american academy of arts & sciences Bulletin - … de½nition of a “good company” was explored by Indra Nooyi, ... 2 Bulletin of the American Academy Winter 2009 to ensure that

1 Bulletin of the American Academy Winter 2009

winter 2009 Bulletin

Page 59

The Invisible Constitution and the Rule of LawDiane P. Wood, Laurence H. Tribe, Frank H. Easterbrook, and Geoffrey R. Stone

Page 44

Judicial IndependenceSandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh

inside:

american academy of arts & sciences

vol. lxii, no. 2

Page 77

A World Free of Nuclear WeaponsSidney D. Drell, William J. Perry, Sam Nunn, and George P. Shultz

Page 35

Challenges to Public UniversitiesRobert J. Birgeneau, Mark G. Yudof, and Christopher F. Edley, Jr.

Academy Inducts 228th Class of Members, Page 1

Humanities Indicators Prototype Launched, Page 3

The Nuclear Future by Richard A. Meserve, Robert Rosner, Scott D. Sagan, and Steven E. Miller, Page 71

Reflections: Three Moles by Paul A. Samuelson, Page 83


ContentsNews

Academy Inducts 228th Class of Members 1

Humanities Indicators PrototypeLaunched 3

Scholar-Patriot Award 5

Rumford Prize 6

Induction Ceremony: Challenges Facing a Global Society 12

Projects and Studies 19

Fellowship Programs 32

Academy Meetings

Challenges to Public Universities 35Robert J. Birgeneau, Mark G. Yudof, and Christopher F. Edley, Jr.

Judicial Independence 44Sandra Day O’Connor, Linda Green-house, Judith Resnik, Bert Branden-burg, and Viet D. Dinh

The Invisible Constitution 59and the Rule of LawDiane P. Wood, Laurence H. Tribe,Frank H. Easterbrook, and Geoffrey R. Stone

The Nuclear Future 71Richard A. Meserve, Robert Rosner,Scott D. Sagan, and Steven E. Miller

A World Free of Nuclear Weapons 77Sidney D. Drell, William J. Perry,Sam Nunn, and George P. Shultz

Reflections: Three Moles 83Paul A. Samuelson

Noteworthy 85

From the Archives 88

american academy

of arts & sciences

Calendar of Events

Monday,March 9, 2009

Stated Meeting–Washington, DC

The Public Good: The Humanities in a Civil Society

Speakers: David Souter, United StatesSupreme Court; Don Michael Randel, The Andrew W. Mellon Foundation; PattyStonesifer, The Bill and Melinda GatesFoundation/Smithsonian Institution; Edward L. Ayers, University of Richmond

Location: The George Washington University

Time: 5:00 p.m.

Wednesday,March 11, 2009

Stated Meeting–Cambridge

Nanotechnology: Novel Applications

Speakers: Robert Langer, MassachusettsInstitute of Technology; Angela Belcher,Massachusetts Institute of Technology;Evelyn Hu, Harvard University

Location: House of the Academy

Time: 6:00 p.m.

Thursday, April 16, 2009

Stated Meeting– Cambridge

An Evening of Chamber Music

Performance: The Arron Chamber Ensemble


Time: 6:00 p.m.

Wednesday,May 13, 2009

Stated Meeting–Cambridge

What Is Missing in Medical Thinking?

Speaker: Jerome Groopman, HarvardMedical School/Beth Israel DeaconessMedical Center


Time: 6:00 p.m.

For information and reservations, contact the Events Of½ce (phone: 617-576-5032; email: [email protected]).

Bulletin of the American Academy Winter 2009 1

Academy News

Academy Inducts 228th Class of Members

Harvard economics professor Susan Athey discussed the role ofsearch advertising platforms in the future of the economy. Repre-senting the humanities, Emory University Provost, Executive VicePresident for Academic Affairs, and professor of history and AfricanAmerican Studies Earl Lewis described how storytelling shapes ourknowledge of the human experience. “The stories we tell, the storieswe listen to, mark the humanities and the humanist interest in alived experience. We are reminded that in stories we ½nd answersto what makes us who we are.”

The de½nition of a “good company” was explored by Indra Nooyi,Chairman and Chief Executive Of½cer of PepsiCo. “What is the en-during achievement of business?” she asked. Her answer was that“companies must redeem a moral promise as well as yield a returnon capital.” They must recognize the inevitable link between busi-ness and society and combine what is good ethically with what isgood commercially.

Together the speakers captured the promise of the Academy to com-bine thoughtful analysis with determined action.

At a symposium on Sunday following the Induction Ceremony, ninedistinguished scientists and policy experts discussed the conse-quences of the growing reliance on nuclear power. The programfeatured panel presentations by Richard A. Meserve (CarnegieInstitution for Science), Robert Rosner (Argonne National Labora-tory), Richard Lester (Massachusetts Institute of Technology),Scott Sagan (Stanford University), and Steven Miller (HarvardUniversity). Sagan and Miller codirect the Academy’s Global NuclearFuture project, which is generating a set of policy recommendations

On October 11, 2008, more than 500 guests attended the Acad-emy’s 228th Induction Ceremony. The event celebrated the accom-plishments of the Academy’s 212 new members, who come from 20states and 15 countries. Drawn from science, the arts and humani-ties, business, public affairs, and the nonpro½t sector, the class rep-resents 50 universities and more than a dozen corporations.

The Ceremony was preceded by a morning brie½ng, where new mem-bers learned about the Academy’s research projects and their influ-ence on public policy. Chief Executive Of½cer Leslie Berlowitz de-scribed the Academy’s long history of promoting useful knowledgeand anticipating emerging issues before their importance is widelyrecognized.

Several leaders of Academy projects described their work on a widerange of issues, including the federal funding of science; the globalnuclear future; America’s competing research, commercial, and mil-itary interests in space; the effects of corruption on an internationalscale; and U.S. policy toward Russia. The program also includedpresentations of studies on the impact of mass incarceration; theindependence of the judiciary; communicating the role of the hu-manities and culture; educating the world’s children; and securityon the Internet. Throughout the morning, speakers expressed grati-tude and pride in the Academy’s capacity to bring fresh perspectivesto seemingly intractable problems. Speaking about the HumanitiesIndicators Project, which is securing data on the humanities, FrancisOakley, President Emeritus of Williams College, declared, “Allpraise to the Academy not simply for taking the initiative on thisproject but also for demonstrating the tenacity needed to bring itto this preliminary conclusion.”

President of the Academy Emilio Bizzi opened the formal InductionCeremony by recalling the Academy’s founding in the midst of theAmerican Revolution and its role in bringing together scholars, civilleaders, merchants, and farmers to help shape the new nation. At theInduction Ceremony, Chair of the Academy Trust and Vice PresidentLouis W. Cabot announced Senator Edward M. Kennedy of Massa-chusetts as the recipient of the Academy’s Scholar-Patriot Award inrecognition of his tireless advocacy on behalf of health care, educa-tion, science, and learning (see page 5 for the award citation).

New Fellows representing the ½ve classes of Academy membershiptouched on the opportunities and challenges of their work and itsbroader implications for society. James Simons, President and Found-er of Renaissance Technologies, described his love of mathematicswith its complex vocabulary. Peter S. Kim, President of Merck Re-search Laboratories, discussed his role in the search for an hiv vac-cine, using it to illustrate the frustration and hope inherent in bi0-medical research.


to ensure that the demand for civilian nu-clear power does not result in a correspon-ding increase in nuclear proliferation (seepages 71–76 for the speakers’ remarks).

As part of the symposium, the Academyawarded the Rumford Prize, one of the na-tion’s oldest scienti½c awards, to Sidney D.Drell (Stanford Linear Accelerator Center),William J. Perry (Stanford University), SamNunn (Nuclear Threat Initiative), GeorgeP. Shultz (Stanford University), and HenryA. Kissinger, in absentia (Kissinger Associ-ates, Inc.). Stephen D. Bechtel, Jr. (BechtelGroup), Walter B. Hewlett (William andFlora Hewlett Foundation), Academy Presi-dent Emilio Bizzi, and Chief ExecutiveOf½cer Leslie Berlowitz presented theawards in recognition of the recipients’ on-going efforts to reduce the global threat ofnuclear weapons (see pages 6–7 for theaward citations). In response, Drell, Perry,Nunn, and Shultz spoke about their decadesof experience confronting the nation’s mostdif½cult national security issues and theirwork to prevent the spread of nuclear weap-ons (see pages 77–82 for their remarks).

Looking back on the weekend’s events,Jeffrey Victor Ravetch, a new Fellow andthe Teresa and Eugene Lang Professor atThe Rockefeller University, noted, “I amdelighted by the continuity the Academypresents. It provides an unbroken chainback to the founders of the country–and it encourages the integration of the arts andsciences, which is one of the underlyingstrengths of this country’s democracy.”

New Fellows Reflect on Membership in the Academy

New members arrived at the House of the Academy in a state of anticipation,awaiting the morning orientation. Many vividly described the moment that newsof their election arrived: the flurry of congratulatory phone calls and emails fromcolleagues followed by the deepening realization they would be joining a member-ship that included George Washington, Thomas Jefferson, Albert Einstein, MarianAnderson, and T. S. Eliot, among so many others.

Richard Foster, a managing partner at Millbrook Management Group in New York,reflected on how the Academy’s values resonate with his own. “The Academy pro-vides us with a place to compare and contrast our mental models. I am really look-ing forward to being a member.”

Many Fellows paused to study the framed letters of acceptance set along a wall inthe atrium. Anne Walters Robertson, a music professor from the University of Chi-cago, was thrilled by the range of people represented by the historic letters. Shewas particularly moved when she found a beautifully handwritten letter by an ear-lier Fellow she considered one of the greatest teachers of music composition in thetwentieth century, Nadia Boulanger.

“Election to the Academy is a great honor,” said Pablo G. Debenedetti, a professor inengineering and applied science at Princeton University and an immigrant from Ar-gentina. “It is a reminder of how great this country is.”

While many Fellows were eloquent about the role of the Academy in preservingfree inquiry and encouraging interdisciplinary scholarship, they said they werewaiting for the day’s presentations to ground them in the institution’s speci½c pro-grams and reports. “I am looking forward to ½nding out more about how I mightcontribute,” said Alan M. Leslie, professor of psychology and cognitive science atRutgers University.

The responsibility of the scholar to inform public discourse and play a larger role insociety was a recurring theme among Fellows. “It is very interesting to see that theAmerican Academy deals with such diverse topics,” said Nikos K. Logothetis, aneuroscientist from Max-Planck-Institut für Biologische Kybernetik in Germany.He was particularly interested in an Academy project about educating the world’schildren.

Another source of excitement throughout the day was the simple pleasure of meet-ing exceptional people from such an array of backgrounds. “Although I was reallyinterested in the presentations, particularly the ones on nuclear weapons and secu-rity on the Internet,” said Jorge Durand, a professor of anthropology at the Univer-sidad de Guadalajara, Mexico, “today is also an opportunity to meet people fromdiverse ½elds. The Academy is a unique place that brings us all together.”

Academy News

In addition to the data, the Humanities Indicators includes essaysthat reflect on its ½ve parts: primary and secondary humanities ed-ucation, undergraduate and graduate education in the humanities,the humanities workforce, humanities funding and research, andthe humanities in American life. These commentaries by William J.Reese (University of Wisconsin-Madison), Roger L. Geiger (Penn-sylvania State University), David Laurence (Modern Language As-sociation), Alan Brinkley (Columbia University), and Julie Ellison(University of Michigan) suggest the signi½cance of the data col-lected and point to areas where additional information is needed.

The Humanities Indicators Prototype was developed in collabora-tion with the American Council of Learned Societies, the AmericanAcademy of Religion, the American Historical Association, theAmerican Political Science Association, Association of AmericanUniversities, the College Art Association, the Federation of StateHumanities Councils, the Linguistic Society of America, the Mod-ern Language Association, and the National Humanities Alliance.

The Indicators is one result of a decade-long Academy Initiative onHumanities and Culture, which was developed to understand andadvance the humanities. Other activities include a scholarly publi-cation on the post–World War II social forces that transformed


Academy News

In 2002, the Academy’s Initiative on Humanities and Culture issuedits ½rst Occasional Paper, Making the Humanities Count–a study of theneed for a systematic and sustained effort to collect data on the stateof the humanities in the United States. The Academy took up thechallenge, and on January 7, 2009, it launched a prototype set of sta-tistics, the Humanities Indicators, available at www.HumanitiesIndi-cators.org. The website has already attracted over 325,000 visits from38 countries.

In announcing the new online resource, Leslie Berlowitz, Chief Ex-ecutive Of½cer of the Academy, said, “this nation needs more reliableempirical data about what is being taught in the humanities, howthey are funded, the size of the workforce, and public attitudes aboutthe ½eld. The Humanities Indicators is an important step in closingthat fundamental knowledge gap. It will help researchers and policy-makers as well as universities, foundations, museums, libraries, hu-manities councils, and others to answer basic questions about thehumanities, track trends, diagnose problems, and formulate appro-priate interventions.” She also expressed her appreciation to NormanBradburn (National Opinion Research Council) and Steven Marcus(Columbia University), cochairs of the Humanities Indicators Ad-visory Committee, and to John Brademas (New York University),Jonathan Cole (Columbia University), Gerald Holton (HarvardUniversity), Robert Solow (mit), and Judith Tanur (State Univer-sity of New York at Stony Brook), who suggested and encouragedthis collection of data.

Modeled after the National Science Board’s Science and EngineeringIndicators, the data set contains 74 indicators and more than 200 ta-bles and charts, providing broad-based quantitative informationabout areas of concern to the humanities community. The currentprototype is based on existing data; in the coming years, the Indica-tors will expand to incorporate new data from an Academy-spon-sored survey of 1,500 colleges and university humanities departments.

Humanities Indicators Prototype Launched

The Humanities Indicators Reveal…

� Adult literacy in the United States is polarized. AmongWestern industrialized nations, the United States ranksnear the top in the percentage of highly literate adults but it is also near the top in the proportion who have very low literacy.

� K-12 humanities ½elds are suffering a dearth of well-prepared teachers, even more so than math and science. In 2000, the number of middle and high school studentstaught by a highly quali½ed history teacher was lower than any other major subject area.

� Postsecondary humanities faculty are more poorly paidthan those in any other ½eld. They are also among the ½elds with the highest proportion of part-time faculty.In 2004, only 53 percent of humanities faculty were em-ployed full-time, and half of all part-time teachers are available for full-time positions.


the humanities as well as two issues of Dædalus, the ½rst on the evo-lution of the humanities disciplines (Spring 2006) and the secondon challenges facing the humanities within and beyond academia(Winter 2009).

The Academy is indebted to the William and Flora Hewlett Founda-tion for supporting the Initiative on Humanities and Culture and tothe Andrew W. Mellon Foundation for enabling us to create theIndicators.

Denis Donoghue, cochairSteven Marcus, cochairFrancis C. Oakley, cochairPatricia Meyer Spacks, cochairLeslie Berlowitz, cochairRolena AdornoLee C. BollingerNorman BradburnJohn BrademasJohn BryanJonathan R. ColeW. Robert ConnorJohn D’Arms †Gerald EarlyDag½nn FøllesdalRichard FrankeHenry Louis Gates, Jr.Donald GibsonPhilip GossettAnthony GraftonHanna GrayStephen Greenblatt

† Deceased

Hans GumbrechtJames HerbertWalter B. HewlettThomas HinesDavid A. HollingerGerald HoltonArnita JonesLinda K. KerberAlexander NehamasMary Jo NyeRobert C. PostElihu RoseNeil RudenstineFrederick SchauerRichard SennettSalvatore SettisRobert SilversRobert M. SolowAnne-Marie SoullièrePeter StanskyJohn Walsh, Jr.Rosanna WarrenPauline Yu

The Academy gratefully acknowledges the individuals whohelped to launch the Initiative for Humanities and Culture:

Selected Statements of Support for the Humanities Indicators Prototype

The humanities are an invaluable source of enrichment in allour lives. The study of history, philosophy, languages, and lit-erature deepens our understanding of the world as it was, as it is in our own day, and what it may become for future gener-ations. I commend the Academy for its important contribu-tion to the nation in documenting the extent and quality of research and instruction in the humanities available in today’ssociety. It will encourage schools and colleges in communitiesacross the nation to improve their curricula and enhance theeducation of all our students, and the nation will reap thebene½t in the years to come.

Edward M. KennedyUnited States Senate

College and university presidents, provosts, and deans, whohave long hoped for concise and accessible data on the human-ities, will welcome the American Academy of Arts and Sci-ences’s Humanities Indicators Prototype. Not only does theprototype offer tremendous insight into the undergraduateand graduate experience of students and faculty, it also offerskey datasets on the entire span of the educational experience,as well as the work our students will one day undertake. Amongother things, these data will greatly enhance our ability bothto understand and anticipate the needs of incoming studentsand to prepare our students for work in the humanities.

Lee C. BollingerPresident, Columbia University

Now for the ½rst time we have a full, reliable set of data relat-ing to some of the most important indices of behavior in thehumanities ½elds. The website is clearly organized and easilyaccessible to users, and it should help us to understand theacademic ½eld of the humanities in ways that have previous-ly been impossible to accomplish. It will help administratorsacross the humanities, and in the schools and higher educa-tion generally. It will also be of service to individual teacher-scholars and students. And best, from my point of view, itwill facilitate the work of those of us who try to understandand influence humanities policy.

Stanley N. KatzDirector, Center for Arts and CulturalPolicy Studies, Princeton University

The Humanities Indicators Prototype is an important invest-ment in the future. Until we have a clear picture of the state ofthe humanities and the extent of humanities activity in thiscountry, we will be seriously handicapped in our efforts to makea case for the impact of that activity. This report is a vital ½rststep in helping us to overcome that challenge.

Esther MackintoshPresident, Federation of State Humanities Councils

Academy News


The American Academy of Arts and Sci-ences was founded by a group of patriotswho devoted their lives to promoting thepractical arts and sciences “to cultivate everyart and science which may tend to advancethe interest, honor, dignity, and happinessof a free, independent and virtuous people.”

On October 11, 2008, the American Academybestowed its Scholar-Patriot Award on Ed-ward M. Kennedy for his extraordinary ser-vice to the Academy, the community, andthe nation.

Scholar-Patriot Award

Edward M. KennedyFor four decades you have been a ½erce de-fender of the ideals of opportunity, equity,and justice. Master of quiet collaborationand inspired oratory, you have achieved anunparalleled legislative record. Your effortsto insure quality education and health carefor all Americans, including your leadershipon the Americans with Disabilities Act, theState Children’s Health Insurance Program,and the Elementary and Secondary Educa-tion Act, have earned you the respect of menand women across the political spectrum.From your ½rst major bill on immigrationreform to your recent call for a renewed com-mitment to community service, you havechampioned an open and inclusive society.To your family and the nation, you are a pro-½le of courageous leadership, the guardianof a dream that lives on.

The founding members of the American Academywere pragmatic visionaries, anticipating the needsof a young republic for both wise governance andfresh ideas. You follow in their footsteps as aScholar-Patriot for our time. Asserting that “ourfuture does not belong to those who are contentwith today,” you have ful½lled the Academy’s his-toric mission, translating knowledge into actionand celebrating the life of the mind in service tothe community, the nation, and the world.

Academy News


Academy News

The Rumford Prize

Established in 1839, the American Acad-emy’s Rumford Prize recognizes contribu-tions in the ½elds of heat and light. The en-dowment was created by a bequest fromBenjamin Thompson, Count Rumford, whostipulated that the award be given for workthat “in the opinion of the Academy, tendsmost to promote the good of mankind.”

On October 12, 2008, the American Acad-emy of Arts & Sciences bestowed the Rum-ford Prize on George P. Shultz, William J.Perry, Sam Nunn, Sidney D. Drell, andHenry A. Kissinger (in absentia) for their efforts to secure a world free of nuclearweapons.

George P. ShultzSage statesman and esteemed economist, youhave held four Cabinet positions, providingsteadfast leadership and trusted counsel toten presidents. Always faithful to the idealsof freedom, you confronted the forces of in-tolerance and oppression beginning as ayoung Marine captain during World War IIand later as the nation’s chief diplomat dur-ing the Cold War. As Secretary of Labor, Di-rector of the Of½ce of Management andBudget, Secretary of the Treasury, and Sec-retary of State, you made negotiation andquiet diplomacy the hallmark of your work.Whether you were restructuring the inter-national monetary system or fostering co-operation between hostile superpowers,your skill at the bargaining table ensuredthe welfare of the nation and the securityof future generations. Educated at PrincetonUniversity and Massachusetts Institute ofTechnology, today you are a DistinguishedFellow at the Hoover Institution of StanfordUniversity, inspiring bipartisan action to ad-vance peace and international cooperation.

For ½ve decades, you have kept your faith in a se-cure and prosperous America. As a leader in gov-ernment, industry, and academia you foresaw thechallenges of the nuclear future. Your call for an“Age of Diplomacy” and a redirection of nuclearpolicy echoes your lifelong insistence upon a rea-soned exchange between adversaries and friends.

William J. PerryA scholar and defender of American ideals,you have faced threats to the nation withcourage and resolve. Educated at Stanfordand Pennsylvania State Universities, youcombined technical and political expertiseto become a leader in the defense industry.As an engineer, laboratory director, and Un-der Secretary of Defense for Research andEngineering, you fostered and applied tech-nologies essential to national security. AsSecretary of Defense during a period of pro-found transition at home and abroad, youbrokered peaceful, equitable resolutions tocrises around the world. In Haiti and the Bal-kans, you aided the powerless and preservedthe nation’s reputation as a principled lead-er in world affairs. Today, with joint appoint-ments at the School of Engineering and theInstitute for International Studies at Stan-ford University, you advise established andrising world leaders with wisdom drawnfrom a life of distinguished service.

In government, industry, and academia, you havetaught us countless “lessons in leadership.” Withdedication, determination, and insight you stream-lined the military, averted international crises, andreduced our nation’s nuclear arsenal. As we facethe renewed threat of nuclear proliferation, youare securing a safer international community byadhering to the principle that “openness and trustare the essential tools of the art of peace.”


Academy News

Sam NunnEducated at the Georgia Institute of Tech-nology and Emory University, you launchedyour career in the Coast Guard as a defenderof the nation. And from your earliest dayson Capitol Hill, you worked to reduce nu-clear dangers. Serving in the United StatesSenate for four terms, you became an influ-ential voice in matters of national and inter-national security. During your chairman-ship of the Armed Services Committee, youdealt with Cold War struggles and emergingthreats. Determined to advance the cause ofnonproliferation, you cosponsored the Nunn-Lugar Cooperative Threat Reduction Pro-gram, which has resulted in the deactivationof over 7,000 nuclear warheads to date. Now,as Cochairman and Chief Executive Of½cerof the Nuclear Threat Initiative, and as Dis-tinguished Professor at the Sam Nunn Schoolof International Affairs at Georgia Tech, youprovide a bold vision for a world free of nu-clear weapons.

Dedicated to the defense of our shores since yourearliest years of service, you have expanded therange of your vigilance as technology has extend-ed the reach of those with hostile intentions. Youpursue a global response to a threat that respectsno boundaries. Determined to win the “race be-tween cooperation and catastrophe,” you havegathered together world leaders to steer a safercourse to the future.

Sidney D. DrellIn the tradition of Einstein, Fermi, and Szi-lard, you are a physicist who has reached be-yond your profession to become an impas-sioned advocate for arms control. With abachelor’s degree from Princeton Univer-sity and a doctorate from the University ofIllinois, you conducted pathbreaking re-search in elementary particle physics andquantum theory. You helped to found theStanford Linear Accelerator Center andcontinue to direct the long-term planning of national accelerator laboratories. Recipi-ent of our nation’s most prestigious scien-ti½c awards, you have used your technicalexpertise to provide sound guidance for ourgovernment. Einstein said, “politics is muchharder than physics,” but you never waveredin your determination to add scienti½c know-ledge to public discourse. You are the con-summate adviser with a mission: to promotenonproliferation while strengthening thenation’s nuclear defense.

You have shown by example that scientists have aresponsibility to acknowledge and to act on theimplications of their work: to accept the “obliga-tion to try to help the government function.” Byupholding these principles, you have earned the re-spect of policy-makers, government leaders, sci-enti½c colleagues, and the public who look to youfor wise counsel and informed judgment “in theshadow of the bomb.”


2008 Induction

Arthur Levinson ’08 (Genentech) and Daniel Vasella ’08(Novartis AG)

Cynthia Dwork ’08 (Microsoft Research) and Alessandro Duranti ’08 (University of California, Los Angeles)

Lauren Dachs ’08 (S. D. Bechtel, Jr. Foundation), ElizabethBechtel, and Stephen D. Bechtel, Jr. ’90 (Bechtel Group, Inc.)

Xiaoliang Sunney Xie ’08 (Harvard University) and MarlanScully ’08 (Texas A&M University)


Nikos Logothetis ’08 (Max-Planck-Institut für BiologischeKybernetik) and Allison Doupe ’08 (University of California,San Francisco)

Academy News

Sam Nunn ’97 (Nuclear Threat Initiative), Scott D. Sagan ’08 (StanfordUniversity), and Walter B. Hewlett ’99 (William and Flora Hewlett Foundation)

John Guckenheimer ’08 (Cornell University) and Christopher Cummins’08 (MIT)

Tom Leighton ’03 (Akamai Technologies/MIT) and PaulSagan ’08 (Akamai Technologies)


2008 Induction

Margaret Whitman ’08 (formerly eBay) and George P.Shultz ’70 (Stanford University)

Robert Rosner ’01 (University of Chicago) and Richard Wilson’58 (Harvard University)

Bruce Stillman ’08 (Cold Spring Harbor Laboratory) and Arthur Levin-son ’08 (Genentech) with a group of new members before the morningbriefing

Henry Arnhold ’04 (Arnhold and S. Bleichroeder Holdings, Inc.)and Nelson Kiang ’81 (Massachusetts Eye & Ear Infirmary)


Academy News

Rodney Brooks ’07 (MIT) and Ruzena Bajcsy ’08 (Universityof California, Berkeley)

David D. Sabatini ’80 (NYU Langone Medical Center), John Katzen-ellenbogen ’92 (University of Illinois at Urbana-Champaign), andLino Tagliapietra ’07 (Murano, Italy)

Larry Hedges ’08 (Northwestern University) and JeffreyRavetch ’08 (Rockefeller University)

Charles Geschke ’08 (Adobe Systems, Inc.) and JohnWarnock ’08 (Adobe Systems, Inc.)


On October 11, 2008, the American Academy of Arts and Sciences inducted its 228th class of Fellows and Foreign HonoraryMembers at a ceremony held in Cambridge, Massachusetts. Mathematician and hedge fund leader James Simons, biochemistand research laboratory president Peter S. Kim, economist Susan Athey, historian and university provost Earl Lewis, andcorporate leader Indra Nooyi addressed the audience. Their remarks appear below.

Induction Ceremony

James SimonsPresident and Founder, Renaissance Technologies

Many of you may never have heard of thenotion of “doing mathematics.” Yet every-one knows that mathematics is almost ubiq-uitous, applied to everything from balancinga checkbook to designing a bridge or engi-neering a ½nancial derivative. The mathema-tics underlying each of these actions–arith-metic, calculus, and probability, respectively–was invented centuries ago. And, believe itor not, it is still being invented, at a rapidpace.

Doing math consists of two equally impor-tant parts–de½ning concepts and provingtheorems. These play off against each other.Two concepts we are all familiar with areintegers and triangles. These concepts, ofcourse, have led to many theorems, such as,“the sum of two even integers is even,” or,“triangles are congruent if two sides and theincluded angle of one are equal to two sides

and the included angle of the other.” Pleasenote that the statement of these theoremsrequired more concepts, such as even, angle,and congruent.

As time went on, more and more conceptswere created, each requiring a careful de½ni-tion and always dependent on previous con-cepts. Sometimes these are generalizations,as polygon is of triangle; other times theyare specializations, as prime number is ofinteger. Over millennia the subject has ac-quired a vocabulary more vast and more in-comprehensible than that of any other. Over-hearing a group of mathematicians at a cock-tail party is (briefly) interesting: each wordmay seem familiar–group, ring, ½eld, oper-ator–but each has a meaning quite differentfrom what one might think, and in any eventthe content of the conversation is utterlyopaque. Nonetheless, this is not jargon, in-vented to give dignity to a familiar concept,but is the skeleton of the subject, on whichthe muscles of theorems are hung.

These de½nitions may be short lived, usedonly to avoid repetition within a paper, butthey sometimes stick, being such useful con-cepts that others beside their inventor are in-spired to probe them more deeply. Thus theskeleton grows, and the subject advances.

Proving theorems is another matter. Withconcepts in hand one strives to answer aquestion, posed either by oneself or by an-other in the ½eld. These could range from,“are all odd numbers prime?” to “can everyHermitian vector bundle with connectionover a smooth manifold be realized as thepull-back of the canonical bundle and con-nection over the classifying space, bu, un-der a smooth map of the manifold into bu?”As almost everyone knows, the answer tothe ½rst question is no; and, as almost no-

body knows, the answer to the second ques-tion is yes.

The choice of the questions one works on isvery important. First, one must believe thata question’s answer may truly advance the½eld, perhaps settling other questions and,one hopes, giving rise to a host of new onesin which others will be interested. Second,one must believe that he actually has a chance

to answer it. The ½rst is a matter of taste,rather than of intellectual musculature, andquality of taste has been shown to vary wide-ly among practitioners. The second, likemany things, depends on self-knowledgeand courage.

The process of proving a theorem involvesimmersing oneself in a cocoon of preoccu-pation, in which ideas are generated and re-jected, and formulae and pictures are imag-ined and contemplated (often without pen-cil and paper)–all in a mental place tempo-rarily insulated from the cares of the day.This process may continue for weeks,

What is it that drives somepeople to do mathematics inthe pursuit of knowledge soabstract it can be communi-cated to but a small groupof people? The only answer I can give employs two words:mathematics is beautiful,and it is true.

Challenges Facing a Global Society


months, even years, and can take place al-most anywhere, from the ballroom to thebathroom and on the walk in between.Such immersions are not continuous: some-times it is necessary to break out to teach aclass, do taxes, or even civilly respond toone’s spouse or child. But the tranquility ofthe cocoon is always beckoning, and oneyearns to return. In little bursts (occasion-ally in big ones) progress gets made. At suchtimes one emerges in triumph. Often, how-ever, the emergence is in frustration, as thedamn thing just doesn’t come together.Still, in the next hour, day, or week one goesback to the cocoon to try again, to test a newattack. And so it goes, ending sometimes insuccess, but often in failure.

At the end you might ask what is it that drivessome people to do mathematics, preoccupy-ing themselves so fully as to often annoyothers, missing out on much that most oth-ers ½nd engaging, and doing this in the pur-suit of knowledge so abstract it can be com-municated to but a small group of people?The only answer I can give employs twowords, famously linked by John Keats:mathematics is beautiful, and it is true.

© 2009 by James Simons

Peter S. KimPresident, Merck Research Laboratories

Ask any biologist why he or she was at-tracted to the ½eld and you are likely to hearabout the hope that one’s work ultimatelywill lead to improvements in human health.It’s a hope rooted in optimism, but oftentested by failure.

Over the course of my career, I have beenfortunate to participate in biomedical dis-covery both in an academic setting and in aresearch pharmaceutical company. Whilethere are some obvious distinctions betweenthe two environments, one fundamental as-pect is the same: more often than not, theprocess of discovery is a long, arduous jour-ney, ½lled with many false starts, blind al-leys, and frustrating setbacks.

Today I’d like to describe one such journey.It’s a journey that, despite more than twodecades of dedicated effort by literally thou-sands of scientists, is seemingly no closer toan answer now than it was 20 years ago.

Historically one of the most cost-effectivemethods to improve human health has beenvaccination against infectious disease. Noth-ing is more important today in the world ofvaccine research than discovering and devel-

oping a vaccine for hiv/aids. And nothingmore clearly illustrates just how frustrating–and humbling–that search can be.

Back in 1984, Margaret Heckler, then Secre-tary of the U.S. Department of Health andHuman Services, optimistically declared,“We hope to have a vaccine ready for testingin about two years–yet another terrible dis-ease is about to yield to patience, persistence,and outright genius.” Secretary Heckler’soptimism was premature. Indeed, we arestill many years away from knowing how todevelop an ef½cacious hiv vaccine.

The classic approach to immunizing peopleagainst disease–administering a vaccinethat elicits an antibody response from thebody’s immune system–does not work forhiv. This approach protects against infec-tions caused by influenza, hepatitis B, andhuman papillomavirus, the agent that caus-es cervical cancer. But it does not protectagainst hiv.

The reason for this failure is fairly, and frus-tratingly, simple. hiv is extremely ef½cientat changing its outer shell. This trait enablesthe virus to evade detection by the antibod-ies elicited with a classical vaccine. hiv is,in a very real sense, a master of disguise.

The human immune system, however, has asecond arm for ½ghting infection, called cell-mediated immunity. Through this response,the body produces what are known as killerT-cells, cells that kill other cells infected withviruses. Given the failures of the antibodyapproach, the scienti½c community has spentmore than 15 years pursuing an hiv vaccinebased on the cell-mediated approach.

To describe better why scientists pursued thecell-mediated approach, I would like to takea minute to explain the three stages of thedisease, once a person is infected with hiv.

In the ½rst stage, soon after infection, thevirus undergoes explosive growth. Within amatter of weeks, the amount of virus in thepatient’s blood–the “viral load”–skyrockets,as virus replication far outpaces the body’sability to combat it.

Academy News


At Merck, we developed a vaccine based onthis approach. In pre-clinical testing on rhe-sus monkeys, our cell-mediated vaccine in-creased production of killer T-cells. It alsodramatically drove down the set point of theinfected animals.

The connection between these two results –more killer T-cells and a lower set point–led us to think that we had found what iscalled a correlate of immunity. In otherwords, our pre-clinical results strongly sug-gested that there would be a correlation be-tween increased production of killer T-cellsby the immune system and reduction of apatient’s viral load.

Therefore, together with the National Insti-tutes of Health, we sought and received ap-proval to test the vaccine in 3,000 human vol-unteers who are at high risk of hiv infection.And while few scientists saw this approach asthe ultimate hiv vaccine, many in the ½eld,myself included, expected that our vaccinewould reduce the viral set point in infectedindividuals, which would improve theirhealth and reduce the risk of transmission.

Such a result would have been the biggest step forward in the search for a vaccine intwo decades; it ½nally would have given us apromising place to start. Indeed, Merck com-mitted to invest hundreds of millions of dol-lars to scale up production of the vaccine andmove into the ½nal stage of testing if the vac-cine showed even just a ten-fold decrease inpatients’ viral loads. Unfortunately, it did not.

Much to the surprise of many in the scien-ti½c community, the cell-mediated approachdid not have the expected effect in humans.Although the vaccine did stimulate the pro-duction of killer T-cells, as it had in monkeys,that increase did not prevent an initial hiv

infection. What’s more important, it didnot reduce the viral load of those in the trialwho became infected with hiv.

As a result, we stopped the trial. We had notdiscovered a way to stimulate the second armof the immune system to reduce the viralload. Neither had we con½rmed a correlate ofimmunity that would have helped advancethe search for a vaccine. In short, we wereback to square one.

Then, the body’s natural defenses begin to½ght back. Within weeks, the patient’s viralload drops until the virus and the immunesystem reach what is essentially a stalemate.The virus is not eliminated; instead the pa-tient’s viral load reaches what we call a setpoint, a point at which it likely will remainfor many years.

The length of time that stalemate lasts de-pends on the patient’s viral load. The lowerthe viral load–the lower the set point–thelonger it will take for hiv to progress to thethird stage, full-blown aids. That’s why webelieved with some con½dence that stimulat-ing the production of killer T-cells would be avery important breakthrough in the searchfor a vaccine. Based on our knowledge ofhiv, if the vaccine worked as expected, therewould be two very favorable results.

First, a cell-mediated vaccine would lowerthe set point, extending the lives of patientsand giving them a better quality of life. Andsecond, it would lower the rate of transmis-sion, slowing the spread of the disease. Giventhe size of the hiv/aids epidemic, even asmall decrease in the rate of transmissioncould save countless numbers of lives.

Obviously, the results of the clinical trial weredeeply disappointing. What many thoughtwas the most promising path forward turnedout to be a discouraging detour. As dispirit-ing as the results are, however, the paradoxis that they represent an accomplishment.Although the answer is not the one we de-sired, we have obtained an answer nonethe-less. I echo what Thomas Edison once ob-served, “I am not discouraged, because everywrong attempt discarded is another stepforward.”

The history of vaccines, after all, providesnumerous examples of long and dif½cultsearches for success. It took scientists morethan 40 years to develop a safe and ef½ca-cious measles vaccine, more than 50 yearsfor polio, and the search is ongoing, aftermore than 60 years, for a malaria vaccine.It is far too early to stop the search for anhiv vaccine.

To conquer hiv and other public healthchallenges, basic research on truly novelideas must be funded and pursued. Encour-aging and funding creative and transforma-tive research, as called for in the Academy’srecent ARISE report, is absolutely essential.We must continue our efforts, so that thebest of science can discover and develop thehiv vaccine the world so clearly needs.

This Academy was founded with the expressgoal, among others, “to promote and encour-age medical discoveries.” The founders ofthe Academy would undoubtedly be aston-ished at what we have discovered and learnedover the past two centuries. I suspect theywould not, however, be at all surprised athow dif½cult the process of biomedical dis-covery remains.

Indeed, I am con½dent that they would en-courage us today, as they did more than 200years ago, to apply our best efforts to the bet-terment of the American people, and thepeople of the world, even in the face of seem-ingly insurmountable barriers. As scientists,that is a call we must continue to answer.

© 2009 by Peter S. Kim

I am con½dent that thefounders of the Academywould encourage us today,as they did more than 200years ago, to apply our bestefforts to the betterment ofthe American people, andthe people of the world,even in the face of seeminglyinsurmountable barriers. As scientists, that is a call we must continue to answer.

Induction Ceremony


Susan AtheyProfessor of Economics, Harvard University

Central to economics is the question ofhow scarce resources are allocated. Often,resource allocation takes place through de-centralized transactions among individuals,governed by a generic set of legal constraintsconcerning property rights, contracts, andfraud–for example, farmers and customersgo to a farmer’s market and exchange goodsfor money in a set of individual transactions.However, some kinds of resource allocationproblems do not lend themselves to such adecentralized and unstructured approach.

Market design is a sub½eld of economicsthat focuses on problems when decentral-ized markets do not perform very well, andwhere actively designed institutions can im-prove the ef½ciency or fairness of resourceallocation. The design of market institutionsalso affects pro½t for the owners of resourcesand often for the market institution itself.

When do markets need to be actively de-signed? Why don’t all markets just “hap-pen”? The events of the past few weekshave brought into sharp focus the crucialrole of well-designed institutions. With 20/20hindsight, it seems obvious that ½nancialinstitutions require oversight when thegovernment implicitly or explicitly insuresthem; that the rules of the game matter;and that individuals and ½rms will under-

stand the sometimes perverse incentivescreated by a regulatory and institutional en-vironment, and respond to them. But untilrecently, many argued that markets could beself-regulating. How do we know when de-sign is needed? I don’t have the answers tothe current crisis, but I will say a little aboutmore manageable problems.

Typically an actively designed market is most-ly likely to add value when participants haveprivate information about their valuationsfor objects, and these are heterogeneousacross market participants; when the itemsare unique or perishable; when the alloca-tion is complex or coordination is dif½cult;when there are impediments to market pric-ing due to legal or ethical constraints (forexample, organ donation or allocating stu-dents to schools); or when the governmentcannot commit itself not to intervene, as inthe case of health, welfare . . . or bailing out½nancial institutions.

For thousands of years, people have recog-nized that a seller of a unique or perishableitem may ½nd it most effective to sell theitem via auction. Fish and flowers were his-torically sold using open-outcry auctions,where bidders announce successively higherprices that they are willing to pay for an item.In modern times, auctions are the methodof choice for selling natural resources, suchas oil, timber, and spectrum, as well as forprocuring unique, made-to-order, or com-plex bundles of goods and services. Underideal conditions, an auction gets the item intothe hands of the buyer who values it the most.

My own passion for the design of auctionsstarted when I studied timber auctions as anundergraduate at Duke University. I continueto work on timber auctions today, helpinggovernments design auction-based market-places for timber that work well even whenthe government owns most of the timber land.

However, my most recent foray into auctiondesign concerns another brand-new kind ofauction, this one less than 10 years old anddesigned not by economists, but by searchengines like Google: auctions for slots inwhich to display short text advertisementsalongside the results returned by search en-gines. In just a few years, the marketplace for

search advertising has grown to well over$10 billion in annual revenue in the UnitedStates. Perhaps more remarkably, each monthover 10 billion individual auctions are heldamong advertisers. Every time someone en-ters text into a search box, an auction is heldin real time using standing bids that can beentered into an order database and updatedby advertisers at any time. Hundreds ofthousands of advertisers have bids enteredon millions of distinct keywords. When aphrase is entered by a user, advertisementsare scored for quality and expected clicks,bidders are ranked, and advertisers appearin order of the rankings. The highest posi-tions tend to get more clicks from users.

