Professor James B. Atleson

Konefsky: So, let's start at the beginning. Name, rank and serial number. Born?

Atleson: 1938. Akron, Ohio.

Konefsky: So, why don't you begin by telling us a little about the family in which you were born, what your parents did, what your schooling was like, what your family was like--

Atleson: Had a small family, my sister and I. My father sold shoes at a department store in 00:01:00Akron, called Polsky's. My mother did not work until later. The whole family was rather large. There was-- My mother had three brothers. My father had eleven sisters and brothers, one of which was a lawyer, the first lawyer (woman) to graduate from Akron Law School. She never practiced because women didn't practice in those days. So, basically, working class family. During the War, my father worked two jobs, both the department store 00:02:00and at B.F. Goodrich and he did that during the War because it was a Defense job. Therefore, he wouldn't be called. I don't think he would have been called in any case, because he had one child and my sister was born in '41 and so he probably would be excluded because of children. He did that. He was also a (I forgot what they call them, these people), but he was a security person for his area. He'd go out at night and make sure there were no lights showing in any windows.

Konefsky: The Home Guard curtains.

Atleson: Yes. He had this terrific-looking white metal hat, which I always wanted, and he would go out and make sure that the German Air Force somehow did not bomb Akron, Ohio. 00:03:00How they would have gotten there, I have no idea, but that was his job.

Konefsky: Well, let me ask two questions about the War when he was working for Goodrich. Was he working a full-time shift and working part-time for the department store?

Atleson: They were both full shifts.

Konefsky: So, he was basically working sixteen hours a day.

Atleson: That's right.

Konefsky: And, which shift came first in the day? Do you remember?

Atleson: I don't remember, but I'm sure it was probably shoes during the day--

Konefsky: Working Goodrich at night.

Atleson: Uh huh. It was a tough place to work. It was in the process of becoming unionized, but there were lots of southern workers who moved up to work in the higher industry in Akron. 00:04:00My father didn't tell me much about that. It was mentioned to me once that there were lots of problems between workers; didn't mention race as the problem. But, he did mention the southern workers and there were lots of fights and lots of knives, he mentioned. I think he had some fear about working there. That I had never heard of before or since.

Konefsky: So, you don't have any sense about whether any of the violence or threats of violence had to do with union organizing?

Atleson: No, just never learned that.

Konefsky: Could we go back one other step? That is, when your family came to this country and--

Atleson: Um, my paternal 00:05:00grandparents were from Romania. He was a baker in Akron. I don't know why they came to Akron. I think there were maybe other members of the family there at that time. He had some problems as a baker. The house they lived in was right next door to the bakery and the twelve children were apparently always around in the bakery and some of them had to work there as children. I don't know, but what we have is a ruling of a local court, which gave my grandfather a certain amount of time to clean up the bakery or it would be closed. Apparently, the judge himself visited the bakery and, at some point, I think in fact it was closed. I don't know what my grandfather did after that. 00:06:00My mother's parents were Russian and came first to the upper peninsula of Michigan. I have no idea how they got from there to Akron. Both of my grandfathers were dead by the time I was born, so I have no idea what he did.

Konefsky: So, they would have immigrated in the late-19th Century, both sides.

Atleson: We think around 1910/1908. I forget exactly the date, but I have the citizenship 00:07:00petition of my paternal grandfather, who was forced to surrender any allegiance to the King of Romania. I suspect that was easy for him to do.

Konefsky: Didn't think twice about it?

Atleson: I think that was pretty easy and I think that's about the time that they came. They came later. On the paternal side, I think there were two children already born in Europe. I don't know about my maternal side. And, somehow that grandfather was a merchant. He had a--he went around in a cart and sold things.

Konefsky: A peddler?

Atleson: Uh huh. Peddler is the word I was looking for. I have no idea what he did when he got to 00:08:00Akron or why they came to Akron.

Konefsky: Tell us a little about your education in Akron, if you remember any...

Atleson: I was there until fourth grade. Middle of fourth grade we moved to Cleveland and my father, borrowing money from one of my uncles, opened up a small neighborhood shoe store -- very small. There would not be any shoe stores of that size anymore, in sort of an ethnic neighborhood on the west side of Cleveland. He worked there, my mother worked there on some busy times (Christmastime, Easter). I worked there from age 00:09:00thirteen on, selling, shelving--

Konefsky: Stock boy--

Atleson: Whatever had to be done. My father would always have one extra employee and a free employee, like me, and sometimes my mother.

Konefsky: So, from fifth grade on, you were in the public schools in Cleveland.

Atleson: Yes. Yes.

Konefsky: And what high school?

Atleson: John Adams High School, which was (I thought) quite a very good school. I was surprised to learn it's been torn down since, which apparently takes care of any possible alumni meetings. It was, I thought, a very good high school. It was, I think, 00:10:00leftover from the War was the idea that you had to have phys. ed. every day, five days a week. It had a very active theater program at the school, a radio program in school. I was a morning announcer, believe it or not, and we did plays and I also did plays for the school system. Once a month or so I'd go downtown, meeting students from other high schools and we put on a radio play or make general announcements or things like that. I thought the _education__ was pretty good and I still do. It was a very ethnically-mixed school. There were some Romanians, lots of 00:11:00Bulgarians. There were names for each of these groups, but they weren't hostile. The Russians, Italians were quite big in the school. No Hispanics, I'm sure. That would have changed the school. About a third of the school was African-American. Kind of a substantial Jewish group, although as the years went by, they tended to move out to the suburbs, which my parents eventually did, but a school system in which in a class of 400 students, less than 15 went to college. It was not common to go to college. Their deal was to get a job to keep and buy a car.

Konefsky: 00:12:00So, did you work other than in your father's store when you were in high school?

Atleson: Yeah. I did have a variety of jobs, mostly selling shoes. I worked one summer in May Department Stores in Cleveland. I worked at a local shoe store during the week and then worked for my father on Saturday, which is always a long day. I was a soda clerk at a drugstore. They let me go because I refused to use the cheap, fake vanilla ice cream in sodas and sundaes. I always used the real vanilla and that was a problem.

Konefsky: Too costly?

Atleson: Yeah. They also learned that I sometimes made sundaes by mistake so that I couldn't give them out and I'd have to eat them myself. 00:13:00I'm not sure how they discovered that. I also worked one September because Ohio State began so late. They began after other schools did, so there was always a need for unskilled employees. I worked at a Dairy Queen for a month. By the end of the week, I could not stand Dairy Queen. I stopped making mistakes for myself. I worked for a tool supply, for just a very short time. Mostly, I sold shoes. I was always desperate to get out of it. I hated selling shoes with a passion, but that's what I knew best, so I kept being hired for that.

Konefsky: 00:14:00Now, you grew up or probably remember most events after the Depression.

Atleson: Oh yeah.

Konefsky: During the War. So what were the economic circumstances both that you remember in your community, home, businesses that you were working for--

Atleson: I only have sort of vague memories of the War. I remember going to some of the--I remember my father taking me to some of the films that were made of the War that all seemed to all involve John Wayne. He could make the films because he made sure he wasn't drafted and things were in short supply, but I was not really affected or aware that... I did often stand in line to get coupons for certain kinds of food like oleo and butter or 00:15:00gasoline that were all rationed during the War. My father's income must always have been modest, but it kind of never affected me. I never got, or even asked for, most of the toys I wanted, most of the clothes I wanted, even the shoes I wanted. One had a good shirt and another shirt, which you wore to school. One had sneakers, usually U.S. Keds and one other pair, which you wore to school because you would never wear sneakers to school. It just wasn't done. I could not replace them until they fell apart. So, my parents were very-- My parents were teens during the Depression, but they sort of learned. 00:16:00Each one could have gone to college, but there was a requirement to work in the family and so they didn't go. Both of them had grades good enough. My father could have gone on an athletic scholarship, he was told. Didn't do it. But, it was sort of scraping by. But, as a kid I wasn't aware of it. We went on some sort of vacation every summer for a week or two and I just wasn't aware of any economic problems, so I can't really say much about that. I mean, I wasn't really aware of what was really going on until like the '50s, then I was in high school.

Konefsky: So, what year did you 00:17:00graduate from high school?

Atleson: 1956.

Konefsky: '56 at age 18 or so.

Atleson: Yeah. We were very-- Our primary concern at the time was nuclear war and that was a predominate concern.

Konefsky: Air raid drills?

Atleson: We had the air raid drills-- That and, in college, that was the very big concern. We didn't know whether the world would survive mutually assured destruction. It was not a happy thought, so the '50s were kind of depressing and sort of dull.

Konefsky: Don't remember the birth of Rock 'n Roll?

Atleson: Well, no because I got into the Folk music. 00:18:00It was sometimes called the "Folk Scare" because it was popularized to the point of becoming limpid, having no strength, no cutting edge. Television and other things basically ruined--

Konefsky: So, this would have been Pete Seeger, the Weavers--

Atleson: Kingston Trio.

Konefsky: Kingston Trio.

Atleson: They were very important and we sang all those songs in college and I was kind of a folk music idol. It faded out, partly for Rock 'n Roll, party because it became sort of dull when the media got to it and made it sort of toast-like, so I never got into sort of Rock 'n Roll. I liked folk music and I liked classical music and I liked jazz, but I never got into 00:19:00Rock 'n Roll. So, the Beatles coming to the United States were interesting to me, but their music wasn't.

