens and also noticed that factories were built to produce aircraft (given the favorable weather there).

SM also recalls racial segregation at that time, which was the pervasive norm but which nonetheless was foreign to SM until he traveled to Atlanta, Georgia. There he encountered segregated bathrooms, which appalled him. When he returned to California, a black friend of his pointed out that such segregation was the norm in Los Angeles.

SM attended school with many people who were on the GI Bill. He noticed that they brought with them a plethora of experiences as well as a readiness to challenge themselves scholastically. This raised the bar for SM, who already faced a huge challenge just in virtue of the school he attended.

Keywords: 9/11; Atlanta, GA; California; Chicago; GI Bill of Rights; JFK; John F. Kennedy; John Fitzgerald Kennedy; Los Angeles; Nat King Cole; New Orleans; Pearl Harbor; September 11 attacks

04:16:55 - Memories: JFK assassination

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Partial Transcript: Well, JFK: couldn't believe it. It was, it was, uh...uh, it was a fantasy or something being shown on television.

Segment Synopsis: SM recalls the JFK assassination. He was utterly shocked, ignorant of the fact that this was not the first attempt at a high officer's life (and would not be the last). For SM this illuminated the fact that politics was much more complicated than he initially thought. Shortly thereafter LBJ signed the Civil Rights Act, effectively losing the entire southern demographic of voters. In general, the "quiet consensus" was shaken by the assassination and woken up to the many problems in American politics. Jackie Macaulay laid a rose on the steps of southern Madison, knowing of nothing else she could do in response to the horrible news.

Keywords: Brown v. Board of Education of Topeka; Civil Rights Act of 1964; Democrats; FDR; Franklin Delano Roosevelt; JFK; Jackie Macaulay; John F. Kennedy; LBJ; Lyndon Johnson; Malcolm X; Martin Luther King, Jr.; Republicans; Richard Nixon; Robert Kennedy

04:20:41 - Memories: 9/11

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Partial Transcript: And then, of course, 9/11 comes along and...yeah, the Japanese bombed Pearl Harbor, that's where we started in all of this.

Segment Synopsis: SM recalls the 9/11 attacks and compares their imminence to the remoteness of the Pearl Harbor attack. He says it illuminated the paradoxical position the United States has in the world: a prevalent, powerful force that is disdained by many abroad. It also exposed the fact that the United States is vulnerable and not loved by everyone. This, in turn, unveiled the highly critical view many religious fold hold of modern technology and secularism in the Untied States; moreover, the concept of democracy remains very foreign to many people.

SM says he is fascinated with the juxtaposition of traditional cultures and modern technology, as demonstrated by anti-intellectuals who utilize digital technology for various things, including terrorism.

Keywords: 9/11; Canada; Chile; Internet; Manhattan; Muslim; Pearl Harbor; Pennsylvania; Santiago; September 11 Attacks; White House

04:27:06 - Retirement and legacy / Interview conclusion

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Partial Transcript: Well, thank you for that. We are now at the last couple of questions.

Segment Synopsis: SM decided to retire in 2008 because the University's budget had been cut by the state legislature. Most of the school's money was put toward labor, so faculty and staff worried about facing pay cuts or worse. Then-dean of the law school, Ken Davis, offered SM, among other faculty, a deal in which he would secure SM's pension and social security if SM agreed to teach one class per semester for five years for half the salary. SM agreed with little hesitation. This allowed Davis to save the school money without firing anyone. Hence SM taught as an emeritus for five years.

SM believes he will be remembered best for his publication in the American Sociological Review in 1963, namely, "Non-contractual Relations in Business: A Preliminary Study." It extended legal studies to disputes settled outside the courtroom and it has been cited numerous times. Recently have emerged master sales agreements, which are contracts between parties that lay out their major requirements and obligations for the present and future circumstances. The purpose is to economize contracting by reducing the the paperwork and negotiation involved in renewing contracts that involve similar terms over time. This new sort of formal agreement is an example of the non-contractual relations Macaulay highlighted with his paper.

SM would like to be remembered as someone who did what he could to help others, including his students and community. He is very grateful for his opportunities in Madison and the life and career he developed as a result of them.

Keywords: Bascom Hall; Boeing; Harley Davidson; John Deere; Ken Davis; Kohl Center