Early auction designs asked bidders to paytheir bids for each click they received; butthe ability to update bids in real time leadbidders to adopt automated bidding agents,and bids moved in cycles. Bidders continu-ally outbid one another by a penny, with therankings of bidders reversing continuouslyuntil prices rose so high that it was no long-er pro½table. Then prices collapsed and thecycle began anew, with many cycles takingplace each day. New designs are more stable,adapted from the economic theory litera-ture about “second-price auctions,” andnow bidders pay the minimum bid requiredfor them to maintain their positions, whichreduces the incentive for cycling.

Whether we’ll have compe-tition among search enginesin the future is an open ques-tion, and this is an issue ofvital importance for all ofsociety, given the importantrole search engines play indetermining what informa-tion people receive about pol-itics, culture, and commerce.

Academy News


Search engines, like the yellow pages, provideadvertisements alongside their unpaid “di-rectory.” Top-ranked advertisements, likeextra-large yellow pages ads, generate moreleads for the advertisers; they also help con-sumers ½gure out which advertiser is mostlikely to meet the needs of people who typedthe same search query that they did. Just asthe advertiser with a large yellow pages admight be a good place to call ½rst when yourtoilet is overflowing at midnight, the adver-tiser at the top of the search page may be agood bet for your investment of valuabletime in searching the Internet for an onlinepurchase.

In the United States, three main ½rms,Google, Yahoo!, and Microsoft, currentlyoperate search advertising platforms. Theseplatforms have what economists call “indi-rect network effects”: the more consumersthere are, the more advertisers join; and themore advertisers there are available for thesearch engine to choose from, the better theconsumer experience can in principle be.Competing search engines vie to attract con-sumer “eyeballs,” as well as advertising ex-penditures, to their platforms, and the plat-form with the most ef½cient auction willhave an advantage at attracting users. At thesame time, search engines earn pro½ts fromthe auction, and auction design (includingthe use of reserve prices) affects both howmuch value is created and how much thesearch engine extracts. Platforms then bidfor the ability to provide search services,such as search toolbars for publishers of on-line newspapers, with whom they share therevenue. This provides incentives for pub-lishers and individuals to publish contentall over the Web. It also enhances a virtuouscircle, whereby the biggest platforms get big-ger. Yet, despite that, competing platformscan coexist.

Whether we’ll have competition amongsearch engines in the future is an open ques-tion, and this is an issue of vital importancefor all of society, given the important rolesearch engines play in determining what in-formation people receive about politics, cul-ture, and commerce. But if you want a com-peting search engine to succeed, the revenue

from advertising auctions is a driving forcebehind funding it, and a carefully designedauction can attract more advertisers andconsumers to the platform, thereby foster-ing competition.

The auction design is constantly evolving,and there is an ongoing and close interac-tion between the academic literature con-cerning these auctions and innovations inpractice. All search engines actively run ex-periments with the auction design and meas-ure the results; academic-style corporate re-search labs play an important role in this. Iam currently a visiting researcher at Micro-soft Research, where I am working with Mi-crosoft on its own auctions. It is a fantasticplayground for an auction designer, and theopportunity to take research into practice isamazing.

One reason that search advertising createsso much value is that the advertisements arehighly targeted: people are looking for whatthe advertisers are selling. Highly personal-ized advertising can be an enormous bene½tto a consumer. Imagine if every advertise-ment you saw reflected your current needsand interests! As advertising becomes betterand better targeted, fewer advertisements arewasted, and the value created by showingadvertisements grows dramatically. Onlineadvertising ½rms are amassing enormoustroves of data that can be “mined” to betterpredict what users will respond to, based onwhatever information the ½rm has about thesearcher. Particularly valuable data wouldinclude the searchers’ demographics, theirsearching behavior online, the content oftheir email, and, potentially, their ½nancialtransactions.

A number of crucial questions about the fu-ture of this industry remain open. How ef-fective will targeting technology be, eventu-ally? Will users appreciate receiving target-ed ads, or will they attempt to shield theirbehavior from observation? Who will bene-½t from the individual data? Will consumersshare in the advertising revenue, for exam-ple, receiving free high-speed Internet or ca-ble television in exchange for allowing theirinformation to be used to target advertise-

ments? If so, will rich and poor consumersreceive comparable offers for services in ex-change for their information? How will pri-vacy be safeguarded? What role will the gov-ernment play? Firms will innovate in creat-ing marketplaces for targeted advertising,but society as a whole will participate in set-ting the ground rules for this next wave ofmarket design.

© 2009 by Susan Athey

Induction Ceremony


Earl LewisProvost; Executive Vice President for AcademicAffairs; Asa Griggs Candler Professor of Historyand African American Studies, Emory University

It is a real pleasure to say a few words aboutthe humanities and share my love of fashion-ing an understanding from the fragments oflives. When we think of the humanities, weoften think of, among other disciplines, phi-losophy, literature, history, religion, culture,language, and the ways in which we as indi-viduals ½t into, make use of, and move for-ward larger and more complex institutionsand organizations. Today, I want to touch onthose topics by talking about stories. All ofus have stories: some stories are apocryphal;some we share with only a few friends; a fewwe hope no one else knows anything about.Stories chronicle the ways in which we arehuman.

In the days before small batteries poweredequally small tape recorders, a now forgot-ten army of ethnographers moved along ournation’s highways and byways to capture thesimple words of ordinary citizens who hadexperienced slavery. The human recordershad to listen hard for rhythm, diction, ca-dence, and meaning. That some did so bet-ter than others goes without saying. Someof those taking notes were black; others werewhite. Some had early audio recorders; manytook notes longhand and transcribed themlater. Most listened carefully and reproducedthe comments according to the dialects theyheard or imagined they heard. They worked

for the Federal Writers’ Project, other NewDeal programs, and state of½ces. Their re-cordings made possible new insights intowhat it meant to live as enslaved people, andpowered a generation of scholarship begin-ning in the 1960s that provided glimpses in-to the inner worlds of African descendedpeoples in the United States.

The list of American Academy of Arts andSciences members who made use of thesematerials to inform their scholarship is con-siderable. An example is the print and audiocollection edited by Ira Berlin and associates.In Remembering Slavery, Berlin and team assid-uously probed what it meant to be human,

even for those whom others had seen aschattel. From the stories they captured, wesee how ordinary people emerged in mind,body, and soul to reveal consciousness, freewill, and poetic genius, despite legal limitson every aspect of their lives.

Fast forward to today, and to another attemptto let ordinary Americans tell their stories.The project is called StoryCorps, and manyof you have heard radio vignettes on yourlocal public radio station. It is the largestproject of its kind since the 1930s, and as inthe 1930s, the casual listener or reader willhear tales of hope and despair, love and heart-break, beauty and pain, triumph and defeat,humor and tragedy: all of what it is to behuman.

But scholars today seeking to use these ma-terials bene½t from signi½cant advances intechnology. Not only is the sound quality ofthe recordings considerably better than inthe 1930s, but now we can tag the informa-tion digitally for easy retrieval. The sourcescan be sorted, analyzed, remixed, and other-wise used in manners barely imagined threegenerations ago. We can data mine and elec-tronically reproduce. We can scan for visualexpressions of body language, mood, andsigns of affection. Today, it is as easy to fo-cus on the technologies as it is the peoplecaptured by those technologies. It is herethat the fundamentals of humanities schol-arship and method make a difference.

Let me offer two historical examples. Theability to build a nuclear bomb is not thesame as feeling compelled to detonate it.Piloting a massive aircraft is not the sameas using it to destroy the lives of thousandsof innocents. In both examples, we needgreater insight into human motivation andbehavior. We need an understanding of cul-ture, language, history, religion, and world-view. We need stories. We need to analyzethem in form and structure. We need topause and posit, “Why? Why? Why?” Ulti-mately, technological advancement requiresa humanist perspective to understand fullyits importance. The stories we tell, the sto-ries we listen to, mark the humanities andthe humanist interest in a lived experience.Here, the past and present remind us of whatit means to be more than a collection of cells.We are reminded that in stories we ½nd an-swers to what makes us who we are. If youever listen to or read a slave narrative, andthe next time you hear a selection from theStoryCorps project, think about what is ina story.

© 2009 by Earl Lewis

The stories we tell, the stories we listen to, mark the humanities and the humanist interest in a livedexperience. Here, the pastand present remind us ofwhat it means to be morethan a collection of cells. We are reminded that instories we ½nd answers towhat makes us who we are.

Academy News


Indra NooyiChairman and Chief Executive Of½cer, PepsiCo

Ladies and gentlemen, it is with great hu-mility and no little pride that I stand beforeyou today to accept this accolade on behalfof myself and Class V of the Academy. WhenI reflect on the distinguished members ofthe Academy and the remarkable men andwomen who are being honored on this occa-sion, I am truly humbled.

Indeed, this honor has forced me to reflecton the nature of what I do in leading my com-pany, PepsiCo. The accomplishments of thevast majority of members of the Academyare impressive and clear. When scientistsexpand the frontier of knowledge, this isclear. When public servants help those inneed, it is clear indeed. When writers changeour understanding of the world, again, it isclear. So with no false modesty, I have won-dered about my own contribution. What isthe enduring achievement of business? Inwhat way do I stand shoulder-to-shoulderwith my fellow inductees today and with allof the distinguished people who have comebefore us?

Business, of course, makes a direct contribu-tion to the health of society. It is an engine ofgrowth and a source of employment. Ourlivelihoods would be less prosperous andmore onerous if it were not for the ingenu-ity of entrepreneurs. The ½scal base of allnations would be depleted were it not forthe contributions made by business. And

every company, of course, by de½nition sup-plies a product that people want. Life is, insome small way, enriched by the work doneby business.

But believe me, none of these reasons is spe-cial enough to warrant this award. Compa-nies are linked into society inevitably, and Ithink we need to lead this argument just abit further. I like to think that it is in theprocess of advancing the idea of “the goodcompany” that I may have come to the at-tention of the Academy. It is a deceptivelysimple idea: that a company must redeem a moral promise as well as yield a return oncapital. It is not enough, in my view, simplyto comply with the existing rules and regu-lations in pursuit of the maximum returnto shareholders. If that is your approach, itwill prove to be self-defeating.

The modern company today lives in a worldcrisscrossed with networks of governments,ngos, transnational agencies, and othercompanies. That complexity is compound-ed by the fact that we operate in very manymore countries than ever before, selling intovery many more different cultures. And allthe while, the scrutiny of global media meansthat any error is put up to the light almost inan instant.

It has always been the case that a companyguards its reputation for probity with greatzeal. But there was a time when mistakeswould pass unnoticed. Once won, it took alot to tarnish the reputation.

This is no longer true. There are companiesthat have taken years to recover from a sin-gle instance of unethical practice. In duecourse, they ½nd it dif½cult to recruit thebest staff. Young people today want to knowthat they are working in a good company.Our new recruits pose a stringent test thatwe have to pass.

If PepsiCo’s ethical position is not alignedwith our commercial position, then bothwill suffer. The future of our company is inthe marriage of what is good ethically andwhat is good commercially.

This is not the occasion for a parade of ex-amples from PepsiCo and how we live up tothis exacting standard. Let me simply saythat we have tried to embed the notion ofa good company in everything we do.

This age has been one in which nation-stateshave seen power slowly migrate. Open mar-kets are changing the world, and in that con-text, companies have become what RobertLowe, the founder of Limited Liability, oncecalled “little republics.” They have gained apower they never sought. The task is to ex-ercise it responsibly.

It is, I hope, for the responsible exercise ofthat power that I stand before you today. Itis a great honor, I am overwhelmed, and Icannot thank you enough.

© 2009 by Indra Nooyi

Business, of course, makes a direct contribution to thehealth of society. It is anengine of growth and asource of employment. Our livelihoods would beless prosperous and moreonerous if it were not for theingenuity of entrepreneurs.

Induction Ceremony


Projects and Studies

ARISE: Advancing Research in Science and Engineering

Neal LaneMalcolm Gillis University Professor,Senior Fellow at the James A. BakerIII Institute for Public Policy, andProfessor in the Department of Phy-sics and Astronomy at Rice University.

As cochair of the Academy’sInitiative for Science, Engineer-ing, and Technology (set), Iwould like to discuss a report werecently issued on the need todevelop funding policies andprograms to support early-ca-reer scientists and high-risk, po-tentially high-reward or trans-formational research. The report,entitled ARISE: Advancing ResearchIn Science and Engineering, has re-ceived widespread attention ingovernment and in the media.

The purpose of the Academy’sset Initiative is to identify areasof concern in science and tech-nology policy where the Acad-emy’s influential voice can makea difference. Our ½rst study fo-cused on the modes used by fed-eral agencies to fund research.We chose not to address howmuch money ought to be spent–a lot has been said about thatmatter–but rather how the fundsshould be allocated. The objec-tive was to complement the ½nd-ings of the National Academies’report, Rising above the GatheringStorm, which dealt with the needfor additional federal investmentin scienti½c and technologicalresearch and education by thefederal government and otherpolicy actions to lower existingbarriers to innovation by U.S.industry. The Academy studyidenti½ed issues that the commit-tee felt were important no mat-ter what the funding levels were.

The project’s study committee,chaired by Nobel laureate andPresident of the Howard HughesMedical Institute Thomas R.Cech, included scientists andscience-policy experts from ac-ademia, industry, government,and the private sector. I servedon the committee. A headlinefor the report might read: “If thiscountry really expects to stay ina leadership position in the nextcentury, we need to invest in thepeople and the ideas to make thathappen.” It ½ts well with theAcademy’s motto: CherishingKnowledge, Shaping the Future.

I would like to tell you brieflywhat we had to say about eachof these topics and what we feltshould be done. In the case ofearly-career investigators, it isobvious why they are important:they are the future and they faceever-increasing barriers that aremuch higher than those many ofus faced when we were starting

out. Here are some indicators ofwhat lies ahead for young scien-tists. First, the average age of therecipient of the ½rst competitiveNational Institutes of Healthgrant is over forty-two years.Many young people are ½ndingthat by the time they get their½rst competitive grant and havea chance to do anything with it,the tenure clock has run out. Thisis terribly wasteful in terms of thetalent and money invested by thefederal government, by univer-sities, and, sometimes, by theparents and spouses who sup-port these young investigators.

Another indicator, the successrate for ½rst-time applicants (andnow I am still talking about Na-tional Institutes of Health) hasdeclined from 86 percent in 1980to 28 percent in 2007. The Nation-al Science Foundation has had asimilar experience. Too muchtime is spent preparing grantproposals and, if rejected, the

At a morning brie½ng for new members, held on October 11, 2008, leaders of current Academy projects presented updates on their work. Their remarks appear below.

Selected leaders of current Academyprojects: front (left to right): Robert H.Legvold (Columbia University), PatriciaMeyer Spacks (University of Virginia),Francis Oakley (Williams College),Bruce Western (Harvard University);back (left to right): David Clark (MIT),John D. Steinbruner (University ofMaryland), David E. Bloom (HarvardSchool of Public Health), Steven E.Miller (Harvard Kennedy School), Neal Lane (Rice University), Robert I.Rotberg (Harvard University), LeslieBerlowitz (American Academy), Jesse H.Choper (UC Berkeley School of Law),Scott D. Sagan (Stanford University)


Project and Studies

second and third amendmentsto the original proposals. Thattime could be spent more pro-ductively on research.

The arise report makes a num-ber of recommendations to fed-eral agencies, foundations, anduniversities, including the cre-ation of target grant and seedfunding programs for early-ca-reer scientists as well as recon-sideration of promotion andtenure policies. In addition, thereport advocates for the system-atic tracking of demographicdata about grant applicants ona government-wide basis: thecurrent non-standardized track-

ing hinders efforts to determinehow well we are supportingyounger scientists. We also sug-gest that federal agencies anduniversities pay special attentionto women and their childbear-ing needs.

In my view, the question of sup-port for high-risk, high-rewardresearch is less straightforward,but based on our discussions atfederal agencies and our inter-views with people in the researchcommunity, it is clear that manyyears of tight budgets and con-servative thinking within fund-ing agencies have created a biasagainst potentially transforma-tive research. Scientists, bothyoung and established, are oftentold, “If you don’t know it’s go-

ing to work, don’t put it in yourproposal, because it won’t getpast the reviewers.” If Americais to remain competitive in thenew global environment, wemust address this issue throughspecial programs focused onbold research ideas, a strength-ened peer-review system, andgreater support for the programof½cers who are making key de-cisions. These program of½cersneed to be active in the researchcommunity, attending confer-ences, visiting laboratories, andstaying current in the ½eld. Asmany of us who have worked infederal agencies know, thebudgets to support these activi-ties have been squeezed over theyears and are simply too small.

Now some of you may be askingyourselves, “Why is this Acad-emy focusing on these issues?”This is a very good question. Wethink this study is an excellentexample of something this Acad-emy can do by building on itsmultidisciplinary membership,including ½elds and professionsthat reach far beyond science,engineering, and research. More-over, the Academy’s acknowl-edged status as a neutral partywithout an ideological agenda–not beholden to government orcorporate funders–gives us aspecial credibility.

Since June, when the Academyreleased the report, there havebeen a number of outreach ef-forts. We have sent the report tomore than 6,000 academic, gov-ernment, industry, and founda-tions leaders as well as to mem-bers of the media and, of course,all of our Fellows. We’ve been onthe Hill, and committee mem-bers have conducted brie½ngs ata number of government agen-cies. There have been more than135,000 hits on the Academy’swebsite that includes the full textof the report and a summary ofthe ½ndings.

A number of actions have beentaken: we don’t take credit forthem, but they do dovetail withwhat we are talking about. TheNational Institutes of Health hasmade signi½cant changes to en-hance and improve its peer-re-view system. nih has also an-nounced a new program of ½rstgrants to support high-risk,high-reward research called theeureka program. In addition,the National Science Foundationhas developed a transformativeresearch initiative.

The next steps are implementa-tion. Many ½ne reports are writ-ten and end up on the shelf. Sowe need to spread the word, ½nd-ing anybody who will listen. Anew executive branch of govern-ment and a new Congress areabout to take of½ce. We are ac-tively working to ensure thatthis report will be part of thetransition material for the newadministration and that it willhave a signi½cant impact in theyears to come.

The Global NuclearFuture

Steven E. MillerDirector of the International Secu-rity Program at the Belfer Center forScience and International Affairs atHarvard Kennedy School.

The global nuclear order ischanging before our eyes. Exist-ing nuclear power programs arebeing expanded while elsewherearound the world there is a bigappetite for adding nuclear pow-er to the energy mix. The upsurgeof interest in nuclear power isdriven in part by growing globalenergy demand and serious wor-ries about long-term fossil fuelcosts. Further, in many placesconcerned about global climate

change, nuclear power–the mostproven large-scale alternative tofossil fuels–looks more attrac-tive and even more necessarythan in the past. Rapid expan-sion of nuclear power may benecessary if greenhouse gasemissions from use of fossil fuelare to be signi½cantly reduced.

All of this momentum towardnuclear power leads many peo-ple to believe that we are on theedge of a so-called nuclear re-naissance. But what are the im-plications of the nuclear worldinto which we seem to be head-ing? How can the bene½ts ofnuclear power be obtained whileminimizing the risks and poten-tial problems associated withnuclear technology? How can aworld in which nuclear technol-ogy is both more abundant andmore widely spread be safelymanaged? Moreover, the spreadof nuclear power has inherentweapons implications, given thedual-use nature of many of thesensitive nuclear technologies.How can the risks of nuclearproliferation be contained asnuclear power spreads? Theseare the big questions we are ad-dressing in our project.

With generous support from the William and Flora HewlettFoundation, we are conductingthis study under the auspices ofthe Academy’s Committee onInternational Security Studies.Three strands of work are beingpursued through commissionedresearch and a series of work-shops. First, there is the ques-tion of safety and security: theneed to ensure that future nu-clear facilities meet desirablestandards of safety and securityto minimize the risk of accidentand of terrorist abuse. This con-cern is particularly evident inthe case of nuclear newcomers,places that currently have a de-clared appetite for nuclear pow-

If this country reallyexpects to stay in aleadership positionin the next century,we need to invest inthe people and theideas to make thathappen.


er but do not have an existing le-gal, technical, or regulatory in-frastructure for managing nu-clear power.

A second strand of work centerson the management of the nu-clear fuel cycle. At the front endof the cycle, we are dealing withfuel supplies, various multilat-eral schemes, and problems of

fuel assurances. Above all, we aretrying to discourage the spreadof the kind of technologies thatare proving so troublesome in thecase of Iran: if you get nationalenrichment capabilities, you in-herently are providing a weaponsoption for that state. At the backend of the fuel cycle, we have awaste disposition problem. Thesewastes are very long-lived, hardand dangerous to handle, andcostly to deal with, but they also

have weapons implications be-cause the spent fuel rods containplutonium, and, if separated, theycan help produce a bomb.

The third strand of our workdeals with the internationalnonproliferation regime by ex-amining the adequacy of exist-ing arrangements for enforcingthe separation between civiliannuclear power and nuclear weap-ons programs. Even if you thinkthat the mechanisms now inplace are adequate for today’schallenges–and many expertsdo not think that is the case–wewant to consider whether thesearrangements will be adequatefor a future in which there maybe many more nuclear power re-actors spread across many morecountries with a much larger bur-den of transparency and inspec-tion imposed on the internation-al order.

The failure to meet that challengecould impinge dramatically onthe prospects for utilizing nucle-ar power in the future. A non-proliferation catastrophe willhave enormous ripple effects onthe global nuclear power indus-try. And if you think, as many in-creasingly do, that nuclear powersimply has to be part of the mixfor addressing global climatechange, then successfully ad-dressing the nonproliferationchallenges related to the expan-sion of nuclear power is a realimperative, not only from a se-curity point of view, but froman energy and climate changepoint of view as well.

All three strands of our work aredriven by the belief that we areentering a world that will be tosome large degree unlike the nu-clear past. There will be moreplayers, more reactors, morechallenges, and also more risksand worries that we will attemptto hold at bay with recommenda-

tions about what arrangementsin the future may be best forlimiting risk.

One ½nal point: we held our ½rstconference here at the Academyin May 2008. Participants includ-ed a remarkable set of interdis-ciplinary, and even inter-profes-sional, individuals such as physi-cists, political scientists, econo-mists, nuclear engineers, mate-rial science specialists, and in-dustry specialists. At that meet-ing, a representative of the nu-clear power industry showed aslide consisting of concentriccircles. He put question marksin the inner circles and explainedthey represented the challengesthat he saw for the global expan-sion of nuclear power. The twobiggest challenges were ½nancialand technical constraints thatinhibit the ability to expand nu-clear power as rapidly as mightbe desired.

On the outside ring were prob-lems that, in his view, have beensolved, including physical secu-rity–the antiterrorism problem –and the nonproliferation prob-lem. He maintained that we havestandards, we have rules, and weare following the rules. His com-ment created an interesting dia-logue because those who dealwith proliferation said, “No, youdon’t understand, these are thebiggest problems,” while therepresentatives from industryargued, “No, we’re dealing withthose as effectively as we can.”It was clear that the people inthat room do not talk to eachother nearly as often as theyshould. We all get “stove piped”into our own professional disci-plines and our own sub½elds butthe Academy’s project offers usthe opportunity to cross thoseboundaries.

The Global NuclearFuture

Scott D. SaganProfessor of Political Science andCodirector of the Center for Inter-national Security and Cooperationat Stanford University.

Our project on The Global Nu-clear Future is still at a very earlystage of development. Here I willlay the groundwork by discussingvery briefly the global status ofnuclear weapons and nuclearpower development today, andhow this influences the frame-work for our project. The three½gures presented below providea graphic display of both succes-ses and challenges that we face.

Looking at nuclear weapons pro-liferation in Figure 1, there isboth good and bad news. His-torically, the number of nuclearstates has been steadily rising,although not as rapidly as manypredicted in the 1960s. Indeed,there have been a number of im-portant nuclear reversals, statesthat acquired nuclear weaponsand then gave them up. Belarus,Ukraine, and Kazakhstan inher-ited their weapons after the col-lapse of the Soviet Union. Theylater were persuaded to ship themback to Russia where some wereput into storage, and others weredismantled. The materials insome of the dismantled weaponsfrom the Soviet stockpile weredownblended and then shippedto the United States for use innuclear power plants; much ofthe energy in the state of Illinois,for example, is produced fromnuclear materials that originatedin Soviet nuclear weapons. SouthAfrica also had a small number ofnuclear weapons but gave themup just before the collapse of theApartheid regime, keeping its

If you think that nuclear power sim-ply has to be part ofthe mix for address-ing global climatechange, then success-fully addressing thenonproliferationchallenges related tothe expansion of nu-clear power is a realimperative, not onlyfrom a security pointof view, but from anenergy and climatechange point of viewas well.

Academy News


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highly enriched uranium in a fa-cility called Pelindaba under fulliaea (International Atomic En-ergy Agency) safeguard inspec-tions. This positive disarmamentrecord is heartening, but shouldnot lead us to ignore how manyothers states have started but notcompleted their own nuclearweapons programs.

Figure 2 shows over time whichstates started developing nuclearweapons, when they did so, andwhen they ended their weaponsprograms. This ½gure providesonly an estimate of this hiddenhistory of proliferation attempts,because governments often tryto keep any nuclear weapons re-search secret from the outside

world. Indeed, this ½gure had tobe amended just in the last yearwhen we discovered that Syriawas secretly starting a nuclearweapons program but refusingto inform the iaea and creatingdisguises for its reactor. The keySyrian facility was attacked in thesummer of 2007 by the Israelis,and iaea investigators remain

concerned that Syria is secretlyconcealing its nuclear weaponsdevelopment work.

In the more complicated Figure 3I show the number of states thathave developed nuclear powerand/or nuclear research reactorsand therefore have some experi-ence in dealing with nuclear tech-nology. Some of the research re-actors use highly enriched ura-nium, although the global clean-up program is trying to switchall of them to low enriched ura-nium in order to reduce terroristrisks, since highly enriched ura-nium can also be used for a bomb.This ½gure also shows countriesthat are engaged in uranium en-richment or plutonium reproces-sing, either of which producesserious proliferation and secu-rity risks. If you enrich low-en-riched uranium to fuel a powerplant, for example, you can eas-ily also make highly enricheduranium for nuclear weapons.In addition, the spent fuel rodscoming out of a power reactorhave plutonium in them, and ifyou have an ability to reprocess,you can turn that plutonium in-to weapons-grade material for anuclear bomb. One serious prob-lem we face in a world of expand-ing nuclear power, and demandfor nuclear fuel, is how to con-trol the fuel cycle so that moreand more states do not developenrichment and reprocessingplants, which would make suchstates “latent” nuclear weaponspowers.

In Figure 3 you can see that thegap between countries that areusing nuclear research reactorsor power reactors for civilian,legitimate, treaty-acceptablepurposes and those that havenuclear weapons is very signi½-cant. Our project focuses on howbest to maintain that gap andpotentially increase it.

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serious threat with preemptiveattack rather than by relying ondeterrent effects. That intentionhas been most explicitly statedin our space policy, where a seriesof of½cially pronounced docu-ments formulate an aspirationto utilize space for national ad-vantage and deny a similar capa-bility to any other country. Thisviolates established legal rules,and it is not feasible for technical

and economic reasons, whichare well reviewed in the ½rst ofseveral monographs issued byour project. Physically and eco-nomically, we are not going to beable to dominate space in the waythese documents claim.

The extensive effort to pursuethis aspiration, however, will re-inforce signi½cantly the capac-ity to engage in highly intrusivelong-range attack capability, re-sulting in a new dimension ofmilitary capability with signi½-cant implications. That emerg-ing capability is likely to be ofconcern to other governments,China in particular, and could in-

Most specialists predict at leastsome continued global growthof nuclear power, and most pre-dict some degree of spread ofnuclear power to new countries,states that may not have highlydeveloped regulatory systems oradvanced security programs toprevent theft or diversion. Ex-perts disagree, however, on therapidity and ultimate level ofgrowth in nuclear power for botheconomic and environmentalreasons: the massive capital costsfor the construction of nuclearreactors are all frontloaded, forexample, and some countries’publics are highly opposed tonuclear waste storage. At thevery time that the interest innuclear power is increasingaround the world, however, wehave great challenges with thenonproliferation treaty (npt).How can we best ensure that asnuclear power expands aroundthe world, it does not inadver-tently increase the danger of ma-

terials falling into the hands ofterrorists or new countries drop-ping out of the treaty and usingtheir new technology and newunderstandings to develop nu-clear weapons? What kinds ofnew cooperative arms controlmeasures could be negotiated toreduce these risks? The GlobalNuclear Future Initiative is de-signed to bring together schol-ars and practitioners from boththe nuclear power and nuclearweapons nonproliferation com-munities to answer these impor-tant questions.

Reconsidering theRules of Space

John D. SteinbrunerProfessor of Public Policy and Direc-tor of the Center for Internationaland Security Studies at the Univer-sity of Maryland

This project is examining theglobal security implications ofU.S. policy in space. In recentyears, the United States has madea disproportionate investmentin military capability, creatinga global power capacity that noother country can match or isanywhere close to matching. Interms of military operations, wereally are in a league by ourselves.

Under the Bush administration,this established advantage hasbeen associated with the impliedintention to build a degree of su-periority suf½cient to allow theUnited States to eliminate any

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Nuclear Latency?

It is in America’s interests to initiatenegotiations designedspeci½cally to prohibitinterference withspace assets, to set a rule against that,and, more generally,to convey reassuranceregarding the respon-sible use of U.S. mili-tary capability.

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Project and Studies

duce preparations to attack U.S.space assets, thereby creating athreat to those assets that wouldnot otherwise exist.

Our assets in space are very valu-able, and very vulnerable. In thissituation, we argue that it is inAmerica’s interests to initiatenegotiations designed speci½cal-ly to prohibit interference withspace assets, to set a rule againstthat, and, more generally, to con-vey reassurance regarding theresponsible use of U.S. militarycapability.

Many of you may be aware thatfor 30 years the United States–alone in the world–has refusedto negotiate on this subject; infact, we have refused to contem-plate even discussing an elabo-ration of the rules of space. Ifyou can imagine climbing upand viewing the scene from someemotionally detached perspec-tive, this is bizarre behavior onour behalf, especially since wehave an overwhelming interestin establishing protective rulesfor our assets. It indicates thatthere is a serious problem in ourpolitical system in determiningour real interests.

Countering Corrup-tion in Nation-States

Robert I. RotbergDirector of the Program on IntrastateConflict and Conflict Resolution atHarvard Kennedy School and Presi-dent of the World Peace Foundation

This Academy study representsa bold attempt to assess the enor-mous impact that corruption ishaving worldwide. Almost noth-ing strangles growth in the de-veloping world more than cor-ruption, yet the World Bank didnot regard it as a serious issue un-til the 1990s. Peter Eigen, who isinvolved in our project, almostsingle-handedly brought corrup-tion out of the closet in 1991–1992when, after leaving the WorldBank, he founded TransparencyInternational. Nothing keepspeople hungry more than cor-ruption. Nothing keeps people inthe developing world unhealthyand ill-educated more than cor-ruption. Nothing causes moreconflict in the world, particularlyin the developing world, thancorruption. Nothing undercutsgood governance more than cor-ruption. And nothing undercutssecurity more than corruption.

Think for a moment about Con-go, Nigeria, Somalia, Burma, evenRussia. The killings in the NigerDelta may be largely the result ofcorrupt practices in Nigeria. Lookat what happened in Burma dur-ing the cyclone. One of the prin-cipal elements behind corruptionis greed–a motivating force thatis certainly evident in the devel-oped world but which seems tobe more prevalent in new socie-ties than in some older ones. Onereason may be the kind of leader-ship that begets good governance.The difference between Botswanaand Singapore, where there islittle corruption, and Nigeria,

Congo, Laos, or Burma can betraced clearly to the quality ofleadership in these countries.

Our project at the Academy ispreparing a book that describesthe problems of corruption inthe world. It analyzes its causes,prescribes remedies, and con-cludes with a number of criticalcase studies of how corruptionaffects security and the globalorder. There are chapters on thechanging nature and characterof corruption, including a discus-

sion of corruption and humanrights and the relation betweencorruption and health and edu-cation. We also consider corrup-tion in the traf½cking of humans,drugs, and arms as well as corrup-tion and terrorism and the im-pact of corruption on the prolif-eration of weapons of mass de-struction.

The book examines the impactof leadership on multinationalcorporations and on how corpo-rate leadership deals with cor-ruption. There are several casestudies. We have two chapterson Nigeria, one focusing on howits people regard corruption; anda second on how corruption is

destroying the fabric of Nigeriansociety. Papua New Guinea, oneof the most corrupt places in theworld, and Russia are the subjectof the other case studies. Thebook, now in the editing stage,will be a valuable resource forscholars in international devel-opment, international relations,and comparative politics.

U.S. Policy towardRussia

Robert H. LegvoldMarshall D. Shulman ProfessorEmeritus of Political Science at Columbia University

For four years, the CarnegieCorporation has funded impor-tant work in Russian studies andon international relations in-volving the areas surroundingthe Russian state. Recently theCarnegie Corporation grew im-patient with the lack of serious,systematic, long-term, andbroad-visioned thinking aboutthe U.S.-Russian relationship,which in fact has become thevictim of years of fragmentarythinking that focuses on only alimited but important range ofissues, such as horizontal prolif-eration, loose nukes, or oil andgas in the Caspian Sea area. Formany people, Russia was no long-er an issue that required seriousthought.

Within the last year, however,Russia has again become centralto U.S. foreign policy. In response,the Carnegie Corporation wantedto launch a national effort to re-examine U.S. foreign policy to-ward Russia, and the questionbecame where to locate such astudy. As I became involved inthe project, it seemed to me thatthe ideal location would be theAmerican Academy for the rea-

This Academy studyrepresents a bold at-tempt to assess theenormous impactthat corruption ishaving worldwide.Almost nothingstrangles growth in the developingworld more thancorruption.


sons that Neal Lane outlined ear-lier. It is a national organization,a neutral organization, and anindependent organization. Aboveall, it is rich in human resourcesrepresenting a diversity of ½eldsand professions.

In terms of the project itself, weset two basic tasks for the parti-cipants. The ½rst was to do some-thing that U.S. foreign policy hasnot done through all the admin-istrations since the collapse ofthe Soviet Union, and whichthink tanks, task forces, and com-missions have not accomplished

–namely to situate Russia in thecontext of overall U.S. foreignpolicy priorities. What is the rel-evance of Russia to the ½ve or sixmost important international is-sues currently facing the UnitedStates? To what degree is Russiaindispensable on any of these is-sues? In what cases is coopera-tion with Russia desirable? Inwhat cases is it essentially un-necessary? There are very fewareas in which Russian coopera-tion is unnecessary, including therebuilding of the alliance with Eu-rope, with whom we have a di-vide in terms of how we are go-ing to deal with Russia and itsneighbors.

Our second purpose is to designa policy that is comprehensive,coherent, and well-integratedacross issue areas. Again, U.S.policy has not done this. Thetask is dif½cult conceptually,and in policy circles, it has notseemed worth the effort giventhe down-graded status we as-signed to the Russians.

In order to build some perspec-tive on where we want the U.S.-Russian relationship to be ½veyears from now, we need to stepback from the current climate,which has been deteriorating forthe last three or four years, andparticularly since the Russian-Georgian War last summer. We

need to develop a more effectivepolicy that encompasses the dif-½cult questions that lie ahead:from nonproliferation and nato

membership for Ukraine or Geor-gia to missile defense in Europearound Poland and the CzechRepublic. Other issues includeoil, gas, and energy, and the dy-namics within the Eurasian land-mass, including the critical Is-lamic southern front. These con-cerns must be embedded in astrategic dialogue that addressesthe framing issues of Europeannuclear security, energy securi-

ty, and mutual security in andaround the Eurasian landmass.And we need to act in a way thatwill serve the country, not sim-ply by providing a new adminis-tration with policy recommen-dations, but by helping to stim-ulate a reconsideration of ourRussian relations within con-gressional committees, the me-dia, and world affairs councils.

To undertake its work, our proj-ect established three workinggroups: one at the Carnegie Mos-cow Center, where a 12-part semi-nar examined the security dimen-sions in U.S.-Russian relations,including areas of potential nu-clear cooperation; a second inWashington with a six-part semi-nar centering on the broader is-

sues surrounding the relation-ship; and a third, six-part semi-nar at the Center for Strategic andInternational Studies on the eco-nomic dimension of the relation-ship. In addition, former U.S.Ambassador to Russia James F.Collins is coordinating conver-sations with other former am-bassadors on the issues of struc-ture in U.S.-Russian relations.The ½ndings of these groups willbe used by a steering group,which will design a basic docu-ment that addresses the twotasks outlined earlier, as well asa series of more speci½c docu-ments designed to inform theadministration and Congress.

The outreach has already begun.I have worked with the Russiangovernment and with the RussianEmbassy in Washington; withthe Foreign Relations Commit-tee in the Senate; with key peoplewithin the administration, par-ticularly at the State Department;and with both presidential cam-paigns. I am also working withthe new Hart-Hagel BipartisanCommission on U.S. Policy to-ward Russia. Outreach is criticalbecause it is going to require a lotof hands to deal with the chal-lenge of redesigning this policy.In this effort, I believe that theAcademy project is essentiallythe bellwether for what will hap-pen nationally.

I would hope that if this projectsucceeds even marginally, it willinspire reconsideration of otheressential elements in U.S. foreignpolicy, including the U.S.-Chinarelationship, our interactionswith the world of Islam, and, ofcourse, questions of global gov-ernance that are now being driv-en so forcefully by the currentnational and international ½nan-cial crisis.

The Challenge ofMass Incarceration in America

Bruce WesternProfessor of Sociology and Directorof the Multidisciplinary Program inInequality & Social Policy at HarvardKennedy School

For most of the twentieth cen-tury, imprisonment in Americawas very rare. The incarcerationrate was 100 per 100,000, mean-ing that just one tenth of 1 per-cent of the population was be-hind bars on any given day. Sowhy should the Academy con-vene a group of social scientists,lawyers, and policymakers tostudy incarceration in America?The answer lies in the tremen-dous growth of the prison andjail population in this countrysince the 1970s. That populationhas grown every single year forthe last 35 years, until today theincarceration rate stands atabout ½ve times its historic average. In fact, the incarcera-tion rate in America is the high-est in the world, exceeding thatof Russia and some former So-viet republics and the Republicof South Africa, which are thenearest competitors.

What is the signi½cance of thishistorically high rate of incar-ceration? The average level of in-carceration is perhaps less impor-tant than its distribution acrossthe population. Although impris-onment is very rare in the generalpopulation, about 15 percent ofmen born since the late 1970s willgo to prison at some point in theirlives if they have never attendedcollege. For young, non-collegeeducated African American men,35 percent will go to prison atsome point. And among youngblack men who have dropped outof high school, 70 percent will

Academy News

What is the relevanceof Russia to the ½veor six most importantinternational issuescurrently facing theUnited States? Towhat degree is Russiaindispensable on anyof these issues?


have prison records. So the ex-perience of young adulthood hasbeen transformed by the growthin incarceration rates in the Unit-ed States, and the effects of thistransformation have been con-centrated overwhelmingly amongthose who have never been to col-lege, and among African Ameri-cans in particular.

If we think that the astonishingrate of incarceration that prevailstoday is simply due to very highrates of crime among young menwith little schooling, we have toremember that this level of incar-ceration is entirely new. Prisonhas only become a normal partof the life course for low-educat-ed young men over the last 10years. Researchers working onthe problem are also ½nding–asyou might expect–that a prisonrecord brings a whole array ofdiminished life chances. Mencoming out of prison have a highrisk of contracting an infectiousdisease and have extremely lowearnings and high rates of job-lessness. They are unlikely to get

married, but if they do, they areextremely likely to get divorcedor separated. Employment andmarriage are extremely impor-tant, because criminologists ½ndthat they are two key stepping-stones on a path out of crime. Ifincarceration is underminingpeople’s economic prospectsand disrupting family life, theexpansion of the penal systemmay indeed be a self-defeatingstrategy for crime control, be-cause we are undermining theconditions that promote crimi-nal desistance.

There is solid evidence that thegrowth of the prison populationhas produced real gains in pub-lic safety and contributed tofalling crime rates, particularlythrough the 1990s. Poor com-munities that supply most of thenation’s prison population arealso most exposed to the risks ofserious violence. Given its con-siderable social cost, though, Ithink we need to understandthe extent to which prison re-duces crime. We also need to askwhether prison may underminepublic safety in the long run byreturning to society large num-bers of young men with few pros-pects, broken families, and thestigma of a prison record.

The Academy is playing a vitalrole in addressing these ques-tions. The statistics I have quot-ed point to a deep crisis in ourpoorest communities, but thesituation is largely unknown ex-cept to a small group of research-ers. When Leslie Berlowitz ½rstcame to me with the idea of con-vening a group to study mass in-carceration in America, she pre-sented the opportunity for abroader public conversationabout what has largely been asubterranean issue. The conven-ing power of the Academy hasallowed us to draw together thebest researchers from around the

country, from all the social sci-ence specializations, and from theprofessions as well. The breadthof the Academy’s membershipwill also allow us to enlist artistsand humanists in our investiga-tion–a novel experience for me,certainly, and for many in thegroup.

The prison is a vivid symbol ofboth social order and social fail-ure. Something fundamental haschanged about its role in Ameri-can society, and we suspect some-thing fundamental has changedwithin American society as a con-sequence. Those of us involvedin the study are grateful to theAcademy for the extraordinaryforum that it provides to exam-ine this issue.