Konefsky: That was in the '60s, though.

Atleson: Is that the '60s already? Um, well the birth of Rock 'n Roll was interesting. I got interested in Elvis Presley and some of the black music, which I heard from black students in high school.

Konefsky: Now, had you started to play a musical instrument yet?

Atleson: No. I mean I had always wanted to. I tried. I n the 6th grade, I passed some kind of music test. I don't know if it was the Seashore Music Appreciation Test or something which suggested I had some abilities in music, so in the 9th grade, 00:20:00what would now be called middle school, but then was junior high school, I was assigned to junior band on the drums. I never had drums at home, I never asked for drums, so I don't-- I sort of practiced at school. I only did that for a while. I didn't like it. So, I tried various kinds of-- My father had ukuleles around the house, which he played, so I tried that. I tried harmonica, I tried ocarina, I tried all kinds of instruments, but it just never took.

Konefsky: Now, tell us about your decision to go to college and where to go to college. Was it just an absolutely assured decision that if you were going to go to school, that you were going to 00:21:00Ohio State or--

Atleson: You know, I don't remember it really even being a question. I always knew I was going to go to college and my grades were good enough. I applied to Ohio State because tuition is cheap, incredibly cheap. I could pay for myself by working, which I did. It never occurred to me to ask my parents to support me. I was then surprised to learn that some of my classmates went to places like Michigan, for instance. It never occurred to me that there was anything else out there or to private schools with scholarship help. I didn't know about that. You would have to have family knowledge because counselors in the school didn't really help at all. So, most of my classmates, except a couple, went to 00:22:00Michigan. Most of them went to Ohio State or some school in Ohio State, like Kenyon, Kent State, Miami and so on. So, it really wasn't much of a question. It wasn't very far away. It was only three hours away. The quarter-system tuition was only $120/year. Oh--I'm sorry--$120/quarter. So, if you could earn $1500 during the year in the summer, you could pay for room and board, tuition and books. That wasn't too hard to do, as long as you had to work during the year, as well. But, it never occurred to me that there were other schools out there. Three of us from my high school went to 00:23:00Ohio State and had seemed okay.

Konefsky: So, you moved down to Columbus, lived in the dorms freshman year?

Atleson: Yes. I lived in a dorm until the second year of law school.

Konefsky: How was the education? How different was it from high school? What did you end up majoring in? How did you find your major? What were the students like?

Atleson: Well, the students I thought were fairly bright. I wound up majoring in political science without also having much thought. 00:24:00The program there was a mandatory first year of courses -- a history all year, that's three separate instructors teaching this history and an English course. I don't remember the other courses. I picked political science mainly because two friends and I were thinking about joining the U.S. Foreign Service and political science made sense. I wanted to learn something about international affairs. We thought we'd all go to law school, which we did, but not to practice law -- to get into the Foreign Service. So, I did political science. It wasn't until my third year that I had a sociology course and an English class that were 00:25:00just terrific. The instructors were just outstanding and I was sorry I hadn't majored in those things.

Konefsky: Do you remember who they were and what the courses were?

Atleson: Yeah. The English course was American Literature, taught by Julian Markels, who was fantastic -- a fantastic man. I don't remember who taught the sociology course. And, by then, I had realized that there wasn't a lot of substance in political science, unfortunately. But, I didn't have to spend much time in political science because Ohio State had a program. You could go to law school in your fourth year and that would count as your fourth undergrad course. So, I went to undergraduate school for 00:26:00three years. My first year in law school was my senior year, so I had gotten my bachelor's at the end of the first year of law school, which again made economic sense. It didn't make intellectual sense, but made economic sense and so...

Konefsky: Was this a special combined undergraduate law school program so you could do it in six years?

Atleson: Yes. I think it had been in existence for some time and you could have gone to maybe other professional schools, too. I'm not sure. So, I never really planned to be a laywer. Law was something I was going to use for other reasons.

Konefsky: So, you entered Ohio State Law School in what would have been your senior year of college.

Atleson: 1959

Konefsky: '59--and you had the 00:27:00usual straight first year curriculum.

Atleson: Pretty much. Pretty much. There were some electives in the first year and I-- Again, I never thought of going to any other law school. I really didn't know much about the world. I didn't know anything about the universities. I just figured I'd go to Ohio State, since I was right there and it made sense. And, it turned out to be a very fortunate decision because Ohio State then was as strong as it has ever been in its history. New, either my first year or the year before, was Richard Falk, who taught international law before leaving the law school for Princeton. I took a number of courses from Ken Karst, 00:28:00who had just arrived and from Bill Van Alstine. They were all very young, but the other professors were quite good, too, I thought. I still think that. The three I mentioned didn't stay very long, but they stayed through my three years, so I had really outstanding professors. Pretty bright students. Standards at Ohio State were not high to get into Ohio State. I think the Law School was a little more difficult to get into than the University was.

Konefsky: How big was the entering class?

Atleson: You know, I think it was pretty small. I tried to remember what it was. There were two sections 00:29:00and less than 100 in a section because I knew everybody in my section and some of the other ones. So, it was very small. Nearly all men. There were three women in the class, which was the most Ohio State ever had in its Law School and three African Americans, which was pretty radical. You know, a number of the students weren't very bright and they were at the bottom of the class, but those at the top of the class, I thought, were fairly bright and I liked them. I was the youngest, clearly the youngest one. I started school when I was young in the kindergarten to begin with and then I went, in what would have been my fourth year, so I was at least two years younger than almost everybody in the class. 00:30:00A number of the students were older students. Quite a number of them were married. Some had children. So, I clearly was aware that I was not only young, but there was a lot of the world I didn't know. A mortgage, for instance-- I didn't quite get what a mortgage was, which kept coming up in the first year, so I spent lots of time trying to find what things meant because I just didn't know very much about the world.

Konefsky: Um, classmates?

Atleson: I had some.

Konefsky: Yes. Well, since you knew most of them, I suppose I'm expecting you to remember them. What did they go on and do before we get onto what you went on and did?

Atleson: 00:31:00They all became practicing attorneys. I think I was the only one-- Well, no. That's not true. One of my older colleagues taught at Capital University Law School in Columbus, eventually becoming Dean of the Law School. I think everybody else became practicing lawyers, some judges. Behind me one year was the current Senator of Ohio, who I had lunch with regularly for a full year. Was not successful in talking him into becoming a Democrat, however. I think it was a typical Ohio State class for the time was primarily 00:32:00Republicans, but not far right Republicans. Very interested in values and propriety -- sort of upstanding people. Those that weren't - three or four of my classmates went to jail within five years. We didn't have a very good ethics class there. That may have been the problem.

Konefsky: What did they go to jail for? Were these all malfeasances having to do with practice of law or were they independent?

Atleson: I really felt bad about one student who had been an All-American, either soccer or lacrosse. I think he had been an all-star lacrosse player. A very nice 00:33:00guy. Some illegal financial deal. A student, who I knew very well, was not very bright at all, was representing a criminal defendant. That's the only one I know for sure. Representing a criminal defendant, a defendant who was charged with selling drugs, who was afraid that they would find his stash in his house and asked my classmate if they could keep it at his house and he said, "Yes."

Konefsky: He did this as a friend or as an attorney?

Atleson: As an attorney, I guess. And, he was sent away for quite some time for aiding and abetting a 00:34:00criminal. It was about three or four students, but one became a mayor. The ones I knew best all became practicing lawyers, which is why they all went to law school.

Konefsky: Yeah. That was the career trajectory they saw for themselves from the start.

Atleson: Yeah. It was also a way of staying-- I mean, the biggest-- I would say one of the biggest concerns other than nuclear annihilation was the fact that the Vietnam War had started and American advisors were going over the large troop movements that had started. But, everybody knew that it was 00:35:00important to be a student until you were 26 and that was the end of the draft period and that affected a lot of lives. Some of my classmates were vets and a couple were actually called up because they had been in the Guard.

Konefsky: This is Korean War as well as World War II vets? It must have been mostly Korean.

Atleson: Yes. Mostly Korean.

Konefsky: So, the end of your first year would have been June of what year?

Atleson: 1960

Konefsky: '60. Okay. So you began the second year of law school in the fall of '60.

Atleson: Yeah.

Konefsky: Anything in the second and third years of law school different from the first year of law school or was it just simply the same?

Atleson: I thought it was much more intense.

Konefsky: More intense in the later years?

Atleson: 00:36:00Yep. More intense in the later years.

Konefsky: Because?

Atleson: Some of the fear wasn't there that was present in the first year. I knew I had to do well because, unlike a lot of my classmates, I didn't have relatives or parents that were lawyers or who were well-off, so everything depended on my doing well and so I studied all the time. All the time. A break once in a while for a football game, late-night beer drinking, but aside from that, I studied all the time. Second and third year were, I thought, very intense. More questions were more difficult. I had some very interesting classes, some less so. I also got very interested in the Law 00:37:00Review, scratching notes my second year and doing a lot of proofreading and those kinds of things.

Konefsky: So, Law Review at the end of the first year. So, you're starting to devote more extra-curricular time, as well as studying--more extra-curricular time to the Law Review during the second and third years.

Atleson: Yeah.

Konefsky: Okay.

Atleson: And becoming the Editor my third year, so that took an enormous amount of time and took one summer, which meant I wasn't earning any money that summer, so I induced the Assistant Dean to find some funds to support me then, so--

Konefsky: So, what courses were you taking, before we talk about the Law Review for a second? What courses were you taking second and third year that stimulated you?

Atleson: There were some required courses.

Konefsky: Still required courses?

Atleson: Yeah. What stimulated me? I had 00:38:00two comparative law courses, one from Europe and Ken Karst taught one on South America, materials that he himself put together. Karst taught Constitutional Law. This was the time to be taking it because the Warren Court was altering all the press on our constitutional law. So, on Monday we went over to the Student Union and buy a Times and see what the Supreme Court--and by Tuesday, I guess, find out what the Court released on Monday and that was a very exciting time.

Konefsky: So, let me date this again. First of all, Con Law was not offered in the first year then.

Atleson: 00:39:00I think we had. Yeah. I think we had two quarters of constitutional law, one taught by the Dean, Frank Strong, and one taught by Karst. And, then there were kind of advanced courses in Constitutional Law and Criminal Procedure.

Konefsky: But, it was required--

Atleson: Yeah.

Konefsky: Okay.

Atleson: Yeah. So was Tax, so I think was negotiable instruments, which was before the UCC--

Konefsky: Boy, you go way back!

Atleson: --wiped out the whole course. I did have a labor course, which was probably one of my worst courses in law school. Bob Matthews, who was very well-known, a very good instructor, was on leave that year 00:40:00and we got a retired judge. His name will come to me in a second--had been at Harvard Law School as a professor, then became a District Court Judge and was well-known in that role and was serving by designation in the 6th Circuit Court of Appeals and the world had passed him by. He no longer knew how to teach. He would assign three cases for each class; he'd ask students-- Calvert Magruder--

Konefsky: Calvert Magruder? Wow!

Atleson: Calvert Magruder. He had asked 00:41:00students to talk about the case. A student would talk about the case and he'd say, "Well, that sounds about right. Let's go on to the second case." So, for me, not having been a morning person, I had this at 8:00 in the morning and very often he was satisfied with the presentation of each class and we'd be done by 8:15! He'd say, "Well, I didn't assign anything else, so I guess that's the end of class." The only person that talked was me because, even though it was Cox and Bok, I got really interested in the material, even though the class itself was just terrible, but I got very interested in the cases so my two really interesting areas were Constitutional Law (because things were changing so much) and Labor, but I think 00:42:00that's the only Labor course I had.

Konefsky: Calvert Magruder. A blast from the past.

Atleson: Yeah. He was a nice enough guy. He was known as the "Robin Hood" of my class because students who had never got an "A," never expected to get an "A," and never got another "A," got A's and B's in his class and a number of us "A" students got B's. When asked why, he said, "Well, you seem to have written an awful lot." So, that turned out to be my lowest grade in law school was, on a point scale, kind of a middle B or something like that.

Konefsky: And, so what did you 00:43:00write on when you were on the Law Review?

Atleson: One was a Constitutional Law case. That was a lot of fun. I don't remember it, but I got to work with Ken -- Ken Karst. The other one was just an Ohio procedure case. I was overloaded with work and I had picked some topic which had limited structure and limited importance.

Konefsky: What was the experience like administering the Law Review? I mean, what were the students like? Did you get your issues out on time, Jim, is what I want to know?

Atleson: Uh--We did get our issues out on time! I had to do most of the work. The second year students were good for sight checking and things like that. But, they had to be pushed. They had a goal. They had a goal to get on Law Review. 00:44:00The third year students, who were various kinds of articles editors and things like that, had to be constantly, constantly pushed and those who did not have an office in their third year, but were on the Review, basically were of no value. But, I had a nice office and I had a really nice leather chair and-- We got our articles out on time, except we had a directive from the Dean to make sure the articles were fairly spare, the footnotes were spare, to save money on printing. So, I had to, on some articles I had to cut out what I thought was 00:45:00footnotes that I thought were minimally relevant, not particularly useful for the argument raised, but showed that the writer had done more work than the text might show itself. I only had trouble with one. It turned out to be somebody at Ohio State, Carl Fulda, who was a comparativist, talked with a kind of a German accent that had a slight lisp, came into my office and said, "My footnotes!" he said. I had to explain to him that he had to go to see the Dean and I was asked to do this and I'm sorry.

Konefsky: So it 00:46:00comes to the end of your three years. You're still a young tad.

Atleson: Still very young. Right.

Konefsky: And while all of your friends--

Atleson: I was 24.

Konefsky: 24? And now all of your friends, who have decided that they want to be lawyers all along, are well on their way to their own industry or family connections of establishing law practices and going out in the world and what are you deciding to do?

Atleson: Well, um--you know, this was a period in which doing something was important and when I was an undergraduate, being a professor seemed totally irrelevant. There were important things going on, not just foreign affairs, but it was the beginning of the Civil Rights Movement, for instance. 00:47:00There was some right-wing pressure on certainly liberal-to-radical groups and we all knew that if we went to meetings and our picture would be taken and so on. So there were those kinds of sort of political avenues and it wasn't until I got to Law School and really saw Karst and VanElstein and Falk that I thought, "You know, it might be pretty good to be a professor. It might be exciting." I knew that I was very interested in law. I liked the law a lot, but I knew without knowing anything about practice, I knew I didn't want to practice. I didn't know how I knew, because I didn't know what practice was, basically, but I knew I didn't want that.

Konefsky: So, you hadn't done any work in a law firm while you were in law school?

Atleson: No. 00:48:00My second year, at the end of my second year, I was the review person that summer. At the end of the first year, I had a variety of jobs.

Konefsky: So, law school tuition still is relatively inexpensive as the undergraduate tuition had been?

Atleson: It was relatively cheap and, besides, in my first year, I got what was called a Mershon Defense Scholarship, which was really a seminar on international affairs, which we wrote seminar papers and so on, and I got $1500. It was an enormous amount of money just to take this course! So, it was an extra course that I had to take. And then, that was turned into a fellowship in my third year of law school and I got $3,000 and 00:49:00that's why we got married because now Carol's parents relented when they heard I was making this princely sum of money and actually I could save some money and so--

Konefsky: So, you married your--what year?

Atleson: At the beginning of my senior year.

Konefsky: Senior year. Okay. That year is? I lost track.

Atleson: It would be '62.

Konefsky: '61? You would know what year you got married.

Atleson: 1961

Konefsky: Good because this is on tape, you know.

Atleson: Yes. 1961.

Konefsky: Just at the beginning of your third year of law school.

Atleson: Right.

Konefsky: 1961

Atleson: That's right. It was that 00:50:00fellowship made it possible for us to get married and also wiped out any misgivings Carol's parents had. Actually spent the summer living in their house because I had moved out of mine.

Konefsky: In Columbus?

Atleson: No--in Cleveland.

Konefsky: Oh--you said summer.

Atleson: Yeah.

Konefsky: Cleveland.

Atleson: I was a playground instructor during the day (playground monitor at night) and I was working at a shoe store on Saturdays, so I was working a lot, which got me through the second year. I did a variety of jobs in college and law school, raking leaves in the fall, selling flowers downtown Easter time, wherever I could pick up--and working in the law 00:51:00library or in the art library--no, not in the law library, but the art library at school at the main library at Ohio State. So, then there was a question of what to do and I decided I wanted to teach and so it made sense. One had a couple choices. One could try for a clerkship. One could try for some master's program or be a Research & Writing instructor. I applied for a program that the National Labor Relations Board had. 00:52:00I forgot what they called it. It wasn't--It was a beginning lawyer's position, but it had some elite connotations, but I don't remember what it was called, which I got in, but they let me know in like May. By then, I had another position. I read about (again, this was all sort of chance)-- I read about a teaching fellowship at Stanford, which sounded very interesting, and I could get a master's at the same time and they let me know by November/December -- very early.

Konefsky: So, you didn't go talk to Karst or Van Alstine about this 00:53:00or--ask for references.

Atleson: Yeah. Karst said he would write to Justice Stewart to see if he could talk him into giving me a hearing for a clerk. Karst probably either worked with Stewart--I know--I'm not sure. But, Stewart was from Ohio. Stewart wrote back that he was only accepting Yale grads and I did not really, although I tried for the board, I didn't try for other positions. I was happy to have this Stanford position because it would grant a deferment and I thought it would be helpful to 00:54:00teach besides, so all things pointed to that and they got in touch with me very early. The war, sort of the growing American involvement in Vietnam, had a substantial effect on my career. While I was at Stanford, for instance, I taught to one Federal District Court Judge and one California State Judge and I think I could have become their clerks, but they each took the position that they would not request a draft waiver. At that point, I certainly would have refused to go to Vietnam if drafted. I didn't particularly want to go to prison, 00:55:00and the only other alternative was to go to Canada, which I didn't know much about. If I had known more about Canada--if I had known what I know now, I would have gone to Canada. But, I didn't want to take a chance. So, you could also get a waiver if you taught. Why, I have no idea. It didn't make very much sense, but seeking and getting a teaching job was important. When I started here, basically on September 1st, I was 25 years old. I wasn't 26 until the end of September when that magic day arrived. 00:56:00So, I thought about getting a clerkship. I didn't particularly want to work for a firm. It didn't sound very attractive. But, it was pretty clear that that would not lead to a deferment. If it had, I probably would still be out on the west coast somehow.