The Independence of the Judiciary

Jesse H. Choper Earl Warren Professor of PublicLaw at UC Berkeley School of Law

This project, now called TheIndependence of the Judiciary,originated in 2002 as a study ofCongress and the Court. In theearly 1990s, the U.S. SupremeCourt had begun invalidating aseries of federal statutes on theground that Congress lacked theconstitutional authority to enactthem. The Violence againstWomen Act was one; anotherconcerned the application ofseveral federal statutes–includ-ing the Americans with Disabili-ties Act and the Age Discrimina-tion in Employment Act–tostate of½cials, such as state uni-versity faculty. This was the ½rsttime since the end of the NewDeal that the Court had activelyrejected the work of one of itscoordinate branches.

At the same time, the relation-ship between the Court and Con-gress became very contentiousbecause of the politicization ofthe judiciary attributable to thegrowing controversy over abor-tion and the judicial con½rmationprocess in the Senate. A groupof scholars from political scienceand law, the Supreme Court cor-respondent of the New York Times,and several judges, including onewho also served as a ½ve-termmember of Congress and asWhite House counsel, thought

it important to have a neutralarbiter, such as the Academy,convene several off-the-record,closed door sessions to assess thedeteriorating relationship. Anumber of Supreme Court jus-tices–as many as ½ve at one ofour meetings in Washington–as well as several lower courtfederal judges and Capitol Hillleaders, such as Charles Schumerof New York, Christopher Shaysof Connecticut, and Howard Ber-man of California, participatedin these meetings. We supple-mented the sessions with a seriesof lectures and panel discussionson broader topics affecting judi-cial independence: the careerpaths of judges, their compen-sation and bene½ts, and the con-½rmation process.

When we initiated this project,the Court was thwarting Con-gress, but as our study evolved,

This project contri-butes to our under-standing of the con-cept and practice of judicial indepen-dence, which is so vi-tal in our democracy.

The prison is a vividsymbol of both so-cial order and socialfailure. Somethingfundamental haschanged about itsrole in Americansociety, and we suspect somethingfundamental haschanged withinAmerican society as a consequence.

Project and Studies


Congress sought to exert its pow-er over the judicial branch byconsidering measures such asprohibiting federal judges fromtraveling to meetings at govern-ment expense and from citingforeign law, for example. At onepoint, a group called “jail forJudges” sponsored referenda inseveral states that would haveimposed criminal liability onjudges for rendering “wrong de-cisions.” None of them, at leastas yet, has passed.

It was apparent that our projectwould bene½t from a wider-ranging discussion that wouldreach the public. We focused onmany of these issues at a jointmeeting of the American Acad-emy and the American Philo-sophical Society held in April2007 in Washington, DC. Re-tired Supreme Court JusticeSandra Day O’Connor and ChiefJudge of the State of New YorkJudith Kaye participated in thepanel on the Independence ofthe Courts. In fall 2008, the Acad-emy published an issue of Dæda-lus on the theme of judicial inde-pendence. The volume containsan impressive array of essays bysuch eminent jurists as SupremeCourt Justices O’Connor andBreyer, Chief Justice of the Su-preme Court of California Ron-ald George, Chief Justice of theMassachusetts Supreme JudicialCourt Margaret Marshall, ChiefJustice of the Arizona SupremeCourt Ruth McGregor, and ChiefJudge J. Harvie Wilkinson of theU.S. Court of Appeals for theFourth Circuit. Linda Green-house, formerly of the New YorkTimes, congressional leaderssuch as Senator Charles Schumer,and several prominent legalscholars and political scientistsalso wrote for the issue. The col-lection is a compilation of essaysdrawn from meetings organizedby our project and papers pre-pared for conferences sponsoredby the Sandra Day O’Connor

Project on the State of the Judi-ciary at Georgetown UniversityLaw Center. These perspectivescontribute to our understandingof the concept and practice ofjudicial independence, which isso vital in our democracy.

The Humanities Indicators Project

Francis OakleyEdward Dorr Grif½n Professor ofthe History of Ideas and PresidentEmeritus at Williams College

When the Academy launchedits Initiative for the Humanitiesand Culture in 1998, one of the½rst questions those involvedhad to face was this: Why it isthat those of us involved in thehumanities seem to ½nd it sovery hard to convey to othersthe signi½cance of what we do,or its importance for the nation-al well-being, or even the statusand current condition of the var-ious ½elds of humanistic endeav-or to which we severally bringso passionate a commitment.Not an issue, of course, or set ofissues, susceptible in all its for-midable complexity to resolu-tion via any single or simplemode of approach. Part of theproblem may well be that weourselves do not fully under-stand what it is that we do, whywe do it, or why it might be asimportant as we instinctivelytake it to be. And part of the rea-son for that particular failure ofunderstanding, or so those of usinvolved in the Initiative camequickly to conclude, was thatthe humanities, whether in theprimary and secondary schoolsector, or at the undergraduateand graduate levels, or, for thatmatter, in American life at large,have long suffered from a debil-itating and protracted case of

data deprivation. That is to say,even when those of us concernedwith the humanities try to under-stand the signi½cance of what wedo by placing it in some largercontext or seeing it from somebroader perspective, we ½nd,alas, that we lack the supportiveinterpretative tools provided bythe systematic gathering, assem-

bly, organization, analysis, anddissemination of the type ofpertinent empirical data longsince made available to our col-leagues in the natural sciences.

For the humanities, perhaps sur-prisingly, such data–concerningmatters as fundamental as thenumber of students enrolled na-tionally in courses devoted tothe humanities–we found wereeither altogether lacking, or wereinconsistently assembled, hardto access, poorly disseminated,unwittingly ignored, and routine-ly underutilized. As a result, gen-eralizations made about the hu-manities, whether critical or sup-portive, have tended to be char-acterized by a genial species ofdisheveled anecdotalism, punc-tuated unhelpfully from time totime by moments of cranky butattention-catching dyspepsia.

It was in the hope of dispellingthe fog of confusion and misin-formation that seemed to shroudhumanistic endeavor, whetherin relation to what was going onin higher education, or in ourschools, or in American societyat large, that the Academy, un-der the aegis of its Initiative forthe Humanities and Culture,launched an ambitious effort tobuild a humanities data infra-structure paralleling the 30-year-old series of Science and Engineer-ing Indicators published by theNational Science Foundation.The ½rst fruit of this complexand demanding undertaking,which has been prosecuted by a½ne team ably led by NormanBradburn of the National Opin-ion Research Center, is sched-uled soon for release to educa-tional leaders, policymakers, andthe American public at large. Itis the Humanities Indicators Proto-type, a comprehensive portfolioof statistics in the humanitiesbased on existing data, intendedto inform decision-making byeducators and national policy-makers alike.

The Prototype, which encompas-ses some 74 indicators and over200 accompanying tables andcharts, focuses on ½ve subjectareas: 1) primary and secondaryeducation in the humanities; 2) undergraduate and graduateeducation in the humanities; 3) humanities workforce; 4) hu-manities funding and research;and 5) humanities in Americanlife. Interpretative essays by suchscholars as Alan Brinkley of Co-lumbia University have beencommissioned for each subjectarea, and they will provide com-mentary on the data collected,as well as on data not currentlyavailable but of potential valueto users. In relation to this lastpoint, and in addition to compil-ing existing data, the Academy,in collaboration with such hu-

The Humanities Indicators Prototype,a comprehensiveportfolio of statisticsin the humanitiesbased on existingdata, is intended to inform decision-making by educatorsand national policy-makers alike.

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Project and Studies

manities organizations as theAmerican Council of LearnedSocieties and the National Hu-manities Alliance, has launcheda Humanities Departmental Sur-vey in order to gather new data.The results of that survey willalso become available before theend of this calendar year andwill be incorporated into theHumanities Indicators Project.

As I describe this great effort, Ihave a sinking feeling that it maycome across as dull old stuff, theenervating rattle of some verydry bones indeed. Maybe so. ButI would wager that no one whohas had the experience, while try-ing to assess the health of human-istic studies nationwide, of ½nd-ing himself or herself caught ina cross½re of sweepingly negativeattack and outraged by undisci-plined response and bereft of anyeasy access to the array of factualdata needed if one is to makewhat I believe tends now to becalled (sometimes disparaging-ly) a “reality-based” assessment –I would wager that no one whohas been in that position is likelyto feel anything other than grati-tude for the assistance that theIndicators will serve to make soreadily available.

Let me give but one illustration.It comes from the “Humanitiesin American Life” section of theIndicators. So far as the posses-sion of those literacy skills nec-essary for successful high schoolcompletion goes, it seems thatthe United States at 54 percentcomes in near the middle of theinternational rankings behindsuch countries as Sweden, Cana-da, and Australia, but ahead ofsuch other industrialized coun-tries as Britain and Germany.But for those Americans proneto a species of cultural pessimismor, perhaps more accurately, cul-tural masochism, it may come assomething of a surprise to learn

that the nation’s book-readingrates are well above those ofmany European nations, amongthem Italy, France, and Germany,though they still fall below thosefor Britain and Sweden. Similarly,that at 21 percent the UnitedStates has one of the world’shighest percentages of highlyliterate adults. Unfortunately,that is balanced by the fact thata higher percentage of Americans(again 21 percent) demonstratevery poor literacy skills than dopeople in any other Western in-dustrialized nation. In effect, ourliteracy pro½le turns out to bealarmingly bipolar.

And so on. It will take a while toassess the measure of understand-ing we can expect to squeeze outof this ½rst round of Indicatorsand the degree to which they canprovide the needed foundationfor a national humanities policythat treats the academic and thepublic and nonpro½t domains aspart of a single whole. But thepromise, I ½rmly believe, is great.

All praise, then, to the Academynot simply for taking the initia-tive on this project but also fordemonstrating the tenacityneeded to bring it to this prelimi-nary conclusion. In order to dothat it had to succeed in generat-ing unparalleled cooperation be-tween humanities organizationsand social scientists. And its suc-cess in so doing speaks to itsunique convening power and itsdemonstrated track record ofcommitment to the humanities.All praise, too, to the broad groupof donors and foundations whowere far-sighted enough to sup-port the initiative, not leastamong them the William andFlora Hewlett Foundation, theAndrew W. Mellon Foundation,the National Endowment forthe Humanities, and our distin-guished Fellow John P. Birkelund.

The Evolution of the Humanities

Patricia Meyer SpacksEdgar F. Shannon Professor ofEnglish Emerita at the University of Virginia

Frank Oakley has just told youabout one of the important on-going projects in the humanities,and I want to tell you about an-other. The Academy has support-ed humanistic activity for a longtime, through one alleged crisisafter another. We helped to foundthe National Humanities Centerin North Carolina. Fellows of theAcademy testi½ed in support ofthe establishment of the Nation-al Endowment for the Humani-ties. And, more recently, ourVisiting Scholars Program hashelped to support young aca-demics in the humanities.

But the enterprise I am most ac-tively involved with at the mo-ment, and the one I want to dis-cuss, is a collection of essays onthe humanities that will be pub-lished in the Winter 2009 issueof Dædalus. It is part of a seriesof Academy writings about thecomplex situation of the human-ities. In 2006, David Hollingeredited a volume called The Hu-manities and the Dynamics of In-clusion since World War II, a col-lection of essays about the influ-ence of previously excluded de-mographic groups on the struc-ture and values of academic in-stitutions. Subsequently I editedan issue of Dædalus consisting ofessays on the histories of human-istic academic disciplines. A pieceby Steven Marcus on the human-ities collectively went back toclassic times. Gerald Early, writ-ing about African American stud-ies, started just after the CivilWar. The essay on philosophy

dwelt heavily on the late nine-teenth and early twentieth cen-turies. In other words, individ-ual writers selected differentpieces of history. All, however,demonstrated how disciplineshad changed and continue tochange in outline and in sub-stance.

When I was President of theAcademy, I did a good deal oftraveling around the country,meeting with groups of Fellowsin various places. More thanonce a scientist asked me one or another version of the samequestion: Exactly what do thehumanistic disciplines do? Theyseemed to have the impressionthat what we mainly did was ar-gue over meaningless subjects.

The essays that we are editingnow focus quite directly on whatthe humanities do. Only two ofthe contributions concentrateon speci½c academic disciplines.Most of them concern larger is-sues about the functioning ofthe humanities in society. Thenew collection, entitled Reflectingon the Humanities, which LeslieBerlowitz and I are coediting, isintended to provide a kind of se-quel to the volume published un-

Exactly what do thehumanistic disci-plines do? A newcollection, entitled“Reflecting on theHumanities,” con-cerns larger issuesabout the function-ing of the humani-ties in society.


der the auspices of the MellonFoundation in 1997: What’s Hap-pened to the Humanities? That pro-vocative group of statementstook a largely negative view ofthe condition of the humanitiesat its historical moment. OurDædalus issue is rather morecheerful, although it too callsattention to immediate prob-lems. It considers a broad rangeof perplexities in essays and inshorter notes. The contributorsto the volume include the headof a major foundation, a nonac-ademic philanthropist who hasgenerously supported the human-ities, a university president, aformer college president who issitting next to me right now, aprovost, and the director of ahumanities center. They writeabout matters ranging from thedigital humanities to recenttrends in funding. Several ofthem make productive use ofinformation emerging from theIndicators that Frank told youabout. They consider the human-ities and social change, the futureof the so-called public humani-ties, and the role of the humani-ties in liberal arts colleges as wellas some disciplinary questions.Caroline Bynum, writing aboutwhat’s happening in history now,offers a bold proposal for con-fronting two kinds of crises: thatin academic publishing and themore amorphous one that pres-sures academics to accomplishever more in ever less time. In oneof the notes, Kay Shelemay arguesfor understanding certain kindsof performances as acts of hu-manistic interpretation.

Points of view as well as focusvary widely within this collec-tion, but all the writing demon-strates and asserts the vitality ofthe humanities. I hope you willread this issue of Dædalus andthat it will excite you too aboutthe humanities now.

Universal Basic and Secondary Education

David E. BloomClarence James Gamble Professor ofEconomics and Demography andChair of the Department of GlobalHealth and Population at the Har-vard School of Public Health

In 1990, delegates from 155countries met in Jomtien, Thai-land, and pledged to achieve uni-versal primary education by theyear 2000. In the years followingthat famous meeting, respectableeducational advances were made,but it became absolutely clear bythe year 2000 that the goal of uni-versal primary education was no-where close to being achieved.So the international communitytook a page out of our academicplaybooks and very graciouslygranted itself a no-cost exten-sion. That extension took theform of the Millennium Devel-opment Goals, in which worldleaders pledged to achieve uni-versal primary education by 2015.Now we are in striking distanceof that 2015 deadline, and we seea picture that appears simulta-neously good, bad, and ugly.

The good news is that the worldhas continued to make progresson the primary school enrollmentfront.

The bad news is that it is becom-ing increasingly apparent that theworld will not meet the 2015 goal.Even if enrollment rates continueto grow at the pace they did be-tween 1990 and 2000, an estimat-ed 118 million primary-school-age children will not be enrolledin school in 2015. That representsone in six of the world’s primary-school-age children. And theshortfall with respect to second-ary education is even more strik-ing, despite growing recognitionof the economic, social, and po-litical importance of secondary

school. Two hundred seventeenmillion children of secondary-school age are projected not tobe enrolled in secondary schoolin 2015. That is nearly one in threeof the world’s secondary-school-age children.

And then we have the ugly news,which involves educational dis-parities. I am referring here todisparities in both educationalaccess and educational qualitybetween the wealthy industrialcountries at one extreme andcountries mainly in sub-SaharanAfrica and South Asia at theother. I am also referring to dis-parities within countries, espe-cially those between female andmale children, which tend to beespecially pronounced at thesecondary level.

In recognition of both the chal-lenge and the promise of provid-ing a quality education to all theworld’s children, the Academybegan the ubase project in 2001.ubase is an acronym that standsfor Universal Basic and Second-ary Education. The aim of thisrather ambitious project is to ex-plore the rationale, the means,and the consequences of provid-

ing basic and secondary educa-tion of quality to all the world’schildren.

I have been working on this proj-ect with Academy Fellow JoelCohen, who has a base at bothRockefeller University and Co-lumbia University. Over theyears, Joel and I have bene½tedfrom the unflagging support andencouragement of Leslie Berlo-witz, and we have had outstand-ing assistance from various Acad-emy staff, especially Martin Ma-lin, Helen Curry, Alice Noble, andPaul Karoff. The project has re-ceived ½nancial support fromthe Academy, the William andFlora Hewlett Foundation, and anumber of generous individuals.

From the start, our focus has beennot on advocacy but rather ontaking careful and critical stockof what we already know andwhat we still need to know, andblending it with as much freshand out-of-the-box thinking aspossible.

We began by dividing our taskinto reasonably manageablecomponents, and we recruitedexperts to lead research effortsin a number of areas. We sur-rounded these experts with work-ing groups that included peoplefrom a wide range of geographic,institutional, and disciplinarybackgrounds to review and com-ment on their work.

The project’s components in-clude the nature and informa-tion content of education data;the history of efforts to achieveuniversal education and the like-ly consequences of achieving it;the meaning and measurementof educational quality; the poli-tics of achieving universal edu-cation; and the costs of reachingthat goal.

With respect to cost, as just oneexample of a key project ½nding,estimates made by Paul Glewwe,

What we need is aconcrete blueprintfor achieving univer-sal basic and second-ary education. Poli-cymakers and busi-ness leaders under-stand that globaleducation is not whatit could be and thatthe de½cit is highlyconsequential.

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Meng Zhao, and Melissa Bindersuggest an upper limit of an ad-ditional $70 billion per year forall children to receive a decentprimary and secondary schooleducation. At one level, thisseems like a rather modest sum.It is less than one-seventh of theU.S. government’s annual mili-tary budget, and it is only one-fourth of the foreign aid goal of0.7 percent of the $37 trillion ofgross national income of the de-veloped countries. On the otherhand, it is a formidable amount,since foreign aid is substantiallybelow the 0.7 percent target, es-pecially in the United Stateswhere sentiment in favor of in-ternational aid seems to be dry-ing up by the hour.

The American Academy hasbeen an ideal home for this proj-ect. It has enhanced our capacityto convene outstanding workinggroups, with representation fromacross disciplines and profes-sions. It has provided neutralterritory for discussion and anintegrity and independence thatadd to the gravity of what weproduce. And it is also, as youcan see, a great meeting venue.

Our work to date has come tofruition partly in the form oftwo books. The ½rst of these isEducating All Children: A GlobalAgenda, which I coedited withJoel Cohen and Martin Malin,and which was published by mit

Press in 2006. The book lays outthe justi½cation for universalbasic and secondary education:the moral, ethical, and humani-tarian justi½cation; the interna-tional law justi½cation; the socialjusti½cation; the political justi½-cation; and the economic justi½-cation. And the book argues thatubase is, in general terms, notimpossibly out of reach.

The second book is InternationalPerspectives on the Goals of Univer-

sal Basic and Secondary Education,edited by Joel Cohen and MartinMalin. It will be published byRoutledge in 2009. The bookconsists of a series of essays thatexplores the economic, political,civic, and personal goals of edu-cation.

Our hope at this point is that thisproject will lead to more than justpublications, as the dominant is-sue seems to be changing fromwhether to do something in theubase arena to what to do andhow to do it.

What we now need, and what weplan to develop in the next phaseof the project, is a concrete blue-print for achieving universal ba-sic and secondary education.Policymakers and business lead-ers understand that global educa-tion is not what it could be andthat the de½cit is highly conse-quential. What they increasing-ly want to know is what we needto do to remedy the de½cits anddisparities. With this in mind, anew phase of ubase will con-sider how to meet the challengeof implementation, which is es-sentially a matter of design, lead-ership, management, coordina-tion, and funding. We are hopingto rely on many of you for helpwith the next phase of ubase.

As a segue to this next phase, weare assembling a small blue-rib-bon advisory committee that willproduce by early 2009 a whitepaper containing a highly acces-sible summary of our conclusionsto date, with a key objective topromote a deeper engagementamong U.S. policymakers in theidea of ubase. Tentatively en-titled educate, the paper isusing the arise report that NealLane described earlier as its mod-el. Please stay tuned for furtherupdates.

Securing the Internetas Public Space

David Clark Senior Research Scientist at theComputer Science and Arti½cial Intelligence Laboratory at the Massachusetts Institute of Technology

Our study began with a rec-ommendation by Fellow TomLeighton that the Academy as-sess the state of security on theInternet. I knew that a numberof studies and presidential advi-sory committee reports had ex-amined this issue, and they gen-erally took two forms. One sortof study argues, in varying tonesof shrillness and almost equalineffectiveness, that the sky isfalling, something bad is aboutto happen, and someone shoulddo something. The second sortinvolves developing researchagendas that are left under-fund-ed. I did not think that the Acad-emy should repeat either of theseapproaches.

When I was asked to participatein this study, I proposed that theAcademy take a different ap-proach. The Academy, with itsbroad fellowship, was an idealsetting to examine the securityproblem not simply as a techni-cal issue but as a sociotechnicalproblem that arises from thedeep embedding of the Internetin society. However, this ap-proach involves a problem ofscope. If you de½ne the scopetoo broadly, you ½nd yourself inthe previous panel where we weretalking about corruption, Niger-ian scammers, and the Russianma½a: you are boiling the ocean.So we struggled in this space andrealized we needed to de½ne theproject more narrowly. But as wetried to identify people who hadthought about the interplay be-

tween the social issues and thetechnical issues, we found thatthere had not been much workdone. And so in fact it was timeto call for a fresh cycle of research.

While we were deciding how toformulate and scope our effort,we learned that the Alfred P.Sloan Foundation had asked theAcademy to look at the relation-ship between the scientist andthe citizen, and had posed a ques-tion that I would frame as fol-lows. The usual assumption withrespect to scientists and citizensis that the citizen does not under-stand the scienti½c issues as wellas the scientist, so the role of thescientist is to educate the citizen.When science develops some-thing that might have harmfuleffects, such as genetically modi-½ed food or particle acceleratorsthat produce little black holes,scientists should evaluate therisks and the bene½ts, explainthem, and give comfort to thecitizen. The Sloan Foundationsaid that the conversation shouldbe a two-way exchange. Scientistsneed to listen as well as educate.

The Academy is exploring thispoint of view through a series ofworkshops in different areas, in-cluding the impact of genetic bi-ology and the threat of dangerouspathogens. We decided to have aworkshop on the Internet, and inparticular on the relationship be-tween the citizen and the Internet.

At that workshop we looked atsome speci½c examples of the re-lationship between the citizenand the Internet. Let me describeone example, namely, the issueof how the Internet managesidentity and privacy. You mayhave seen a New Yorker cartoonwith two dogs: one is typing ona keyboard and turns to the otherand says, “On the Internet, noone can tell you’re a dog.” Real-ity is not quite like that. In somerespects I would say that on the


Internet we have issues of iden-tity that are completely back-wards, which is to say that when-ever you want some signal ofidentity, you don’t have it, butwhen you want some privacy,you don’t have that either.

Attribution of security attacks isa serious problem on the Inter-net. Your computers are beingattacked all the time. Unless yourcomputer is up-to-date with allits patches, it is quite likely thatsomebody has penetrated it andis using it to send spam in yourname or perhaps to attack someother computer in Estonia orGeorgia. It is important to real-ize that if someone tried to ½g-ure out who had launched theattack, you would be identi½edas the attacker. Somebody is pre-tending to be you when they sendspam from your computer or useyour computer to attack some-one else. And it is not only thatthey pretend to be you. They pre-tend to be your bank or the gov-ernment or your employer, andthey send you email–called“phishing”–that says: “It’s ter-ribly important that you send usyour password.”

On the other hand, while youcannot tell who is pretending tobe you, other people are moni-toring you closely. Folks want tocorrelate information about ev-erything you do. They want tobuild a pro½le of what you like,and, to get to the point, whatsort of advertising you mightlike to see. I don’t know whetherany of you bother to read yourisp’s privacy policy, which isburied someplace in the ½neprint of your service contract.But in most cases your isp or itsbusiness partner can track everywebsite you go to in order to pro-½le your interests and desires.Google can track every searchthat you do.

You should be sure to check ifyour mail service has the rightto read all of your email.

So here is a question for you toponder. Perhaps your isp or yourmail service has made a commit-ment not to reveal anythingabout you in a way that can betraced back to you personally(ignoring such issues as sub-poenas that can be ½led by therecording industry to ½nd out ifyou are hosting copyrighted mu-sic). If your service has made acommitment not to release anyof this information, should youobject to the fact that it may bebuilding pro½les of you? That isa complicated question, and Ithink it exempli½es the issuesthat arise when you look at thecomplex relationship betweenthe citizen and all the activitiesand technology that make upthe Internet. Who decides if you

have the right to keep othersfrom looking at what you do?

I am an engineer. I build things.The National Science Founda-tion has challenged the networkresearch community to describethe type of Internet we shouldhave in ½fteen years. This involvespeople building things. But whatshould we build? And who shouldhave a seat at the table to speakto the design? The question thatSloan has asked applies here.How should the point of view ofthe citizen (the user) be heard?

Who listens to you if you haveopinions about the Internet to-day? Your elected of½cials listenif you bother to tell them you areupset about something. The Fed-eral Trade Commission listens,and it also listens to people whoadvocate for the citizen, such asconsumer advocacy groups.There are corporate players thatcare; companies like Google oryour isp want to produce prod-ucts that you want. They want topersuade you that they are treat-ing you well with the productsthey have. The set of “experts”who do (or should) listen to thecitizen is much broader thanjust “scientists.”

Let me conclude by returning tothe question I posed earlier. Ifthere was a company that youdecided to trust, can you imag-ine a world in which you wouldlet that company look at every-thing you do in exchange forshowing you ads, but only adsthat were so wonderful youwanted to watch them? By theway, you might have to watchthem. The remote control onyour TiVo might not skip overads, because your TiVo is insert-ing those ads. But they mightgive you the TiVo for free, andit would only be ads you wantedto see. Can you imagine wantingthat world? I use this example to

remind you that you as users andwe as designers are all activeplayers in this process. There arealmost no design decisions wetake in this space that are value-neutral. So who should educate?Who should listen? Who shoulddecide?

Right now the Internet in theUnited States is a creature of theprivate sector. Different countrieshave very different answers tomy questions. There is currentlya movement in place, driven bythe United Nations, to take theInternet away from the UnitedStates in order to save it. Whichis the right path to build the In-ternet that we, whoever we are,would want to have? The historyof the Internet and its impact onsociety from a variety of perspec-tives will be among the topicsdiscussed at an Academy confer-ence on The Public Good: The Im-pact of Information Technology, tobe held in Mountain View, Cali-fornia, on February 28–March 1,2009. If any of you will be in thearea, we cordially invite you tojoin us.

© 2009 by Neal Lane, Steven E.Miller, Scott D. Sagan, John D.Steinbruner, Robert I. Rotberg,Robert H. Legvold, Bruce West-ern, Jesse H. Choper, FrancisOakley, Patricia Meyer Spacks,David E. Bloom, and DavidClark, respectively

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Right now the Inter-net in the UnitedStates is a creatureof the private sector.There is currently amovement in place,driven by the UnitedNations, to take theInternet away fromthe United States inorder to save it.Which is the rightpath to build theInternet that we,whoever we are,would want to have?


Visiting Scholars Program

Fellowship Programs

2008–2009 Visiting Scholars

Daniel Foster–Assistant Professor, Depart-ment of Theater Studies, Duke University.Ph.D., University of Chicago; B.A., St. JohnsCollege. Field: Comparative Literature. TheTransatlantic Minstrel Show: British Romanticismand American Blackface. A history of blackfaceminstrels as a movement bringing togetherscholarship and art, parody and emulation,social mis½ts and social reformers, black andwhite, England and America.

Louis Hyman–Ph.D., Harvard University;B.A., Columbia University. Field: History.Debtor Nation: How Consumer Credit Built Post-war America. An analysis of the political andeconomic institutions, consumer behaviors,and legal framework that converged, by the1970s and 1980s, to bring about a major per-sonal debt crisis with deep implications forAmerican society.

Last fall, the 2008–2009 class of VisitingScholars began their residency at the Acad-emy. Drawn from a broad range of publicand private universities across the nation,the scholars represent the ½elds of Ameri-can history, art history, anthropology, com-parative literature, history of science, politi-cal science, and religion.

Founded in 2002, under the leadership ofChief Executive Of½cer Leslie Berlowitz, theVisiting Scholars Program offers postdoc-toral students and untenured junior facultyin the humanities, social sciences, and pol-icy studies the opportunity to combine in-dependent research with active involvementin Academy activities. Former Academy Pres-ident Patricia Meyer Spacks chairs the pro-gram, mentoring the scholars on their writ-ing, career choices, and publications plansand leading their formal presentations andinformal discussions.

Throughout the year, Visiting Scholars con-tribute to Academy programs; participate inforums that bring together members of thesurrounding academic, business, and cultur-al communities for discussions of timelyscholarly and social issues; and attend lec-tures on topics ranging from reading poetryto the global nuclear future. They also meetregularly to present their research to col-leagues and interested Academy members.They critique each other’s chapters, papersprepared for professional meetings, and jobtalks. From time to time, Fellows workingon Academy projects join the scholars inresidence, and program alumni are invitedto continue their participation in Academyconferences and events.

Over the last seven years, the number of ap-plicants to the Visiting Scholars Program hasincreased to approximately 175 annually. In2008, they represented over 60 public and pri-vate institutions in 27 states. The program’ssuccess is reflected in the teaching and re-search appointments of the alumni schol-ars; in their numerous articles and reportsin scholarly journals, newspapers, and gen-eral-interest publications, both in print andonline; and in a growing number of books.

The Academy is grateful to the Director ofthe Harvard Humanities Center, Homi Bha-bha, and Executive Director, Steven Biel, forproviding the scholars with access to Har-vard’s research facilities. We are indebted tothe Academy’s University Af½liates and tothe following foundations for their contin-ued support: The Annenberg Foundation,The Cabot Family Charitable Trust, The Vir-ginia Wellington Cabot Foundation, TheHaar Family Endowment, The National En-dowment for the Humanities, and The Carland Lily Pforzheimer Foundation.

Seated: Academy CEO Leslie Berlowitz and Chair of the VSP Patricia Meyer Spacks Standing, 2008–2009 Visiting Scholars: Erez Manela, Daniel Foster, Rocío Magaña, Louis Hyman,David Singer, Thomas Stapleford, Victoria Solan, and Michael Pasquier


Rocío Magaña–Ph.D., University of Chica-go; B.A., California State University, Fresno.Field: Anthropology. Bodies on the Line: Life,Death, and Authority on the Arizona-MexicanBorder. An examination of the complex so-cial, economic, moral, and political spacethat constitutes the U.S.-Mexico border andthe tension among securing the border, pro-curing the safety of those who try to cross itillegally, and managing the bodies of thosewho die in the attempt.

Erez Manela–Associate Professor of Amer-ican History, Harvard University. Ph.D., YaleUniversity; B.A., Hebrew University, Jerusa-lem. Field: History. The Eradication of Small-pox: An International History. A study of theWorld Health Organization’s Global Small-pox Eradication Program that provides in-sight into the history of the Cold War, post-colonial international relations, the role oftransnational organizations in globalization,and the development of modern medicineand international public health. (Spring 2009)

Michael Pasquier–Ph.D., Florida State Uni-versity; B.A., Louisiana State University.Field: Religion. Catholic Creole Frontier: Reli-gion and Colonialism in the Lower MississippiValley. An analysis of religion in the frontiersociety of the Lower Mississippi Valley, illu-strating the impotence of state-sponsoredRoman Catholic of½cials in controlling thereligious beliefs and practices of Europeanmissionaries and settlers, displaced NativeAmericans, and free and enslaved personsof African descent.

David Singer–Assistant Professor, Massa-chusetts Institute of Technology. Ph.D., Har-vard University; B.A., University of Michi-gan. Field: Political Science. International Fi-nance within Families: Migrant Remittances inthe Global Economy. An examination of mi-grant remittances that will contribute to ourunderstanding of the ½nancial implicationsof immigration, the influence of global capi-tal flows on government policy-making, andthe dilemmas facing U.S. policy-makers asthey consider immigration policy, foreignaid, and ½nancial deregulation.

Victoria Solan–Ph.D., Yale University; B.A.,Oberlin College. Field: Art History. HealthyDesign: Modernist Architecture in Los Angeles inthe 1920s. An examination of health and theAmerican house within the context of twen-tieth-century California architecture, focus-ing on the persistence of seemingly antimod-ern, folkloric, or homeopathic elementsamong proponents of some of the mosttechnologically advanced and aestheticallyforward-looking design in America.

Thomas Stapleford–Assistant Professor ofLiberal Arts, Notre Dame University. Ph.D.,Harvard University; B.A., University of Del-aware. Field: History of Science. Home andMarket: Women, Economics, and the Study ofConsumption, 1910–1960. An exploration ofthe discipline of home economics in univer-sities and government agencies, focusing onthe work of female social scientists and theirinfluence on the understanding of modernconsumption.

Chair of the Visiting Scholars Program

Patricia Meyer Spacks–President of theAcademy, 2001–2006. Edgar F. ShannonProfessor of English Emerita, University ofVirginia. Ph.D., University of California, Ber-keley; M.A., Yale University; B.A., RollinsCollege. She is a scholar of eighteenth-cen-tury literature and culture whose work en-compasses issues of identity and selfhood,privacy, gossip, and feminism. Her most re-cent work is Novel Beginnings: Experiments inEighteenth-Century English Fiction, an accountof the diverse forms and themes that con-tributed to the development of the eigh-teenth-century novel.

Academy News

During the past year, a number of Fel-lows have graciously agreed to serve as reviewers for the Visiting ScholarsProgram, and we are deeply apprecia-tive of their advice and guidance.

Joyce Appleby, University of California,Los Angeles

Steven Biel, Harvard University

David Bromwich, Yale University

Bruce Bueno de Mesquita, Stanford University/New York University

Albert Carnesale, University of California, Los Angeles

William Chafe, Duke University

Thomas Cook, Northwestern University

Frederick Crews, University of California, Berkeley

Jonathan Culler, Cornell University

Frank Furstenberg, University of Pennsylvania

Nathan Glazer, Harvard University

John Mark Hansen, University of Chicago

Neil Harris, University of Chicago

M. Kent Jennings, University of California, Santa Barbara

Robert Jervis, Columbia University

Jacqueline Jones, University of Texas at Austin

Carl Kaysen, mit

Alice Kessler-Harris, Columbia University

Philip S. Khoury, mit

David Lake, University of California, San Diego

William McFeely, University of Georgia

James Olney, Louisiana State University

Bruce Redford, Boston University

Bruce Russett, Yale University

Howard Schuman, University of Michigan

Kenneth Silverman, New York University

Eugene Skolnikoff, mit

Paul Sniderman, Stanford University

Werner Soll0rs, Harvard University

James Stimson, University of North Carolina


Hellman Fellows are assigned to one or more of the Academy’s on-going research projects under the Initiative for Science, Engineer-ing, and Technology, including Alternative Models for the FederalFunding of Science; The Global Nuclear Future; Scientists’ Under-standing of the Public; Science and the Liberal Arts Curriculum;Securing the Internet as Public Space; and Reconsidering the Rulesof Space.

The Academy is grateful to the Hellman Family Foundation for establishing and supporting this fellowship. The Academy is alsograteful to the individuals who served on the fellowship reviewboard: Susan Graham, University of California, Berkeley; BrigidHogan, Duke University; John Katzenellenbogen, University ofIllinois at Urbana-Champaign; Carl Kaysen, MIT; Richard A.Meserve, Carnegie Institution for Science; and Robert Nerem,Georgia Institute of Technology.

Established in 2007 as part of the Academy’s Initiative for Science,Engineering, and Technology, the Hellman Fellowship encouragesscholarship in science policy. The fellowship is open to early-careerprofessionals with training in science and engineering who want totransition to a career in policy or to acquire experience working onscience-policy issues. While in residence, Hellman Fellows workwith senior scientists and policy experts on national and interna-tional policy issues related to science, engineering, and technology.

The program supports and guides individuals with training in sci-ence and engineering who want to develop expertise on science-policy issues; increases the number of science-policy professionalswho are engaged in substantive discussion of science and engineer-ing research questions, with a broad understanding of their socialimplications; and expands the scale of Academy projects and stud-ies focused on the challenges facing scienti½c research and scienceeducation.

Fellowship Programs

Hellman Fellowship in Science and Technology Policy

Kimberly J. Durniak–Ph.D.,Molecular Biophysics and Bio-chemistry, Yale University; B.A.and B.S., University of Pittsburgh.Working in the laboratory ofThomas A. Steitz at Yale, shestudied the process of gene ex-pression and used X-ray crystal-lography to solve the structureof the bacteriophage t7 rna

Polymerase during a crucial stepin rna synthesis. During hertime at Yale, she was a McDougalFellow in the Graduate CareerServices Of½ce and worked as aliaison with the New York Acad-emy of Sciences to provide careerworkshops for fellow graduatestudents.

Dorit Zuk–Ph.D., Molecular Biology, Weizmann Institute ofScience; B.Sc., Tel-Aviv Univer-sity. She came to the Academyafter spending a year at the Na-tional Institutes of Health, whereshe was an American Associationfor the Advancement of Science(aaas) Science & TechnologyPolicy Fellow. Before that, shewas the Editor of the journal Molecular Cell. She is a member of the Education and Profession-al Development Committee of the American Society of Biochem-ists and Molecular Biologists(asbmb). She is also serving as a Program Of½cer for SciencePolicy at the Academy.

2008–2009 Hellman Fellows


America’s higher education system of pri-vate and public universities is the envy of theworld. Within this dual system, America’spublic universities were created to serve thepublic good by providing excellent educa-tional opportunities to the entire population.Today we clearly recognize that public uni-versities are pivotal in realizing society’s po-tential for opportunity, social justice, andprosperity. For public universities to con-tinue to meet these goals, two key questionsmust be addressed. First, who are the studentswe are educating, and what ½nancial chal-lenges do they face? Second, in the compe-tition with private universities for fundingand faculty, what challenges do public uni-versities confront?

Academy Meetings

Challenges to Public UniversitiesRobert J. Birgeneau, Mark G. Yudof, and Christopher F. Edley, Jr.

This presentation was given at the 1935th Stated Meeting, held at the University of California, Berkeley,on December 2, 2008.

Students pass through SatherGate, the south entrance to the UC Berkeley campus. Photo courtesy of the Univer-sity of California, Berkeley.

Robert J. Birgeneau

Robert J. Birgeneau is Chancellor of the Universityof California, Berkeley. He has been a Fellow of theAmerican Academy of Arts and Sciences since 1987.

Public teaching and research universitieseducate 75 percent of the nation’s college-going population. In fact, the ten leadingpublic research and teaching universities inthe country now educate more than 350,000students, a ½gure that has grown by 50,000over the past thirty years.1 By contrast, theIvy League educates about 1 percent of thestudent body in the country. Public univer-sities are important, ½rst and foremost, be-

1 This talk, which was given at the American Acad-emy of Arts & Sciences meeting at UC Berkeley onDecember 2, 2008, is based upon a comparison often leading public universities that include Berke-ley, Colorado, Florida, Illinois, Michigan, NorthCarolina, Rutgers, Texas, Virginia, and Wisconsinfrom 1978 to 2008.

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cause they provide an outstanding educationto large numbers of people who go on to playleadership roles in all sectors of society inthis country (see Figure 1).

Compared to private universities, the studentbodies of public universities tend to be dom-inated by undergraduate rather than gradu-ate students. For example, mit has about4,200 undergraduate students and they com-prise 40 percent of the student body. In con-trast, the University of California, Berkeley,has about 25,000 undergraduates and theycomprise 70 percent of the student body.Thus, although public universities sharewith their private counterparts a dedicationto both undergraduate and graduate educa-tion, the primary mission of public institu-tions is to educate large numbers of under-graduate students.

Some public universities–among themBerkeley, Rutgers, Texas, and the Universityof Illinois at Urbana-Champaign–choose tofocus their mission on educating in-statestudents. At Berkeley, approximately 90percent of our undergraduates are Californi-ans. Another group of public universities–including Colorado, Michigan, and Virginia –enroll large numbers of out-of-state stu-dents, and so their student body pro½lestend to look more like those at private uni-versities (see Figure 2). The factors drivingpublic universities to enroll large out-of-state undergraduate populations are diverse.Unfortunately, a signi½cant factor appearsto be state disinvestment in public educa-tional institutions. This is especially trou-bling because the presence of large numbersof out-of-state students may have unfortu-nate social consequences for the makeup ofa university’s student body, as I will discussbelow.

Public universities that focus on in-statestudents generally aspire to have studentbodies that reflect their states’ demograph-ics. Thus, as demographics change, studentpopulations should change too. In 1978–1979California was more than two-thirds Cau-casian, as was the student body at Berkeley.In 2007–2008, 44 percent of Californianswere Caucasian, and 37 percent were His-panic. At Berkeley in that academic year,

Figure 1

Figure 2

Figure 3

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however, only 31 percent of the undergradu-ate body was Caucasian. Hispanic students, 3 percent of the undergraduate body in 1978,had increased to 12 percent. African Ameri-can students remained at 3 percent. Thisrather dramatically illustrates the challengesof achieving ethnically and racially repre-sentative undergraduate student bodies.