Konefsky: So, this would have been '62/'63 that you were at Stanford. Now, as part of this fellowship, what did you--did you take courses? Did you teach? What did you do?

Atleson: I taught a Research and Writing position, so I taught Research & Writing and somehow I decided I'd get a master's, too, as part of my upward striving. So, I got there and walked into the Associate Dean, J. Keith Mann, who would become a very 00:57:00good friend, and said, "What do I do for the master's?" To what he said, "You take courses." I say, "Which courses?" And he said, "Any courses you want." And I said, "But, I took all the courses I wanted to take right in law school." He said, "Well, take some others." So, I took whatever looked interesting.

Konefsky: Was it a full-time schedule or part-time schedule? I mean, you're teaching, right?

Atleson: Yeah.

Konefsky: And you took three/four courses a semester or two?

Atleson: Oh no.

Konefsky: Two courses?

Atleson: No more than two. No more than two. And, the Research & Writing program was a heavy program. I had enough students so that it was at least half-time, at least half-time. What you did if you only did that, I have no idea. There were six of us doing that for the first-year class. 00:58:00I stayed over. It was really a one-year appointment and I stayed over the second year and did Research & Writing for second-year students, which was much more dense. That was a required course, as well. Plus, I was a TA in the Copyright course with Mark Franklin and designed problems he gave the students for the semester, which was a lot of fun. And, the master's was just taking courses. I was allowed to take some outside the Law School, which was good because I couldn't find enough courses that I really wanted to sit through.

Konefsky: Well, after your experience with Calvert Magruder, did you take any labor?

Atleson: Yeah. I took-- First of all, I took two Labor 00:59:00Economics courses in that department and I took both a Constitutional and a Labor Law seminar. The Labor Law seminar was J. Keith Mann, in which we basically wrote an article which became my first article, which came out in the California Law Review while I was there, and a Constitutional Law course was with Gerry Gunther. Gunther and Mann became my mentors.

Konefsky: Do you remember what you wrote for Gunther?

Atleson: Yes. I think I wrote-- We were supposed to pick a 01:00:00Supreme Court case or question and I wrote on apportionment.

Konefsky: This is Baker v. Carr time.

Atleson: Right. And, that turned into another article.

Konefsky: Okay. So, did you take--but, the master's was only one year. Is that right? One year of courses?

Atleson: Yeah. I'm not sure, but I think I stretched it over both years because I don't remember having an enormous amount of time of my hands. So, I think I stretched it over two years.

Konefsky: But, it sounds like a pretty good experience.

Atleson: Yeah. I mean the Research & Writing class was we had to draft our own-- We didn't have very much direction. We prepared our problems and the students wrote on them and we edited them and they rewrote them and so 01:01:00 on.

Konefsky: So there was no Research & Writing czar?

Atleson: There was no Research & Writing czar, so we just got general instructions. Jack Fredenthal eventually became dean at George Washington, but nothing-- So, I got to write problems, which was kind of a lot of fun. I learned that you can't write the problem without knowing the substance of the area. That's like practice for writing an exam. You write exams, which are in between all the poles in the wall. So, that was a lot of fun. Students were not used to being critiqued. These are all students who were very bright, probably at the top of their high school classes -- came from very 01:02:00wealthy backgrounds who would talk when we were in line for coffee and, in the morning, about the cars they were going to buy and they were always things like Mercedes or Saabs or something like that. Carol and I were pooling our money to buy bicycles so we can get back and forth to campus, so I was certainly economically out-classed by my classmates, who were either children of professors or high mucky mucks in the government or just from very wealthy families.

Konefsky: Out-classed in only one sense of the word.

Atleson: Yes - social class. Well, I did have one student who became, who did take some position where he got into some trouble. The 01:03:00Reagan administration came in, holding the paper that he had written for me in which I had lots of questions and pointed out that, whereas I had gone to Ohio State, he had gone to Stanford. And, so who was I to criticize him. He was the only student who verbalized class distinctions.

Konefsky: Sounds a little like the confrontation in a Senate hearing between Nixon and Alger Hiss about where they went to school... But, that student probably didn't know anything about that.

Atleson: That was earlier.

Konefsky: So, at the end of the, what's now the second year at 01:04:00Stanford, you have obviously decided that you wanted to teach at this point. Is that right?

Atleson: Right. I had one article printed and the other one was ready to go. I'm not sure when that was printed, but clearly wanted to teach. So, I went to the hiring convention, which was in Los Angeles that year, which was very good because we could just drive down and had interviews with lots of schools. Was asked to interview with a school called Buffalo. I had been to Buffalo once on one of our vacations to Niagara Falls and it's like most of the impressions you get if you're driving through Buffalo for the first time on the Expressway/thruway. It looks terrible. And, I remember 01:05:00I was interviewing for Michigan, Virginia, Wisconsin, Washington and I was busy, but I had a spare hour, so I decided to go talk to the Buffalo people and I remember calling up Carol, who was somewhere in Los Angeles, saying, "Guess what? I have an interview with Buffalo." I did not want to come back to the Great Lakes. I wanted to go to the coasts and that turned out to be the best job offer that I got. The interviewers were Jack Hyman, who was the outgoing Dean. He was still Dean at that point.

Konefsky: So, this would have been '64 or '65.

Atleson: Well, 01:06:00probably '63.

Konefsky: Well, you graduated from law school when?

Atleson: No, it would be '64. Yeah.

Konefsky: Okay. Graduated in '62 and had two years at Stanford. So, this probably would have been in the fall of '63. Winter of '63/'64.

Atleson: Probably '64.

Konefsky: So it would have been Jack's kind of close to his last year.

Atleson: Yeah. His last year. So, Jack and the Assistant Dean, Bob Fleming.

Konefsky: Bob Fleming. Okay.

Atleson: And they were--

Konefsky: They were the only ones who made it to L.A.

Atleson: And it was just a 01:07:00terrific interview. I really enjoyed it. Some of my other interviews were not that pleasant. Not that they were unpleasant. I spoke to Virginia late in the day and they were all sitting around drinking. They all talked with their very nice Southern accents. It was pretty clear I didn't belong in that group. There was a lot of, "You'll teach what we need to teach." Other schools said (Michigan) that we're not hiring anybody out of school, but we are looking at people who are interesting and are out of school and we will keep you in mind, to which I said, "Why are you wasting my time?" I have other people to talk to. So, I got the 01:08:00offer from Buffalo.

Konefsky: So, you arrived in Buffalo in--

Atleson: The summer of 1964.

Konefsky: '64.

Atleson: By that time, there's a new Dean, Bill Hawkland, who's coming, so he and I basically came at the same time. So did Ken Joyce. The faculty was very small, maybe 12/13. They had just begun to hire some people. The year or two before Ken and I came, they had hired Herman Schwartz, Peter Simmons, and a librarian, who was a full-time member of the faculty. 01:09:00Balfour Levy was his name, who went on become the librarian at York Law School eventually and so the rest of the faculty was much older. They had hired Tom Burgenthal and there were two émigrés on the faculty, so it was quite a worldly bunch. We were downtown, 77 West Eagle Street. I think it's used as part of the Court System now. It was a very small building, but the classes would have been small and few. It was a really cozy place. There were only two floors, offices on the second floor, 01:10:00classes and administration on the first floor. Well, maybe there were three. I don't know where the Law Library was. It's a very small building and the University had become State the year or two before and there was a big influx of money and so the School began to hire and we hired two or three profs a year and, you know, in that period of time we went from like thirteen to thirty and then 40. I don't know how many we have now, but--

Konefsky: What was the size of the student body on Eagle Street when you first got there?

Atleson: I don't remember. It was small. It was small. Students took required 01:11:00courses in their first year. Research & Writing courses were taught by full-time professors. It was called the Group Program for I guess a lack of a better name and many of us taught Group as one of our course requirements. I had just been doing that for two years and I didn't want to do it very much longer and I taught Local Government Law, of which I didn't know a lot, but learned a lot, and that's how I started making up my own materials because there wasn't any good book on local government law at that time. I think that's probably still true.

Konefsky: You said the days before Milton Kaplan 01:12:00 arrived--

Atleson: Milt Kaplan came the year or two after me and there went my course and, at the same time, I got an offer from Washington. I didn't want to go to Washington then because I don't like change much.

Konefsky: This is Seattle?

Atleson: Probably my second year.

Konefsky: But, it's Seattle when you say Washington?

Atleson: Oh--Seattle. Yeah. They had talked to me before, but maybe didn't have the line or desire or whatever, so I didn't get the offer and I knew at least one member of the faculty. It was tempting. It was tempting. Seattle was an exciting place to be--beautiful city. I forgot what they wanted me to teach, but it wasn't something I wanted to do. I 01:13:00really wanted to do labor. Dave Kochery was here at the time and at the same time I had just lost local government law because it was obvious that Milton should do that and then we had no need for two courses in the area. We didn't have enough students. Although, some classes were pretty big. We don't know how many students we had -- I just don't remember. So, I bargained for a labor law class, which meant David and I split the students and there was a lot of demand to take a labor seminar. We each had big classes and that's how I started in labor law. It was basically because I had an offer from another 01:14:00 school.

Konefsky: Leverage to a section--

Atleson: Yeah. And I became less and less enamored as the years went by and constitutional law began to seem too abstract to me, where labor law - it seemed pretty real and I liked the sociology and the history that was being written about labor, so that seemed to be the field I wanted to go into. I taught a seminar in individual union member rights, partly because I had met Clyde Summers by that time, who had been here and had left for Yale and that was his field and also partly because, although I didn't want to practice, I was certainly willing to consult with lawyers as long as I 01:15:00didn't have to deal with the financial parts of that, so I started working on fair representation cases. Somehow, Lauren Rachlin, who had no labor practice, somehow got one of these cases once. These were employees who generally were discharged and brought action against their employer for breach of the agreement, but also against their union for failing to represent them fairly. They were very hard to win and we were very successful and we did at least twelve of those and I wrote in that area. I think I wrote two articles. 01:16:00So, I was teaching labor and I was still doing this Research & Writing course. I'm not sure what else I did.

Konefsky: Seminars?

Atleson: I guess.

Konefsky: So this is now in the mid-to-late '60? Is the student body changing at all? We're now heading into the Vietnam protest era.

Atleson: Yes. Students were very rebellious here, especially during whatever year the Cambodia Spring was. Students basically wanted to walk out and not be graded and there were lots of 01:17:00demonstrations. It was very interesting because these weren't very radical students at all, but the War sort of affected them, especially when their deferments left.

Konefsky: Right.

Atleson: Then that, plus it had become clear that we had been secretly bombing Cambodia as well as North and some parts of South Vietnam. There were demonstrations; we had big meetings with the student body--

Konefsky: There was a great deal of controversy going on on the Main Street Campus at the time.

Atleson: Yes.

Konefsky: But, you were physically separated--

Atleson: Yeah. The police were in full-force at the University, marching around and it was under 01:18:00kind of military rule for a while, but we were downtown, so we were not much affected by what was going on on campus. So the faculty sit-in, which occurred in the President's Office--we were a little bit cut off from the University. Now, we knew it was there. We knew that people would talk there, but when you're not in really physical proximity, you're not much involved.

Konefsky: Not affected on a day-to-day basis.

Atleson: Yeah, yeah.

Konefsky: Now, was Hawkland still the Dean? Late '60s.

Atleson: Yes. Yes. He was just about to leave. I think he stayed his normal four or five years 01:19:00and who replaced him? At some point, Red Schwartz comes.

Konefsky: Right.

Atleson: We have an interim Dean, Bill Angus, who is a Canadian -- still a good friend of mine. And, then Red Schwartz came, which was a very kind of courageous thing for the Law School. It may have been the first non-lawyer ever appointed as Dean to an American Law School and we had sort of a growing group concerned about law and going beyond law and other fields so Red Schwartz seemed like the person who was going to do that. By then, we had hired a bunch of what were then young folks: Janet Lindgren and Jack Schlegel and Al Katz. 01:20:00I was very interested in that and a sort of a few others. We had sort of changed the curriculum a lot. We had removed most of the required courses in the second year; everything but tax. That's because the tax instructors were vehemently opposed to having tax be voluntary.

Konefsky: Now, Lou had joined the faculty already?

Atleson: Yeah. Lou had joined before I came and they were very determined and the forces of change decided they would take them on. Besides, they had size. They were bigger than we were. So, tax 01:21:00remained on and there was an argument, which made some sense, that tax required thinking in a little different ways. There were regulations and codes and cases and so on and so on, so we thought as a way of thinking, we could justify making tax a required course, but we removed a lot of other courses, like Evidence was a required course. I think we had an Agency Partnership course and may have had a Sales course, I'm not sure. But, we slowly did away with that and, since the faculty was growing, there were seminars and became a much richer curriculum for students and the School was then growing. We grew out of 77 West Eagle Street and the faculty 01:22:00moved two or three blocks away to the Prudential Building, now called the Guarantee Building, which was a lovely building, and we had some small classes there. We had a little faculty library there and our offices and the administration, so we didn't have to walk back and forth.

Konefsky: Back and forth between the Guarantee Building and West Eagle Street?

Atleson: Yes.

Konefsky: So, the library and the classrooms remained in West Eagle.

Atleson: Yeah.

Konefsky: Okay.

Atleson: We did have an opportunity very early in the '60s, maybe '67 (somewhere in there)-- the Buffalo Athletic Club, which was next door, had a huge building with rooms for not just athletes, but rooms where some folks stayed in, like a mini hotel, as well. 01:23:00They weren't doing well and they were going to give us most of the building and would even create a little bridge over an alley. However, we learned the Buffalo Athletic Club discriminated against blacks, and so we said, "No." That would have been a simpler way to do it. It was a nice building and we could have gotten the advantages of a pool and squash courts and a little restaurant and, you know, like a real club!

Konefsky: A law firm.

Atleson: Yeah. I mean it would have been quite nice. They were desperate for us to come and said that they had somebody who asked to get admitted who was black and they would take him 01:24:00in if that would make any difference with us.

Konefsky: Now, from your vantage point, you had now been there let's say five, six, seven years. And, other than the student unrest focusing on the War and perhaps some Civil Rights issues, is there any change that you've noticed in the student body? Are they any different? Is it the same? You're growing! You're admitting more students.

Atleson: We're growing. We're admitting a lot more students. They got younger. I don't know quite why that was. We had a lot of older students to sort of begin with and then we got lots of younger students and, of course, the percentage of women in the class was going up at the same 01:25:00time. You know, it's kind of hard to tell because your view is limited to the courses you teach and the students you come into contact with. One thing that was very clear to me is that students asked different kinds of questions. They didn't ask very practical questions anymore. The questions were usually on what the material meant, but at the beginning I had to move much faster. They were to ask very practical questions about, you know, how does the representative of the board act and this kind of thing, so it was, "Who goes first, who goes second, who files, how much time and so on." And, they really were interested in not minutia, but 01:26:00understanding the sort of procedures and mechanisms and those kinds of questions that were very clear my first few years and forced me to read the regulations and the various guides for representatives the board had produced and so on...read all the regulations and so on. The questions just stopped; just stopped cold. I have no idea why. I always had a group of students very interested in labor, many of whom wanted to practice in the field. Others were just interested in the field, so never wanted students. Most of them had had parents who were in the union movement or came from a working class backgrounds, which most of the students did.

Konefsky: There was still a 01:27:00union presence at that time in town, too.

Atleson: Very strong. Steelworkers had a very big union here and the auto workers.

Konefsky: Well, at this point--

Atleson: We were moving kind of fast for students at that time. I mean, there was this very strong law and society aspect to the school here, which would always get a little resistance from some of the students who were here for very instrumental reasons. They were going to practice. And, we slowly got a somewhat larger group of students who were kind of interested in law, but weren't quite sure they were going to become 01:28:00lawyers. They were a very interesting group to have, but most of them wanted to become lawyers and thought that this sociology stuff had nothing to do with the practice of law, as they saw it.

Konefsky: Well, did Red Schwartz's Deanship continue to shape the School. I mean, it's one thing to have a Dean without a law degree who may or may not be a figurehead, but has no real impact in the way in which, for instance, the way the curriculum or scholarship is supported. Was he simply a continuation of trends that had begun?

Atleson: Trends had begun already. Somewhere under the surface, it was there, but for us to make him a Dean, it was a big step. Red induced 01:29:00Mark Gelernter to come and that helped. The two of them helped put us on the map. But, it was not a particularly happy time. I can't say that he advanced that period. He was highly sensitive to the fact that he wasn't a lawyer, and so became more of the Law Dean than a Law and Society Dean than we wanted. It's pretty clear. Stuart McCauley makes this clear that he would have come here. He taught here for a year. That was again showing what the direction of the School was. But, the objections came from Red Schwartz. Never knew why. 01:30:00So, it's a tribute to the interest in the sort of law and society, law and other fields that it actually grew. But, it grew because of Richard Schwartz. Partly it did, but it also grew somewhat in spite of him, as well.

Konefsky: Let me ask a long-term strategic planning question going back a little further than when Red Schwartz becomes a Dean. There's a long-range plan from the late-'60s, a Law School long-range plan that talks and anticipates moving the Law School out to the Rockefeller-funded University out in Amherst and clearly envisages the Law School coming out of the City and here is part of the new campus. 01:31:00Do you remember anything about that decision-making process or the faculty's involvement? It was apparently in the plan.

Atleson: No, I think we welcomed that change, partly because it was consistent with the kind of Law and Society mode in the School that it only made sense for us to be close to people in other departments. And, also, we desperately required a new building and if that's the only way we're going to get a building, that was fine. We had, some of us had kind of emotional attachments to being in the City. Students could live in the City and get to us pretty easily. 01:32:00There was a good bus system and at some point came the six-mile subway. There were advantages to being downtown. You weren't sort of abstracted from life; you were in life, but being part of the University made a lot of sense. And, I don't think--I don't remember anyone on the faculty being strongly opposed to the move. The fact that the building would be new was an attraction. They had talked about getting a new building for the Law School for years. I remember Gerry Gunther at Stanford who knew a number of folks here who said, 01:33:00"I know they're thinking about a new building. They may have gotten one already." Of course, it didn't come until 1971 or 1972, but there had been a lot of talk about getting a new building. I think no one really wanted-- Some of us had some emotional feelings that it would have made sense if we could have stayed downtown, but for us who felt so aloof from the rest of that campus that it made sense for us to be there, so I don't think anybody was really opposed to the move that I can remember.