Achieving economically representative stu-dent bodies has been somewhat easier, atleast within the University of California sys-tem. One measure of this success is the num-ber of University of California undergradu-ates who receive Federal Pell Grants, whichare reserved for students whose family in-come is under $45,000 per year. Berkeley–indeed, the entire University of Californiasystem–takes great pride in the remarkablyhigh percentage of its undergraduate stu-dents who receive Federal Pell Grants. Evenmore remarkable, one-sixth of Berkeley’sundergraduate body, 4,000 students, comesfrom families whose income is $20,000 peryear or less (see Figure 3).

Public universities with a high percentageof in-state students tend to have a higherpercentage of Pell Grant recipients than dopublic universities with large numbers ofout-of-state students. A key challenge forpublic universities as they attempt to ful½lltheir missions is the trade-off between ad-mitting ½nancially disadvantaged in-stateundergraduate students and well-to-do out-of-state students.

A fundamental responsibility for the Univer-sity of California and for public universitiesgenerally is to guarantee accessibility. If youare quali½ed to attend the University of Cal-ifornia, Berkeley, then we must make it pos-sible for you to attend Berkeley. The Univer-sity of California system has a ½nancial aidpolicy that ensures that this is not an emptypromise. This, in turn, explains the largenumber of extraordinarily talented studentsfrom very poor backgrounds within theUniversity of California system. All Univer-sity of California students are expected tocontribute to their educational costs fromboth work and borrowing. Their parents arealso expected to contribute, and the paren-tal contribution is calculated using a formulaprovided by the federal government. Unfor-tunately, the federal formula, which is basedon a national average, does not work well in

parts of California, such as the Bay area, be-cause of the very high cost of living in thoseareas.

Suppose your family income is $20,000 ayear; in California, especially, this meansthat your discretionary resources are extra-ordinarily limited. To attend Berkeley, thetotal cost of which is about $26,200, you willhave to provide $8,200 on your own. This isreferred to as the “self-help level.” The uni-versity will provide you with a grant–not aloan, but a cash grant–for the $18,000 bal-ance. Your self-help contribution likely willcome from a combination of work-study andloans. You will graduate with relatively lowdebt: about $14,000, the average for Berke-ley students from low- and middle-incomefamilies. The average debt for all Berkeley

students when they graduate is $7,000. Atpresent this ½nancial aid system works well,at least for students from genuinely poor fam-ilies. How will affairs look in ten years? As-suming consistency among the state’s ½nan-cial aid policy, the federal government’s ½-nancial aid formula, and the University ofCalifornia’s fee policy, the $8,200 contribu-tion required in 2008 projects to $16,700 in2018 (see Figure 4). It is dif½cult for me toimagine writing a letter to a student from afamily whose income is $20,000, saying,“Congratulations, you have been admittedto UC Berkeley! We are going to do what-ever we can to enable you to attend Berke-ley, but over the next four years, you will beresponsible for contributing $66,800 onyour own.”

Figure 4

Figure 5


How can we avoid such a scenario? Shouldwe freeze fees? In fact, this is exactly thewrong thing to do. As illustrated in Figure 4,if fees are frozen, the student self-help con-tribution actually increases to $18,300. In-stead of having to provide $66,800 over fouryears, the hypothetical student from a fam-ily earning $20,000 per year will have to pro-vide $73,200, a higher proportion of whichwill be debt. This counter-intuitive resultoccurs because of the way in which the Uni-versity of California redistributes fee income.Currently, one-third of the undergraduatefee income is redistributed as ½nancial aidto students from ½nancially disadvantagedfamilies. As fees rise, more money becomesavailable for ½nancial aid. Freezing or reduc-ing fees only reduces the resources availableto help ½nancially disadvantaged students.

Although facing greater ½nancial challengesin the future, ½nancially disadvantaged Cal-ifornians currently are relatively well coveredthrough the University of California ½nancialaid system. The present-day challenge is forthe middle class. To understand that chal-lenge, we might look at Harvard, which lastyear announced that it would begin provid-ing ½nancial aid to all students from familieswith annual incomes at or below $180,000.Harvard students with family incomes up to$180,000 are expected to contribute no morethan 10 percent of their family income towardtheir Harvard education. At Berkeley, because½nancial aid–driven by the federal guidelines–cuts off at about $90,000, a student withfamily income of $100,000 would receive agrant of zero dollars. Thus it is less expensivefor a family whose income is $180,000 tosend a son or daughter to Harvard than fora family whose income is $100,000 to sendtheir child to Berkeley or any other Universityof California campus. This is a fundamentalchallenge that we must address for the mid-dle class going forward (see Figure 5).

So, the news for students is mixed; it is goodfor students from low-income families nowbut looks threatening in the future; it is work-able for middle-class students wanting to at-tend Harvard and many other well-endowedprivate universities but considerably moredif½cult for those in the University of Califor-nia system. The news is also mixed for pub-lic university ½nancing. Across the country,state appropriations per total student head-count at leading public universities vary by

a wide margin. Among our group of ten pub-lic universities, at the top is North Carolina,followed by California, Florida, and Illinois.At the bottom is Colorado, where state fund-ing per student is less than $1,000 (see Fig-ure 6). Thus, at least until 2008 the Univer-sity of California system was well-fundedcompared to most state university systems.Some systems have been able to offset par-tially the progressive disinvestment by theirstate governments by continuously increas-ing fees. For example, while student fees atBerkeley are $7,600, at the University ofMichigan fees for in-state students arearound $12,000, the highest among toppublic universities. Of course, Michigan’sin-state fees are still low compared to thoseof private universities, where fees are typi-cally $35,000–$40,000. Combining student

fee income with state appropriations revealsthat, in constant dollars, public universityfunding per student has increased by about35 percent over the past 30 years (see Figure7). Although we feel like we are becomingpoorer and poorer, that is actually not thecase. So why do public universities feel thatwe are becoming impoverished despite ris-ing total incomes?

We feel poorer because compared with pri-vate universities we, in fact, are less well re-sourced–most especially in our endow-ments. This is the bad news about publicuniversity funding. Our endowments, orrelative lack thereof, place us at a signi½cantcompetitive disadvantage with respect toprivate universities. Overall, public univer-sities have low endowments, in good part

Figure 6

Figure 7

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because we simply realized too late theprospective importance of endowments.Private universities have long understoodthe importance of raising large amounts ofmoney for endowment, as opposed to rais-ing funds for immediate expenditures, andinvesting those funds well. Public institu-tions, in the main, missed this, thinking thatthe state would always take care of them.Today the largest public university endow-ments are at Michigan, Virginia, Berkeley,and Texas (see Figure 8). Berkeley’s endow-ment, large in comparison to that of mostother public universities, is nonethelessdwarfed by the endowments of many lead-ing private universities, especially Harvard,Princeton, Yale, and Stanford. The resourc-es that these top private universities derive

from their endowments are extraordinary,comprising a signi½cant fraction of theiroperating budgets. This allows these insti-tutions to pay high faculty salaries, providenew faculty generous start-up packages,and make available copious graduate fellow-ships. An interesting way to think about the½nancing of public universities is to trans-late the state funding into an equivalent en-dowment and to compare the income fromthis “endowment” with the income privateuniversities derive from their endowments(see Figure 9). In 1995, the payout from Har-vard’s endowment alone exceeded Berkeley’sstate funding. This is in absolute dollars, notnormalized per student. Harvard has far few-er undergraduates than does Berkeley. Thus,the funding per Harvard student from en-

dowment income alone grew rapidly pastthe funding per Berkeley student in the mid-1990s. This disparity between Harvard andBerkeley is representative of the disparitythat generally exists between private andpublic universities, a differentiation thathas changed the competitive situation in afundamental and, in my opinion, permanentway. This is true even in today’s greatly de-preciated investment markets. As another,rather dramatic example, last year the in-come from Stanford’s endowment, assum-ing a 5 percent payout, exceeded our stateappropriation at Berkeley by nearly $300million.

Many people would still like to believe thatin due course the State of California will pro-vide funding to the University of Californiacommensurate with the endowment-derivedincome of the great private universities. Myopinion is that this is not going to happen, atleast not in the foreseeable future. Therefore,we must devote considerable energy to de-vising new ½nancial strategies that are mul-tidimensional, that will enable us to continueto offer the kind of facilities and faculty sala-ries necessary for us to be able to competeeffectively and provide our public universitystudents the education that they deserve.

Public universities are the conduits intomainstream society for an extraordinarilylarge number of highly talented people from½nancially disadvantaged backgrounds andthe key to the American dream of an increas-ingly better life for the middle class. In orderto ful½ll our commitment to the public good,we have an obligation to offer through pub-lic higher education the opportunity for thesame quality of education that is available atthe very well-½nanced and ½ne private uni-versities. Maintaining access and excellencein offering great public higher education isthe foremost challenge that universities likeBerkeley face.

Figure 8

Figure 9


Mark G. Yudof

Mark G. Yudof is President of the University ofCalifornia system. He has been a Fellow of theAmerican Academy of Arts and Sciences since2001.

Investment in human capital drives pros-perity and economic growth, not only inAmerica but around the world. The businesscommunity often says we need a friendlybusiness climate, we need low taxes. But thetruth is that the investment in human capi-tal, the preparation of the workforce, theability to have great scientists and engineersand others discovering things in their labo-ratories is critical. Relatively high-tax stateswith relatively high investment in humancapital can do very, very well, as states likeMassachusetts and California historicallyhave demonstrated. A low-tax state withlow investment in human capital might get a new Toyota manufacturing plant, but thereally high-end enterprises that have multi-plier effects and engage people’s intellectswill still be dif½cult to land.

California understood this when the MasterPlan for Higher Education was developedunder the leadership of Pat Brown and ClarkKerr. The plan provides for universal access,the extremely high quality that you ½nd atthe University of California, a tiering effect,and substantial investment in the infrastruc-ture and operating cost of the university.And that commitment is up in the air today.California is in great danger of becoming arelatively high-tax, relatively low–humancapital investment state, a formula that willnot protect the great investment that hasbeen made in the University of California.To some extent, we are living off the invest-ments that started in the 1960s and the 1970s

and off the vision of that generation of lead-ers. Today, with talk of consumption goodsand the privatization of higher educationand an unwillingness to address the capitaland operating needs of the University ofCalifornia, I have the sense that the univer-sity is viewed less and less as a public good.

Earlier this year I spoke at a conference; mytheme was that “Knowledge is the oil of thetwenty-½rst century.” The conference tookplace at King Abdullah University, SaudiArabia’s new $10 billion research institu-tion. The Saudis believe the key to their fu-ture is emulating the American example,which is mostly the California example, ofinvesting in world-class research universi-ties. Will their experiment work? I don’t

know. Ten billion dollars is a lot of money,but the Saudis still have to recruit the neces-sary researchers, technicians, and other staff.When I met with the Saudi oil minister, hetold me, “Mark, I agree with you that knowl-ledge is the oil of the twenty-½rst century,but, all things considered, it’s better to haveoil and knowledge.” (I thought, well, I can’treally argue with that. Wealth does have away of helping you over the bumps you en-counter while waiting for your knowledgeto kick in!)

The Saudis–and others in South and EastAsia–are trying to emulate a type of invest-ment in public research universities that ismore characteristic of the California of the1960s and 1970s than of California, or any-where else in the United States, in the twen-

ty-½rst century. This is the great irony ofcountries–from Saudi Arabia to South Koreato Singapore to, increasingly, China–attempt-ing to emulate the American example of in-vesting in world-class public higher educa-tion: The example to which they are lookingis eroding in the very place it originated.

This erosion is indisputably evident in Cali-fornia. If you compare the amount of moneyBob Birgeneau and the other University ofCalifornia chancellors had in 1990 to spendon each of their students with the amountthey have today–taking into account infla-tion and the increases in enrollment thathave occurred over that nearly twenty-yearperiod–you ½nd that Bob and the otherchancellors have 40 percent less money.When you have 40 percent less money, howdo you pay staff higher wages? For that mat-ter, how do you compete for the best profes-sors? Build expensive laboratories? Dealwith retirement plan issues? How do youdeal with earthquake damage? In 2007, thestate cut its funding of the University of Cal-ifornia by $113 million, to $3 billion. Statemoney is crucial because it provides thefunding for such core areas as the humani-ties and social sciences, areas that generallydo not have supplementary income streams–the physician practice plans, national labo-ratories, and substantial research grants thathelp fund the hard sciences portion of thebudget. In addition to the state’s $113 mil-lion cut, the University of California had to absorb another $100 million in costs forthings that are going up in price, either be-cause of inflation, higher enrollment, in-creased maintenance on buildings, or anyof a number of other dif½cult to control expenses.

In my view, the model for support of publicuniversities in America is broken. While ex-ceptions can be found–North Carolina hashad an extraordinary history–they general-ly only underscore what is wrong with thesystem: for example, Virginia and Michigan,which look to nonresident students payingvery high tuition and fees as a source of rev-enue. The future in California–with its bud-get de½cit running to the tens of billions ofdollars and its political system seeminglyhaving great traumas over generating thecompromise needed to deal with such ahuge shortfall–does not appear to offer anyrelief for public higher education. Nor do I

Today, with talk of con-sumption goods and the privatization of higher education and an unwill-ingness to address the cap-ital and operating needs ofthe University of California,I have the sense that theuniversity is viewed less andless as a public good.

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anticipate a quick turnaround in the economyand thus a quick resolution of the Universityof California’s funding woes. Even if somethings do go our way, the University of Cali-fornia would still likely be looking at multi-ple years before budget cuts were reversed.

The question then becomes “What do youdo if the model is broken?” One of thingswe try to do is educate Californians–and,frankly, I’m more interested in Californiansin general than in individual legislators–as towhy the University of California is importanteven if they do not have a child at this insti-tution or a family member who works there.The University of California is important toall Californians because of the quality of med-ical care it delivers; because of the researchit conducts in such key areas as alternativeenergy, climate change, and new materials;because of its support for and involvementin the cultural life of the state; because it isa public good. And so we should try to do abetter job, reverse the diminution of thebright star of public universities.

Second, we may need to rethink the federalrole in higher education. Historically thefederal role has comprised two tracks. The½rst is indirect funding of universities throughdirect grants to students; for example, PellGrants and, before that, GI Grants. The ideabehind the grants–which really amount toa voucher system–is that the money goeswith the student rather than directly to theuniversity. The student is admitted to eligibleuniversities, chooses one, and plunks downa piece of paper that is the equivalent of acheck from Uncle Sam. The second track isfederally funded research. After World WarII the United States witnessed a revolutionin the ½nancing of research as universitiesbecame the nation’s primary research labsfor all sorts of purposes.

I invite the federal government to considertaking on a new role in the funding of highereducation: investment in the physical infra-structure of public universities. If Americais going to build bridges–which are undoubt-edly important–or levees–also important–or highways or other things, then why notalso build classroom buildings? Why notbuild scienti½c laboratories, engineeringbuildings, and so forth? Doing so wouldprovide an immediate economic stimulus,employing electricians and bricklayers andplumbers, as well as architects and engineers,glaziers and so on. Such an investment wouldalso have intermediate and long-term pay-offs. The University of California faces thepredicament of not having the operatingfunds today to service the debt that it needsto service in order to take care of the facili-ties it has and the facilities it needs. Not only

do public universities seem like a logicalplace for federal investment, but that invest-ment can occur without getting the federalgovernment so deeply involved in universitybusiness that it is telling universities whomto admit, what courses to offer, whom to hire,and the like.

The third thing we can do is to achieve busi-ness ef½ciencies. So far at the University ofCalifornia we have cut over 500 positions inthe of½ce of the president, saving about $60million, and we are looking for more waysto cut. We now have accountability systemsso we can answer the questions “What sortof year did you have? Are your students do-ing well? Do your faculty win awards? Howis the research enterprise going?” More canbe done in this area too. At bottom, however,universities are labor-intensive enterprises,and labor in this country does not come

cheap. I remember my daughter took me toOld Navy one year. She felt I wasn’t cool; Ithought I was. She said I needed new clothes.So I ended up buying some shirts at $6 and$7 apiece. Shortly thereafter, on my way tosee a member of Congress, I had my annualshoeshine and was shocked to realize it costmore than the shirts I had bought. The rea-son, of course, was that the job of makingmy shirt had gone overseas. The job of shin-ing my shoes is less easily exportable–as aremost jobs in medical care and education, twoof our most pressing economic issues in termsof cost. As such, we will never achieve theeducational equivalent of the $6, foreign-made shirt. And, given the successes we haveachieved with public higher education inthis country, we should not want to.

One of the great challenges for higher edu-cation is going to be reexamining the modelthat has produced so much success. I believeonly the faculty can do this. Ten, twenty,thirty years from now, what will the modelbe? Will it involve more technology? Whatother innovations can we use? How can wepreserve quality while responding to a verydif½cult ½nancial climate? Higher educationis not, after all, like the paper factory in Min-nesota that once employed 1,000 people andnow, because of technology, has eight em-ployees running the entire factory. Technol-ogy in higher education has not providedthat sort of substitutionary leverage. By andlarge, our learning takes place in classes withreally ½ne teachers interacting with students,reading papers, and all the rest of it. Thequestion is how can we preserve the best ofthat model while still moving forward?

In my view, the model forsupport of public universi-ties in America is broken.

I invite the federal govern-ment to consider taking on a new role in the funding ofhigher education: investmentin the physical infrastructureof public universities.


Christopher F. Edley, Jr.

Christopher F. Edley, Jr. is The HonorableWilliam H. Orrick Jr. Distinguished Chair andDean of UC Berkeley School of Law. He hasbeen a Fellow of the American Academy of Artsand Sciences since 2007.

Whether I am wearing my hat as an aca-demic bureaucrat or my hat as a policy wonk,the basic challenge facing public higher ed-ucation–speci½cally the public research uni-versity–seems to be getting the public to be-lieve that this enterprise matters. In meetingthat challenge we will need to tackle four ob-stacles that stand in the way: aspiration, le-gitimacy, affordability, and elitism.

Aspiration

Clark Kerr, the twelfth president of the Uni-versity of California, once quipped that thecentral role of a university administrator was“providing parking for faculty, sex for stu-dents, and athletics for alumni,” which neat-ly, if facetiously, captures the misplaced as-pirations of so many with a stake in higherpublic education. Kerr, of course, presidedover the original California Master Plan forHigher Education, which in its elegant and

compelling way once expressed our grand,collective aspirations for the place of publichigher education in the life of this state.

What has happened to those aspirations?Consider that during the last thirty yearsonly one campus has been added to the Uni-versity of California system–at Merced–andonly one campus has been added to Califor-nia State University–at Monterey. Duringthe same period, however, California addedtwenty-two new prisons. Over the last thirtyyears, the total enrollment in California high-er education has grown by 22 percent, but injust the last ½fteen years California’s prisonpopulation has grown by 73 percent.

The notion of a universal entitlement to ed-ucation has roots reaching back to Plato, who,in the Republic, talked about broad educationbut for the narrow purpose of training philo-sopher kings and elites. The Talmud teachesthat in the middle of the ½rst century c.e.,Joshua ben Gamla, the high priest of Judea,established compulsory religious educationfor children in every village. The idea stuck–although poor Joshua kept his job for only ayear or so. Today we take for granted thatcompulsory education will be provided topre-K children through students age 16–18,depending upon the state.

The question for our future is, what is the ap-propriate aspiration? Given the changes inour economy, is it not time to think aboutuniversality and entitlement not just for thir-teen years (pre-K through grade 12) but for atleast ½fteen years? Shouldn’t the aspirationtoward which we try to move the broaderpublic be the grander one of ensuring thateveryone have a postsecondary education ortraining that leads to a degree or certi½catewith value in the marketplace? And that highschool should prepare you for that post-sec-ondary experience? That early childhoodlearning and elementary and secondary ed-ucation should support children in achiev-ing their full potential? That equity is criti-cal? That there should be no gerrymander-ing or color-coding of opportunity? Our as-piration should not just be, “Please save ouruniversity’s budget,” but should also encom-pass the broader enterprise of explaining thatwe have reached the stage in our advancedsociety, our advanced economy, in whichthis broader aspiration of universality andattainment must be de½ned and pursued.

An analogy can be drawn to what we are nowexperiencing in healthcare. Medicare andMedicaid were established in 1965 so thatthe elderly and the very poor were entitledto basic healthcare. Although we have wit-nessed endless battles over the scope of cov-erage, the cost, and the complex regulatoryenvironment for Medicare and Medicaid, wehave arrived at the cusp of a moment whenuniversal access to healthcare may be estab-lished at last in the United States. How we gotfrom 1965 to this moment may be instructiveas we de½ne the aspiration for higher educa-tion in the generation ahead.

Legitimacy

The challenge of legitimacy is one of inclu-sion–or the lack thereof: the under-repre-sentation of poor and minority students atour top institutions of higher education.Only 3 percent of the students at the top 150American colleges and universities comefrom the bottom quartile of the income dis-tribution. Three percent! And only 10 per-cent come from the bottom half of the in-come distribution. If you were to walk thecampus of one of these 150 institutions, youwould be twenty-½ve times more likely tomeet someone from the top income quartilethan someone from the bottom income quar-tile. Higher education cannot have legitima-cy as an engine of opportunity if it is exclu-sionary, or even perceived as being exclu-sionary.

The basic challenge facingpublic higher education–spe-ci½cally the public researchuniversity–seems to be get-ting the public to believe thatthis enterprise matters.

Shouldn’t the aspirationtoward which we try tomove the broader public be the grander one of ensuring that everyone have a postsecondary education or training that leads to a degree orcerti½cate with value in the marketplace?

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I never wanted to be an academic adminis-trator–it’s a ridiculous job. When your al-ternative is being a professor and doing what-ever you want . . . So when Berkeley ½rstcame after me, I said “No” several times.But then I ½nally had lunch with the searchcommittee. Their second question–after“Why do you want to be dean?” to which Ireplied, “I don’t think I do.”–was, “Whatdo you think is distinctive about the missionof an elite public law school?” That was agreat question, one I had never thoughtabout. While a Harvard professor I neverwanted to be a dean–why would I want tospend my time polishing the flatware? Butthe question asked of me by the Berkeleysearch committee made me start thinkingabout whether there should be somethingdistinctive. Otherwise, why bother? Whatwould be the point of an elite public univer-sity whose only distinctive feature is its“eliteness?” The future of our institutionscannot be secure without a compelling an-swer to that simple question.

© 2009 by Robert J. Birgeneau, Mark G.Yudof, and Christopher F. Edley, Jr., respectively

Nationwide, 15 percent of community collegestudents are Latino, and 13 percent are black.In California, however, Latinos account for28 percent of community college students,and blacks for 8 percent. Something in theoperation of the higher education system, in-cluding the pipeline to it, is sorting minoritystudents out of the better postsecondary op-portunities. Furthermore, the communitycollege system–the postsecondary oppor-tunity in which most blacks and Latinos whopursue postsecondary education ½nd them-selves–is generally acknowledged to be bro-ken. Broken in the sense that the vast major-ity of students leave community college with-out having achieved even a certi½cate, muchless an associate’s degree or transfer to afour-year institution. If majorities of theblack and Latino students nationwide inpostsecondary education are in communitycolleges and community colleges are notworking, what does that say about who willbe in the middle class ½fteen years from now?The very legitimacy of higher education de-pends upon whether it is inclusive.

Affordability

The question of legitimacy cannot be disen-tangled from the question of affordability.My boss, Berkeley Chancellor Robert Birge-neau, addresses quite well how this issuelooks to the student. But what about afford-ability from the standpoint of government?Think about it this way: You’re the govern-ment. You’re going to purchase this service –higher education–for the people. Howmuch should you be willing to pay? Whatshould the cost be? The higher educationmarket is far from perfect; it bears little re-lationship to the neoclassical microeconomicparadigm (no matter what the antitrust di-vision at the Department of Justice mightlike to believe). The system of subsidies, taxexpenditures, and so forth is like a badly dis-

torted image of a traditional market–as itshould be, in my view. But the investingpublic, acting collectively through govern-ment, is still left with the question, Shouldwe purchase a Chevy or a Cadillac? A Mazdaor a Maserati? A hybrid or a Hummer? Theknee-jerk response among higher educationleaders is, “Well, the diversity of our institu-tions is one of the great strengths of theAmerican system.” They are correct, butthat response implies the need for a diversityof ½nancing strategies for that product. Oth-erwise, the affordability problem will persist.

Elitism

The Berkeleys of higher education have aspecial problem. When the Supreme Courtheard oral arguments in the University ofMichigan af½rmative action cases in 2003,Justices Scalia and Thomas said, more orless, “You claim that diversity is a compel-ling interest for your university, but you alsotell us that by being selective, by being elite,it makes it dif½cult for you to get the diver-sity that you think is so important. Well, whydo you have to be so selective? Why do youhave to be so elite? Just make a choice. Youknow, if diversity is so important, just focuson being diverse; don’t focus on being soelite. Leave the elite business to the privatesector.”

For many folks in elite higher education, thissurely seemed like a preposterous proposi-tion, but the issues it raises deserve consid-eration. The fact is, few public institutionscompete with the elite private colleges anduniversities. Few states have made the deci-sion to invest in a Berkeley, a ucla, a uc

San Francisco. That a polity should chooseas a matter of public investment to try tocompete with Harvard, mit, and Stanfordis not obvious. After all, most states havechosen not to do so. Thus, those of us whowish to proclaim and advance the proposi-tion that elite public higher education has arole to play in the broader system of publichigher education face a special challenge.This case can be made, but it is not an obvi-ous case, and we must attend to it with greatcare, paying special attention to the relatedchallenges of affordability, legitimacy, andaspiration.

Those of us who wish toproclaim and advance theproposition that elite publichigher education has a roleto play in the broader systemof public higher educationface a special challenge.

Higher education cannothave legitimacy as an engineof opportunity if it is exclu-sionary, or even perceived as being exclusionary.


Academy Meetings

Judicial IndependenceSandra Day O’Connor, Linda Greenhouse, Judith Resnik,Bert Brandenburg, and Viet D. Dinh

Welcome and Introduction by Richard L. Revesz,Martin Lipton, and John Sexton

This panel discussion was given at the 1931st Stated Meeting,held in collaboration with New York University School ofLaw and Georgetown University Law Center on November6, 2008, at Tishman Auditorium, New York UniversitySchool of Law.

U.S. Supreme Court in Washington, D.C. (1935)Photograph © Dennis Degnan/Corbis.

Richard L. Revesz

Richard L. Revesz is Dean and Lawrence KingProfessor of Law at New York University Schoolof Law. He has been a Fellow of the AmericanAcademy of Arts and Sciences since 2007.

Welcome

It is a great pleasure to welcome you to thiswonderful event, which we are cosponsor-ing with the American Academy of Arts andSciences and the Georgetown University LawCenter. I am very grateful to my colleagues,Alex Aleinikoff, Dean of the GeorgetownLaw School; Meryl Chertoff, Director of theSandra Day O’Connor Project on the Stateof the Judiciary at Georgetown; and LeslieBerlowitz, Chief Executive Of½cer of theAmerican Academy, for coming togethertonight to create this terri½c event.

It is a great honor to welcome Justice SandraDay O’Connor back to the law school. Itseems that whenever something very good

happens at the law school, Justice O’Connoris here. I’ll give you only two examples in theinterest of hearing from Justice O’Connorherself. On September 28, 2001, the lawschool celebrated the groundbreaking forFurman Hall, our wonderful academic build-ing that now houses half our classrooms,our clinical programs, our lawyering pro-grams, and many important administrativeof½ces. That was an important day and Jus-tice O’Connor was here. It meant an enor-mous amount to us, and she spoke passion-ately and persuasively about the importantrole of lawyers and legal education in thenew world that we would have to constructafter the 9/11 disaster.


My second example: Our Institute for Judi-cial Administration has played a very impor-tant role in the training of judges in thiscountry, both at the federal and state levels,and has, I think, on average trained abouttwo-thirds of new federal district-courtjudges. In October 2006, the Institute wasnamed the Dwight Opperman Institute forJudicial Administration in honor of DwightOpperman, a trustee of the law school whohad been involved with the Institute sinceits inception in the 1950s. Justice O’Connorwas here again and talked about the impor-tance of judicial independence, a topic thatwe’ll come back to today.

It is ½tting that since retiring from the Su-preme Court, Justice O’Connor has devoteda signi½cant amount of time and energy topromoting the cause of judicial indepen-dence, which she has persuasively arguedis increasingly under attack.

It is now my privilege to introduce the Chair-man of the Board of Trustees of the Univer-sity, Martin Lipton. Marty graduated fromnyu School of Law, and the history of thetransformation of the law school during aperiod of about 50 years is tied very closelyto the roles that Marty played in making thathappen. He and his other founding partnersat the law ½rm of Wachtell, Lipton, Rosen &Katz, all of them alumni of our law school,started one of the great institutions of Ameri-can corporate law. Marty, from the beginning,was involved in creating the structure thatwould make it possible for the law school tobecome a leading academic institution. Heeventually became Chair of the Board ofTrustees of the law school and then was ele-vated to his current position as Chair of theUniversity’s Board. Thank you, Marty, forbeing here with us today, as you are on somany other special occasions in the life ofthe law school; we’re extraordinarily grate-ful to you.

Martin Lipton

Martin Lipton is a Founding Partner of Wachtell,Lipton, Rosen & Katz and is Chair of the Boardof Trustees of New York University. He has beena Fellow of the American Academy of Arts andSciences since 2000.

Welcome

On behalf of the University and of theAmerican Academy, I’m delighted to addmy welcome to all of our distinguishedspeakers and guests. The American Acad-emy has been exploring issues facing thecourts for a number of years. Using its un-paralleled ability to convene some of thekeenest minds in the nation for careful re-flection and non-partisan independentstudy, the Academy has advanced our un-derstanding of the judicial system during a time of change and challenge.

The topic of judicial independence is notonly critically important, it is also quitecomplicated. And to help us better under-stand the issues and appreciate what is atstake, we are about to have the pleasure ofhearing from an extraordinary group of le-gal scholars and practitioners. Everyone inthis room understands that a fair and impar-tial judiciary is a cornerstone of our systemof government. Today, there are critical chal-lenges to the independence of our courts.They come in the form of increasingly parti-san judicial con½rmation processes, calls forthe impeachment of federal judges when ac-tivists disagree with judicial decisions, andunprecedented Congressional intrusion into

judicial decision-making. To help educatethe public about judicial independence, Jus-tice O’Connor established the Sandra DayO’Connor Project on the State of the Judici-ary, which is housed at Georgetown Univer-sity Law Center. It is my honor to serve onthe Project Steering Committee, and I espe-cially want to acknowledge Justice O’Connorand to thank her for her very important workin this area of judicial independence.

Now it’s my pleasure to introduce anotherFellow of the Academy, John Sexton. Johnclerked with Chief Justice Warren Burgerand is a former Dean of the nyu School ofLaw. He is the Benjamin Butler Professor ofLaw and the ½fteenth President of New YorkUniversity.

John Sexton

John Sexton is ½fteenth President of New YorkUniversity and the Benjamin Butler Professor of Law. He has been a Fellow of the AmericanAcademy of Arts and Sciences since 2001.

Introduction

The formal life of Justice O’Connor is wellknown to all of us: a graduate of Stanfordand its law school, editor of its law review, a county attorney, a civilian attorney in theQuartermaster Corps, and then an assistantattorney general in Arizona. For six years shewas in the Arizona State Senate, becomingthe majority leader and the ½rst woman inthe country to hold such a high legislativeposition. Later she became a superior court

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judge, then a judge for the Arizona Court ofAppeals. She had served in all three branchesof government well before I ½rst heard hername in October term 1980, when I wasclerking for Warren Burger. In my class onthe Supreme Court and religion, with fresh-men here at nyu, I described the day thatall 32 of us who were clerking at the Courtthat year were called down to the east roomof the Court. In came Justice Stewart to ex-plain to us that that would be his last term.I remember as the weeks unfolded hearingChief Justice Burger speak in glowing termsof this woman from Arizona.

My class here and the concomitant class I’mteaching on Sundays in Abu Dhabi on thesame subject, Religion and Politics Throughthe Eyes of the Supreme Court, know that Iview the 25 years between 1981 and JusticeO’Connor’s retirement as “The O’ConnorYears” at the Court, certainly in the area ofthe intersection of religion and politics insociety. In many ways, Justice O’Connorshaped the court during those years. Sheshaped this law school, seen by many as theplace that gestated a more ecumenical andexpansive view of the law. We called it herethe Global Law School Initiative, but theidea, in fact, was Justice O’Connor’s. It wasan idea that was born when she spoke herein the early 1990s at a faculty lunch, and itwas an idea that caught my attention as aproduct of the ecumenical movement froma very earlier time in my life. It was an ideathat, as it began to incubate, Justice O’Connorwas always here to support.

The very ½rst conference held at nyu’s mag-ni½cent villa in Florence, Italy, in 1994, was aconference that Justice O’Connor organizedwith us for justices of four Supreme Courts–four Constitutional Courts, more appropri-ately: the Constitutional Courts of the Unit-ed States, Germany, Italy, and the then new-ly established Russian Constitutional Court.As we, those twelve justices and about eightnyu professors, sat in La Pietra, the RussianConstitutional Court wrestled with its ownMarbury v. Madison: the constitutionality ofthe invasion of Chechnya and whether Yelt-sin had acted constitutionally. It was wonder-ful to hear the twelve justices at the confer-ence wrestle with the issue of judicial inde-pendence in that context as opposed to thecontext in which we will discuss it tonight.

In many ways, Justice O’Connor has donethe most important work in her life invisi-bly, person by person. To those of us whohave been privileged to come to know herand her magni½cent love affair with her hus-band, she is a model of personal “I thou love”for every married couple; she certainly wasfor our family. And for others who don’t getto know her as well, or as intimately, she stillis a model person by person. I’ll close with astory to illustrate.

My wife Lisa, our daughter Katie, and ourson Jed were with me for that conference inFlorence. Jed was the gofer. Lisa sprainedher ankle and had to come home, so Katie,then seven, was a host. She, this little girl,stood next to me as the vans with the jus-tices came up the long, tree-lined road thatbrought them to the main villa. I said, “Now,when the justices get out, you just curtsyand say ‘Buon giorno; welcome to La Pietra.’”Little Katie said and did just that as JusticeO’Connor got out of the van. In her own mag-ni½cent way, Justice O’Connor embracedthis little girl. Justices Ginsburg and Breyerwere there too, and Justice Ginsburg spent a lot of time with Katie over the three days.But it seemed Justice O’Connor’s hand wasalways in Katie’s hand.

When Katie came home, she brought withher Justice O’Connor’s cardboard namecard from the conference. She put it on herdesk, and when she got to the third or fourthgrade and had to pick a person from all ofhistory to be and to present a biography, shechose Justice O’Connor. A friend came overand saw this card on Katie’s desk and askedher about it. Katie, now about nine, said,“Oh, Justice O’Connor, she’s a friend ofmine. She’s invited me to come down toWashington, and we spent a lot of time to-gether. And there was this other Justice, Jus-tice Ginsburg, and she was very nice, too.”Finally she said, “I didn’t spend a lot of timewith Justice Breyer, so I can’t tell you whathe’s like.” In that way, Sandra Day O’Connor,person by person, made it possible for peo-ple, the young Katies of the world, to thinkthat anything is possible for them. And Katiestill lives with the tremendous con½dencethat this great woman instilled.

It is my great, great privilege to introduce toyou Justice Sandra Day O’Connor.

Sandra Day O’Connor

Sandra Day O’Connor served as an AssociateJustice of the U.S. Supreme Court from 1981 until her retirement in 2006. She has been a Fellow of the American Academy of Arts and Sciences since 2007.

That was quite an introduction. I hopemany of you have had the privilege of meet-ing Katie. She’s pretty grown-up now, butwhat a wonderful girl she is and what a won-derful youngster she was.

Thank you so much, President Sexton, foryour introduction. John Sexton’s work as aneducator, both here at nyu and through allof his other activities, like the Urban DebateLeague, has set a very high bar for individualcommitment to civics education. I want tothank Dean Revesz and the law school forhosting this event. I remember Dean Reveszwhen he was a law clerk for Justice ThurgoodMarshall; he looked a little younger in thosedays, I think.

John Sexton mentioned some of the eventsthat have been held here. For several years,members of our Court met with members ofRussia’s Constitutional Court, and we got tothe stage where we really could communicatewith some of them pretty well. I rememberlots of meetings. Now that has stopped, andwe are becoming strangers with the RussianFederation. It’s a tougher relationship, andwhether they would entertain the possibilityof restoring some of those meetings, I don’tknow; but I think it’s worth exploring. Wecertainly had some good meetings here.

Thanks so much to the American Academyof Arts and Sciences, a distinguished group.You probably know that John Adams helped

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found the Academy, and at the time that hedid that, he was also trying to write a consti-tution for the state of Massachusetts. It hassome pretty forceful language about the im-portance of judicial independence. The Mass-achusetts Constitution, thanks to John Ad-ams, says, “It is essential to the preservationof the rights of every individual to be triedby judges as free, impartial, and independentas the lot of humanity will admit.” So whatdid John Adams have in mind when he ref-erenced an independent judiciary more thantwo centuries ago, back when the notion ofa judiciary with power to secure and protectcertain fundamental rights was a pretty rad-ical idea? Judicial independence as a conceptdoesn’t lend itself to very precise de½nition,and maybe the easiest way to understand itis to look at settings where it did not exist.

I grew up in the Southwest, born in El Paso,and went to school there. In the late 1800s,Judge Roy Bean ran his courthouse out of asaloon in west Texas, not too far from theLazy B Ranch. Everyone in Roy Bean’s court,from defendants to jurors to lawyers, wasexpected to buy drinks during each one ofhis frequent recesses. If you didn’t buy adrink, the judge would hold you in contemptof court and you would be ½ned the cost ofa drink. The saloon-turned-courthouse hada big sign in front of it that read, “Law Westof the Pecos.” And just above that sign wasanother one that read, “Ice cold beer.” Iwould have hoped, at the very least, that thelaw would have gotten top billing on themarquee, but it didn’t: he was selling icecold beer and law, in that order. In one typi-cal case, Judge Bean sentenced a young manto hang, only to discover later that the manhad over $400 in a bank account. WhenJudge Bean learned that, he sensed thatthere might be some pro½t in leniency and

said, “By gobs, we’ve made a mistake. Thisman does not deserve to hang.”

In one sense you could say that Judge Beanwas independent. He did whatever he liked,and often he was guided purely by monetaryconcerns. But that’s not what I mean when Italk about judicial independence, and I don’tthink it’s what John Adams had in mind ei-ther. I mean somebody, a judge, who’s con-strained by what the law says and requires,and a judge who’s independent from exter-nal influences. Of course, a judiciary that’ssubject to strong external influences is notjust a thing of the distant past. We’ve seenevidence of that all around the globe. Andwhile our federal judges in this country re-ceive appointments for good behavior, a sig-ni½cant percentage of our state-court judgesare elected for a term of years, and they areelected in partisan campaigns quite often–campaigns that have become increasinglyexpensive, unwieldy, and nasty. Such de-structive campaigns, I think, erode the pub-lic’s perception of the judiciary because it’sdif½cult to believe that judges can remainneutral when they so often have to thinkabout the popularity of their opinions andwho it was that donated to their campaigns.You hear horror stories of lawyers going totrial in Texas, which is a state that has elec-tions like I described, and the ½rst thing theydo is to ½nd out how much the lawyers on theother side have already given to the judge.If they can ½nd that out, then they have tomatch it or exceed it, or they don’t go to trial.

What kind of a system is that, and why dowe want to tolerate that kind of thing in ourcountry? I don’t know. It isn’t dif½cult tosee how corrupting that money, which is in-jected into these campaigns, can become.After being elected to the Illinois SupremeCourt in 2004, after a judicial election inwhich the candidates spent more than $9million combined, Justice Lloyd Karmeierasked, “How can people have faith in thesystem when such obscene amounts ofmoney are used to influence the outcomesof the elections?” And he was the one whowon the race. You can only imagine whatthe losing candidate might have said after-ward–probably nothing we would want torepeat in public.

Or consider the Massey Coal case from WestVirginia, where the justice who cast the de-ciding vote to overturn a $50 million verdictagainst Massey Coal Company had receivedmore than $3 million in campaign contribu-tions from the company’s owner while theappeal was pending in the court. The U.S.Supreme Court is currently looking, I be-lieve, at a cert petition in that case that raisesthe question of whether at some point thedue process clause requires a judge to recusehimself or herself when the perception ofbias is so strong. I don’t think that a litigantgiving a $3 million contribution to a judicialcandidate’s campaign is what John Adamshad in mind when he envisioned judges whowere as impartial and independent as thewill of humanity would admit.

We can do better than that in this country,and thanks to some of you who are in thesocial sciences, there’s a growing body ofempirical research that demonstrates howthese campaign contributions and judges’fear of reprisal for making unpopular deci-sions do, in fact, have an effect on judicial

Judicial independence as aconcept doesn’t lend itself tovery precise de½nition, andmaybe the easiest way tounderstand it is to look atsettings where it did not exist.

A signi½cant percentage ofour state-court judges areelected for a term of years,and they are elected in par-tisan campaigns that havebecome increasingly expen-sive, unwieldy, and nasty.Such destructive campaignserode the public’s perceptionof the judiciary because it’sdif½cult to believe that judgescan remain neutral whenthey so often have to thinkabout the popularity of theiropinions and who it was thatdonated to their campaigns.


decision-making. I encourage those of youin the social sciences to continue collectingand reviewing the empirical data that dem-onstrate the effects that campaigns like thathave on the judiciary.