Konefsky: Well, let me ask a question, bringing you back into the '70s about your teaching, writing and scholarship on labor at this point. Now, are you still the only 01:34:00person other than Dave Kochery who is working the area and teaching in the area?

Atleson: Yes.

Konefsky: Now, at some point does Dave stop teaching in the area?

Atleson: Yes.

Konefsky: So, that leaves you all alone.

Atleson: I'm it.

Konefsky: You're it.

Atleson: So I teach Labor Law, my Union Rights course. I started to do a collective bargaining course with ________ and at the same time, roughly the same time, Lee Teitlebaum was here and he and I put together a negotiations course that didn't deal with labor, but dealt with other fields, which was basically an assimilation course, so it started and then when he left, I did it myself for quite a while.

Konefsky: So, you're not teaching 01:35:00Employment Law or Employment Discrimination or--

Atleson: Not Employment Discrimination. Somebody must have taught that. I can't remember who. I did teach an employment relations course.

Konefsky: Didn't you tell me also at one point you taught Torts.

Atleson: Oh yeah. I did teach Torts. Tom Burgenthal taught Torts and was away at Harvard one year, so I volunteered to teach Torts. It was just one year - just one semester. It was a full-year course. I taught the first semester. Tom was a little concerned because I wound up doing only intentional torts and libel, which were the two most interesting areas to me. That was great fun. I mean, we used the 01:36:00Prosser book and it kind of changed me. It loosened me up as a professor. I was very concerned about being here when I was 26 and some of the students were the same age or older and so I taught in a-- I taught the way I had been taught, I guess -- pretty formal way.

Konefsky: Socratic?

Atleson: Yeah. Torts first year in the fall, especially with Prosser, was just so much fun and I became much more of a dramatic professor and I had a lot of flexibility in that class. I would have done it again, but it never opened up again.

Konefsky: Okay.

Atleson: So, I did teach torts and I began then my 01:37:00series of teaching other kinds of things. I did teach an employment relations course. I taught a legal process course, too, based on the Wisconsin legal process book, which dealt with worker comp.

Konefsky: Oh, the old Hurst, Garrison-- Yeah.

Atleson: Yeah. A very useful book. I really respected the authors of that book. I tried as hard as I could. I couldn't get the course to work. The students knew what the end was. The students knew what happened in the end; they weren't interested in the process of getting there. So, I think I only did that once. I did Employment Law a couple times. Again, I had to put together my own materials. There was only one book, which I didn't like. Putting your own materials together was quite hard because you-- 01:38:00It was before you had these modern super duper copying machines.

Konefsky: You had to crank the mimeograph machine by yourself--

Atleson: They had to be typed out and then run off on a mimeograph machine. They were kind of hard to read and the office manager used to complain that I was costing too much by running off all these materials and so on. But, it was the only way, I thought, to do these courses.

Konefsky: Now, at this point also, you start working on a casebook, right? Isn't it sometime in the '70s working with the Labor Law Group?

Atleson: Yeah. I was asked to join the Labor Law Group and we got involved in bringing up to date their casebook on 01:39:00labor, so I did part of that book and part of the revision and part of the second edition. At that point, I didn't want to do casebooks anymore. Besides, I had started thinking about my own book, so--

Konefsky: We'll get there in a minute. But, did the labor law casebook grow out of any of the materials you had put together on your own to begin with?

Atleson: Yeah. In some of the problems, some of the questions, we had lots of problems in the book. I had used problems. In fact, there were a number of years in which I taught, in which I gave students problems and papers, either with or instead of an exam, which began to be a problem as the classes got bigger. I did that in Torts that year, too. 01:40:00So, I had written problems coming from ninety-some students in Torts and written problems coming from 50, 60 or more students in Labor Law. What was your question?

Konefsky: Well, my question was the relationship between the materials you had put together and how, I suppose in a sense, whether or not they were used or influenced the way in which you contributed or shaped the Labor Law Group labor law casebook.

Atleson: Yeah. The parts that I worked on were, to some extent, not completely-- partly, they were a revision of materials that were in those chapters, but the other parts were my own materials and the way I thought about those areas were not completely 01:41:00independent because in the beginning there were five of us and one had to coordinate within the five and the editorial board also had their own ideas as to how much change we were allowed to engage in. But yeah--in my parts, my two or three chapters in that book very much look like my own course materials.

Konefsky: Your own teaching materials. And, the original group was you and Rabin.

Atleson: Eileen Silverstein, George Schatzki, Herb Sherman. Sherman dropped out before the revision and the second edition.

Konefsky: Okay.

Atleson: And then the group decided to when we eventually updated that, went to a meeting or two and had some very interesting ideas about how to restructure a new book and 01:42:00I decided that wasn't the direction I wanted to go in. I didn't want to work on a new book and I thought their book might be very hard to teach, which turned out to be the case, even though it was intellectual very interesting. It would be very hard to teach. And, I had other things I wanted to do.

Konefsky: Alright. And, the other thing that you wanted to do was write a book.

Atleson: Yeah.

Konefsky: And so, I guess the first question I have about the book is the extent to which putting together the materials for your course or your casebook had an intellectual impact on the way the directions you took, the insights you brought to the process of writing. The book values assumptions in American labor law.

Atleson: Yeah. Well, I started to add historical materials and 01:43:00some sort of sociology, industrial relations materials, newspaper articles, parts of journal articles from my course materials. I was still pretty much using Cox and Bok, but it's such a limited book at that point -- better now. It's pretty much limited to substantive law and I found the area much more interesting than that and much richer than that. And, so I started thinking about it much different than that. I found the casebook -- working on the casebook was very restrictive, 01:44:00since I thought at that point what was in a casebook was fairly limited, plus it had to satisfy my co-authors, which wasn't hard, but the editorial board wanted the book to compete with Cox and Bok, but not be too different than Cox and Bok. And, I was desperately trying to get away from it.

Konefsky: So, you decided to take off on your own in a non-casebook direction.

Atleson: Yeah.

Konefsky: And-- Well, I guess one of the questions I have is to the extent to which you can identify intellectual influences other than those that grow out of your own mind in deciding that this is the sort of book that you wanted to write. I mean, in a number of--and what were those influences? 01:45:00One of the things you always used to say was, you talked about why labor was treated differently. So, why don't you start with talking about some of your theories or one of your theories about why--?

Atleson: It slowly became clear to me that labor was seen as a discreet area in the law and whether employees were government employees or private sector employees, their rights were treated differently, whether we were talking about constitutional law, statutory law, common law. What we were learning in Torts, for instance, was that intentional infliction of mental distress was very difficult to 01:46:00support if the question was whether an employee was fired in away that inflicted mental distress. Whereas, if not, it wasn't so hard. So, it became fairly clear to me that, if the legal question involved in employment relationship, it was kind of a separate set of rules which applied to it. I may actually write this at some point. I did in one little short piece I wrote, but it was only a couple of paragraphs. Whatever area you look at in tax, for instance, if you donate wealth or capital of some kind, you can take a charitable deduction. If you volunteer your time for charity, you can't deduct the value of your time. It was less important than money, basically. 01:47:00And, so clearly that applied to a variety of cases. The Supreme Court was just beginning then to decide the scope of freedom of speech for public sector employees. That was sort of a clear sign that if you were an employee, your constitutional rights were constrained if your employer was the State. And, so in a number of fields, that seemed to be the case. Plus, it was very hard to understand the Supreme Court cases or the other court cases I had to deal with in Labor Law. They just didn't make sense. They were not consistent with the language of the act, the policies and goals of the act, and the legislative history. 01:48:00So, the easiest way to resolve that was to simply assume a certain class bias. But, the outside influence helped, which was partly the law and society movement, which basically began here with Richard Schwartz, not the national group, although Wisconsin treats itself as having begun it because the first official meeting was in Wisconsin, but the structure was born here. It was partly law and society and then partly the growth of the critical legal studies group, which tried very hard to separate itself from what was thought of as limited forms of Marxism and so saying that there was bias was not enough; 01:49:00you had to do more than that. And, bias simply didn't explain some of the cases because it couldn't explain some that were generous to employee rights, so there are other kinds of things at work. And, I didn't really know how to phrase what that was. The one real value of the Cox & Bok book was a limited amount of history they presented at the beginning -- two common law cases, Plant v. Woods and Vegelahn v. Guntner and I kept going back and thinking about those cases and thinking about how those courts distinguished between employees acting as a group and employers 01:50:00acting as a group, and especially this little note case in Cox & Bok, Plant v. Woods. It's a case of a work assignment dispute, what is called now a jurisdiction dispute between two unions considered the most destructive kind of inter-union warfare; two groups of employees fighting for the same work and despite lots of statements in prior cases in Massachusetts and despite their 01:51:00interest in protecting the builders who they seem to be sympathetic to in prior cases, they refused to enjoin this activity. So, it became clear to me that there was some other game going on. Now, I kind of wasn't sure what it was and I mentioned in the book that there was this moment in class where a student says, "Well, you keep talking about the policies of the act. You can see what the language of the act is, but how then can you explain the outcome of this case?" Reed Cosper was his name. It was in the '60s -- a long time ago, and I started to say, "Well--" I started giving him sort of the standard argument that, 01:52:00you know, rights, statutory rights, constitutional rights aren't necessarily restricted and balanced by other policies and so on. So, I started giving him the standard response about how you explain these cases and then suddenly I said, "You know, this doesn't make any sense." I don't know if I actually said that in class, but I said it to myself at least. I may have said it in class. This doesn't make any sense anymore. So, there were three-- Well, there were two main views around. One was this critical studies view, which was bias wasn't enough. It was based on assumptions, pictures, drawings, images, values and so on. Or, 01:53:00members of the labor law group tended to say, "Courts just didn't understand what work was like. They didn't--didn't believe that at all." So, I started saying, "Well, maybe something other than bias, class bias or class fear is involved, although some of that clearly was involved and tried to figure what was important and somehow I realized that the important part of each case was not the holding or the court's view of the facts, but usually a sentence that began, "Of course, blah, blah, blah." And, I kept looking for those sentences 01:54:00because once you got the "of course," you knew where the court was going and that was a sign to me that there was a set of values that courts applied -- still could be explained by class bias, but some of the pictures that they had about work. And, so I finally worked out four or five values in the book which I thought helped explain all of the cases. I mean, there are sort of political give and take in cases at the Supreme Court, so you can never intellectually come up with a scheme or explanation to explain all of the cases. It simply doesn't work that way. But, a way of making sense of the cases and saying then to lawyers and to my 01:55:00students that if you want to be a lawyer in this group, you have to understand what these values are. You can't simply talk about the law. You're going to lose the case because you're not talking about what really the underlying questions are.