The judiciary’s authority and legitimacy restreally on public trust and the agreement ofthe public in general to abide by rulings ofthe courts. We can’t afford to have a judicialsystem that is perceived as being corrupt,biased, or otherwise unethical. Judges, afterall, don’t have any real means of enforcingmost of their rulings: our gavels aren’t thatbig, and we can’t swing them that hard. Ourcourts rely on the other branches of govern-ment and the public to follow and acquiescein the rulings made by the courts, and it’ssomewhat amazing how the other branchesof government normally through the yearshave abided by and enforced court rulings,whether it was President Eisenhower whosent the 101st Airborne to Little Rock, Arkan-sas, to ensure that the schools were integrat-ed after Brown v. Board of Education and Coop-er v. Aaron, or whether it was President Nixon,who sealed his own fate and turned over in-criminating tapes and documents in responseto the Supreme Court’s decision in UnitedStates v. Nixon. While we have been fortunateto have a judicial system that is generally re-spected, it should not be taken for granted.

Statutes and constitutions don’t protect ju-dicial independence, people do. And whilewe are not at the stage where protestorsmight overrun the U.S. Supreme Courtbuilding like they did in Zimbabwe not toolong ago, the time to address the concerns Ihave described is now, before those con-cerns become so large we can’t solve them. Ihope we can help educate all Americans inthis country on what we mean by judicialindependence and, particularly, explain whyit matters–because it does. I hope that intime we can persuade some of the statesthat still hold partisan elections to develop asomewhat better forum of judicial selec-tion, similar to that which the esteemedframers of our Constitution developedwhen they met in Philadelphia so long ago.

Linda Greenhouse

Linda Greenhouse is the Knight DistinguishedJournalist in Residence and Joseph M. GoldsteinSenior Fellow in Law at Yale Law School. Fornearly 30 years she covered the U.S. SupremeCourt for “The New York Times.” She has been a Fellow of the American Academy of Arts and Sciences since 1994 and serves as a member of the Academy’s Council.

It was my pleasure, along with Meryl Cher-toff, to put together the Fall 2008 issue ofDædalus, focused completely on the topic ofjudicial independence. As Justice O’Connorsaid, this is an educational effort; it’s an out-reach effort. It’s to get people talking and tohave a sophisticated conversation about whatsounds on the surface like a very simple issue.Of course everybody’s for judicial indepen-dence; but as we probe deeper, it’s a compli-cated and challenging subject.

The American Academy started a project onthe independence of the judiciary back in2002. Originally called Congress and theCourts, the project grew out of a perceptionon the part of many people that the relation-ship between the Supreme Court and Con-gress had run off the rails. The Court wasstriking down a series of federal civil rightsstatutes on the grounds that Congress lackedthe constitutional authority to enact them;it was a freighted situation. So the Academyformed a committee to look at how it couldserve its historic role, in this context, as aneutral arbiter to examine the many dimen-sions of the relationship between Congressand the Court. There was a series of private,closed-door meetings among the variousstakeholders–Supreme Court justices, keyplayers on the Hill–and the Academy facili-

tated a valuable conversation that resultedin insightful discussions about this subject.There was also a series of lectures and paneldiscussions that focused on other topics re-lated to the judiciaries: career paths of judg-es, judges’ compensation and bene½ts, andthe con½rmation process.

The project developed and so did the rela-tionship between Congress and the federaljudiciary. The relationship, in fact, turnedaround, and just as the Court had challengedCongress earlier, Congress began to chal-lenge control of the judicial branch, includ-ing limitations on the ability of federal judg-es to travel and efforts to prohibit federaljudges from citing foreign law, an effort ofwhich, I would assume, Justice O’Connortook a rather dim view.

All of these issues bene½t from public con-versation and scholarly inquiry, and that’swhat brings us together this evening. Thismeeting occurs, as I mentioned, in conjunc-tion with the publication of the Fall 2008 is-sue of Dædalus, the quarterly journal of theAmerican Academy, on this theme. It con-tains essays by each of our speakers, as wellas a number of eminent scholars, practition-ers, and judges.

The issue of Dædalus draws from two com-plementary and ongoing efforts to examinejudicial independence today, to de½ne it inits historic context, assess its current func-tion, and address the perception that it is

The American Academystarted a project on the in-dependence of the judiciaryback in 2002. Originallycalled Congress and theCourts, the project grew outof a perception on the partof many people that the relationship between theSupreme Court and Con-gress had run off the rails.

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The degree to which we take for grantedthe concept of judicial independence makesit worth looking, briefly, at the history ofjudges, going back hundreds of years. Adju-dication is an ancient practice, long predat-ing democracies. Medieval and Renaissancerulers put on spectacles of justice in whichjudges took center stage. But while sover-eign powers relied on judges, it was not be-cause judges were independent actors.

One way to catch a glimpse of these tradi-tions is through looking at the imagery putdeliberately into town halls, Europe’s ½rstcivic buildings, where court sessions wereheld. Hence, I invite you to look at a few suchpaintings. The ½rst image comes from thediptych of 1498 called The Justice (Judgment)of Cambyses, a painting by Gerard David thatcan today be found in the Groening Museum.But it once hung in the town hall of Brugesin what is now Belgium. The left panel ofthe diptych, Arrest of the Corrupt Judge, showsat the far back a tiny vignette of a man in ared robe (a judge) taking a bribe (a bag ofmoney). In the foreground, one can see thatjudge taken from the seat of judgment; he isbeing arrested. In the Flaying of the CorruptJudge, which is the right panel of the diptych,the judge is being flayed alive.

The reproductions do notdo justice (if I may borrowthat word) to the actualpaintings, which are largerthan life and gruesome intheir brightly colored de-tails–even hundreds ofyears later. The story’s denouement can be foundin the background of theFlaying, where anothersmall vignette is provided.

currently under attack. The American Acad-emy of Arts and Sciences, under the auspicesof its project on The Independence of theJudiciary, has held several meetings thathave brought together scholars, public of-½cials, and state and federal judges. Essaysin the issue by Senator Charles Schumer,Judge J. Harvie Wilkinson III, Chief JusticeRonald M. George of California, Chief Jus-tice Margaret H. Marshall of Massachusetts,and Professors Judith Resnik and RobertPost are drawn from those sessions.

The Sandra Day O’Connor Project on theState of the Judiciary at Georgetown Uni-versity Law Center held conferences in 2006,2007, and 2008 that drew the attendance ofsix sitting Supreme Court justices and hun-dreds of scholars, business and politicalleaders, and representatives of the nonpro½tsector. The essays in the volume by JusticeO’Connor and Justice Breyer are drawn fromthe ½rst two of those conferences, as are thoseby Chief Justice Ruth V. McGregor of Ari-zona, Professor Kathleen Hall Jamieson andBruce W. Hardy, Professor Viet Dinh, Pro-fessor Stephen Burbank, Professor Bert Bran-denburg, Professor Roy Schotland, ProfessorVicki Jackson, and Professor Charles Geyh.

The result is a collection of diverse perspec-tives from those who study the question ofjudicial independence as scholars and thosewho live it as judges, a contribution to a con-versation as old as the republic and as currentas today’s news. That is the background ofwhat brings us together.

The Court was strikingdown a series of federal civil rights statutes on thegrounds that Congresslacked the constitutional authority to enact them.

Judith Resnik

Judith Resnik is the Arthur Liman Professor ofLaw at Yale Law School. She has been a Fellowof the American Academy of Arts and Sciencessince 2001. Her comments draw from an essaypublished in “Dædalus,” Fall 2008, on “Interde-pendent federal judiciaries: puzzling about why & how to value the independence of which judges,”and from a forthcoming book, “Representing Jus-tice: The Rise and Decline of Adjudication asSeen from Renaissance Iconography to Twenty-First Century Courts” (co-authored with DennisE. Curtis and to be published by Yale UniversityPress in 2010).

Arrest of the Corrupt Judge,left panel of the diptych TheJustice ( Judgment) of Camby-ses, Gerard David, 1498, MuseaBrugge, Belgium. Copyright:Musea Brugge, Groeningemu-seum. Image reproduced withthe permission of the copy-right holder.


The son of the corrupt judge, now the newjudge, is forced to sit on his father’s skin. Ihave used a spectacular example from Brugesbut this scene is not unique to that city’stown hall. Rather, paintings of it were inmany town halls in cities around Europe.

Move forward a hundred years plus to Gen-eva, Switzerland, to 1604 to the huge muralLes Juges aux mains coupées, by Cesar Giglio,which was displayed in the Salle du Conseil(Council Chamber) of the town hall. A detailof the mural shows judges with their handscut off, along with text from Exodus 23:8:“Thou shalt not accept gifts for a presentblinds the prudent and distorts the wordsof the just.”

About 50 years later, in 1655, architect Jacobvan Campen’s magni½cent Town Hall (nowcalled the Royal Palace) opened in Amster-dam. Inside, one room is called the Tribunal(Vierschaar), where death sentences were pro-nounced. Public spectators and defendantsalike saw elaborate carvings there, includingThe Judgment of Brutus, by the sculptor ArtusQuellinus. The Roman envoy Brutus orderedhis own sons to death for treason. Anothercarving features The Blinding of Zaleucus. Za-leucus was a judge whose son violated thelaws of the state, a crime that carried thepunishment of gouging out one’s eyes. In-stead of taking out both of his son’s eyes,Zaleucus took out one of his own as well.

Works such as these (again, commonplacein civic buildings) help me make a ½rst point:the judicial role then was conceived to bedependent, not independent. These exem-plary allegories instructed judges to serve asloyal servants of the state and showed, fur-thermore, that enforcing the state’s law cameat personal pain. Misbehave and you wouldbe flayed alive or lose your limbs; be loyal tothe state even if it means sending your ownchildren to death or to dismemberment.

Why were these images set out? Rulers cre-ated rituals and spectacles of power aimedat providing instruction to the public watch-ing from the streets or inside these statebuildings. Public proceedings were aimedat underscoring the authority to make andenforce laws. But as Michel Foucault hastaught us, those who produce rituals andspectacles cannot control the consequencesof what is seen. The people who watched

Flaying of the Corrupt Judge,right panel of the diptych The Justice ( Judgment ) ofCambyses.

Les Juges aux mains coupées, Cesar Giglio, circa 1604, Salle du Conseil (CouncilChamber), Town Hall of Geneva, Switzerland. Photograph reproduced with the per-mission of Le Centre d’Iconographie Genevoise. Thanks to Ursula Baume-Cousam,Cäsar Manz, and Livio Fornara for help in obtaining permission to reprint.

Detail, Les Juges aux mains coupées.

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ments. The second was the obligation to ren-der judgment in public. Rites, R-I-T-E-S, be-came rights, R-I-G-H-T-S, of public accessto courts as judges moved from servants ofrulers to independent actors authorized tosit in judgment of the state itself.

To explain some of this, I need to switchfrom artwork to texts and cross the Atlanticto the United States. One example comesfrom the laws of West New Jersey in the 1670s.As that document reads: “That in all publickcourts of justice for tryals of causes . . . anypersons of the Province may freely come into

and attend the said courts, and hear and bepresent . . . at all and any such trials . . . thatjustice may not be done in a corner nor inany covert manner.” A century later, thiscommitment was reiterated in 1777 in theConstitution of Vermont that read: “Allcourts shall be open, and justice shall be im-partially administered, without corruptionor unnecessary delay.”

State constitutions also lead the way on judi-cial independence; Massachusetts providedfor tenure for its judges. That point becamecentral in 1789 to Article III of the U.S. Con-stitution, the icon of the federal system,which enshrined this new conception ofjudges, protected from being ½red (life ten-ure) and with salaries not to be diminished.(Our current judges remind us that what ismissing is the lack of even cost-of-living in-creases.)

Now let’s move to the twentieth century.The European Convention for the Protec-tion of Human Rights and FundamentalFreedoms from 1950 and the InternationalCovenant on Civil and Political Rights of1966 both avow that independent judgesand open courts are necessities. In 1996, thenew constitution for South Africa made thesame commitments.

A fast summary of three points from thepast 500 years is in order. First, the role ofthe judge was once to be subservient. Sec-ond, public rituals were used to instill this

The Judgment of Brutus [or Brutus], Artus Quel-linus, circa 1655, the west wall of the Tribunal.Photograph copyright: Royal Palace Foundationof Amsterdam. Thanks to Professor Eymert-JanGoossens for help in obtaining this image andpermission for its reproduction.

The Blinding of Zaleucus [or Zaleucus], ArtusQuellinus, circa 1655, the west wall of the Tribunal.Photograph copyright: Royal Palace Foundationof Amsterdam.

Interior of the Tribunal (Vierschaar) on the groundfloor of the Town Hall (Royal Palace) of Amsterdam,the Netherlands. Photograph reproduced with thepermission of the Amsterdam City Archives.

moved from being passive spectators to becoming more active, more watchful ob-servers–to understanding themselves ashaving some power to sit in judgment of thoseimposing judgment. Over the course of cen-turies, as they saw these rituals of power andas republican and democratic precepts grew,they began to make claims on the state.

The seventeenth, eighteenth, and nineteenthcenturies saw two parallel and related devel-opments pertinent to our discussion. One wasthe growth of the idea of judges as impartialand specially situated employees of govern-

Exterior of the Town Hall (Royal Palace) of Amsterdam, Architect: Jacob vanCampen, 1648–1655, Amsterdam, the Netherlands. Photograph reproducedwith the permission of the Amsterdam City Archives.


Chart 2. Authorized Trial-Level Federal Judgeships in Article III Courts (nationwide, 2001)

Chart 1. Article III Authorized Judgeships: District, Circuit, and Supreme Courts: 1901, 1950,2001

idea in both judges and public spectators.Third, over time public practices became aspringboard for rights, as participants laidclaim to procedural fairness, to democraticprecepts, and as persons employed by thestate grew to understand themselves as ableto sit, independently, in judgment, evensometimes of the state itself. These ideas arereflected in constitutional texts that, timeand again, link open courts and independentjudging. As Jeremy Bentham explained inthe mid-1800s, publicity was “the very soulof justice.” The judge, while presiding at atrial, was “on trial”– watched and assessedby an audience. From the baseline of politi-cal ideas in Renaissance Europe, that is a pret-ty radical endowment of authority in “wethe people.”

With the enhancement of democratic normsduring the twentieth century, demands foradjudication have soared. Only within thelast 150 years have all of us in this room be-come full “juridical persons,” recognized asrights holders, able to sue and be sued, totestify in court, to vote, to be members of allprofessions, and to sit in judgment as jurorsand judges. Democracy has endowed us allwith this new stature and new rights, en-abling new opportunities to bring claims tocourt. One way to capture this point is tolook at the growth in life-tenured federaljudges. In 1901, as we see in Chart 1, author-ized life-tenured judgeships in the federalsystem numbered just over 100 around theentire United States. By 2001, that numberhad grown to more than 850.

But even that increase was insuf½cient tomeet the needs. Judges, lawyers, Congress,and the courts, working cooperatively, in-vented new kinds of judges for the federalsystem authorized through a variety of stat-utes. Two groups, magistrate and bankrupt-cy judges, do not have life tenure or guaran-teed salaries; instead, they are creatures ofstatutes and given ½xed and renewable terms.First chartered in 1968 and 1984 respectively,their numbers also have grown such that by2001, together they too were about 850, andthus a cohort of a size comparable to thetrial level life-tenured judges (see Chart 2).

All of these judges are a vital part of activi-ties in every federal courthouse around theUnited States. Taking as one measure thetimes when witnesses testify orally in pro-

ceedings before Article III, magistrate, orbankruptcy judges, a good estimate is thatabout 100,000 such proceedings occur year-ly throughout the United States.

In contrast, consider the volume in federaladministrative adjudication. From availabledata on proceedings in four federal agencies –Immigration and Naturalization Services,the Social Security Administration, the Boardof Veterans Appeals, and the Equal Employ-ment Opportunity Commission–we esti-mate that more than 700,000 evidentiaryhearings occur yearly. Who are the judgesfor those proceedings? Not life-tenured

judges nor magistrate and bankruptcyjudges who work in federal courthouses.Instead, some are “administrative lawjudges” (aljs) chartered under the Admin-istrative Procedure Act and others may behearing of½cers who can be general employ-ees of a particular agency. Their number(more than 4,700 as of 2001) far outweighsthe 1,600 plus, which represents the com-bined set of magistrate, bankruptcy, andArticle III judges (see Chart 3).

At this, the beginning of the twenty-½rstcentury, we in the United States have manydocuments making textual commitments to

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independent and impartial judging and toopen and public courts. Yet hundreds ofthousands of federal agency proceedings donot occur in large public buildings, but in of-½ce buildings that are neither inviting tostreet traf½c nor easily located even by thosein search of attending. Moreover, we havehad examples of “judges” (such as those whostaff the immigration courts) reassignedwhen their bosses in the Department of Jus-tice appeared not to like some of the deci-sions that they were making.

In shifting business away from life-tenuredjudges to administrative judges, Congress didnot provide and the Supreme Court has not(yet) insisted that the rights we associate withjudges–open trials, public access, robust in-dependence–go all the way down the judi-cial food chain to lower echelon judges work-ing in these lower echelon administrativecourts. And we can see that this lack of pro-tection matters. Judges are no longer flayedalive but they have been reassigned or ½red.

Further, focusing only on the risks to judgescoming from the executive or legislativebranch misses an important developmentduring the twentieth century. “Repeat play-er litigants”–from the Department of Jus-tice to corporations and interest groups–focus on courts and on how to affect selec-tion processes. Some of them contributeenormous sums to campaigns when there are

judicial elections. In the case of judicial ap-pointments, some groups try very hard to in-fluence those decisions as well. Several or-ganizations are famously involved–the Na-tional Council of Manufacturers, the Cham-

ber of Commerce, the Federalist Society, andthe American Trial Lawyers. Thus, we needto understand that a variety of different as-sociations, ngos, and the like could be ei-ther friends or foes of judicial independence.

Another shift over the twentieth century hascome from the media whose powers havebeen ampli½ed through technological devel-opments. Media have a huge impact on ourknowledge about courts; many judges andlawyers complain about how various media

Chart 3. Numbers of Authorized Judgeships in Federal Court Houses and in Agencies (as of 2001)

pay no attention or too much attention tocourts. Some issues (sex offenders, for ex-ample) are singled out and become majorvehicles of education about “the courts.”

Much more needs to be said but it is time toconclude. To do so, I want to pick up a themeintroduced by Justice O’Connor. Texts likeArticle III of the U.S. Constitution, state con-stitutions, the South African Constitution,or the International Covenant on Civil andPolitical Rights are terri½cally important,yet none is suf½cient to create judicial inde-pendence. The challenge is building a cul-ture of commitment to independent judges,and then spreading it from our most visiblefederal and state judges to those other judg-es working in less visible, but incredibly im-portant settings–where, in fact, the bulk ofthe adjudicatory procedures in the UnitedStates takes place.

My own view is that both courts and legisla-tors should insist on public processes as partof the structural protections for all thesekinds of judges. Our law ought to reflectthat judges can’t be reassigned or ½red, norshould we support provisions that permitthem to hear witnesses and render judgmentsbehind closed doors or to outsource and de-volve their work to closed settings. Of course,privacy concerns may be brought to bear butwe should reject a general presumption thatthe public be excluded.

We need to nurture the public dimensionsof adjudication because they are part andparcel of judicial independence. Judges have(appropriately) substantial powers, disci-plined and legitimated through their obliga-tions to do a great deal before the public eyeand to explain their judgments. Indeed, ad-judication is itself a democratic practiceshaping our understanding of government.Participants are required to treat each otherwith dignity and respect, and members ofthe public, as an audience, can be engagedobservers, sometimes moved to seek tochange laws or procedures given what theyhave seen.

In sum, and as I argued in the Dædalus vol-ume that this symposium celebrates, wehave many judiciaries. By pluralizing theconcept, we can take all of “our” judges intoaccount. We need them to be independentbecause we are very dependent upon them.

Our law ought to reflectthat judges can’t be reas-signed or ½red, nor shouldwe support provisions thatpermit them to hear witnes-ses and render judgmentsbehind closed doors or tooutsource and devolve theirwork to closed settings.


ads, and questionnaires. The people who arebringing this about want to make courts ac-countable to interest groups and partisansinstead of the law and the Constitution.Justice O’Connor has described them as be-coming political prize ½ghts, and I think thatis very apt.

Since 1999, state supreme court justices, forexample, have raised in excess of $150 mil-lion, often from the very people who appearbefore them in court. Fifteen states havesmashed their spending records. tv ads arethreatening public con½dence in impartialcourts. Questionnaires that judges receiveon the campaign trail on hot button issues,like abortion and same-sex marriage, essen-tially seek to intimidate judges into comply-ing with political demands: check-the-boxjustice, as it were–Are you with us or are youagainst us? Voter turnout in judicial races isoften very low, and, therefore, voters are easi-ly swayed by pressure and partisanship. Forexample, two years ago in Dallas County,Texas, 19 Republican judges were turned outsimply because they had an R by their nameand it happened to be more of a DemocraticParty year.

Public con½dence is ebbing. Three in fourAmericans believe that these campaign con-tributions influence judges’ decisions; 80percent of business executives agree. Evenscarier to me is that nearly half of state judgesagreed with that statement–that campaigncontributions are affecting decisions in thecourtroom. In addition to the fear of whatthis does to justice and the judges’ decisions,it has a palpable effect on the quality of can-didates who are willing to run if races aregoing to be this way.

So what happened in 2008? I would say it’sbeen another tough year. In states that electtheir supreme court, we saw 23 seats contest-ed in 13 states, and the ½nal pre-election dis-closures (a ½gure certain to go up as we getin more reports) showed that the candidateshad raised in excess of $29 million. That’salmost identical to the ½gure raised at thesame point in 2006. Estimated spending ontv ads, which are becoming the way younow run for state supreme court, totaled $17million, a little bit more than 2006 (that is,by the way, thanks to almost $5 million thatwas spent on state supreme court ads in justone week on the run-up to the 2008 election).

The most expensive election occurred in Alabama, where the two opponents togeth-er raised a total of at least $3.8 million; this½gure, too, will probably climb. A groupbased in Virginia–not in Alabama–wantedto influence that election so it put in another$800,000 of its own on behalf of one of thecandidates, who I believe won in a squeaker.So, according to what we are hearing, thatinfluence may well have been decisive.

As I mentioned, $17 million was spent on tv

ads in this year’s campaigns, some of whichwe can see now. [Editor’s Note: Brandenburgplayed several TV ads for state judicial races. Thetext of those ads is included below.]

[From Wisconsin]

Meet Mike Gableman. He wanted to be ajudge, but he had a few problems. BurnettCounty needed a judge, but Gablemanlived 290 miles away. An independentpanel recommended two ½nalists, but hedidn’t make the list. He even missed theapplication deadline. But weeks before theselection, Gableman hosted a fundraiserfor Governor Scott McCallum and gavehim $1,250. Guess who McCallum picked?Gableman. Tell Mike Gableman we needhigher ethical standards for our judges.

[From Wisconsin]

Unbelievable. Shadowy special interestssupporting Lewis Butler are attackingJudge Michael Gableman. It’s not true.Judge, district attorney, Michael Gablemanhas committed his life to locking up crimi-nals to keep families safe, putting childmolesters behind bars for over a hundredyears. Lewis Butler worked to put crimi-nals on the street, like Rubin Lee Mitchell,who raped an 11-year-old girl with learn-ing disabilities. Butler found a loophole.Mitchell went on to molest another child.Can Wisconsin families feel safe withLewis Butler on the Supreme Court?

Bert Brandenburg

Bert Brandenburg is Executive Director of the Jus-tice at Stake Campaign. He was director of publicaffairs and chief spokesperson for the Departmentof Justice under Attorney General Janet Reno.

What I would like to do is give you aquick guided tour (and ½ll out a little bit ofwhat Justice O’Connor was beginning totalk about) of threats to our state courts inparticular. They, of course, are our work-houses, for all the glamour that the federalcourts and rock stars like Supreme Court

justices get. State courts handle somethinglike 98 percent of our legal proceedings inAmerica, and more than 85 percent of ourstate judges in America have to face an elec-tion of one kind or another, either a compet-itive election against an opponent or a re-tention race in which a judge can be eitherkept or ½red. And these judicial elections,which used to be relatively tame, are undergrowing pressure. There is now a new poli-tics of judicial elections featuring money,

Voter turnout in judicialraces is often very low, and,therefore, voters are easilyswayed by pressure and partisanship.

There is now a new politicsof judicial elections featuringmoney, ads, and question-naires. The people who arebringing this about want tomake courts accountable tointerest groups and partisansinstead of to the law andthe Constitution.

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[From Alabama]

Here, outside Washington, D.C., there’s abank account with half a million dollarsfrom the likes of the gas and oil industry.That money is paying for the ad you seehere. Should we have judges like GregShaw? It sounds nice, but the half milliondollars paying for it doesn’t come fromAlabama. So when you see the ad, askyourself, “What do the likes of the gas andoil industry want from our court?”

[From Michigan]

Newspapers call Diane Hathaway unqual-i½ed for the Supreme Court. Rememberthe low sentence Hathaway gave a sexpredator that targeted a minor? There’smore. Hathaway gave probation to a manwho was arrested in camouflage paintwhile carrying a loaded AK-47. His webpage praised terrorists and declared hisown personal jihad. Probation for a terror-ist sympathizer? We’re at war with terror-ists. Diane Hathaway, out of touch.

[From Michigan]

One story’s a fairy tale, the other’s a night-mare. The fairy tale, Sleeping Beauty. Thenightmare, the sleeping judge, Cliff Taylor.Judge Taylor fell asleep several times inthe middle of our argument. How couldhe judge based on the facts when he wasasleep? Taylor was voted the worst judgeon the state supreme court and fellowjudges called for an investigation of Taylorfor misconduct and abuse of power. Thesleeping judge, Cliff Taylor; he needs awakeup call.

[From West Virginia]

On the French Riviera, where the rich andfamous play, Spike and Don spent a verypleasant day. While together, the timethey were spending, a matter of millionsin court was pending. Now, when Massey½rst won their appeal, it was Spike’s votethat sealed the deal. Justice is blind, butyou can see Spike showed bad judgment inhearing this plea. Spike has recused, butwhat will it take for the justice himself toadmit his mistake? You decide how thisstory ends. Is justice for all or just betweenfriends?

In politics, information is the lifeblood ofwhat a voter needs to make an informedchoice. But in terms of educating the public,given how low-pro½le these races are, andgiven how little information people havewhen they go to vote, if these ads are themainstay of the diet, they’re the equivalentof what French fries are to nutrition in termsof the ability to make an informed choice.We saw examples this year of special-inter-est support itself becoming a core issue injudicial elections. Chief Justice Taylor, de-scribed as the “sleeping judge,” lost his elec-tion, which came as a surprise. Part of hisdefeat was attributed to a different set of adsattacking him for being too close to businessinterests. I would add as well that I’ve heardcredibly that the allegation that he fell asleepin the courtroom may well be a lie. (The ad

was a reenactment.) And if that is indeedthe case, we may have someone who was es-sentially ousted because of what somebodycould make up and put on a television ad.The chief justice in Mississippi lost his seatthis year for being tied to business interestsas well, and the justice in West Virginia whoyou saw in the last ad also lost in the primarybecause he was linked to a particular businessexecutive he vacationed with in the FrenchRiviera. These photos came out and his ca-reer was over.

What we see increasingly is that the courtsare vulnerable to whatever the politicalwind of the year is. What happened in Dal-las County, Texas, two years ago just hap-pened again in Harris County, which is whereHouston is. Twenty-two out of 26 experi-enced, Republican circuit-court judges wereswept off the bench because of a straightticket Democratic vote. We are also seeingsigns that the runaway spending that wetrack mostly at the state supreme court levelis continuing to trickle down to more localjudicial races. We’ve heard one report thatin Los Angeles, for example, combined spend-

ing on two of the ½ve superior-court racesthere exceeded $500,000 for circuit-courtseats.

One other interesting trend worth noting isthat the voters in a few counties around theUnited States had a chance to vote on a dif-ferent way of selecting judges. Merit selectionand retention systems–a screening commit-tee up front and then retention elections onthe back end–which many states have, areoften seen as a desirable alternative to theWild West of contested elections. But they’revery hard to enact from a political stand-point. They cut against the populist grain:America does like to elect its judges. Signi½-cantly, perhaps in reaction to what’s beengoing on over the last decade, we saw severalcounties this year embrace merit selection,in one case rejecting an effort to do awaywith it, in other cases actually enacting it invery conservative counties in Missouri andAlabama.

What was also signi½cant this year, comparedwith two years ago, was what was not on theballot. There were no statewide referendaaimed at weakening the courts or compro-mising them as fair and impartial arbiters.There was a proposal two years ago in SouthDakota called Jail for Judges, which essential-ly would have done away with judicial im-munity, destroying the ability of any judgeto be able to do his or her job and not be suedfor making a decision. It was defeated deci-sively two years ago, and we were pleased tosee it has not come back, because the publicrejected it so decisively.

Looking ahead to the next cycle, two yearsfrom now, there will be more meltdown con-tests. Candidates from 16 states are sched-uled to contest 35 supreme court seats; in 10states there will be multiple races, with sev-eral justices up at the same time. We usuallysee this as a signal that interest groups willget more value for their dollar if they jumpin. There is, however, growing interest inmeasures to address the problem. I men-tioned merit selection; several states arelooking at moving there. In addition, anystate that elects judges can consider public½nancing of their judicial races so that judgesdon’t have to dial for dollars from the peoplewho are going to appear before them. There’salso growing interest in recusal as a possible

What we see increasingly isthat the courts are vulnera-ble to whatever the politicalwind of the year is.


solution. Nonpartisan voter guides can helppeople get the information they need to makethe kind of nutritious choice I mentionedbefore. And campaign conduct committeescan help temper some of the campaign con-duct that judges feel increasingly pressuredto engage in, or that interest groups inflicton some of these races.

I will close by echoing what’s becoming atheme here in terms of the importance ofindependent courts. Courts can only be im-partial if they are suf½ciently independent.The American people, just as the framers ofthe Constitution, want judges to be indepen-dent and accountable. This is always messyand complicated because, as Justice O’Con-nor described, everyone has different de½-nitions of independence; Roy Bean had hisown. There are different de½nitions of ac-countability at work, too. We know we wantjudges to be accountable, but to whom arethey accountable? The risk is that they won’tbe accountable to the law and the Constitu-tion; that the pressures building up on themwill make them accountable instead to par-tisans, interest groups, and special-interestpressure. I don’t expect the Academy neces-sarily to take up this issue at its 1932nd meet-ing. I hope, though, it won’t be another 2,000meetings before you come back to this, be-cause it’s absolutely true, as has already beensaid, that the life of the courts depends uponstrong support and people standing by them,even if they disagree with the courts’ deci-sions. This country has had a rather goodrun in that regard. However, as we have seenoverseas, without vigilance that support canerode.

Viet D. Dinh

Viet D. Dinh is Professor of Law and Codirectorof the Asian Law and Policy Studies Program atGeorgetown University Law Center.

I will end our discussion by returning towhat Justice O’Connor started with, namelythe essence of judicial independence andwhy it is so important in our constitutionalstructure. The de½nition of the rule of lawin our country, that we are a government oflaws and not of men, has often been repeat-ed since Marbury v. Madison. Justice Marshall

borrowed the de½nition from the Massachu-setts Constitution. There’s a much lengthierderivation from ancient times, but one cansee that that is the essence of the role of ju-dicial review and the judiciary: to ensurethat ours is a government of laws and not ofmen. When one looks at the phrase, one seesimmediately why we need to protect the in-dependence of judges: So that they are notsubject to the external pressures of men andwomen and the rest of our population. Andso that our Constitution and the law are theultimate safeguards of our liberty, not just thewhims and passions of any particular move-ment or temporal majority–what Madisoncalled tyranny of the majority. That’s whatthe Constitution is there to protect.

However, one only needs to repeat the phraseagain to see the corresponding danger withjudicial independence. That is, we want ourjudges to be guardians of the law, but what ifthey act outside the law? Then we become agovernment of men again–not the popular,elected men, but rather the men and womenwho inhabit the judicial role. That’s whatcomplicates the discussion, a discussionwe’ve had since the beginning of the Repub-lic. Public criticism of judges has enduredover many centuries, starting with the presi-dency of George Washington and coming toeven this last Congress. Many painful exam-ples in the last decade or so tend to suggestthat ours is a new phenomenon of attacks onjudges, yet one only has to look to a few pagesof history to see that this phenomenon hasa long vintage. And despite all that, we canbe optimistic because, after all, our republicthrives and our judiciary survives. But ourjob to do today, and I hope enduringly, is tohelp our judges make sure that we are indeeda government of laws and not of men.

Since one sees the double edge of judicial in-dependence, one cannot exclude public crit-icism of judges altogether. Rather, one wantsto channel constructive criticism into im-proving the work of judges and thereby mak-ing more robust the form of independencethat we want to protect–that is, indepen-dence from external factors, but faithfulnessto the Constitution and the role of judges.Chief Justice William Howard Taft put itthis way: “Nothing tends more to renderjudges careful in their decisions and anx-iously solicitous to do exact justice than theconsciousness that every act of theirs is tobe subject to the intellectual and intelligentscrutiny of their fellow men and to theircandid criticism.” The question, then, ishow do we determine what is valid criticismand what are invalid threats to judicial inde-pendence? I’ll explore this by asking threequestions: How are judges criticized? Whyare they criticized? And by whom are theycriticized?

First, the how. I hope it is commonplace, orat least generally agreed, that verbal assaults,personal attacks, ad hominem invectives areout of bounds. We can criticize, but at thesame time one has to recognize that simplebut effective communication of valid criti-cism is constructive. Once you take out the

The essence of the role ofjudicial review and the judi-ciary is to ensure that ours isa government of laws andnot of men.

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cause judges would change their ways–Ithink judges, lawyers, and scholars recog-nize that those forms of criticism are illegit-imate–but because over time, if repeatedand if repeated effectively, those illegitimateforms of criticism erode public con½dencein the judicial role and, more insidiously,affect the way judging works because it’s nolonger independent of the general politicalprocess.

More directly, however, the kind of criticismto which judges respond and the real, imme-diate threat to judicial independence comesnot from the mass media or from the generalpopulation, but rather from political and le-gal elites because they know how to criticizejudges where judges hurt. They know howto make arguments and couch them in termsof judicial activism, in terms of the lack offealty to the judicial role, or in terms of fail-ure to follow the Constitution. We elites (Ido not mean that pejoratively) know how tocriticize judges in ways that are designed tobe effective, we hope, in forcing them tochange their behavior. It is that type of criti-cism that brings the greatest danger to judi-cial independence, to the actual indepen-dence of the judges and how they decidecases, because it comes with that kind ofelite criticism by scholars, lawyers, sena-tors, and presidents and is an implicit threatthat the judge may not be elevated to thenext judicial position if they so desire, or inthe extreme, may be censured or impeached.I think that type of elite criticism has a muchgreater effect on the everyday behavior ofjudges simply because it hits judges wherethey hurt most.

In our failure to activate these reforms liesthe greatest danger, both in terms of actualthreats to judicial independence and alsoresidual threats to the legitimacy and re-spect that the judiciary rightly should holdin our constitutional Republic.

that it bespeaks an incorrect judicial frame-work? Even then I do not think it is valid tolaunch a public campaign on that type of er-ror because that’s exactly why the politicalchecks on the judiciary are there–the nomi-nation and con½rmation processes and allof the other types of checks that are in ourConstitution. One can indeed have a validdebate about the jurisprudential framework;mine happens to be that text, history, andstructure should be the sole criteria for deci-sions related to judicial decision-making.Others–many of my colleagues in the acad-emy–disagree with that, looking for moreexpansive sources of interpretation. That isa valid intellectual debate; that is not causefor personal attacks upon judges.

When, then, is criticism of the judiciary andjudges valid? For what reasons? I think atsome point judicial decision-making can beso far out of bounds (this is a rarity) that itcalls into question the judge’s fealty to hisjudicial oath–in essence that he has failedthe judicial role and the exacting standardsof judging. That kind of action, which threat-ens the structure of our government and un-dermines the limited role of the judge (sothat we ensure that we are a government oflaws, not of men), deserves criticism. Whenjudges act outside of their role and respondnot to their internal intellect and their fealtyto the law, but rather to external pressuresof whatever type–monetary, political, oreven personal policy preferences–in thoserare cases, criticism is not only valid, but isdemanded of the political process and of anengaged democratic polity–which leads tothe question of criticism by whom.

Unfortunately, many missteps come fromcriticism by the mass media and the generalpopulation. I think you can tell from Bert’srepresentative ads that legal concepts, thequestion of the judicial role, and the juris-prudential framework of a judge are not con-cepts that are easily communicated throughmass medium and through general, popularpolitical activism. Rather, results are com-municated, and the population simply fo-cuses on what I consider to be illegitimatereasons for criticizing a judge or a decision–for example, simply because it is wrong oryou disagree with the result. That type ofmobilization carries with it a signi½cantdanger of thwarting the judicial role, not be-

illegitimate forms of criticism–which, un-fortunately, make up the majority of the criti-cism that we see today–the real issue thenbecomes the why of people’s criticism ofjudges, not necessarily the how. I think thatif we accomplish nothing more, if we elimi-nate from the public discourse those out-of-bounds forms of communication we havegone a long way. But the intellectual conver-sation continues.

What is a valid criticism? I think in this re-gard one has to consider for what exactlywe are criticizing judges. Are we criticizingjudges simply for being wrong in a particu-lar case? Is that valid in a way that shouldbegin a general public discourse? Think, for

example, of Judge Baier’s famous decisionwith respect to the Fourth Amendmentsearch and seizure that was of such celebrat-ed controversy a decade-and-a-half ago. Ithink that kind of criticism is not valid forthe type of public discourse in which democ-racy should engage. That’s exactly what theappellate process is for, in order to ensurethat mistakes, if made and upon recognitionthat they were made, will be corrected in duecourse by the litigants and other judges, orin Judge Baier’s case, by the judge himselfonce he recognizes the error in law.

What about if a decision is not only wrongwith respect to a particular case, but sowrong that one would consider it to be outof jurisprudential bounds–that is, so wrong

The kind of criticism towhich judges respond andthe real, immediate threatto judicial independencecomes not from the massmedia or from the generalpopulation, but rather frompolitical and legal elites because they know how to criticize judges wherejudges hurt.


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Sandra Day O’Connor

My perspective over the years on judicialelections is that, at the federal level, we havea process that works fairly well: the Presidentnominates the federal judge, and the Senategets to conduct what inquiry it wants to con-duct. In the case of Supreme Court justices,it turns out to be quite a show. We see it onnational television, and there are days ofquestions that go on. But that’s an excep-tional court and an exceptional situation.Most federal judges at the district-courtlevel, and even at the appellate-court level,are not subjected to the same degree ofquestioning.

I am more concerned with what is happen-ing in the various states. As I told you at theoutset, the framers of the Constitution metand tried to ½gure out a better form of gov-ernment, and they did: I have to say I thinkwe have been very blessed in this countrywith what they designed. They did not envi-sion the election of judges; judges were ap-pointed. And every one of the colonies, laterthe states, followed a similar pattern. Theyprovided for appointment of judges at thestate level with some kind of con½rmationprocess in the legislature or other scheme asthey devised it. It wasn’t until President An-drew Jackson came on the scene that statesbegan to move to a system of electing statejudges. Jackson had some populist tenden-cies, I think, and he tried to spread themacross the country.

We have learned through the years thatperhaps there’s a better way to select state-court judges, and that is to return to an ap-pointive system, probably headed by thegovernor, who gets suggestions for nomina-tions from a chosen committee. States thathave turned to that kind of system havetended to set up a statewide commission,comprised of a number of citizens of thatstate and sometimes including lawyers(sometimes not), that receives applicationsfrom people who would like to be a judge.The commission reviews applications, in-terviews the applicants, considers carefullythe quali½cations, and then provides a listof people that the commission thinks arequali½ed for appointment should the gover-nor choose to make an appointment. That’sa pretty good system. Most systems like thisinvolve setting up periodic elections, whichensure that judges at the state level all servefor a term of years. (No state provides forlifetime appointment of judges.) At the endof a term, many of the states that allow ap-pointment of state judges then let the judges’names go on the ballot to give voters a chanceto determine whether or not they want toretain a judge.

As a voter you need to have a little informa-tion about the judge, and some states havedone something that I think is quite helpful,gathering information year in and year outin the courtrooms from all of the people whowere in contact with the judge. Every juror,every litigant, every witness, every personin the courtroom is invited to ½ll out a formand leave it with the bailiff at the court, not-ing the things that the person wants to noteabout the judge. Was the judge polite?Courteous? Did the judge appear to knowthe law and communicate it well? Werethere problems and, if so, what? These ma-terials are collected over a period of time,and then at the time of a retention electionan election of½ce tabulates all of this. Theyalso include evidence of disciplinary proceed-ings, if any, that might have been broughtagainst the judge. This seems to work prettywell because the voters then have some ba-sis on which to make a fair judgment. I thinkwe’d be better served if more of our stateswould use a similar system.

The judicial branch is a critically important branch,and we want to have all ofour courts staffed by judgeswho are decent and honor-able. The question is howare we going to get it.

I hope that the American Academy of Artsand Sciences will maintain some kind of in-terest in this issue, because it matters. Thejudicial branch is a critically importantbranch, and we want to have all of our courtsstaffed by judges who are decent and honor-able. The question is how are we going toget it, and I thank you for listening and be-ing part of ½nding the answer to that ques-tion.

© 2009 by Richard L. Revesz, Martin Lipton, John Sexton, Sandra DayO’Connor, Linda Greenhouse, JudithResnik, Bert Brandenburg, and Viet D.Dinh, respectively

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The Invisible Constitution and the Rule of LawLaurence H. Tribe, Frank H. Easterbrook, and Geoffrey R. StoneDiane P. Wood, Moderator

This panel discussion was given at the 1932nd Stated Meeting, held in collaboration with the Chicago Humanities Festivalon November 8, 2008, at Northwestern University School of Law.

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Diane P. Wood

Diane P. Wood has been a Judge of the U.S. Courtof Appeals for the Seventh Circuit since 1995. A for-mer professor of international legal studies, Associ-ate Dean at the University of Chicago Law School,and Deputy Assistant Attorney General in the An-titrust Division of the U.S. Department of Justice,she is now a Senior Lecturer in Law at the Univer-sity of Chicago Law School. She has been a Fellowof the American Academy since 2004.

The theme of this year’s Chicago Humani-ties Festival is “thinking big,” and we haveplanned an interesting panel discussion onthe big idea of the rule of law. I thought thatI would begin with a word about the rule oflaw. In recent years, there has been a muchmore searching discussion about this con-cept than ever before. What does it reallymean? Some people think it has both a sub-stantive and a procedural component. Froma substantive standpoint, a society that re-spects the rule of law is one in which openand transparent laws are applied impartiallyand equally to everyone. From a proceduralstandpoint, the rule of law requires whatAmericans tend to call due process; that isto say, the right to the opportunity to beheard before an impartial decision maker.You can ½nd de½nitions in many places, butthe ideas remain constant: no one is abovethe law; all citizens have certain obligationsand certain rights. Our panel will begin byconsidering where the rule of law ½ts withinour broader constitutional structure.

Laurence Tribe addressed this question, aswell as many others, in his recently releasedbook, The Invisible Constitution. He is the CarlM. Loeb University Professor at HarvardLaw School, where he has taught since 1968.Before joining Harvard’s faculty he servedas law clerk to Justice Matthew Tobriner atthe California Supreme Court and to Associ-ate Justice Potter Stewart at the UnitedStates Supreme Court. He also directed theTechnology Assessment Panel at the Na-tional Academy of Sciences. His scholarlyworks are far too numerous to list, but theyinclude, in addition to the book he will bediscussing today, such publications as Abor-tion: The Clash of Absolutes and God Save ThisHonorable Court: How the Choice of SupremeCourt Justices Shapes Our History. ProfessorTribe also has had a distinguished career asan advocate before the Supreme Court; hehas contributed frequently to congressionalhearings; and he has served as a consultantto the drafters of many constitutions aroundthe world.


Following Professor Tribe will be Chief JudgeFrank Easterbrook of the United States Courtof Appeals for the Seventh Circuit. ChiefJudge Easterbrook began his distinguishedlegal career as a law clerk to Judge LevinCampbell of the United States Court of Ap-peals for the First Circuit. He then joined

the Solicitor General’s Of½ce, where heserved ½rst as an Assistant to the SolicitorGeneral and later as Deputy Solicitor Gen-eral of the United States. In 1979 he becamea member of the faculty of the University ofChicago Law School, where he was namedthe Lee and Brena Freeman Professor of Law,and where, like me, he continues to teachtoday as a Senior Lecturer in Law. He, too,has a lengthy and wide-ranging list of publi-cations and has written extensively in the½elds of antitrust and corporate law, coau-thoring The Economic Structure of CorporateLaw with Professor Daniel Fischel, and Secu-rities Regulation. From 1982–1991 he was aneditor of the Journal of Law and Economics.

Finally we turn to Geoffrey Stone, the Ed-ward H. Levi Distinguished Service Profes-sor at the University of Chicago Law School,where he has been a member of the facultysince 1973. Over the years, Professor Stonehas served as both Dean of the Law Schooland Provost of the University. Before com-ing to the Law School, he clerked for Judge J.Skelly Wright of the United States Court ofAppeals for the District of Columbia Circuit,and then for Associate Justice William J.Brennan, Jr. of the United States SupremeCourt. Professor Stone also has many booksto his credit; he has focused primarily onconstitutional law and the First Amendment.Most recently, he has authored Top Secret:When Our Government Keeps Us in the Dark;War and Liberty: An America Dilemma; andthe award-winning Perilous Times: Free Speechin Wartime from the Sedition Act of 1798 to theWar on Terrorism.

Returning to Professor Tribe, in the prefaceto The Invisible Constitution, he states thatmuch of what we understand as part of theConstitution does not appear in so manywords in its text. In fact, he compares it tothe Dark Matter that holds the universe to-gether. So it is my privilege to turn the floorover to Professor Tribe so that he can explainto you exactly what he means by that andhow it relates to the rule of law.

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb UniversityProfessor at Harvard Law School. He has been aFellow of the American Academy since 1980.

It is a privilege and a pleasure to talk withyou about my book and about how some ofits themes relate to the rule of law. A numberof friends have asked me how long I havebeen working on this book. I would love tohave said “Oh, just a few months,” but thetruth is about forty years. In the meantime, I have published a treatise on the AmericanConstitution as well as other books and arti-cles, helped write a number of other consti-tutions, and argued a number of cases, butthis book has been on my mind from thetime I began clerking for Justice Stewart atthe Supreme Court.

Katz v. The United States, the case involvingelectronic eavesdropping on someone in atelephone booth, which was decided in 1967,triggered it all for me. The government’s ar-gument stressed that the telephone boothwas transparent, so anyone could have seenwhat the individual involved was saying.Someone could have read his lips. Since hewasn’t seeking privacy, electronic eavesdrop-

ping on his conversation did not invade any-thing. Moreover, the law had previously es-tablished that, in order to have a search orseizure within the meaning of the text of theFourth Amendment, you must have a physi-cal invasion of a constitutionally protectedplace. In overruling those decisions requir-ing physical invasion, the Court stated thatwhat Mr. Katz was trying to exclude when hewent into that transparent telephone boothwas not the unwanted eye but the uninvitedear and that it was a violation of his justi½-able expectations of privacy that made this a search and seizure.

The problem the Court confronted was howto decide what expectations of privacy arejusti½able. If it is a descriptive rather than anormative matter, you could have the gov-ernment putting up billboards everywheresaying “Big Brother is listening, watch out.”There was only a single line in the opinion–I tried to persuade Justice Stewart and theCourt to expand this discussion–that hintedthat you don’t ½nd these justi½able expecta-tions of privacy in the Fourth Amendmentbut rather in something that surrounds it,indeed in the First Amendment. The Courtsaid that in a society that has come to relyon the ubiquitous role of electronic commu-nications, through the telephone in this case,freedom of expression would be undulyshrunk if people knew that Big Brothermight overhear anything they said on thetelephone. That is what made the expecta-tion of privacy in this case justi½able. So itwas a matter of connecting the dots betweenthe Fourth Amendment and its protectionof people, places, effects, and houses, andthe First Amendment and its protection offreedom of expression.

I hadn’t really generalized that into a method–I was only 25 at the time. I have been work-ing on it for a while since, but what I havecome to think is that much of what is in theConstitution can be best understood onlyby connecting the dots between provisionslike the First Amendment and the FourthAmendment, looking at the lines betweenthem, connecting those lines, in turn, withthe provisions protecting liberty generally,forming the resulting triangle, and lookingat the geometric structure of the Constitu-tion. I call that the Geometric Method ofConstitutional Construction.

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A society that respects therule of law is one in whichopen and transparent lawsare applied impartially andequally to everyone.


There is also something that I have come tocall the Geological Method. That is, if youask why the Fourth Amendment protectsjusti½able expectations of privacy in someplaces more than others, for example in ahome, you are inevitably drawn to concludethat it is because the Constitution presup-poses an important value in the autonomyof what goes on within the home–of course,not absolutely. One could beat someone upinside the home and thereby trigger a power-ful public interest, but unless there is somespecial sanctity to the substance of whatpeople do consensually in private withintheir homes, it makes relatively little senseto have the procedural protections of theFourth Amendment. One digs beneath thetextual protection of persons and homesagainst unreasonable search and seizure bywhat I have come to call the geological meth-od that looks at the underlying presupposi-tions and foundations of what is in the writ-ten rule of law.

Now, the choice between, on the one hand,the geometric method, the geologic method,and several others that I describe in the bookand, on the other hand, a more constrainedlinguistic approach in which one looks atthe plain meaning of the rules in black andwhite as written in the Constitution is notleft entirely to the imagination because partof the text is a provision telling us that thetext is not all there is. The Ninth Amend-ment says that the enumeration of certainrights in the Constitution shall not be con-strued to exclude the existence of otherrights reserved to the people. Here is an im-portant reminder that what you see on theface of the written document is by no meansall there is. It is a way of saying there is morehere than meets the eye. Even if that languagewere not there, I argue that any ½nite docu-ment purporting in a purposive way to charta course for a nation through imposing cer-tain rules and constraints and constitutingcertain institutions is inherently incomplete.I draw an analogy to Gödel’s Incomplete-ness Theorem in the ½eld of mathematicalphilosophy, in which–to reduce an incredi-bly brilliant and complicated issue to some-thing very straightforward and simple–itturns out that any axiomatic system that isrich enough to include even the elementaryoperations of arithmetic must include truetheorems that are not provable by the meth-

ods of the system. In other words, the systemcannot fully describe all that is true withinit, and I think no ½nite document can fullydescribe within its terms everything thatone would need to know about its meaning.

There are at least two sets of constitutionalprinciples that in this sense are necessarilyinvisible. First there are what I would callmeta-principles: principles about how toread the rest of the document. The NinthAmendment is the primary example in theConstitution itself. It says that the enumera-tion of certain rights shall not be construedin a certain way; it is a direction to you, asthe reader, whether you happen to be a judgelike Judge Wood or Judge Easterbrook, or ascholar like Geoffrey Stone or me, or an or-dinary citizen, a member of Congress, or amember of the executive branch. Anyonewho has taken an oath to uphold the Consti-tution is instructed about how to read it,and my ½rst claim is that no set of instruc-tions about how to read a document can becomplete because if the Ninth Amendmentsays a certain thing, you might then ask,“Well, how are we to read that?” JudgeRobert Bork, when he was nominated tothe Supreme Court, didn’t do himself muchgood with the Senate when he said, “Well,the Ninth Amendment is a mere ink blot. Ican’t read it. It’s too indeterminate. It gives

me too much discretion,” to which the re-sponse of the Senate Judiciary Committeewas, “It’s not up to you to erase from theConstitution something that you think isdif½cult to understand.” It may sound laugh-able but the judge was brilliant and had apoint. In some ways it was unfortunate thathis views were caricatured, but I do thinkthat he missed the point that everything inthe Constitution, however hard to read, hasto be taken seriously, even if it tells you thatthere is stuff out there in the Dark Matterthat is not speci½ed in the language of thedocument.

In addition to meta-principles, there areparticular principles that most of us take tobe constitutionally fundamental, such asthe principle of one person, one vote. Theycertainly cannot be derived in any meaning-ful way from the language; rather, they im-plement underlying values of participatorydemocracy that the Constitution, as a whole,is thought to contain. The Equal ProtectionClause, for example, is a rather unlikelyhome for the one person, one vote principle,especially when you apply it to the House ofRepresentatives of the United States, wherethe principle of equi-populous districts cer-tainly cannot be derived from the FourteenthAmendment’s equal protection clause sinceit applies only to the states, not to the fed-eral government. Nor can it plausibly be de-rived from the Due Process Clause of theFifth Amendment. Justice Hugo Black inWesberry v. Sanders purported to derive itfrom the language essentially stating “theCongress shall represent the people.” Onthat basis, you might say that there is a tex-tual basis for the principle of one person,one vote, but you would be fooling yourself.There is nothing in that language, or plausi-bly inferable from it, that leads you to therule of one person, one vote. The rule is le-gitimate solely because it is plausibly con-tained in the invisible Constitution.

Take another example: the Anti-Comman-deering Principle that prevents Congress–even if it is acting within its substantive au-thority, for example, to regulate commerceamong the states–from using that power tocompel states to exercise their sovereign au-thority to pass or to enforce certain laws, asin the Brady Gun Control Law, which com-pelled local law enforcement of½cers to do

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Much of what is in the Con-stitution can be best under-stood only by connecting thedots between provisions likethe First Amendment andthe Fourth Amendment,looking at the lines betweenthem, connecting those lines,in turn, with the provisionsprotecting liberty generally,forming the resulting triangle,and looking at the geometricstructure of the Constitution.


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background checks for the federal govern-ment when people wanted to purchase guns.When the Supreme Court in a ½ve-four de-cision said that this action violated the Anti-Commandeering Principle, it was quite can-did about the fact that it couldn’t locate thatprinciple in the text. Rather, it was, as theCourt put it, implicit in the tacit postulatesof the Constitution. The liberals on the Court,who dissented from that decision and, infact, accused the majority of making thingsup because there was nothing in the textthat could justify the Anti-CommandeeringPrinciple, were being hypocritical in ad-vancing that accusation because there issimilarly nothing in the text that justi½es

what amounts to an Anti-CommandeeringPrinciple invoked by the liberals in the realmof personal life. The principle that there arelimits on the ability of the government totake hold of your life and determine howyou will lead it, what a woman may do withher body when she’s pregnant, what we willdo in terms of how we raise our children, isnot stated in the Constitution, yet there tendsto be very broad agreement that it is a prin-ciple implicit in our constitutional order.

When the liberals relied on that principle indecisions like Griswold v. Connecticut, involv-ing the right to use birth control, or Roe v.Wade, involving the right of a woman to ter-

minate her pregnancy, the conservatives, noless hypocritically, said, “The Constitutiondoesn’t mention abortion; it doesn’t men-tion birth control.” Of course it doesn’t! Itdoesn’t mention states’ rights, either, or theAnti-Commandeering Principle.

The point of my book is to show that the in-visible Constitution is an equal opportunitymystery. It is not simply something that lib-erals invoke when they want to protect re-productive freedom, or that conservativesinvoke when they want to protect states’rights. It is an intrinsic feature of any consti-tution, and in particular one like ours, and afeature that we should be debating.

What are the fundamental core principleson which we as a nation agree? I think weactually agree that there are limits, not justthose speci½ed in the Constitution, on howfar government can reach into the bedroom,into your personal life, into the body. Thereason a decision like Roe v. Wade is so in-tractably dif½cult and controversial is notthat the underlying right isn’t written down;it is, rather, that the task of deciding howmuch protection to give to the unborn, whenconcern for the survival of the unborn clash-es with the exercise of that underlying right,is fundamentally and profoundly imponder-able. Some people maintain that, becausethe task is so dif½cult, it should not be per-formed by courts; we should have a differ-ent rule in each state; it should be up to thelegislatures. But my book is not about thequestion of when courts should intervene.Even if we took courts out of the businessaltogether, we would have to remember thatthe Constitution speaks not only to the judi-ciary but also to the legislature. If you were a lawmaker asked to pass a law that said“Women cannot drink more than one glassof wine a week when they are pregnant be-cause there is a fetus inside,” you wouldhave to ask yourself, even if you were notacting under the shadow of judicial inter-vention, whether such a law is consistentwith the underlying postulates of our Con-stitution about the limits of government intrusion into personal liberty.

Now, many may object that, in sharp con-trast to the ideals of the rule of law, this pro-cess of inferring structure is far too indeter-minate. Well, it is also the case that the mean-

ing of something like freedom of speech isdesperately indeterminate. That is why theCourt divides ½ve to four in cases like thosestriking down laws punishing so-called “flagdesecration,” to take just one particularlycontroversial illustration. The text, in anyevent, commands the process of inferringsomething beyond the text, and that is mypoint about the Ninth Amendment.

Surely, among the most basic of the postu-lates not written down in the Constitution isour commitment to living under the rule oflaw. You will hear from Judge Easterbrookand perhaps others on the panel about thedif½culties inherent in elaborating that con-cept. As Judge Wood has already pointedout, it usually refers to broadly applicablesystems of predictable rules that are fairlyuniformly applied. That is one idea. Second,there is the idea that the executive branch ofthe government is bound by the rule of law.That is an idea that is not necessarily impliedby the ½rst idea but can be traced largely tothe Magna Carta in 1215. Third, both the ex-ecutive branch and the legislature are boundby a principle of judicial review that was ar-ticulated most powerfully in Marbury v. Madi-son. It is the idea that one needs an indepen-dent judiciary to put teeth in the way therule of law binds the government, althoughthere are disputes about the degree to whichjudicial interpretations should be bindingon the other branches. And the rule of lawgoes beyond these several dimensions.

The Ninth Amendmentsays that the enumerationof certain rights in the Constitution shall not beconstrued to exclude the existence of other rights reserved to the people. Here is an important reminder that what you see on the face of the writ-ten document is by nomeans all there is.

There are particular prin-ciples that most of us take to be constitutionally fund-amental. They certainlycannot be derived in anymeaningful way from thelanguage; rather, they im-plement underlying valuesof participatory democracythat the Constitution, as awhole, is thought to contain.


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I want to close by suggesting a more positivedimension of the rule of law. One of my fa-vorite cartoons from The New Yorker maga-zine shows people who look like they’re pil-grims on what could be the Mayflower. Gaz-ing contemplatively at a distant shore, oneof them says to the other, “Religious freedomis my immediate objective, but my long-termgoal is to go into real estate.” The cartoon-ist’s “original intent” was probably to givea cynical inflection to the American dreamand the Constitution’s project of securingthe blessings of liberty to ourselves and toour posterity. However, the hidden struc-ture of the cartoon’s caption, I think, liesdeeper: it lies in its recognition that nega-tive liberty ultimately requires a positive edi-½ce of law, like the edi½ce of public law thatcreates an institution such as private prop-erty, and ultimately the edi½ce of public lawthat creates the possibility of meaningfulfreedom.

I explored that theme in 1989 with the helpof a very brilliant law student in an article wewrote together called “The Curvature ofConstitutional Space: What Lawyers CanLearn from Modern Physics.” He was prob-ably the most impressive law student I haveever had and certainly the best research as-sistant. You might have heard of him; hisname is Barack Obama. When he takes theoath in January, it will be administered byanother very brilliant former student ofmine, John Roberts. I think the rule of lawwill be a bit safer.

Frank H. Easterbrook

Frank H. Easterbrook is the Chief Judge of theUnited States Court of Appeals for the SeventhCircuit and a Senior Lecturer at the University of Chicago Law School. He has been a Fellow of the American Academy since 1992.

The title of this meeting, “The InvisibleConstitution and the Rule of Law,” startswith the title of Professor Tribe’s new book,1

but the punch is in the “rule of law” portion.The usual meaning of this phrase is decisionby rule announced in advance, and after anopportunity for a hearing on any materialcontested facts.2 How can there be a rule oflaw if the Constitution has many invisibleclauses, discernible only to judges, profes-sors, and other members of the legal elite?Then there is no law knowable in advance.Isn’t it time to acknowledge that the Em-peror has no clothes? The question bringsto mind the doggerel: “Yesterday upon thestair / I met a man who wasn’t there. / Hewasn’t there again today. / Oh how I wishhe’d go away.”3

Despite the strangeness of phrases such as“invisible Constitution” or “unwritten Con-stitution,” I agree with Professor Tribe thatmuch of our Constitution is unwritten. In-deed, much of any writing is unwritten, be-cause no text contains its own dictionary

and other rules for decoding. Anyone wholectures you about the “plain meaning” oftexts, including statutes and constitutions,is playing word games rather than engagingin thoughtful discourse.

It does not take a deep understanding of Wit-tgenstein and other linguistic philosophersto see that meaning lies in how words areheard by an interpretive community; no textis internally complete. For any modern in-terpreter of eighteenth-century texts, theproblem of incompleteness is compoundedby the fact that the interpretive communityin which the words were recorded no longerexists. We don’t think or hear words exactlylike people in an agrarian community of 1787did and thus cannot be con½dent that how

we hear words reflects their actual meaning.Still, we do know that, from the outset ofour nation, the living interpretive commu-nity saw in the Constitution more than itswords. They deduced from the supremacyof the Constitution over statutes that theremust be judicial review (which is to say thata judge won’t take on faith other persons’view that their deeds are valid)–and I add,as does Professor Tribe, that every govern-mental actor must ensure that the Constitu-tion prevails over other competing sourcesof law.4 The original interpretive commu-nity deduced a system of intergovernmentalimmunities–states can’t tax federal enti-ties, nor can the federal government tell thestates how to use their own powers. The en-tire understanding of political sovereigntylies in constitutional structure rather thanin particular clauses.

How can there be a rule oflaw if the Constitution hasmany invisible clauses, dis-cernible only to judges, pro-fessors, and other membersof the legal elite?

1 Laurence H. Tribe, The Invisible Constitution (Ox-ford; New York: Oxford University Press, 2008).

2 See Antonin Scalia, “The Rule of Law as a Lawof Rules,” University of Chicago Law Review 56(1989): 1175.

3 William Hughes Mearns, “Antigonish” (1899).

4 Frank H. Easterbrook, “Presidential Review,”Case Western Reserve Law Review 40 (1989–1990):905.


But what follows from this? Surely not thatif some important matters depend on struc-ture rather than text, then judges today mayimpute new rules to the old text.5 One oughtnot to say “the Constitution contains theword ‘liberty,’ which is vague, so judges cando anything they want in its name.” For thatapproach would negate the main feature ofthe written Constitution: that new problemsare to be resolved through the institutionsof a representative democracy.

The phrase “Rule of Law” often goes withthe phrase “A government of laws and notof men.” It is helpful to remember the ori-gin of that phrase. It comes from Article 30of the Massachusetts Constitution of 1780,which reads: “In the government of thisCommonwealth, the legislative departmentshall never exercise the executive and judi-cial powers, or either of them: The execu-tive shall never exercise the legislative andjudicial powers, or either of them: The judi-cial shall never exercise the legislative andexecutive powers, or either of them: to theend it may be a government of laws and notof men.”

Ask yourself why federal judges have lifetenure. It is not so that they can play the roleof Guardians, a la Plato’s Republic. Plato hateddemocracy; our Constitution embracesdemocracy and holds representatives onshort leashes. Senators, with six-year terms,have the longest; Representatives face thepeople every two years. After all, it was theproblem of non-removable people makingimportant decisions that led to the Revolu-tion of 1776!

Tenure is a curious institution in a democ-racy. The Jacksonians tried to wipe out ten-ure even for the judiciary, and in some statesthey succeeded. Tenure’s justi½cation is toenforce the Rule of Law–to protect peoplefrom the mob and to make political compro-mises more stable.6 Judges with tenure canenforce freedom of speech and the rights ofenemy combatants, even when these are un-

popular with the majority. A judge can trysomeone accused of shooting at the Presi-dent without fear of removal if the judgerules for the defendant–for fear of removalwould make it impossible for the accused tohave a fair trial.

But tenure, like the Force in Star Wars, has adark side–and, as with the Force, the darkside is self-indulgence. Tenure frees a judgefrom today’s passions, the better to enforcethe law–and paradoxically tenure also freesa judge from the law, the better to enforce hisown view of wise policy. Judges sometimes

yield to this temptation. This leads to a be-lief that judges are politicians in robes, whichin turn makes the selection process political,which leads to an increase in the risk thatwe will get politicians in robes, like it or not.

How do we keep tenure for the bene½ts itbrings, yet retain a Rule of Law against thepull of tenure’s Dark Side? Equivalently,how do we ensure the bene½t of tenure forthe application of law to fact, while curtail-ing the tendency of tenure to change themeaning of substantive rules? (The pull ofthe Dark Side is often abetted by the acad-emy and the editorial pages, which extolthe supposed wisdom and dispassion ofjudges–but that is just a plea for Plato’sGuardians rather than an unruly democracy.

And, for what it is worth, I can assure youthat judges have far too many cases to thinkdeeply about any of them.7)

Before addressing the question of how theDark Side of Tenure is best controlled, Iwant to say a few words about whether thishas been a serious problem. The press andthe Senate Judiciary Committee concen-trate on a few social issues, such as abortionand capital punishment, and you read muchabout 5–4 decisions with “liberal” and “con-servative” blocs. Newspapers have taken toidentifying judges by the party that appoint-ed them (“Easterbrook, a Reagan appoint-ee”), just as they identify senators by party(“Durbin, D IL”). Scholarly studies showthat a judge’s imputed ideology matters tohis voting.

Judges, like others, see the world through theperspective of their lives and beliefs, and theyhave what Justice Holmes called their “can’thelps.” They may justly be censured whenthey fail to try to control the effects of theirbeliefs. But it is quite wrong to say that judgesregularly fail in this effort at self-control.

The Supreme Court chooses fewer than 100cases every year from a menu of more than9,000 applications. The cases it hears are themost dif½cult that our legal system has to of-fer. Yet year in and year out it decides about35 percent of them unanimously. That ½gurehas been stable for almost 60 years,8 eventhough the size of the legal system as a wholehas been growing, and the Court correspond-ingly has become more selective. (Sixty yearsago the Court heard roughly 1 in 5 of thosein which the litigants sought review; todayit is 1 in 90.) That the Justices agree unani-mously in a large fraction of the legal sys-tem’s most contentious cases shows that

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5 People usually say that judges recognize “rights,”but every right for A is a limitation on B; it is bet-ter to say “new rules” rather than “new rights.”

6 See William M. Landes and Richard A. Posner,“The Independent Judiciary in an Interest-GroupPerspective,” Journal of Law and Economics 18(1975): 875.

From the outset of our nation, the living interpre-tive community saw in theConstitution more than itswords. They deduced fromthe supremacy of the Con-stitution over statutes thatthere must be judicial reviewand that every governmentalactor must ensure that theConstitution prevails overother competing sources of law.

7 Frank H. Easterbrook, “What’s So SpecialAbout Judges?” University of Colorado Law Review 61(1990): 773.

8 See Frank H. Easterbrook, “Agreement Amongthe Justices: An Empirical Note,” Supreme CourtReview 389 (1984); William M. Landes and RichardA. Posner, “Rational Judicial Behavior: A Statisti-cal Study,” University of Chicago Working Paper,April 2008. (Landes and Posner give a ½gure of 30percent by de½ning a decision as unanimous onlyif there is a single opinion joined by all Justices.The percentage rises if we count as unanimous de-cisions in which there are no dissenting votes, andany Justices who write separately accept the samegeneral rationale as the principal opinion.)


they do very well indeed at elevating law overpolitics.9

Take this from another perspective. Ask, foreach possible pair of Justices, how often theyagree and how often they disagree. Mostpairs agree about 75–80 percent of the time;Justices who the press depicts as identical(Scalia/Thomas, Ginsburg/Breyer) disagreein about 20 percent of cases.10 That must bedriven by law, not ideology. And the highestrate of disagreement is only 41 percent (that’show often Justices Thomas and Ginsburgdisagree). Because about half of all disagree-ment is law-driven, the portion attributableto different views of the world must be nomore than half. Since we are looking at soci-ety’s most contentious issues, that’s prettylow. Judges do well at enforcing law ratherthan ideology, even when the temptation isgreatest.

You read from the newspapers about 5–4splits, which are roughly 20 percent of thedocket, as if the very fact of division showsthat politics must be at work. Not at all. Sup-pose Justice Scalia were cloned and the Courtpopulated only with those clones. (If thatmakes you uncomfortable, mentally cloneJustice Ginsburg instead.) You might thinkthat this court would decide all cases 9–0,but you would be wrong. The fact that theJustices were very similar would change howcourts of appeals rule, and which disputeswould be worth taking. When selecting 1 of90 cases for decision, an all-Scalia or all-Gins-burg court would ½nd many issues that arehard for Scalia or for Ginsburg; and when rul-ing, this all-Scalia court would issue a lot of5–4 decisions, with some 7–2 but still many9–0. But the existence of 5–4 decisionswould not show that ideology controls; itwould show only that for any interpretivetheory it is possible to ½nd hard cases.

Now let’s look beyond the Supreme Court.A careful study of all decisions by the U.S.Courts of Appeals, over many years, con-cludes that the political party of the Presi-dent who appointed a judge (as a proxy forideology) explains about 6 percent of all ob-served disagreement–and that there is rare-ly any disagreement to observe.11 The other94 percent of disagreement comes from am-biguity (in statutes and other sources of law),plus doubt about which side’s version ofevents best approximates the truth. Mysense of matters, after 24 years of judicial

service, is in accord: Genuinely ideologicaldisagreement among judges is rare. The Ruleof Law is by far the most powerful factor injudicial decisions.

What do we make of the disagreement thatremains? Some is irreducible; some can becurtailed by reminding judges that the priceof tenure is tight control on the discretionthat the actor possesses. If you can’t ½re thereferee in a football game, you make abso-lutely sure that the rules are clear and con-trolled by someone other than the referee.The less a person is subject to control by thethreat of removal, the more important it isto insist that the person use speci½c ratherthan general rules–for the more general arule or standard, the greater the role that theDark Side of Tenure can play.

One consequence is that judges must be verysuspicious of claims that some rule has lainundiscovered for a long time and is only nowbeing understood. An assertion that thepeople living at the time of a text’s adoptiondid not really understand its meaning, butthat we do, is almost certain to be false. For

as I have stressed, the meaning of a text liesnot in the drafter’s head but in the way a textis understood by an interpretive community.Claims of newly discovered meaning arenecessarily admissions to changed meaning.(This is also why the interpretive approachknown as imaginative reconstruction is un-suited to tenured deciders, even though itmay be ½ne in a classroom. If we don’t knowhow the old interpretive community under-stood the actual text, we assuredly can’tknow what it would have thought about aproblem never put to it.)

Another consequence is that a judge mustinsist on a level of certainty that is adequateto any assertion of power to have the lastword.12 Recall why we have judicial review.It is because the Constitution is law, and su-perior to statutes. When the Constitution isnot law but just an aspiration, when rulesevolve, then judges must honor the Consti-tution’s two means for handling ongoingdisagreements: Political decisions by thenational government, and respect for thefact that each state may choose a differentsolution. Robert Nozick argued in Anarchy,State, and Utopia that the best way to organ-ize society when individual preferences dif-fer is to allow many different solutions, aslong as each solution’s effects are felt onlyby those in the local jurisdiction. Judgesmust be exceptionally wary about enforcingwhat they see as a national consensus; thatcontradicts the federal system that repre-sents the heart of our national organization.

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Genuinely ideological dis-agreement among judges israre. The Rule of Law is byfar the most powerful factorin judicial decisions.

9 There has been much ado in the press about asupposed “pro-business tilt” of the Court in re-cent years. Yet most of these decisions are unani-mous, as are many employment-discriminationcases that go against employers. Most of thesedecisions resolved conflicts among the circuits,yet the Justices agree more among themselvesthan the circuit judges do with each other.

10 These numbers come from tables maintainedby the Supreme Court’s Reporter of Decisions.Essentially identical ½gures can be found in thestatistical section of the Harvard Law Review’s November 2008 issue.

11 Frank L. Cross, Decision Making in the U.S. Courtsof Appeals (Palo Alto, Calif.: Stanford UniversityPress, 2007).

12 See Frank H. Easterbrook, “Abstraction and Authority,” University of Chicago Law Review 59(1992): 349. See also “Textualism and the DeadHand,” George Washington Law Review 66 (1998): 1119.


Geoffrey R. Stone

Geoffrey R. Stone is Edward H. Levi DistinguishedService Professor at the University of Chicago LawSchool. He has been a Fellow of the AmericanAcademy since 1990.

One of the points that Professor Tribemakes in his book is that among the list offundamental principles that are part of theinvisible Constitution–that are not rootedspeci½cally or expressly in the text–is therule of law. As both Judge Wood and Profes-sor Tribe indicated, the precise content ofthe idea of the rule of law is not perfectlywell de½ned, although it calls forth valuessuch as consistency, neutrality, evenhanded-ness, nonpartisanship, following the rules,adhering to general principles, and appeal-ing to those general principles as a source ofreason and guidance. There is a broad con-sensus that those are positive values. Theyare important to our legal system and to ourconstitutional order, and it would be hard toget an argument these days that the rule oflaw is a bad thing.

Now, I want to comment on some of JudgeEasterbrook’s statements about judges, theirbehavior and ideology, and life tenure, interms of the rule of law. I agree with JudgeEasterbrook that, for the most part, judgesfollow the rule of law. They seek to be even-handed, neutral, and nonpartisan. They seekto follow general principles and precedents.As a result, the degree of agreement amongjudges, even judges appointed by presidentsof different political parties, is pretty high.On the other hand, it is also true, as JudgeEasterbrook noted, that there is a meaning-ful correlation between the party of the pres-ident who nominated a particular judge andthe judge’s votes. Judges appointed by Demo-

crats are more likely to disagree with judgesappointed by Republicans than they are withjudges appointed by Democrats. That align-ment is consistently demonstrated. More-over, looking at the entire array of cases un-derstates this effect, because the effect is par-ticularly evident when we examine ideologi-cal cases, especially in areas where control-ling precedents are unclear. In those cases,in such areas as abortion, af½rmative action,and religion, there is a well-documented cor-relation between judicial behavior and po-litical af½liation.

But I do not ½nd this troubling. The processof judging necessarily involves judgment,and when the precedents are unclear andthere is no unambiguous statute to dictatethe outcome, judges will bring to bear theirown understandings of the proper role ofcourts and judges, the proper relationship

among government institutions, and theproper way in which one goes about inter-preting the Constitution. The differencesamong judges on these issues do, in fact, cor-relate with political af½liation in our society,and there is nothing illegitimate or insincereor disingenuous about the fact that thosedisagreements exist. They are an inevitableproduct of the fact that judgment involvessomething more than simply asking a com-puter a question. So, for the most part, I agreewith Judge Easterbrook that this is not a se-rious problem in our judiciary, although ithas been the subject of a great deal of schol-arly inquiry in recent years.

I do disagree with Judge Easterbrook, how-ever, on the question of life tenure. Certain-ly, he is right to note that there are dangersin the arrogance that can come with lifetenure and in the notion that one is not ac-countable to anyone else for a decision. Thetemptation to act lawlessly if one is unac-

countable must be taken quite seriously. Onthe other hand, judges have life tenure for areason, and it is a reason rooted deeply inthe fundamental philosophy of the Americanconstitutional order. Although our system isbased in large part on the idea of democracyand “majoritarianism,” it is also based on therecognition that majorities are not alwayswise or tolerant or respectful of differenceor calm or level-headed. There are circum-stances in which majorities predictably dobad things–things that are, in fact, incom-patible with the larger values and aspirationsof our society.

One of the truly magisterial achievementsof the American Constitution, particularlyas it has evolved over time, is the recognitionthat judges with life tenure are suf½cientlyunaccountable to prevailing majorities, and(hopefully) suf½ciently dedicated to the ruleof law, that they can provide an invaluablecheck on majoritarian abuse. In my view,then, judicial abuse of life tenure isn’t a pri-mary concern. The greater danger would bethe absence of judicial review. In my view,without judicial review–and life tenure–judges would not have played the criticalrole they have played in helping to maintainan essential balance in our constitutionalsystem.

I want to give a couple of illustrations of therule of law, some positive, some negative,particularly in the judicial process, but alsoin the executive process. First, there is theNixon tapes case, which arose out of theWatergate controversy. In that case, theSupreme Court held that the President wasnot above the law and that he thereforecould be compelled to turn over tape record-ings of his conversations, despite the claimof presidential immunity. What is strikingabout that decision is that it was endorsedby justices from both political parties, look-ing to principles of the rule of law, consis-tency, neutrality, and accountability thatwent beyond any partisan political interests.Even more impressive, though, was Presi-dent Nixon’s compliance with the Court’sruling. Despite the consequences to himand to his presidency, he acted in accordwith the rule of law. Although he disagreedwith the Supreme Court decision, he under-stood that it was his responsibility underthe Constitution to act in conformity with it.

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Among the list of fundamen-tal principles that are partof the invisible Constitution –that are not rooted speci½-cally or expressly in the text–is the rule of law.


But adherence to the rule of law should notbe taken for granted. For example, afterBrown v. the Board of Education, many South-ern states refused to comply with the rule oflaw, insisting in effect that Brown v. Board ofEducation was itself an abuse of judicial au-thority and a violation of the rule of law, aposition Nixon could easily have taken, butchose not to take.

Another example of judges acting in conform-ity with the rule of law is the Paula Jones case,which involved President Clinton, a case, Ishould say, in which I was one of the lawyerswho represented President Clinton in theSupreme Court. We lost nine to zero. I be-lieve that subsequent events proved that wewere right and that the Supreme Court waswrong, but the important fact is that, despitethe political party of the presidents who ap-pointed those nine justices, they all (erro-neously) thought they understood the re-quirements of the rule of law and reached adecision regardless of their individual polit-ical preferences. Again, that is to the creditof the Court, and a good example of the jus-tices acting in a way that furthered their com-mitment to principle and to the rule of law.

In a less inspiring illustration, involving the2000 presidential election, I think it is fairto say that at every level–from the pollingof½cials who held up ballots to look for hang-ing chads to the Florida Supreme Court, fromthe Florida legislature to the Supreme Courtof the United States–there was very littlecon½dence on the part of the American peo-ple that anyone involved in that dispute act-ed in accord with the rule of law. In the caseof Bush v. Gore, the justices voted in a waythat concurred perfectly with what mostpeople understood to be their personal po-litical preferences. There is good reason tobelieve that the rule of law was not, in fact,followed. But in defense of the Court, I wantto say that at the time that decision was pend-ing, among all of my legal colleagues, every-one I knew believed that the right decisionin Bush v. Gore was the result that correlatedwith the election of his or her preferred can-didate for president. This was really inter-esting, because it showed the power of dis-tortion and bias when the law is ambiguous,when there is no controlling precedent, and,more importantly, when there is no oppor-tunity for real reflection, which I think is es-sential to the rule of law.

Part of what made Bush v. Gore such a peri-lous case for the Court was that there waslittle time for the justices to deliberate. Or-dinarily, judges don’t have to decide casesinstantly. They have time to think, to argue,to reason, and eventually, in their own goodtime, to reach a decision. Bush v. Gore wasunusual in part because the time frame wasdictated not by the Court, but by the consti-tutional demands of the election process.The justices had to decide the case extreme-ly quickly, and they were therefore unable toovercome their biases. This is a good exam-ple of a case where I think the rule of law did

not work. That is not to suggest, by the way,that I think there was a necessarily right orwrong answer in Bush v. Gore; it is, rather,that I think the ideological dispositions ofthe justices determined their votes.

The ½nal examples I want to give relate tosome of the actions of the Bush administra-tion over the past eight years. The rule oflaw involves not just courts; it also involvesexecutive branch of½cials, as illustrated byNixon’s compliance in the tapes case. In myview, the Bush administration was repeat-edly guilty of arrogance and de½ance of therule of law in ways that are deeply troubling.This is true not only in the sense that theBush administration adopted unlawful poli-cies–although there are, in my view, clearexamples of that–but also in the sense that

it often propagated and attempted to imple-ment those policies in secret– where secrecywas not dictated by the circumstances, wasnot consistent with the rule of law, and wasintended to circumvent the rule of law andto avoid democratic accountability. The se-crecy invoked by the Bush administration inits promulgation of the nsa electronic sur-veillance program, its use of secret prisons,and its approval of torture was not designedto protect national security. Rather, the in-tention was to insulate the executive branchfrom public scrutiny and to shield it fromthe checks and balances that the Constitu-tion assigns to Congress and the SupremeCourt in enforcing the rule of law. Indeed,when the Supreme Court ½nally had the op-portunity to evaluate the constitutionalityof many of these policies, in cases like Hamdi,Rasul, and Hamdan, its basic position in hold-ing the actions of the Bush administrationunconstitutional was not so much that thepolicies themselves were unconstitutional,but that they had been promulgated and im-plemented without regard for the rule oflaw. They were judgments where Congressshould have played a role, and where theCourt should have had an opportunity open-ly to evaluate the constitutionality of thegovernment’s programs.

Finally, I agree with Judge Easterbrook thatthe idea of the rule of law is vague, open-end-ed, lacks clear meaning in speci½c circum-stances–and that this is not a problem. OurConstitution is about debate, deliberation,judgment, discourse, argument, and reason.These processes are fundamental to theAmerican constitutional system, and theymake us who we are.

Discussion

Laurence H. Tribe:

With respect to these nine to nothing deci-sions such as the one Professor Stone men-tioned in which he believes the Court wasunanimous but wrong, I can unfortunatelythink of a couple of decisions that I have wonnine to nothing in which I have come tothink the Court might well have been wrong.As Chief Judge Easterbrook pointed out, onecan infer very little from either close divisionor unanimity; even a court of clones wouldoften ½nd something about which to dis-

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The precise content of theidea of the rule of law is not perfectly well de½ned,although it calls forth valuessuch as consistency, neutral-ity, evenhandedness, non-partisanship, following therules, adhering to generalprinciples, and appealing tothose general principles as a source of reason and guidance.


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agree. I want to make a comment about someof the things that Chief Judge Easterbrookmentioned about these “invisible clauses inthe Constitution” supposedly discernablesolely to the legal elite–that is clearly notwhat I had in mind, not the obscure, invisi-ble clauses, but rather the dramatic ones.