Konefsky: What the courts tend to rely on.

Atleson: Yeah.

Konefsky: Over and over and over again. What they go back to is the foundational principles. But, it's one thing to identify those principles, which the book does and presents lots of evidence over and over again as to what those principles are; it's another thing to try to suggest why labor is treated as within the scope of those principles while other social or economic relationships may not be treated.

Atleson: Well, that's where I've always wanted to go, but I'm not there yet. I have not read that 01:56:00book yet. I've gotten close to it.

Konefsky: Do you have any thoughts about why at this point? You can go back to this interview to consult as to why labor is treated differently in that sense. The book kind of convincingly demonstrates that this is the form of reasoning that's expressed. A much tougher question -- I think you're right.

Atleson: Oh, it's a much tougher question.

Konefsky: As to why?

Atleson: I guess I never wrote that book partly (maybe) because I didn't want to work through it and also partly I didn't want to concentrate on court cases anymore. There were other things that were interesting to me besides-- I mean, they might involve cases, but I didn't want to work 01:57:00on what was going on in the heads of the Supreme Court Justices anymore. But, I think that's crystal clear and, as I say, this one article of mine where I mention this in the beginning or in the middle of it (yeah--that's right) I think is the only time the question has been raised in print.

Konefsky: Which one? Do you remember which article it is?

Atleson: It was one of my comments -- one of my short articles in Buffalo. I think it might be-- The one I was responding to-- There was a period in which people were using comparative law to argue that the National Labor Relations Act should be amended. The 50th anniversary of the Act was 01:58:001985. There were hearings on the Act, which I took part in, and I was amazed that the first day of hearings, there were union presidents -- came in one after the other arguing that the Act should be repealed because it turned out not to be a source of rights, but an actual restriction on the exercise of the rights supposedly granted by the act and I thought to myself, "You mean go back to the successful, wonderful days of the common law?" What could they be thinking? And, that was partly because it was a very conservative hearing - a Republican administration and the most hostile labor relations board of all 01:59:00time. It was the middle of the Reagan Administration, so what do you expect? And, so I testified and I used some of this in an article, saying, you know, American unions would be very happy to get Canadian law. Canadian law is much more supportive, but I argued that it's not like Canadian unions are stronger because they're law is better; the law is better because Canadian unions are stronger. Group power comes first; law comes after. And so, you can have a law that looks good. You can have a National labor Relations Act that looks good on its face. And, then I went into 02:00:00the values and assumptions rap and I said, "And besides--" And that turned into a short article in Buffalo. And, you have to deal with the question that employment situations have always been treated differently. It's really hard to sort of explain why that is. It kept coming up in all the courses that I taught in various ways. My art law course, for instance, a limited monopoly is given to the creators of copyrights. Employees are the creators of--but, by law the employer gets the benefit. Why is that? Why does this fairly industrialized country still have an 02:01:00employment of will? I just don't know the answer. It seems pretty clear that that exists. I could write that, but I would want to go beyond that before I do.

Konefsky: Well, in part also, what you're saying is that somehow the intellectual environment here helped you move you in that direction -- asking those questions.

Atleson: Oh-- absolutely! So, during this time I taught at some other schools. I taught at Minnesota for a year in the '70s. And, at that point, I'm sure it's better now, but at that time people were writing narrow substantive law. Articles that the research that was being done, the talks that were made were basically dull constitutional 02:02:00law. People were talking about, you know, a new theory, due process. It was just old water in old bottles. Not even old wine. And, nobody was asking really interesting questions, which is true of the other schools I visited, as well. Here, this was sort of a hotbed of ideas. You could try anything and just see what happened. So, you know we looked at each other's articles and commented and so on. It was an incredibly lively place. You were never quite aware of how lively it was until you went to teach at another school and you found out that it was common that nobody would even be thinking of these questions. 02:03:00They were like the Law School I came to in 1961. So, yes--this was a highly stimulating place, especially the Law & Society bunch, even though there was a strong critical studies group here. Mostly, they were the same people, which was really good. They hadn't really split as they did in some places.

Konefsky: But, I do remember at one point-- Well, now let's talk about this for a second. I don't want to jump ahead, but the book is published in '83.

Atleson: Yes.

Konefsky: Okay. And, you begin writing it about when?

Atleson: Oh--at least ten years before.

Konefsky: So, '73.

Atleson: Yeah.

Konefsky: Around '73, so it's got a real gestation period.

Atleson: 02:04:00Yes. I started thinking about it basically when I was-- I'm not sure when. I guess here and I started seriously thinking about it when I was at Minnesota, although I remember the Dean saying he thought it wouldn't go anywhere.

Konefsky: Right.

Atleson: I remember asking the Dean, "Why is it that in-- I kept coming back to these 19th Century cases. Why is it that employers can use as a defense that they're serving their self-interest? Labor unions can't. He said, "Oh--It's just silly to argue unions should be allowed to do whatever they can do that's in their self-interest." I said, "So what about employers?"

Konefsky: Who was the Dean there at that time?

Atleson: 02:05:00Carl Auerbach.

Konefsky: Oh. Right. Of course. Carl Auerbach. Now Carl Auerbach may have been one of the co-authors with Garrison--

Atleson: He was.

Konefsky: And Hurst, right?

Atleson: Yeah. He was. But, yeah. I felt much more in a supportive environment here.

Konefsky: Well, I remember the day you walked into my office and dropped this manuscript on my desk and you turned around and walked out and, as you got to the door, you turned back over your shoulder and said, "Let me know what you think."

Atleson: I don't remember that.

Konefsky: So, that would have been in the late-'70s/early-'80s.

Atleson: Yeah. You helped a lot. It would have been the early-'80s because it was printed in '83.

Konefsky: Right.

Atleson: Press took a year to print 02:06:00it and it was a long sort of reviewing process and various presses had it at their press for--that usually takes a year or two. So, it was finished probably in the late-'70s. But, I had started fairly early in the '70s. I remember at one point I was thinking I should just forget this book thing and publish the chapters as separate articles. I was glad you talked me out of that.

Konefsky: Well, let me ask you a question about your reaction to the reaction to the book. I remember there were a couple of times you said to me out of frustration, "Well, they think this book is emblematic of critical legal studies," you said. "I wrote this book way before critical legal studies was even born."

Atleson: Yeah. There's always a 02:07:00footnote, you know. A footnote is always-- There were a number of publications by critical legal studies people, Karl Klare, Katherine Stone and James Atleson. And I would say, "No. This isn't critical legal studies." I mean, critical legal studies helped in lots of ways, but I kind of knew where I was going before there ever was a CLS and I knew that was silly. I wasn't perturbed to be a member of that great group, but historically it was wrong. But, that was very common to see this as some kind of radical book, which I never thought it really was. I think there was, you know, a 02:08:00number of people who missed kind of what the book was about. It was actually a critique of legal writing. And, I wrote another article about this in which you didn't talk about anything other than substantive law. You could destroy the rationality behind any group of cases and then you came up with your own theory and surprisingly that theory simply supported the results courts came up with before, which sounded a little bit dumb to me and that even if good values were expressed, they were present and around the first time those bad cases came about and so this all seemed to me to be like writing appellate court briefs to a 02:09:00large extent and nobody at that point was writing beyond substantive law and trying to explain cases except by courts were dumb or courts didn't understand it or responded to silly arguments based on a legislative history when there were better arguments that could be made. So, partly it was to sort of explain the cases to many of my students and explain it in a way that kind of made sense and would have some use. That is, if you were to become practicing lawyers, this is what you need at the beginning. But, it was also, and maybe I didn't say it very clearly, it was also a critique of the way this area was written.

Konefsky: 02:10:00There is also a sense in which-- The book reminds me a little of-- It kind of is like the historiography that grows out of progressivism by which... I always think of a person who is kind of missing on stage and this book is kind of Charles Beard in a funny way. It actually reminds me a little of Horowitz's Transformation of American Law. Number one, it tries to explain that economic class and social class is kind of a salient way to try to continue to understand how these attitudes are developed. It's not simply that their views determined the outcome; it's not necessarily bias, but that people get locked into ways of thinking about these economic relationships.

Atleson: I'm not sure when the Horowitz book--

Konefsky: '77

Atleson: '77 -- okay. That book did have an 02:11:00impression and me and so did some of the Hurst books. And, you know, I thought of it as sort of the outcome of progressive or liberal thought, not radical.

Konefsky: Right.

Atleson: And, I was so surprised this was seen as a radical book.

Konefsky: Rather than an explication of how the New Deal should have turned out?

Atleson: Well, yeah.

Konefsky: Yeah. Well, what is going on at the, let's see-- We now have a new Dean at the Law School, right? '77-- Thomas Headrick.

Atleson: Okay.

Konefsky: Red Schwartz has resigned.

Atleson: Right. There is an interim Dean for a year, I guess.

Konefsky: Yeah. Was the Law School at this 02:12:00point continuing to change in the direction in which it started? Was it continuing to move in this direction?

Atleson: Tom was a supporter, although you could not explain the School and the developments in the School in light of the Deans.

Konefsky: Right.

Atleson: You know, some histories are written, as you know, from the point of view of what the deans did.

Konefsky: Or the Chief Justice.

Atleson: Tom was a supporter of that, you know, of that trend, but it was more powerful than any Dean. It was what we all wanted. I mean, there was a strong critical legal studies period and a strong Law & Society group and still I think we sent as many or more people to Law & Society meetings than any other school. We were 02:13:00particularly very concerned about-- very interested in people that had demonstrated interest or degrees in fields other than law. And, that became one of the things we looked for and I don't think there was any other school doing that. Eventually, schools thought well they should have one sociologist of law or maybe one historian and that began to be the thing to do, but we were after so many of those folks as we could get. We were not looking to fill slots for particular kinds of fields. It generally worked out all by itself. But, it was still a kind of a powerful move in the School at that point. At the 02:14:00beginning, when I first joined the faculty, it was clear and expressed that we should be interested in anybody who went to Harvard Law School. That, by itself, gets you in the door. More and more folks came here from other places and that began to be not the highlighted factor anymore sometimes if that could be overcome. But, I still think it's true that we have more people with sort of law and either interest demonstrated or with PhDs or master's degrees than any other school that I know about. 02:15:00And, so we were really renowned and this became the place to come if you were interested in that. We didn't publicize it much. I think we became very well-known for having--I don't want to say--I don't want to use the word "cutting edge," but to be doing interesting things. Interesting people doing interesting-- Certainly, kind of the knowledge about the School, I guess the prestige of the School went up significantly during that period. There was a lot of writing, a lot of ideas, a lot of people went to meetings where they presented ideas and this was a very exciting place to be and every school where I went to teach just 02:16:00convinced me that we were far ahead of other places and kind of relaxed at the same time compared to other schools. Not very formal, sort of informal-- We could teach what we wanted to teach. We were free to do that. It was a very special place to be.

Konefsky: Well, let me ask another question about another book, about how the second book, "son of, the sequel."

Atleson: Well, it wasn't the sequel.

Konefsky: No, it's not a sequel, but how it 02:17:00developed in your own mind's eye. How was it that you began thinking about, or why did you begin thinking about the question that you wanted to address in the second book?

Atleson: It clearly comes out of a Labor History course I began to teach with Fred Konefsky.

Konefsky: Who is not part of this interview.Atleson: Who is not part of this interview at all and, although he was interested primarily in the area before the Civil War, I was kind of more interested in the 20th Century, which was then the current century. And, I was especially interested in the Second World War material, because we had in the course materials about the War Labor Board and other kinds of developments during the War and I could 02:18:00see relevance to current developments in law, current law, from what was happening during the War. And, the more I read about that area, I found no one really wrote about that. Most legal history books on law go through the Depression and the New Deal and end at the War and the next chapter begins after the War, the following happens. The wartime period is hardly ever mentioned or if it is, or if it is written about, it's written about as if it totally got cut off from everything that went before and everything that went after.

Konefsky: Unique.

Atleson: I could see very close connections 02:19:00especially to the collective bargaining area course I taught and so that's when I started thinking about that. I certainly hadn't planned to write another book. It was a long and exhausting experience and I told myself I could write articles, but no more books. And, that just started growing.

Konefsky: Now, when you started to write about this, the second book, was there more scholarly literature in law in particular that helped you think about the questions you were interested in the second book than there were when there was a literature that helped you think about it for the first book?

Atleson: Yeah. At that time, there was this beginning sort of outpouring of social history writing 02:20:00to which you introduced me more than I would have ordinarily found out about and I was very much concerned if they talked about law as putting law in its historical context. So, that plus the ideas came out of the course made me kind of think about writing something. Certainly I had not thought about a book, but doing some writing about the connections and I started to write the what turned out just to be a chapter in the book about how principles of the War Labor Board are found 25 years later in Supreme Court opinions. 02:21:00And, you wonder what the connection is. Where did that come from? And, then I found out that those ideas were coming from folks who were in Washington during World War II. And, so that generation became very important to me and some people were just-- Ron Schatz, for instance, at Wesleyan, was just becoming interested in that group and I met him because coincidentally my son was going to Wesleyan and I met Ron and he was just started to write about this and I had this chapter about this group really as being the explanation, being the tie-in, between ideas that were present in the War and ideas that sprang up much later and partly that was explained by this 02:22:00group, who were all in Washington, mostly in the War Labor Board, but also Office of Price Control and other groups during the War and after the War became the preeminent scholars, teachers, writers, economists...

Konefsky: So-called industrial pluralists--

Atleson: Industrial pluralists. And, so I was interested in them. After all, I knew some of them like Ben Aaron, for instance, I knew pretty well. And, some of their ideas, such as the desire of strikes, the desire to avoid strikes and so on all made a lot of sense when you think they were in Washington during the War, continued production, which was critical. And, some of those ideas then carry on 02:23:00later. A lot of ideas sort of died in the War, which was prohibition on sex and race discrimination, for instance. You don't hear about them for 35 years after the War, well maybe 25. But, then I became very interested in this group and the more I read about World War II, the more I realized that there were very few authorized strikes. There were a lot of wildcat strikes, a lot of short, unauthorized strikes and I had already written an article on wildcat strikes, which was very little law and a lot of sociology.

Konefsky: A very well-known article, by the way.

Atleson: As the Editor of the 02:24:00Yale Law School said in rejecting the article, "There wasn't enough law for the readers of Yale Law Review." The same Editor who the same year turned down Marc Gelernter's "Why the Haves Come out Ahead," the most cited law review article in the world.

Konefsky: You can mention his name, too, because he went on to become--

Atleson: He became Secretary of Labor.

Konefsky: Yes. Robert Reich.

Atleson: Robert Reich. Yeah. And, the wildcat strikes got me interested in who those workers were and obviously there was a tie back into my father. I had to know something about what conditions were like, why these strikes were going on during the midst of a popular War, where the strikers could be attacked as being 02:25:00non-patriotic and so the chapter on the War, the labor board started expanding it to go into the wildcat strikes of which there had been a substantial amount of writing and to try to figure out why that occurred and then I tried to tie that in to a period during the post-War area, where there was lots of militants in the workforce, as well, and a very young workforce and how that was explained pretty much the same way that the wartime strikes were, which I thought missed what was going on. And, so it started sort of expanding out. It started out being about substantive law and I got interested in sort of more things and how certain--basically how the ideas that were present during the wartime period and probably necessary 02:26:00during the wartime period were carried on after the War, after the emergency ends.

Konefsky: Well, in a sense, it's values and assumptions part two.

Atleson: Well, it is-- I guess so. I guess so. In that sense, yeah. This is my pseudo historian period.

Konefsky: Well, it's not pseudo. It's real history.

Atleson: Well--

Konefsky: Again, to go back to a question I asked about the first book -- the reaction to the reaction of the book.

Atleson: Well, there was lots of reaction to the first book. A lot of people liked the book. I did receive a couple critical reviews. I only read the first line -- I didn't go on. But, there were a lot of 02:27:00positive reviews and I remember being amazed at how well-known to book is and, as I think I mentioned to you many times, how much bang for the buck there is in a book, relative to law review articles. PhD students and master's students in any field, which comes across law or deals with law, reads the book or knows about the book or looks at it. Foreign professors all know about the book. They don't know about the articles. There's a few articles people know about. It's books that really carry the clout. The second book had no such effect. 02:28:00I think it was partly that the University of Illinois Press did not publicize the book in law.

Konefsky: I was just about to say that.

Atleson: They thought it was a history book because I wrote the history and I would write them and say, "Here is a list of people from the West book of everybody that teaches law (labor law) in the United States. It was just a few names. Here's their addresses. I just xeroxed the page and sent it to them and, for some reason, they wouldn't advertise the book. So, I don't know how many people know about it in law. You know, it's a kind of lost and yet it's still in existence.

Konefsky: Right.

Atleson: I see it cited every once in a while, which makes me happy.

Konefsky: Alright. We have been going 02:29:00for, believe it or not, almost 2 ½ hours.

Atleson: Yeah.

Konefsky: Why don't we break here and, at some point on another trip to Buffalo, we can pick this up because we still have a ways to go with Buffalo Law School. Okay? I will hit the stop button and see what happens.