Why do we agree upon principles that youneed not be a member of any elite to recog-nize? Take the principle that the states maynot secede from the Union; we do not needto read Wittgenstein for that! You won’t ½ndit written in ink in the parchment of the Con-stitution; you’ll ½nd it written in blood in alot of places like the Gettysburg battle½eld.The fact that many of these principles arenot written down is simply the beginningof the end of wisdom.

I think any assertion that the interpretivecommunity in 1789 or in 1868 (to take therati½cation dates of most of the Constitu-tion and of the Civil War amendments) didnot understand the meaning of something–but that we do–is almost certainly false.The view of most people who believe inwhat they call the “living Constitution” israther that the meaning was elastic. For ex-ample, the authors of the Fourteenth Amend-ment, though they did not expect that itwould be used to strike down racial segrega-tion, meant that the subordination of onegroup by another through the legal systemwas wrong. They left open the question ofwhat would constitute such subordination.In 1954, the Court said, “We understand thatthe social meaning of segregating people bylaw is the subordination of one race to an-other.” By that they were not saying, “Weknow what was meant by Plessy v. Ferguson

better than the folks back then did;” rather,they’re saying that the principle that waspropagated is a principle which, by the verygenerality of the terms in which it was cast,was meant to have an evolving meaning.Neither the invisible Constitution nor theidea of an evolving Constitution rests on thenotion that some special elite privileged tobe alive today understands what was meantbetter than those at the time did.

Frank H. Easterbrook:

I always worry when Professor Tribe or otherof my friends talk about the living Constitu-tion or the evolving Constitution. If you arenot evolving, you are no longer ½t for duty. Ithink it is not only important to understandthat legal principles continue to evolve–thatis what democracy is for–but that it is alsoimportant not to overstate the role of courtsin bringing about the security of people’s“life, liberty, and property,” as the FifthAmendment has it. If you look around theworld, what is really important is the rule oflaw principle–the idea that the governmentis conducted in a regular way, that it engagesin hearings before putting you in prison, thatthere is an availability of review by someonewith tenure to test the application of the lawto you, but not necessarily the availability ofa hearing to test the validity of the law. If youlook at the legal systems of the United States,Canada, and France, the United States has asystem of judicial review with which you arefamiliar. In Canada, there is a Supreme Courtthat will make constitutional decisions, butit can be overridden by Parliament; this isthe Notwithstanding Clause of the CanadianConstitution. In France, the legal system can-not make constitutional decisions on anylaw once it had been adopted. And yet, ifyou go to Canada or France, you will ½ndthat they have fundamentally the same lib-erties as we do, not because of the details ofconstitutional structure but because theseare all democratic countries and they all ad-here to what I have de½ned as the basic fea-tures of the rule of law, including review ofapplication by a tenured judiciary. Althoughthere are particular features to America’sstructured judicial review, when we look tothe Western democracies I mentioned, wesee a convergence of rights among them,even though the systems are fundamentallydifferent.

Question

Do you agree with the premise that the mostimportant or one of the most importanttasks of a President is the appointment ofSupreme Court justices?

Frank Easterbrook:

It seems like it would be one of the impor-tant things that a President does, and thereis no question that if you imagine a SupremeCourt consisting of nine Anthony Scaliasversus nine William Brennans, Americanlaw and American society would look verydifferent over an extended period. But I thinkit is actually one of the least important thingsa President does, for the reasons that shouldbe evident from my comment. When you get

a broad convergence in personal rights andliberties across countries with very differentjudicial structures, very different means ofappointing justices, it is hard to locate thatconvergence in the identities of particularpeople on the Court. What is important isthat anybody appointed to the Court be anadherent of the rule of law in the sense ofprocedural regularity, publicly announcedrules, and accurate application of rules tothe facts of a particular case. These are whatthe Western democracies have in common;it is not the details of who is on the SupremeCourt.

Geoffrey R. Stone:

Let me dissent just a bit from that proposi-tion. Take the recent decision by the Courtin the case of Boumediene et al. v. Bush concern-ing the rights of Guantanamo Bay prisoners.The Court held that the writ of habeas cor-

Neither the invisible Constitution nor the idea of an evolving Constitutionrests on the notion that somespecial elite privileged to bealive today understands whatwas meant better than thoseat the time did.

If you look around theworld, what is really impor-tant is the rule of law prin-ciple–the idea that the gov-ernment is conducted in aregular way, that it engagesin hearings before puttingyou in prison.


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pus cannot be suspended by Congress with-out some adequate substitute, in the absenceof the very special conditions mentioned inthe Constitution. A majority opinion au-thored by Justice Anthony Kennedy statedthat it is impermissible to create a legal blackhole within which no law applies, in whichthe rule of law cannot be enforced by habeascorpus. It was a ½ve-four decision and the

dissents were vigorous. The one by JusticeAnthony Scalia said that the majority in thisdecision is guilty of murder because a num-ber of terrorists are going to go out and killpeople as a result of this decision. Chief Jus-tice Roberts wrote a more moderate opinionbut joined the Scalia thinking. If Justice Ste-vens or any of the other justices in the ma-jority were to leave, I submit it would makea very great difference whether the Presidentwas John McCain who said during the cam-paign that Boumediene was one of the worstdecisions in the history of the Court, orBarack Obama who said it was one of thebest decisions in the Court’s history. Whetherover the entire arc of history we would beworse off if we didn’t have a system of strongjudicial review is too large a question for anyof us to answer. The path of a nation that re-lies heavily on judicial review to protect cer-tain basic freedoms is very different fromthe path that would be followed in anothersociety. To say that France and Canada man-age with very different systems isn’t to saythat if you ripped judicial review out of oursystem, we would be just ½ne; it is to say thatif you redid our history entirely, made usmore French or more Canadian in manyother respects, then maybe we wouldn’t beworse off, but you have to be much more ofa psychic and a historian than I am to evalu-ate the plausibility of that proposition. I thinkthe burden lies on Chief Judge Easterbrookto defend it, if that is genuinely his view.


I think Boumediene is one of the least relevantdecisions in the history of the SupremeCourt. I don’t think anybody dies because ofBoumediene, nor was the dispute in that casebetween the rule of law and a black hole. Theactual dispute in that case was whether theDetainee Treatment Act of 2006 providedprocedures that were adequate substitutesfor the Great Writ. The Detainee TreatmentAct provides for a plethora of hearings, fol-lowed eventually by review in the D.C. Circuit.

Question

I wonder if it isn’t a little misleading to dis-cuss this question of the rule of law alongthe statistical lines that Judge Easterbrooklaid out in his discussion of how many timesjustices on the Supreme Court and judges onthe appellate courts disagree. That perspec-tive assumes that Democratic Presidents willalways appoint similar-viewed justices andso will Republicans. It leaves out all the nu-ances of the political forces of the time thatmay lead to centrist or less centrist judges.In terms of Courts of Appeals statistics, itseems to me that most of our appeals judgesdo a very good job of following the directionsof the Supreme Court, so when the Courttakes a conservative turn, for example, Courtsof Appeals across the country have taken aconservative turn, regardless of the particu-lar backgrounds of their judges on those ap-peals. I wonder if you can comment onwhether that is a correct observation.

Laurence H. Tribe:

I can comment briefly on the latter point be-cause a professor who used to be at the Uni-versity of Chicago Law School and is nowhappily a colleague of mine, Cass Sunstein,has done a comprehensive study of all Courtof Appeals decisions since 2000 and reachedthe conclusion–rather distressing to him,to me, and to many others–that there is anenormous correlation between how judgeson those courts vote and which politicalparty they belong to in areas where the Su-preme Court has left substantial room fordisagreement. I certainly agree that thereare nuances; it’s not all captured by whichparty’s members are nominated: JusticeStevens is the most liberal member of the

current Court and yet was appointed by aRepublican, and there are big differencesbetween Justices Scalia and Thomas, eventhough they both purportedly follow asomewhat similar methodology and wereboth appointed by Republican presidents.


The political party of the appointing Presi-dent is historically a very rough proxy forwhat a justice will do on the Court. Approxi-mately 20 percent of the voting on the Courtcan be chalked up in one way or another tosomething that probably aligns with whatmany people call ideological. That is a sig-ni½cant percentage given the fact that theseare all very dif½cult cases, but it is not sur-prising and not particularly regrettable. Theidea that Courts of Appeals would construestatutes in generally liberal or conservativeways when the Supreme Court is generallyliberal or conservative suggests that they arenot following the rule of law, because therewere many statutes that were enacted fromliberal times. Title VII of the Civil RightsAct of 1964 is a genuinely liberal statute, butif the Court goes conservative it doesn’tmean one should turn around and trim backon Title VII. That’s not honest interpreta-tion. The idea that a Court of Appeals shouldfollow the trends of the Supreme Court ratherthan make their best estimate, on a particu-lar statute, is, I think, not compatible withthe rule of law.

Question

In light of the rule of law, can you explainthe signi½cance of the unitary executive pe-riod of constitutional justi½cation and alsothe signi½cance of signing statements?

Laurence H. Tribe:

In terms of signing statements, it’s good forthe President to give a signal to the country;it advances transparency for the Presidentto say “I’m signing this, and it’s ambiguous,and here’s what I think it means,” or “I’msigning it because on the whole it doesn’tmerit veto but I can think of three or fourapplications in which it would be unconsti-tutional.” I would rather be warned aboutthat in advance than to be confronted later,so the suggestion that signing statements

The path of a nation thatrelies heavily on judicial re-view to protect certain basicfreedoms is very differentfrom the path that would befollowed in another society.


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are evil and Congress should be able to getrid of them is fallacious. That’s why BarackObama declined to promise never to usesigning statements when John McCain said“I’ll never use a signing statement.” The un-derlying idea that the President cannot beinterfered with by Congress and, in fact, thatthe President is necessarily immune fromlegislative restriction when it comes to exe-cuting the law is itself a novel and problem-atic theory that has never gained general ac-ceptance. Among its implications, if prop-erly understood, is that John McCain wasactually right when he said he could ½re thehead of the sec, because the statute purport-ing to give independence to the head of thesec is unconstitutional under the “unitaryexecutive” theory. The reason is that thestatute prevents the flow of power directlyto the one President we have; the whole al-phabet soup of independent agencies is a vi-olation of the unitary executive theory.


I agree completely with Professor Tribe aboutsigning statements. Those people who object-ed to President Bush’s signing statementsobjected to the substance of what he was as-serting, not the fact that he was telling peo-ple what he believed. With respect to theunitary executive, it seems very importantto distinguish claims made by some who usethe phrase to assert that the President isabove statutes. The Constitution does saythat the President shall faithfully executethe law of the land. Some people who usethe term “unitary executive” are referring toArticle 2 of the Constitution: the Presidentis the top of the organization, and you can’tinsulate him from the people lower down inthat organization. Senator McCain could½re the head of the sec not for any consti-tutional reason but because that’s what thestatute says. The statute says that any Presi-dent can designate a new chairman of thesec.

Geoffrey R. Stone:

One of the ambiguities in the controversyover signing statements is whether the pur-pose is merely to inform the public and theCongress that this is what the Presidentthinks the law is, or whether it is an asser-tion of authority by the President to rewritethe intended and understood meaning of the

law and suggest that it now means somethingvery different from what Congress intended.Did the President faithfully execute the lawhe signed into existence or bastardize itsmeaning at the same time he signed it? Andthen there’s the question of whether a Presi-dent who signs a statement binds his suc-cessor. The answer to that is clearly no, butit was part of the controversy.

Question

I would like to follow up on Professor Stone’sreference to instances where an administra-tion may have circumvented the rule of law.I know that Cass Sunstein has made certainstatements about not criminalizing the pub-lic service, but I would like to get the panel’sviews on whether or not it would be impor-tant to prosecute instances of circumvent-ing the rule of law by this administration inthe new administration.

Geoffrey R. Stone:

My own view is that public of½cials shouldbe held accountable for acting in conform-ity with the law, and if they, in fact, violatethe law then there is reason to hold them ac-countable, either through impeachment orthrough criminal prosecution or otherwise.On the other hand, it is important to recog-nize that public of½cials are often acting inareas where there is a great deal of ambigu-ity about what the law requires, and, as amatter of general policy, we don’t want tomake public of½cials so intimidated aboutthe consequences of their actions, particu-larly given the fact that a subsequent admin-istration might accuse them of violating thelaw merely because they disagree with theirpolicy. Although it is appropriate to holdpublic of½cials accountable, that authorityshould be exercised with a great deal of at-tention to the need to prevent public of½cialsfrom becoming too wary about enforcingtheir responsibilities while they have power.


I agree completely with Professor Stone. Ican’t discuss current circumstances but I cangive you a brief story. It was discovered thatthe Postal Service was opening mail that wasbeing sent to the Soviet Union and readingthe contents. It had been directed to do so

by President Eisenhower at the time of theU-2 controversy and had continued on auto-pilot until 1975. Statutes had been passedboth before Eisenhower’s directive and laterthat made this, let’s just say, problematic.The question for Attorney General Levi waswhether to ask a grand jury to indict thepeople who were carrying out programs established by the President of the UnitedStates and assured by the Justice Depart-ment to be valid. It was a subject of agoniz-ing debate for Levi, for his staff, for manymembers of the Justice Department. Therewas a widespread belief that the legal opin-ions validating this program were unreason-able but that it would be unjust to put thesepeople in jail. Levi thought that no prosecu-tion should be brought, but he chose to con-sult with Judge Grif½n Bell, who PresidentCarter designated as his incoming AttorneyGeneral. Bell agreed with Levi, and the Jus-tice Department issued a public report stat-ing its view on why the practice was illegal,why it couldn’t continue, and why any fu-ture repetition of it would be criminally pro-secuted. It seems to me that the Levi waswise in that respect, as in many others.

© 2009 by Diane P. Wood, Laurence H.Tribe, Frank H. Easterbrook, and GeoffreyR. Stone, respectively


We are in a time of great change in thenuclear world, a period termed by some as anuclear renaissance. The Nuclear RegulatoryCommission has received applications for26 new nuclear power plants, and more ap-plications are expected. The reactors maynot all be built, but the applications showthe high degree of interest in new construc-tion in the United States. There are also ex-tensive construction programs either under-way or planned in China, Japan, Korea, Rus-sia, the United Kingdom, and elsewhere.But really the most interesting dimension ofthe renaissance is the large number of coun-tries that do not currently have a nuclearpower plant and have expressed an interestin building one. Senator Sam Nunn and Iwere in Vienna about 10 days ago at a meet-ing in which the Director General of the In-ternational Atomic Energy Agency (iaea)mentioned that 50 countries that do not now

Academy Meetings

The Nuclear Future Richard A. Meserve, Robert Rosner, Scott D. Sagan, and Steven E. Miller

This panel discussion was presented at the 1929th Stated Meeting, held at Harvard University on October 12, 2008.At this meeting, Richard Lester, Professorof Nuclear Science and Engineering atmit, also spoke. His remarks will appearin a forthcoming publication.

Cooling Towers. Photograph © W. Cody/Corbis

Richard A. Meserve

Richard A. Meserve is President of the CarnegieInstitution for Science and former Chairman ofthe U.S. Nuclear Regulatory Commission. He hasbeen a Fellow of the American Academy of Artsand Sciences since 1994 and serves as a memberof the Academy’s Council and Trust. He is a mem-ber of the Executive Committee of the Academy’sGlobal Nuclear Future Initiative.

have a nuclear power plant have come to theiaea to explore the possibility of construct-ing a plant. He assessed that 12 of those coun-tries are very serious about proceeding. Theinterested countries include the United ArabEmirates, which is clearly going to go for-ward; Thailand; Vietnam; the Philippines;Nigeria; Poland; Belarus; and many others.

In one sense, this is a great opportunity. Weneed to ½nd carbon-free sources of energyin order to respond to the grave challenge ofclimate change. Nuclear power now provides16 percent of the world’s electricity, and itwould be a wonderful thing, from the per-spective of climate change, if we were ableto develop nuclear energy further. But thatis not to deny that there are other challengesthat must be confronted–among them, theneed to build and operate these nuclear pow-er plants safely. Countries with experience


with nuclear power have learned that it isnecessary to have a whole infrastructure inorder to achieve safe operations–an infra-structure that includes an educational sys-tem, technical capabilities, a competent andindependent regulator, licensees who are fo-cused on safety, and so forth. Some of thecountries considering nuclear technologydo not have such an infrastructure.

There is a waste challenge that must also beconfronted. Spent fuel needs to be handledin an appropriate way so as to protect cur-rent and future generations from the long-lived radionuclides that are created by reac-tor operations. Adequate security must beachieved as well. More reactors in moreplaces mean more target sets for terrorists.

Another consideration, and an importantone, is the impact of nuclear developmenton proliferation. In this context, reactorsthemselves are not the problem. The prob-lem is that, as more countries need nuclearfuel, there will be an inevitable demand forenrichment services. This means that thetechnology for enrichment could becomemore widespread. The same technologyused to produce low-enriched fuel for nu-clear reactors can be used to produce highlyenriched uranium, a weapons-usable mate-rial. There also is the possibility that someof these countries may proceed with repro-cessing–raising the possibility, if they usetoday’s reprocessing technology, that theywill produce separated streams of plutoni-um. Plutonium, of course, is also a weapons-usable material.

So we have a cluster of proliferation-relatedissues that must be confronted in a changednuclear world. We have to approach theseissues in the context of a frayed internation-al nonproliferation regime. The North Ko-reans have already produced separated plu-tonium and it is proving very dif½cult tobring them back into the nonproliferation

regime. Iran is proceeding with enrichment,which gives it the technological capabilityto produce highly enriched uranium. And ofcourse, we must view these changes in theoverall context of a complete lack of progressin recent times on disarmament.

We thus are in a world with the possibilityof great bene½t and great importance of nu-clear power because of climate change, butgreat challenges as well. We face the prospect,if we don’t handle this well, of a world inwhich more countries have nuclear weap-ons– not a desirable state of affairs for any-one.

This is the context in which the Academyhas launched its Global Nuclear Future Ini-tiative, which has the basic purpose of ex-ploring how to get the bene½ts of nuclearpower while diminishing, to the extent pos-sible, the corresponding risks. Approachingthis problem appropriately necessarily in-volves people concerned about proliferationissues from the academic world and fromthe national laboratories. But to deal effec-tively with the problems, we need to bringin a much wider group of participants: thelicensees and vendors of reactors; regula-tors; and, most importantly, people fromthe countries seeking to build nuclear powerplants. It is important to have a discussionwith the people we seek to influence at a veryearly stage. The Academy has the uniquecapability to convene people across a broadspectrum of disciplines and from all overthe world, to get all of the stakeholders toapproach these problems together, and totry to ½nd a path to a safer world. Our panelthis morning will set the backdrop for thisnew Initiative.

Robert Rosner

Robert Rosner is President of UChicago Argonne,llc; Director of Argonne National Laboratory;and William E. Wrather Distinguished ServiceProfessor at the University of Chicago. He hasbeen a Fellow of the American Academy of Artsand Sciences since 2001. He is a member of theExecutive Committee of the Academy’s GlobalNuclear Future Initiative.

It is clear that nuclear energy is getting asecond wind on a worldwide basis, albeitthe notion of a nuclear renaissance, at leastas applied to the United States, remains farfrom realization. I think it is also fair to ob-serve that the United States is playing an in-creasingly limited role as new countries areturning to nuclear energy for the ½rst time.Now the obvious question: why is this so?

The international situation does vary fromcountry to country, and it is a combinationof four main drivers: 1) increasing energyand water demands, driven in large part byincreased expectations for living standardsin the developing world; 2) economics, orinsurance against future price exposuredriven by strained energy supply, fossil fuelprice fluctuations in deregulated markets,and, of course, the cost impacts of climateconsiderations; 3) security of the energysupply; and 4) global climate change andworrying about how to increase carbon-free

We need to ½nd carbon-freesources of energy in order to respond to the grave chal-lenge of climate change.

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The notion of a nuclear ren-aissance, at least as appliedto the United States, remainsfar from realization.


base power. The terms of the discussion ona possible nuclear renaissance here in theUnited States are really very different fromwhat they are abroad, so that is somethingthat we are going to have to keep in mind.For example, it is certainly true that withinthe United States the issue of climate andglobal climate change is a main driver forrethinking the nuclear future, but that isnot necessarily the case abroad.

What are the obstacles retarding growth?There is the issue of ½nancing. The cost ofa new nuclear plant today is a fair fractionof the total market capitalization of thecompanies that are likely to want to buildthem. For a company basically to bet its fu-ture–which is what it really amounts to–on a new nuclear plant is, of course, veryproblematic. There is the issue of humancapital. We need to revive the discipline ofnuclear engineering, both for designing andbuilding new plants and for operating themsafely and ef½ciently. Also related to humancapital are the stringent quality demands forconstruction of new nuclear plants as wellas the supporting infrastructure. This is alesson that areva has been learning in Fin-land, that it is not enough to go in and takean existing construction trades workforce,accustomed to building apartment complex-es or other kinds of power plants, and ex-pect them to work effectively building newnuclear plants. areva has in part overrunits construction budget for the ½rst of theFinnish plants precisely for this reason.

There is the issue of infrastructure and sup-ply chain. The industrial infrastructure, notonly in the United States but worldwide, isreally quite limited and cannot presentlysupport a renaissance, including, for exam-ple, the ability to make large reactor vesselforgings for the plants themselves. Further-more, new countries that are looking at nu-clear power plants often do not have the sup-porting infrastructure, including the elec-tric grid, to sustain plants in this sort of giga-watt range. The other issues are spent fuel,nuclear waste disposition, nuclear licensing,and public acceptance. Public acceptance isnot talked about much elsewhere, but I thinkit will be the main issue for the United States.The issue of international safety standardswill depend on the countries that are inter-ested in a nuclear renaissance providing the

human infrastructure to operate plants in asafe way and to deal with the disposition ofthe spent fuel afterward. There are the is-sues of the Nuclear Nonproliferation Treaty(npt), too.

The national lab directors, about two yearsago, organized themselves into the NationalLab Directors Council, of which I serve aschair. Ten of these labs (there are 17 labs to-tal in the Department of Energy system)participate in one way or another in nuclearpower considerations. The Council has re-cently written a white paper addressed to theSecretary of Energy on the use of nuclear

power that discussed what we view as theessential ingredients of any regime that takesreviving nuclear power in the United Statesas its goal. These include rebuilding the nu-clear enterprise by rebuilding the manufac-turing base and the necessary science andtechnology infrastructure, and training thenext generation of scientists and engineersto carry out the research and development.It is one thing to try and replicate the Frenchand the Japanese; it is another to think intruly revolutionary ways. Our foreign com-petitors have a huge investment in presentinfrastructure, the infrastructure necessaryto support Generation III reactors, includ-ing the reprocessing. It would not be smart

for us to simply chase after them–we needto go around them and invest in a complete-ly revolutionary technology. We do need in-vestments on the research and developmentfront here in the United States for Genera-tion IV reactors, advanced safeguard tech-nologies, and advanced nuclear fuel cycles.

There is also the issue of international en-gagement. It has been shocking to me per-sonally to see the extent to which we havelost the edge in engaging internationally.Part of that, of course, is the fact that wehave lost the technological lead, and in thatrespect, there is some question of whetherpeople will pay effective attention to us ifwe are not perceived as technically compe-tent.

Main drivers in the near term include thenear-term expansion and life extension ofplants, ½nancial support for new orders, andcost-effective technical improvements forexisting plants; an interim solution–interimstorage–for used nuclear fuel; and, ½nally, amuch more robust nonproliferation regime,which is a technical as well as political issue.

These considerations are largely well-knownand understood by people within the tech-nical and policy communities. But I think itis also unfortunately true that implementedpublic energy policies today, both here andabroad, have been largely at odds with theseconsiderations; it is one of the tragedies thatwe are facing. Given the urgency imposedby climate change, by strong increases inenergy demand worldwide, and by concernsrelated to energy security, I think it is hightime that public policy and our technicalunderstanding of the nuclear energy chal-lenge align. I think this is indeed the intentof our meeting and our discussion.

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The essential ingredients ofany regime that takes reviv-ing nuclear power in theUnited States as its goal in-clude rebuilding the nuclearenterprise by rebuilding themanufacturing base and thenecessary science and tech-nology infrastructure, andtraining the next generationof scientists and engineers tocarry out the research anddevelopment.


Scott D. Sagan

Scott D. Sagan is Professor of Political Science andCodirector of the Center for International Securityand Cooperation at Stanford University. He hasbeen a Fellow of the American Academy of Artsand Sciences since 2008 and serves as Coleader ofthe Academy’s Global Nuclear Future Initiative.

I will be speaking this morning about twoserious problems: nuclear terrorism andelicit exports of nuclear materials or tech-nology. These are serious problems today andwill be, I believe, even more daunting in thefuture if new states develop power plants,uranium enrichment, or plutonium repro-cessing facilities–new states that lack strongregulatory systems, security cultures, andhave serious internal terrorist problems.

The danger of nuclear terrorism will be withus for a long time and we must reduce therisks to as low a level as possible. We need toremember that Al-Qaeda is not the only ter-rorist organization that has sought nuclearweapons; nor is it likely to be the last. Weknow that Osama Bin Laden issued a fatwaclaiming that it was moral under Islamicprinciples to target innocent civilians and hecalled for the acquisition of nuclear weapons.We know that Pakistani nuclear scientistsmet with Bin Laden in Afghanistan prior tothe 9/11 attacks. But not everyone remem-bers that other terrorist organizations in thepast had similar ambitions. European left-wing radical terrorists reportedly attacked aU.S. military base in Germany in the 1970s,trying to steal nuclear weapons from ourstockpile. The Aum Shinrikyo penetratedthe Russian military, getting Russian soldiersto join their organization, and seeking accessto nuclear weapons because they believedthat an apocalypse would create a world in

which only true believers in their organiza-tion could survive and reach a higher plateauof moral standing. The founder of Aum Shin-rikyo was not able to get nuclear weapons sohe developed biological weapons, using an-thrax unsuccessfully. He ½nally had to settlefor the sarin chemical attacks in the Tokyosubway in 1995.

My central point here is that we should rec-ognize that nuclear terrorism is not just anAl-Qaeda problem. We should assume thatother terrorist organizations in the futurewill seek to steal materials to make nuclearweapons, and we must therefore maintainthe highest standards of security for facili-ties worldwide. Increased security should bea top priority for any facility that produces oruses highly enriched uranium (heu), since itis easier to make a primitive nuclear devisefrom heu than from other weapons-gradematerials. But all plants and related facili-ties will have to have improved security inthe future.

The second point I want to make is that wealready have seen problems of illicit exportof materials, with, for example, the A.Q. Khannetwork out of Pakistan. We know that of½-cials at the Khan Research Laboratory (krl),led by A.Q. Khan, developed a network ofinternational actors who made an offer toIraq (after the invasion of Kuwait but beforethe Desert Storm War of 1991) to give Sad-dam Hussein both a bomb design and centri-fuge technology. Saddam Hussein actuallyturned down that offer, thinking that it wasa cia plant. But Libya did accept A.Q. Khan’soffers for centrifuges and a bomb design. Wefound both in materials discovered in Libyain 2003. The bomb design found in Libyawas of a relatively primitive model based ona Chinese weapon, but disturbing evidencenow exists that more advanced designs havebeen found on some of the computers of Eu-ropean members of the A.Q. Khan network.We know that centrifuges were given toNorth Korea (we don’t know whether thebomb designs also were passed on), and weknow that centrifuges were given to Iran,but, again, we don’t know the details aboutthe bomb design.

What there is still great debate about is howto assess the cause of this. Was this negligenceon the part of the Pakistani government, orwas it complicity? Reasonable people, I think,

can disagree on what the balance is betweenthese two options. But I want to make twopoints here. One, in a rare moment of can-dor, then-President Pervez Musharraf saidhe knew about A.Q. Khan passing things on;indeed, in his memoirs Musharraf writes:

I received a report that some North Ko-rean nuclear experts had arrived at krl

[Khan Research Laboratory] and were being given secret brie½ngs. I took it seri-ously. The head of our isi [intelligenceservice] and I called A.Q. Khan in forquestioning, and he immediately deniedthe charges. No further reports received,and we remained apprehensive.

Is this complicity or is this negligence? I ar-gue that, at a minimum, there was such anacceptance of corruption in Pakistan, thatit could be called institutional complicity.When the Pakistani government does notreact when a senior laboratory of½cial be-comes a millionaire and buys many proper-ties at home and abroad, this goes beyondnegligence. When the President simply ac-cepts the word of A.Q. Khan, instead of hisown intelligence reports, that goes beyondnegligence. Indeed, in Islamabad a numberof years ago I was given a brochure that thekrl scientists used to give to people sellingdual-capable equipment that they said wasperfectly ½ne, perfectly legitimate for civil-ian use. But on the brochure’s cover, in thebackground, there is a missile with A.Q.Khan standing in front of it. A.Q. Khan’s il-licit sales activities were not a well hiddensecret in Pakistan, and indeed A.Q. Khanadvertised that he was getting away withquite a bit.

Nuclear terrorism and elicitexports of nuclear materialsor technology are seriousproblems today and will be,I believe, even more daunt-ing in the future if new statesdevelop power plants, ura-nium enrichment, or pluto-nium reprocessing facilities.

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When I talked to members of the StrategicPlans Division in Rawalpindi, Pakistan, anumber of them said, “Well, we’re solvingthis problem. We are adding more securityguards on our forces.” And yet one of theproblems with the A.Q. Khan force was thatthe security guards were corrupt. They werepaid off; they had a so-called insider threat.Most people assume if you add more secu-rity guards, even if each one of them is onlypartially reliable, you automatically will be-come more secure. But, as I demonstrated inmy article “The Problem of RedundancyProblem” from the journal Risk Analysis, ifyou assume that at least one of them is theinsider who could cause a problem, addingmore security guards may actually result inless security.

I will conclude by noting that we need morethan better defenses, and we need more thanbetter guards: we need better thinking andinstitutions to deal with physical securityand reduce the risk of illicit exports. In Sep-tember 2008, former Senator Sam Nunn andDirector General Mohamed El Baradei of theiaea announced the formation of wins,the World Institute for Nuclear Security, forcorporations to share best practices. Theiaea has a severely underfunded but im-portant effort to try to create standardsaround the world, and the American Acad-emy is starting a study of alternative ways ofmeasuring or assessing security globally interms of physical security and the risk of il-licit exports. Because increased security isultimately about developing new ideas,sharing knowledge, and creating better in-stitutions, and not just a matter of moreguards and fences, we need the kind of workthat the American Academy has startedthough its Nuclear Future Initiative.

Steven E. Miller

Steven E. Miller is Director of the InternationalSecurity Program at the Belfer Center for Scienceand International Affairs at the Harvard KennedySchool. He has been a Fellow of the AmericanAcademy of Arts and Sciences since 2006 andserves as Coleader of the Academy’s Global Nu-clear Future Initiative as well as a member of theAcademy’s Committee on International SecurityStudies.

What you have heard from my colleagueson this panel is that we are heading into anew nuclear world, one that is going to in-volve more nuclear technology and morenuclear power that will spread more widelyacross more countries and regions, includingmany where it has never been present before.New actors and players will be relevant toour thinking about the safe, constructiveuse of nuclear power. In the context of thisevolution, new kinds of problems will arise,or at least new priority will be given to prob-lems that were regarded as lesser in the past,like nuclear terrorism and the problem of il-licit nuclear supply.

Are we adequately equipped to manage ef-fectively this new nuclear universe into whichwe are heading? The main internationalregulatory mechanism is something that isloosely called the npt regime, which is a setof rules and institutions that have grown upover four or ½ve decades, centered on theNonproliferation Treaty, heavily reliant onthe International Atomic Energy Agency,and with a lot of supplementary rules andinstitutions like the Nuclear Suppliers Group.How good is that regime in the face of thekinds of challenges that we anticipate com-ing down the pike?

If we look at the recent past, it is hard to avoida somewhat gloomy answer. It has been a baddecade for the npt system. If you go backalmost exactly 10 years, the Indian and Pak-istani nuclear explosions undermined thebelief that a strong norm against nuclear ac-quisition had been established. It had been along time since anyone had openly acquirednuclear weapons, and the thought was thatthis had become almost taboo. Suddenly thisidea was punctured, and since then, of course,North Korea has also openly acquired nu-clear weapons.

We have also had, over the past 10 years andmore, a series of three protracted nonprolif-eration crises, none of which has been suc-cessfully addressed. One was Iraq. The ½nalresult was war, which did reduce the prolif-eration risk, but at a price that was enormousand in a way that no one would regard as adesirable management technique for copingwith nonproliferation challenges. We havehad nearly 20 years of crisis with the NorthKoreans over their nuclear aspirations, andwe are still in the midst of that melodrama.The outcome is uncertain, but the result sofar is that North Korea is now a nuclear-armed state. It has tested a nuclear weaponand has withdrawn from the npt–the ½rststate ever to do so–creating, in my opinion,a whole series of unfortunate precedents.And we are still midstream in an ongoingIranian crisis, in which Iran has been per-sistent in pursuing enrichment technologiesthat, whatever its intentions, will give Iranthe technical capability to produce weaponsmaterial in the future if they choose to doso. Each of these examples is a tangled tale;but the underlying point is that the cumula-tive effect of the system’s failure to resolvesuccessfully any of these major challengesto the regime calls into question the ade-quacy of the nonproliferation system incoping with the most important tests. It isreally the determined proliferators that wehave to deal with if the regime is going to beeffective.

Are we adequately equippedto manage effectively thisnew nuclear universe intowhich we are heading?

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We have also seen over the past decade thealmost complete collapse of the multilateralarms control process. All of the ancillaryagreements that were meant to buttress thenpt regime, like the Comprehensive TestBan Treaty or the Fissile Material Cut-offTreaty, have been either stuck or stalled,thwarted or stymied, so there is no realprogress, motion, or action on any of them.We also witnessed in 2005 the complete fail-ure of the npt Review Conference, an in-ternational gathering of npt members thatconvenes every ½ve years and often providesthe opportunity to address constructivelyproblems of global concern. But due to thecollision between, especially, the UnitedStates and others, but more generally be-

tween the West and the rest, we failed in 2005to reach an agreement even for an agenda forthe conference, much less any kind of con-structive result. To all these woes it is neces-sary to add the startling revelations aboutthe A.Q. Khan network, which was a funda-mental challenge to the regime because itinvolved a sub-state actor that was willfullyand intentionally seeking to subvert and cir-cumvent the international constraints onnuclear technology around which the npt

regime is built.

These were a series of body blows to theregime. It hasn’t failed or collapsed, but theregime is struggling to cope adequately withthe current tests in front of it. Now we lookto the future and imagine a world in whichthere are many more nuclear power reactorsand much more widely spread sensitive nu-clear technology and ask, is the current sys-tem–barely adequate, even inadequate in

some eyes, today–going to cope effectivelydown the road with a much bigger challenge?

The general lesson is that the npt regime isbuilt on two contradictions. First, it is meantto prohibit nuclear weapons for almost allsignatories while legally codifying the nu-clear weapons status of a handful of nuclearpowers. The solution in the Treaty was Arti-cle VI, in which the nuclear ½ve promised towork in good faith toward nuclear disarma-ment. There is ample evidence to suggestthat large segments of the npt communityare growing frustrated with what they per-ceive as the failure of the nuclear weaponstates to live up to their Article VI obligations.The Article VI controversy has been trou-blesome in the past but may be even moredif½cult to manage in the future as dis-gruntlement mounts and patience wanes.

Second, the npt is meant to prevent nuclearproliferation while promoting the spread ofnuclear technology. The magic wand to makethat possible is Article III of the npt, whichcalls for safeguards, inspections, and trans-parency. You are entitled, as a non-weapon-state signatory to the Treaty, to the full pan-oply of nuclear technology, so long as it isunder safeguards and supervised by theiaea system. What I fear we may be seeingis the slow-motion death of the safeguardsregime, because it doesn’t cope with covertprograms. It wasn’t intended or designedfor that, but covert programs are a big partof what we are worried about. In the contextof dual-use technologies–very much therealm of the Iran crisis–judgments aboutintentions are absolutely decisive, but safe-guards give no de½nitive insight on Iranianintentions. We can only tell what their tech-nological capacities are, and in conditionsof suspicion and hostility, even technicallyadequate inspections may be politically in-suf½cient. In the current crisis over the pastfour or ½ve years, Iran has been the mostheavily inspected party in the history of theiaea system. Its declared facilities have beenunder comprehensive, full-scope safeguards,and I venture to say neither the United Statesgovernment nor most other governmentshave been wholly reassured by that fact.

The Academy’s Global Nuclear Future Initia-tive asks what can we do to strengthen theregime, to make it more effective, and to giveit greater capacity to cope with the new nu-clear world into which we are heading. Thatis the debate to which we are hoping to con-tribute.

© 2009 by Richard A. Meserve, Robert Ros-ner, Scott D. Sagan, and Steven E. Miller, re-spectively

We have had, over the past10 years and more, a seriesof three protracted nonpro-liferation crises, none ofwhich has been successfullyaddressed.

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Thank you very much for this award. To me,an academic scientist, this award from thedistinguished American Academy is a greathonor indeed. Benjamin Thompson–CountRumford–established this prize to recognizecontributions to advancing our understand-ing of nature, and with particular emphasison understanding light and heat, which, inthe words of the Academy, can be very broad-ly interpreted. Early in my career as a theo-retical physicist, my primary goal was tomake such contributions; but over time Irealized that I could not escape the realitythat progress in nuclear science made backin the 1920s and 1930s had led to terrifyingnew dangers to the very survival of our civi-lization on a global scale. I am speaking ofnuclear weapons, of course, capable of un-imaginable destructiveness. Increasingly, Ifound my scienti½c work drawn to the chal-

Academy Meetings

A World Free of Nuclear WeaponsSidney D. Drell, William J. Perry, Sam Nunn, and George P. Shultz

These remarks were given on the occasion of the awarding of the Rumford Prize to Sidney D. Drell, William J. Perry, Sam Nunn,George P. Shultz, and Henry A. Kissinger (in absentia) at the 1929th Stated Meeting, held at Harvard University on October 12, 2008.

Condensation Cloud of a Nuclear Blast.Photograph © Hulton-Deutsch Collec-tion/Corbis

Sidney D. Drell

Sidney D. Drell is Senior Fellow at the Hoover In-stitution at Stanford University and Professor ofTheoretical Physics Emeritus and Deputy Direc-tor Emeritus at the Stanford Linear AcceleratorCenter. He has been a Fellow of the AmericanAcademy of Arts and Sciences since 1971.

lenge to prevent a nightmare of that sortfrom occurring. This opened a second trackin my career and led to my forming workingbonds and friendships with political scien-tists and government leaders, such as my fel-low honorees here today. I want to recognizethe importance of the American Academyand its committee on International Securityand, in particular, the leadership of my goodand longtime friend Paul Doty in helpingme form such bonds.

Today I am being honored for contributingto an effort not to advance our understand-ing of heat and light, but to get rid of themeans of creating here on earth explosionsthat produce such monstrous quantities ofheat and light and other forms of energy thatthey could destroy us all. Since this initiativepresents technical as well as political chal-


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William J. Perry

William J. Perry is the Michael and BarbaraBerberian Professor at Stanford University, with a joint appointment at the School of Engineeringand the Institute of International Studies. He is aSenior Fellow at the Hoover Institution, a SeniorFellow at the Freeman Spogli Institute for Interna-tional Studies, and Codirector of the PreventiveDefense Project, Institute for International Stud-ies. He has been a Fellow of the American Acad-emy of Arts and Sciences since 1989.

For the last few years, working to reducenuclear danger has taken up most of mytime; indeed, it has become a top priorityin my life because I believe that the gravestdanger facing the world today is a terrorgroup detonating a nuclear bomb in one ofour cities, and that this danger is not remote.It is also because my experiences during thecold war have conditioned me to be especial-ly sensitive about the dangers of nuclearweapons. To make this point, I will shareone experience from the most dangerousperiod of the cold war, when I was the Un-der Secretary of Defense for Research andEngineering.

During the summer of 1978, I was awoken atthree o’clock in the morning by a phone callfrom the watch of½cer at the North AmericanAir Defense Command. As I sleepily pickedup the telephone, the general got right to thepoint. His computers were indicating 200icbms on their way from the Soviet Unionto the United States. I immediately woke up.That was a false alarm, but the general hadonly 15 minutes to reach that judgment. Hecalled me in the hopes that I could help himdetermine what had gone wrong so that hewould have a good explanation when hebriefed the President the next morning.

lenges, and Count Rumford was a physicistwho was also interested very much in gun-powder and in various forms of armamentsin general, I guess it is reasonable to concludethat awarding this prize this way ½ts appro-priately in the guidelines as the Count setthem down to the Academy.

The only way I know to get rid of the meansof creating devastatingly destructive explo-sions that pose a threat to our civilization isto dismantle and destroy all nuclear weap-ons. Realizing the vision of a world free ofnuclear weapons is precisely the goal of ourprogram. It is the vision that President RonaldReagan and General Secretary Mikhail Gor-bachev brought to their remarkable summitin Reykjavik, Iceland, in 1986. Although they

failed to close the deal–recall that in 1986the Berlin Wall still stood and we were stillin the midst of the cold war–Gorbachev andReagan did start down the path of reducingthe sizes of these bloated nuclear arsenals.However, without a vision of a world free ofnuclear weapons, the nations of the worldhave not pursued, with the intensity and theboldness that the times require, the measuresthat could reduce nuclear dangers that weface. No doubt, rekindling or realizing thevision will be a very dif½cult goal to achieve.It will require nothing less than a new dealbetween states that have nuclear weaponsand those who, for now at least, have volun-teered to forgo them. Progress will requirecooperation on a global scale between na-tions with very different economic and stra-tegic aspirations as well as forms of gover-nance. We recognize this in our programand have proposed a series of steps that weconsider both practical and necessary for theUnited States to take, together with othernations in the world, to begin the journey

and convince skeptics that our vision is nota flight of fancy, but a practical goal. Wehave been encouraged by strong and broadinternational support.

There are also, of course, some who have pro-tested that our initiative is not only futile, buteven unwise and dangerous, a distractionfrom a policy of nuclear deterrence. Afterall, the United States and the former SovietUnion relied on nuclear deterrence to navi-gate successfully through the perilous yearsof the cold war. Against what seemed to meto be insurmountable odds, not one of themany thousands of existing nuclear weaponswas detonated in military combat, althoughthere were numerous opportunities to do so.But it would be dangerously wrong to drawcomfort from that achievement. Relying onnuclear weapons for deterrence is becomingincreasingly hazardous and decreasingly ef-fective in a world with an accelerating spreadof nuclear know-how, weapons, and mate-rial. Today we are teetering on the edge of anew and more perilous nuclear era, facing agrowing danger that nuclear weapons, themost devastating instrument of annihilationever invented, may fall into the hands of thosewho do not shrink from mass murder on anunprecedented scale. With the spread of ad-vanced technology and renewed internation-al interest in nuclear technology for civilpower generation, the threat of such a catas-trophe looms more and more likely.

What will it take to prevent such a catastro-phe? First, a sense of urgency that was lack-ing when two bold leaders, Reagan and Gor-bachev, at Reykjavik posed the challenge toescape the trap of nuclear deterrence. It islacking still today. And second, strong lead-ership, with the United States at the helmbut with partners, to create and inspire thatsense of urgency. This means forging an ef-fective international effort to implement aset of practical steps to prevent the prolifer-ation of nuclear weapons. My fellow hon-orees, 35 other endorsers, and I proposedsuch a set of steps in a Wall Street Journal op-ed of January 2008, “Toward a Nuclear-FreeWorld.” And just as rekindling the vision ofReykjavik will be essential for these steps tobe broadly accepted as fair and urgent, thesteps themselves are essential to achieve thatvision of a world free of nuclear weapons.There is a lot of work to do. Thank you againfor this honor.

The only way I know to getrid of the means of creatingdevastatingly destructive ex-plosions that pose a threatto our civilization is to dis-mantle and destroy all nu-clear weapons.

That call, of course, is engraved in my mem-ory; but it is only one of three false alarmsthat occurred during my tenure in of½ce,and I do not know how many more mighthave occurred in the Soviet Union. So therisk of a nuclear catastrophe was never aca-demic to me.

Ironically, during that same period I was re-sponsible for the development of our coun-try’s nuclear weapons. In my tenure, I super-vised the development of the B-2 bomber,the mx missile, the Trident submarine, theTrident missile, the air-launched cruise mis-sile, the ground-launched cruise missile, andthe sea-launched cruise missile. While I sawclearly the risk in building this deadly nucleararsenal, I believed at the time it was necessaryto take those risks in the face of the threatsof the cold war. But after the cold war ended,I believed that it was no longer necessary totake those terrible risks, and that we shouldbegin to dismantle this deadly cold warlegacy.

My ½rst opportunity to act on this beliefcame in 1994, when I was invited by Presi-dent Clinton to become the Secretary of De-fense. As the Secretary, my ½rst priority wasto begin to dismantle the cold war nucleararsenal. The greatest immediate danger wasthat the nuclear weapons in Ukraine, Ka-zakhstan, and Belarus would fall into the handsof terrorists. The tools that I had availableto deal with this were the start Treaty, inwhich Secretary George Shultz had played akey role; the Nunn-Lugar program, in whichSenator Sam Nunn had played a key role; andthe cooperation of Russia. My major concernwas the nuclear arsenal in the Ukraine. Whenthe Soviet Union collapsed, Ukraine inherit-ed all of the nuclear weapons then on its soil.At the time, they had more nuclear weaponsthan the United Kingdom, France, and Chinacombined. Worse, they were going througha period of social, economic, and politicalturbulence. Fortunately, the Ukrainian gov-ernment made a courageous and enlighteneddecision to give up their nuclear weapons,and using the Nunn-Lugar program, we as-sisted them in the dismantlement process.With permission of the Ukrainian president,I personally supervised the dismantlementof their nuclear weapons, visiting four timestheir primary icbm base at Pervomaysk,which at the time had 700 nuclear warheads,all aimed at targets in the United States.

On the ½rst visit, I went to the control cen-ter and observed a practice countdown, andafter that unnerving experience, I then ob-served the removal of the ½rst batch of war-heads. On my second visit, I observed theremoval of the ½rst batch of missiles, and onmy third I joined the Ukrainian and Russiandefense ministers in pressing the buttonsthat blew up one of the silos. Then, in thesummer of 1996, I returned to Pervomayskfor my ½nal visit. I went with the Ukrainianand Russian ministers to the site where thesilos had previously been, and together weplanted sunflowers at that site.

During my term in of½ce, we dismantledabout 10,000 nuclear warheads in the UnitedStates and in the former Soviet Union, andwe helped three nations go from being nu-clear powers to non-nuclear powers. Thiswas the ½rst time since the dawn of the nu-clear age that proliferation had been reversed,and I thought we were well on the way tocontaining the deadly nuclear arsenal of thecold war. Since then, though, the efforts toreduce the nuclear danger have stalled, andeven reversed. Both Russia and China arenow developing new nuclear warheads. Thestart Treaty expires in 2009, and therehave been no further treaties to dismantlenuclear weapons. The United States has notyet rati½ed the Comprehensive Test BanTreaty, signed more than 12 years ago. Indiaand Pakistan have gone nuclear. A.Q. Khanhas covertly sold Pakistan’s nuclear tech-nology to an unknown number of nations.North Korea has built a small quantity ofnuclear weapons and tested one of them.Iran is developing the capability to producenuclear fuel, which, if completed, would giveit the option of building nuclear weaponswithin a few months. If Iran and North Ko-rea proceed on their present path, there is areal danger of a veritable cascade of nuclearproliferation.


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The gravest danger facingthe world today is a terrorgroup detonating a nuclearbomb in one of our cities–and this danger is not remote.

All of this is happening in parallel with theemergence of catastrophic terrorism: 9/11made real to the United States, indeed theworld, just how catastrophic terrorism couldbe. But a nuclear bomb detonated in one ofour cities would dwarf 9/11 in its catastrophiceffects. It is impossible to overstate the hu-man, social, economic, and political catas-trophes that would result from such a deto-nation, and it must be the priority of all na-tions to work seriously to prevent that out-come. The nuclear powers have a special re-sponsibility in that regard, and I believe thatthe United States must lead the way. Oneimportant way for our new president todemonstrate American leadership is by em-bracing the goals of our nuclear securityproject.

Since the initiation of this project last Janu-ary, I believe that we have turned a corner indealing with the nuclear danger. More thana century ago, Victor Hugo wrote, “Morepowerful than the threat of mighty armiesis an idea whose time has come.” I believethat working to eliminate this deadly nuclearlegacy is an idea whose time has ½nally come,but I also believe that it will take decades toachieve the ½nal goals of the project. Thuswe must train a new generation of securityspecialists to carry on the task as we retirefrom the scene. All of the members of ournuclear security project are in their 70s and80s, and friends ask us why we are still work-ing on security projects. I work every day atStanford with young security specialists,and I will happily pass the baton to themwhen I retire from the scene. But I’m notready to do that just yet. Indeed, when askedwhy I am still teaching, why I am still takingred-eyes to Washington, and why I do notretire to some pleasant grove, I reply withwords inspired by Robert Frost:

The woods are lovely, dark, and deep.But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep.


many with the head of U.S. Air Force, Europe.The general explained that in the event of war,he had only a couple of minutes to launchall of what were known as quick-reactionaircraft, or they would be destroyed. Theseplanes and forward bases were the ½rst tar-gets for the Soviets because they would de-liver the ½rst nuclear weapons to strike theSoviet Union, or at least that is what the So-viet Union anticipated. The fact that the fateof mankind rested on the shoulders of onlya few people on each side who had only a fewmoments, as Bill Perry described, to decidewhether to launch nuclear weapons made alasting impression on me. I pledged to my-self then that if I ever had a chance to workon the problem, I was going to tackle it.

Today the cold war is over, but we face newnuclear dangers. I believe that the greatestdanger we face–Bill just said this, and I agreewith him completely–is the possibility of a catastrophic nuclear attack by a terroristgroup that does not have a return addressand therefore is unlikely to be deterred. Asthose of us being honored today have point-ed out, the accelerating spread of nuclearweapons, nuclear materials, and nuclearknow-how has brought us to a nuclear tip-ping point. Indeed, we are in a race betweencooperation and catastrophe.

I frequently ask myself two questions: theday after a nuclear attack on one of the citiesof the world, what would we wish we haddone to prevent it? And why aren’t we do-ing it now? In our Wall Street Journal article,we call for building a solid consensus for re-versing reliance on nuclear weapons glob-ally, as a vital contribution to preventingtheir proliferation and ultimately endingtheir threat to the world. We are all keenlyaware that the quest for a world free of nu-clear weapons is fraught with many practi-

Sam Nunn

Sam Nunn is Cochairman and Chief ExecutiveOf½cer of the Nuclear Threat Initiative, Distin-guished Professor at the Sam Nunn School of International Affairs at the Georgia Institute ofTechnology, and Chairman of the Board of theCenter for Strategic and International Studies. He has been a Fellow of the American Academyof Arts and Sciences since 1997.

I am deeply grateful to be here today andto receive this wonderful honor from theAcademy. When you look at the history ofthe Academy and its contributions to theexpansion and enhancement of knowledge,it is truly awesome and humbling. And whenI think of receiving the Rumford Prize along-side George Shultz, Bill Perry, and Sid Drell,three of our nation’s most effective and bril-liant leaders, somehow I am reminded of theCamelot character by the name of Mordred,of whom Lady Guinevere once observed,“The only thing I can say for him is that heis bound to marry well, because everybodyis above him.” I am honored to be an appren-tice in this group of, what shall I say, matureleaders.

Secretary Dean Atchison–George Shultzwill identify with this, I’m sure–was onceasked to de½ne foreign policy. He thought amoment and replied, “Foreign policy is onedamn thing after another.” I realized at a rel-atively young age that nuclear weapons werenot just another thing, but that indeed theyheld hostage the future of mankind. I was a 24-year-old lawyer for the House ArmedServices Committee on a three-week AirForce trip to Europe when the Cuban Mis-sile Crisis broke out. During that period,while the world held its breath, our delega-tion met at Ramstein Air Force Base in Ger-

cal challenges. We have taken aim at thosechallenges by laying out a number of steps,which I believe are doable even though theyare very dif½cult. We cannot reduce the nu-clear threat without taking these steps. Wecannot take these steps without the cooper-ation of other nations. We cannot get thecooperation of other nations without theshared vision of ending these weapons andtheir threat to the world.

Many people’s reaction to the vision of aworld without nuclear weapons comes intwo parts. On the one hand, most peoplesay, “Boy, that would be great”; on the other,“We simply can’t get there from here.” Butthere is hope. In the 1990s, under Bill Perry’scapable leadership as the Secretary of De-fense, we made a deal to buy highly enricheduranium from Russian warheads that wereaimed at the United States, blend it down,make it into nuclear fuel, and use it in ourpower plants. Today, after a number of yearsworking on that program, we have made tre-mendous progress. If you think about it, ap-proximately 20 percent of the electricity inthe United States is supplied by nuclear pow-er; 50 percent of the nuclear fuel that goesinto that nuclear power is supplied by high-ly enriched uranium that has been blendedinto low-enriched uranium and made intonuclear fuel that 20 or 25 years ago was inwarheads aimed at the United States. Sowhen you look at the lights in this room orany other room in America, theoretically10 percent of those light bulbs are fueled bymaterial that was in the form of weaponsaimed at America in the 1970s and the 1980s.Swords to plowshares: we have hope.

When I think about the goal of a world freeof nuclear weapons, to me it is like a verytall mountain. It is tempting and easy to saywe can’t get there from here. It is true thattoday our troubled world cannot even seethe top of the mountain. But we can see thatwe are heading down, not up; we can seethat we must turn around, that we must takepaths leading to higher ground, and that wemust get others to move with us. I am pro-foundly grateful to the Academy for tellingthe world through this Prize how urgent it isfor the survival of humanity that we stop ourdescent and ½nd paths up the mountain to-ward a world free of nuclear weapons.

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I believe that the greatestdanger we face is the possi-bility of a catastrophic nu-clear attack by a terroristgroup that does not have areturn address and thereforeis unlikely to be deterred.


fort to reduce the number of nuclear weaponsthat each side held. In the course of the dis-cussion, Reagan and Gorbachev found them-selves agreeing on the desirability of elimi-nating nuclear weapons altogether.

There were no leaks from the Reykjavik meet-ing because we were quite open about every-thing that happened. When I got back toWashington, Margaret Thatcher had arrived.She summoned me to the British Ambas-sador’s residence, and I learned about a verbin the British language. Remember thatMargaret used to carry a hard handbag allthe time. Well, in the British language, thereis a verb “to be handbagged.” And I reallygot handbagged. She said, “George, howcould you sit there and allow the Presidentto agree to eliminating nuclear weapons?” Isaid, “Margaret, he’s the President!” “Yes,but you’re supposed to be the one with hisfeet on the ground, keeping things stable.”“But, Margaret, I agreed with him.” Her re-action was more dramatic than most, but itwas the general reaction in Washington:that this was a crazy idea.

Now, 20 years or so later, the reaction to ourop-ed in the Wall Street Journal is entirely dif-ferent. Yes, there are some people who don’tlike the idea; but, interestingly, most peoplethink that the steps we outline in that articlewill move us toward a safer world. The posi-tive reaction has been astonishing. By thistime, something like three-quarters of theformer secretaries of state and defense andnational security advisors have publicly comeon board, and we have had all sorts of indi-cations from people in other countries oftheir interest. It has been quite heartening.

So I ask myself, why the difference in the re-action? First, during the height of the coldwar, people were convinced, even though we

George P. Shultz

George P. Shultz is Thomas W. and Susan B. FordDistinguished Fellow at the Hoover Institution atStanford University. He is Chairman of the JP-Morgan Chase International Council, Chairmanof the Energy Task Force at the Hoover Institution,and Chairman of the mit Energy Initiative Ex-ternal Advisory Board. He has been a Fellow of theAmerican Academy of Arts and Sciences since 1970.

I share with my colleagues gratitude to theAcademy for this award; it is a great honor.But as Sam just said, it is also a way of callingattention to the urgency of our program. Andin that respect, I welcome and applaud theAcademy’s continuing interest, demonstrat-ed through its own programs focused on in-ternational security and the global nuclearfuture.

By this time in the program, what more isthere to say? Well, I have thought of twothings. First, I am struck by the contrast be-tween the reactions of people to what hap-pened at Reykjavik and to the initiative thatwe have launched. I want to talk about thatand ask, why the difference in reaction?Second, I would like to discuss some of theimplications of moving ahead for the statusof our diplomatic capability, and the way itshould be conducted.

In Reykjavik we were in a tiny room in HöfdiHouse. At one end of the table sat PresidentRonald Reagan; at the other, General Secre-tary Mikhail Gorbachev. I had the privilegeof sitting beside President Reagan, and mycounterpart, Soviet Minister of Foreign Af-fairs Eduard Shevardnadze, sat beside Gen-eral Secretary Gorbachev. There we were fortwo full days, talking about a huge range ofissues, but with the main emphasis on an ef-

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had all of the close calls that Bill Perry out-lined so dramatically, that deterrence–theability to wipe each other out–kept thepeace. It was pretty tenuous. Ronald Reaganconsidered it immoral to think that we de-fend ourselves that way, but people thoughtthat it worked. The Wall Street Journal piece,as I see it, jolted people. Since the end of thecold war, people had gone to sleep on this is-sue, and they now saw what had been hap-pening. As Sam puts it, we are going downthe mountain, toward a situation of greatdanger. People suddenly perceived that, andnow they are interested.

I think also–and this is a lesson for movingahead–people were struck by the series ofsteps that were outlined in the article: theysaw the task not just as a great idea, but assomething that might actually be achievedbecause there was a roadmap of things thatcould be done and that were seen as doable.I think, too, there may be an instinctive re-action, at least by people who work on thesubject, to improve our stance as we thinkahead to the Nonproliferation Treaty reviewand other such efforts. In a way, saying non-proliferation puts you in a defensive stance:you are trying to defend against somethingto stop it. I think what we perhaps haveachieved, or are in the process of achievingif we can go forward with this, ½ts that oldsaying, “the best defense is a good offense.”This puts us on the offensive; we are forsomething. Within that framework, you cantalk about nonproliferation in a much moreconvincing way. At any rate, I can’t help butnotice the difference in reaction betweenReykjavik and now, and it is very heart-warming.

We have published a book that reprints thefull transcript of the conversation at Reyk-javik between Reagan and Gorbachev (and afew words by me and Shevardnadze, but thetwo leaders totally dominated the discus-sion). A wonderful scholar at Stanford, DavidHolloway, dug around in the Hoover archivesand found, amazingly, the instructions thePolitburo gave to Gorbachev, including allof his red lines, as he went to Reykjavik.That document is also reprinted in the book.I read it and said, “Boy, do I wish I’d had thatdocument before the summit.”

My second topic is: what about implicationsfor the future, as far as our diplomacy is con-

I believe we are not nearly aswell-prepared as we shouldbe to conduct, steadily andwith people of high stand-ing, the kind of imaginativeglobal diplomacy we need.


cerned? There are lots of things that needto be done, but what about our diplomacy?First, I would say that I believe we are ill-equipped; we are not nearly as well-pre-pared as we should be to conduct, steadilyand with people of high standing, the kindof imaginative global diplomacy we need.The Secretary of State or the Secretary ofDefense can’t do everything. You need re-ally able people, and they need a supportgroup that is strong. We need a bigger For-eign Service. We need to try to get some ofthose wonderfully skilled people, who areretiring at alarming levels just when they areat the height of their powers, to come back.

And we need to make it inviting for politicalappointees to come in. When I was in of½ce,I had the likes of Paul Nitze, John White-head, Mike Armacost, Roz Ridgway, ChetCrocker, and Max Kampelman. You need tohave big people like that. You can send themto a head of government anywhere and theyare listened to, not just because they are rep-resenting the United States, but because theyare Paul Nitze. Those heads of state knowthat when a representative like that comeshome, everybody is going to listen to whathe has to say, so it is worth talking to him.We have to strengthen ourselves dramati-cally compared with where we are right now.

I don’t think you really can get anywhere innegotiating on this issue without workingalongside high-powered scienti½c people. Ithas to be a joint enterprise, which has to bebuilt right into our diplomacy. I don’t meanby that that we should aspire to attract lotsof high-powered, top-notch scientists to

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take full-time jobs in government; that’sprobably out of the question. But in my ex-perience, if you have an important missionand ask scientists to come and work at itpart-time or give it a burst of attention, theyare anxious and willing to do it. We have toidentify the Sid Drells of this world. Therearen’t very many Sid Drells, but there arelots of people who can be extremely helpful.There is no point in sending a person whodoesn’t have deep scienti½c training out tonegotiate on these issues, because the in-trinsic content of the issues requires some-one who understands them from the insideout. That’s another attribute of our diplo-macy that needs to be developed very strong-ly. It is an interesting, somewhat ironic de-velopment that the most eloquent spokes-man for improving our diplomatic capabil-ity right now turns out to be the Secretary ofDefense, Bob Gates, who talks about this allthe time. He realizes how important it is.

These are some impressions on reactions toReykjavik, then and now, and some thoughtsabout the kind of effort we must make toimprove our diplomatic capability in orderto support a president if he decides to goforward with this. It is wonderful to see thatboth presidential candidates have, to someextent, endorsed this program. I hope who-ever loses will support the winner in goingforward. It is sometimes said to us as au-thors of the Wall Street Journal piece, “Isn’t itnice that this initiative is bipartisan?” Andwe all say, “Really, it’s not bipartisan, it’snonpartisan.” This is not a Republicans-ver-sus-Democrats subject. It is a subject to bedebated among Americans on its merits,and it should go forward on those merits.That’s the way we work at it.

Once again, thank you for the honor, andthank you for the opportunity to talk to thisdistinguished group and to listen once againto my colleagues. I always learn from any as-sociation with these gentlemen.

© 2009 by Sidney D. Drell, William J. Perry,Sam Nunn, and George P. Shultz, respec-tively

I don’t think you really canget anywhere in negotiatingon this issue without work-ing alongside high-poweredscienti½c people. It has to bea joint enterprise, which hasto be built right into ourdiplomacy.


Three MolesPaul A. Samuelson

After Easter 1945, within the World War IIresearch labs, conviction grew that Hitler’sdefeat was just around the corner. Under-standably, hopes for a return to peacetimeacademic life began to emerge. Canny guyswithin the Of½ce of Strategic Services andintelligence units knew that Germany, afterits Stalingrad defeat, could not hope to winthe war. In the Paci½c, after the Battle of Mid-way, Allied code breakers had made certainthat Japan, too, could not win its war. ButMain-Street Yanks and Brits, almost up tothe last gunshots, could still fear the worst.(As a dramatic example, Joseph Schumpeter,my Austrian Harvard mentor, isolated inCambridge, Massachusetts, from Decem-ber 7, 1941 to August 1945, when the nuclearbombs fell on Japan, could still believe untilvery late that Hitler was winning the war.)

In that 1945 springtime, as one of the fewmathematical social scientists in the Radia-tion Laboratory at the Massachusetts Insti-tute of Technology (mit), I was soundedout for the job of writing the history of theLos Alamos nuclear bomb project–a para-doxical offer since of½cially I couldn’t knowthat there was such a project. But no matter:wild horses could not have drawn me to that,or any, history job. Postwar macroeconomicchallenges were already keeping me awakeat night.

However, a second challenge arose that Ifelt I could not, in good conscience, refuse.Vannevar Bush, former Vice President ofmy own mit, had become Roosevelt’s vir-tual czar for science. To map out the govern-ment’s peacetime organizations for science,based on lessons learned during World WarII itself, Bush was formulating the basic doc-ument that became Science: The Endless Fron-tier. Advising Bush was a stellar committeeof representative eminent scientists, includ-ing I. I. Rabi from Columbia and elsewhere;Oliver Buckley, head of the prestigious BellLabs; and wunderkind Edwin Land, a Harvarddropout who pioneered Polaroid, where or-ganic chemist Bob Woodward had just syn-thesized quinine.

A member of and secretary to Bush’s com-mittee was my mit colleague, Rupert Mac-Laurin, son of Richard MacLaurin, the for-mer President of mit who in 1916 convertedwhat had been Boston Tech into the modernMassachusetts Institute of Technology. Ru-pert, a dynamic go-getter who earned the½rst Harvard Business School PhD in eco-nomics (and who was the ½rst to ski overthe Andes), knew that as a non-scientist hewould need to recruit a knowledgeable staffof helpers. Three of us were picked as scriven-ers to the secretariat and, thus, indirectly toBush’s scienti½c advisors and potentially toBush himself.

Paul A. Samuelson

Paul A. Samuelson, a Fellow of the AmericanAcademy since 1942, is Institute Professor ofEconomics Emeritus at the Massachusetts Institute of Technology. He was awarded aNoble Prize in Economics in 1970.

Reflections

John (Jack) Edsall, a biochemist at Harvard,was the oldest of us three. Next came Robert(Rob) Morison, physiologist, M.D., andhead of biology for the powerful RockefellerFoundation. (Rob and his brother, my mit

colleague Elting Morison, were cousins ofHarvard historian Samuel Eliot Morison.) I,not yet thirty, was the most junior, but I wasthe one most conversant with the mathemat-ical branches of the social sciences.

Throughout it was made clear to one and allthat we three were to be solely helpers indrafting and in arranging and recording in-terviews of myriad viewpoints. We ½nishedour part of the job within a couple of months,I think, but the three of us learned a lot thatwent beyond what we knew about the IvyLeague or the Big Ten. There was much tolearn about labs at at&t, ibm, Mayo, West-inghouse, Brookings, or United Shoe Ma-chines. We learned that at President RobertHutchins’s University of Chicago, my un-dergraduate alma mater, never were equalpercentage pay raises ever given. In terms of1945 dollars, a tenured woman full professorin classics might have a $3,900 salary, whilea physicist-chemist might have a $70,000salary, a vast difference traced, partially, tohow much of a chemist’s consulting earn-ings accrued to the university itself.

On Bush’s advisory committee there was adiversity of opinions: cautious, conserva-tive, activistic. (Bush himself never met per-sonally with his committee’s deliberators.)For brevity’s sake, I’ll focus on the mainsplit in scientists’ views and in academic ad-ministrators’ views.

Many persons, maybe most, were impressedwith how much had been accomplished dur-ing the war in governmental scienti½c agen-cies: early radar at the National Bureau ofStandards; operations research at mit andthe Air Force; underwater sound research at


Harvard; research in the Radiation Labora-tory at mit; physics research in labs at Chi-cago, Columbia, and UC Berkeley; and theLos Alamos project. There was cryptologyresearch, too, but this was hush-hush.

By contrast, a minority on the committeewith strong libertarian views feared theseaccomplishments, lest the camel of govern-ment take over the whole tent. Two reputa-ble presidents of great universities (who canbe nameless) favored dividing whatever bil-lions the federal government would allocateto science in strict proportion to state andcounty populations. Equal-sized geographi-cal counties in, say, Massachusetts and ruralSouth Dakota should have the same dollarsto “spend on science.” Otherwise, they al-leged, certain pushy New York City scholarswith sharp elbows would end up with thelion’s share of federal grants. (Rememberthat notions of political correctness changea lot every half century, and I have softenedtheir language.)

At another extreme, a committee memberlike Edwin Land favored U.S. merit grants tosupport university dropouts, like Land him-self had been and what Bill Gates was laterto be.

As the only living survivor of our trio, howshould I describe the rather eclectic middle-of-the-road policies we three came to hopefor? The best policies of what the Edsall-Morison-Samuelson trio actually hoped fordid come to be realized–fortunately real-ized–by what Science: The Endless Frontierrecommended, including, prominently,Pentagon support for technical innovations;National Institutes of Health (nih) forbroad medical research; National ScienceFoundation for soft-money grants to appli-cants in physics, biology, and in the moremetric branches of such social sciences aspsychology, mathematical statistics, andeconometrics; and nasa. It should bestressed, however, that the three of us were

in no sense movers and shakers: YankeeVannevar Bush was not one to be swayed byribbon clerks’ syllogisms or dreams. Causa-tion went the other way; we scriveners ad-justed toward what might become feasible.

Our own views, in retrospect, were less thanperfect. We were a bit fearsome that non-uni-versity laboratories might grow stale and non-innovative in the absence of university teach-ers and students; nih and rand thinktanks proved us to have been overly skeptical.

A reader may say the nation got much thatwas needed because it was all an obvious“lay-down hand.” Yes, maybe. But let memention that my longtime Harvard friend,Willard Van Orman Quine, arguably one ofthe three greatest logicians of the twentiethcentury, wrote in Dædalus in 1974 that, toparaphrase, all those dollars of federal aid toscience and scholarship had (net!) a negativeeffect on the advancement of science! Go½gure. Though both MacLaurin and I werewhelped in Schumpeter’s entrepreneurialinnovation workshop at Harvard, we under-estimated the burgeoning of Silicon Valleyand venture-capital innovational productiv-ity centers.

Deductive logic cannot prove or disprovepolicy propositions. Speaking for myself, Iam glad that I was drafted for a couple ofmonths for duties on this new frontier,where my specialized training and aptitudescould be useful. As I sum up in memorythose months devoted to postwar scienti½cinstitutions, I must suspect that my per-hourcontribution to the good society was acci-dentally near to my lifetime maximal do-gooding.

Maybe through my many writings and advis-ing to Congress, the Federal Reserve, presi-dents, and voters over the years I have beena useful citizen. Those end-of-war weeks withJack and Rob delayed only a little my writingFoundations of Economic Analysis (1947), a sem-

inal treatise that changed economics andwon a Nobel Prize for me. Nor, fortunately,did they abort my planned career programto alter postwar introductory textbooks.After half-a-century and a score of revisions,Samuelson’s ECONOMICS still survives asone of the best sellers (now especially to amillion Chinese readers).

Summing up, ideologies do play a role inevolving scienti½c development. I dare tohope that a science with both a libertarianMilton Friedman and an eclectic centristPaul Samuelson is all the better for its diversity.

© 2009 by Paul A. Samuelson

Reflections


Noteworthy

As of press time, several Fel-lows of the Academy havebeen invited to serve in sen-ior roles in President BarackObama’s administration:

Ashton Carter (Kennedy Schoolof Government, Harvard Univer-sity): Under Secretary of Defensefor Acquisition, Technology andLogistics, Department of Defense

Steven Chu (University of Cali-fornia, Berkeley; Lawrence Berke-ley National Laboratory): Secre-tary of Energy

Richard C. Holbrooke (Perseus,llc): Special Envoy to Afghani-stan and Pakistan

John Holdren (Woods Hole Re-search Center; Kennedy Schoolof Government, Harvard Univer-sity): Assistant to the Presidentfor Science and Technology, Di-rector of the White House Of½ceof Science and Technology Policy,and Cochair of the President’sCouncil of Advisors on Scienceand Technology

Elena Kagan (Harvard LawSchool): Solicitor General

Alan B. Krueger (Princeton Uni-versity): Assistant Secretary ofTreasury, Economic Policy

Eric Lander (Broad Institute;Massachusetts Institute of Tech-nology; Harvard University): Co-chair of the President’s Councilof Advisors on Science and Tech-nology

Jane Lubchenco (Oregon StateUniversity): Administrator ofthe National Oceanic and Atmos-pheric Administration.

Daniel Meltzer (Harvard LawSchool): Principal Deputy Coun-sel to the President

George Mitchell (dla Piper):Special Envoy to the Middle East

Christina Romer (University ofCalifornia, Berkeley): Chairper-son of the Council of EconomicAdvisers

Anne-Marie Slaughter (Prince-ton University): Director of theOf½ce of Policy Planning, De-partment of State

Lawrence Summers (HarvardUniversity): Director of the National Economic Council

Cass Sunstein (Harvard LawSchool): Administrator of theOf½ce of Information and Reg-ulatory Affairs

Harold Varmus (Memorial Sloan-Kettering Cancer Center): Cochairof the President’s Council of Ad-visors on Science and Technology

Paul Volcker (New York City):Chair of the President’s EconomicRecovery Advisory Board

Select Prizes and Awards

Nobel Prizes, 2008

Physics

Yoichiro Nambu (University ofChicago)

Chemistry

Martin Chal½e (Columbia Uni-versity)

Roger Y. Tsien (University ofCalifornia, San Diego)

National Medal of Science,2007

Mostafa El-Sayed (Georgia Insti-tute of Technology)

Leonard Kleinrock (Universityof California, Los Angeles)

Robert Lefkowitz (Duke Univer-sity)

Bert W. O’Malley (Baylor Collegeof Medicine)

Charles P. Slichter (University ofIllinois at Urbana-Champaign)

Andrew J. Viterbi (University ofSouthern California)

National Medal of Technologyand Innovation, 2007

Paul Baran (Novo Ventures, Inc.)

Other Awards

James S. Ackerman (Harvard Uni-versity) was awarded the GoldenLion for Lifetime Achievement byLa Biennale di Venezia.

Robert Axelrod (University ofMichigan) is among the recipi-ents of the Wilbur Lucius CrossMedal.

Cornelia Bargmann (RockefellerUniversity) is the recipient of the2009 Richard Lounsbery Awardfrom the National Academy ofSciences.

Charles L. Bennett (Johns Hop-kins University) was awarded the2009 Comstock Prize in Physicsby the National Academy of Sci-ences.

Leo L. Beranek (Boston, MA) wasawarded the 2008 Vladimir Kara-petoff Award by Eta Kappa Nu.

Mina J. Bissell (Lawrence Berke-ley National Laboratory) wasawarded the Medal of Honor forBasic Research by the AmericanCancer Society.

Peter Robert Lamont Brown(Princeton University) wasawarded the 2008 Kluge Prizefor Lifelong Achievement in theStudy of Humanity. He sharedthe prize with Romila Thapar(Jawaharlal Nehru University inNew Delhi).

Theodore Lawrence Brown (Uni-versity of Illinois at Urbana-Champaign) has been awardedthe 2008 Harry and Carol MosherAward of the American Chemi-cal Society.

Thomas C. Bruice (University ofCalifornia, Santa Barbara) wasawarded the 2008 Linus PaulingMedal of the American Chemi-cal Society.

Luis Caffarelli (University ofTexas at Austin) received the2009 Leroy P. Steele Prize forLifetime Achievement from theAmerican Mathematical Society.

Susan Carey (Harvard University)was awarded the 2009 David E.Rumelhart Prize.

Morton M. Denn (The City Col-lege of New York) is the recipientof the 2008 Founders Award ofthe American Institute of Chem-ical Engineers.

John E. Dowling (Harvard Uni-versity) received the Paul KayserInternational Award in RetinaResearch from the InternationalSociety for Eye Research.

Leon Eisenberg (Harvard Univer-sity) was presented with the in-augural Ibor Award from theWorld Psychiatric Association.

Mostafa El-Sayed (Georgia Insti-tute of Technology) was awardedthe Ahmed Zewail Prize in Mo-lecular Sciences.

Stanley Falkow (Stanford Uni-versity) is the recipient of the2008 Lasker-Koshland SpecialAchievement Award in MedicalScience.

Martin Feldstein (Harvard Uni-versity) is the recipient of the2008 Butler Award, given by theNew York Association for Busi-ness Economics.

Andrea Ghez (University of Cal-ifornia, Los Angeles) was nameda 2008 MacArthur Fellow.

Herbert Gleiter (Institut fürNanotechnologie) is the recipientof the 2008 Von Hippel Awardof the Materials Research Society.

Richard J. Goldstone (Constitu-tional Court of South Africa) isthe recipient of the MacArthurAward for International Justice,given by the John D. and Cather-ine T. MacArthur Foundation.

Robert Greenstein (Center onBudget and Policy Priorities) isthe recipient of the Heinz Awardin Public Policy.

Lars Peter Hansen (University ofChicago) is the recipient of the2008 cme Group-msri Prize inInnovative Quantitative Applica-tions.

Russell Hemley (Carnegie Insti-tution for Science) is the recipi-ent of the 2009 Bridgman Award,given by the International Asso-ciation for the Advancement ofHigh Pressure Science and Tech-nology.


John G. Hildebrand (Universityof Arizona) was elected a 2008Fellow of the Entomological So-ciety of America.

Susan Band Horwitz (AlbertEinstein College of Medicine ofYeshiva University) was awardedthe Medal of Honor for ClinicalResearch by the American Can-cer Society.

David M. Kennedy (StanfordUniversity) is among the recipi-ents of the Wilbur Lucius CrossMedal.

Edward M. Kennedy (UnitedStates Senate) was awarded theMedal of Honor for CancerControl by the American Can-cer Society.

Laura L. Kiessling (University ofWisconsin-Madison) is amongthe recipients of the Wilbur Lu-cius Cross Medal.

Neal Lane (Rice University) wasawarded the Public Welfare Med-al of the National Academy ofSciences.

George Lucas (Lucas½lm Ltd.) isthe recipient of the Art DirectorsGuild’s Outstanding Contributionto Cinematic Imagery Award.

Peter Matthiessen (Sagaponack,NY) won the National BookAward for ½ction for The ShadowCountry.

Richard A. Meserve (CarnegieInstitution for Science) is the re-cipient of the 2008 Philip HaugeAbelson Award of the AmericanAssociation for the Advancementof Science.

Margaret Murnane (Universityof Colorado at Boulder) has beennamed a National Security Sci-ence and Engineering FacultyFellow by the U.S. Departmentof Defense.

Emiko Ohnuki-Tierney (Univer-sity of Wisconsin-Madison) wasnamed to the John W. Kluge Cen-ter’s Chair of Modern Culture.

Adam Riess (Johns HopkinsUniversity) was named a 2008MacArthur Fellow.

Choon Fong Shih (National Uni-versity of Singapore) receivedthe Ted Belytschko Applied Me-chanics Award.

Galen Stucky (University of Cal-ifornia, Santa Barbara) was pre-sented with the Department ofDefense’s Advanced TechnologyApplications for Combat Casu-alty Care Award.

Twyla Tharp (Twyla TharpDance Company) is among therecipients of the 2008 KennedyCenter Honors.

Anne Treisman (Princeton Univer-sity) is the recipient of the 2009University of Louisville Grawe-meyer Award for Psychology.

Laurence H. Tribe (Harvard LawSchool) is the recipient of the2009 Outstanding Scholar Awardfrom the American Bar Founda-tion.

Edward O. Wilson (Harvard Uni-versity) is the recipient of a Life-time Achievement Award fromthe National Council for Scienceand the Environment.

William Wulf (University of Vir-ginia) received the Award for Dis-tinguished Public Service fromthe Institute of Electrical andElectronics Engineers in theUnited States.

New Appointments

Johnnetta Cole (Bennett College)has been named Director of theNational Museum of African Art.

William Dally (Stanford Univer-sity) has been named Chief Sci-entist and Vice President of Re-search of nvidia.

Jennifer Doudna (University ofCalifornia, Berkeley) has been ap-pointed Vice President of Discov-ery Research at Genentech, Inc.

Jan Ake Gustafsson (Stockholm,Sweden) was appointed to theScienti½c Advisory Board of Bio-novo, Inc.

Yuan T. Lee (University of Cali-fornia, Berkeley) has been electedPresident of the InternationalCouncil for Science.

Lawrence Lessig (Stanford Uni-versity) has been appointed Di-rector of Harvard University’sEdmond J. Safra Foundation Cen-ter for Ethics.

Arthur Levitt (Carlyle Group)has been appointed to the Boardof Trustees of Westport CountryPlayhouse.

J. D. McClatchy (Yale University)has been named President of theAmerican Academy of Arts andLetters.

Bruce S. McEwen (RockefellerUniversity) was named to theScienti½c Advisory Board of Al-lostatix llc.

James E. Rothman (Yale Univer-sity) was appointed to the Boardof Directors of Introgen Thera-peutics, Inc.

Nicholas Stern (London Schoolof Economics and Political Sci-ence) was appointed Trustee ofthe British Museum.

Patty Stonesifer (Bill & MelindaGates Foundation) was electedChair of the Board of Regents ofthe Smithsonian Institution.

Select Publications

Poetry

Lucille Clifton (St. Mary’s Col-lege of Maryland). Voices. Boa,November 2008

Geoffrey Hill (Cambridge, UnitedKingdom). Selected Poems. YaleUniversity Press, March 2009

J.D. McClatchy (Yale University).Mercury Dressing. Knopf, Febru-ary 2009

J.D. McClatchy (Yale University)and Stephen Yenser (Universityof California, Los Angeles), eds.Selected Poems by James Merrill.Knopf, October 2008

Fiction

Aaron Appelfeld (Ben-GurionUniversity of the Negev, Israel).Laish. Schocken, March 2009

Louis Auchincloss (New YorkCity). Last of the Old Guard.Houghton Mifflin, December2008

Louise Erdrich (Minneapolis,Minnesota). The Red Convertible:Selected and New Studies, 1978–2008. Harper, January 2009

Elie Wiesel (Boston University).A Mad Desire to Dance. Knopf,February 2009

Non½ction

Henry J. Aaron (Brookings Insti-tution) and Leonard E. Burman(Urban Institute). Using Taxes toReform Health Insurance. Brook-ings Institution Press, December2008

Peter Ackroyd (London Times,United Kingdom). Poe: A Life CutShort. Doubleday/Talese, January2009

Daniel Barenboim (Chicago Sym-phony Orchestra). Music Quick-ens Time. Verso, November 2008

Larry Bartels (Princeton Univer-sity). Unequal Democracy: The Po-litical Economy of the New GildedAge. Princeton University Press,April 2008

Michael Bloomberg (Of½ce ofthe Mayor, New York City). Dothe Hard Things First (and OtherBloomberg Rules for Business andPolitics). Perseus/Vanguard, Feb-ruary 2009

John Bogle (The VanguardGroup, Inc.). Enough: True Mea-sures of Money, Business, and Life.Wiley, November 2008

Alan Boss (Carnegie Institutionof Washington). The CrowdedUniverse: The Search for LivingPlanets. Basic Books, February2009

Paul Brest (William and FloraHewlett Foundation) and HalHarvey (William and FloraHewlett Foundation). MoneyWell Spent: A Strategic Guide toSmart Philanthropy. BloombergPress, November 2008

Paul Brest (William and FloraHewlett Foundation), SanfordLevinson (University of Texas at Austin School of Law), JackBalkin (Yale Law School), AkilReed Amar (Yale Law School),and Reva Siegel (Yale Law School).Process of Constitutional Decisions:2008 Case Supplement. AspenPublishers, Inc., August 2008

Bruce Cain (University of Califor-nia, Berkeley), Todd Donovan(Western Washington Univer-sity), and Caroline Tolbert (Uni-versity of Iowa). Democracy in theStates: Experiments in Election Re-form. Brookings InstitutionPress, June 2008

Noteworthy


Keith Christiansen (Metropoli-tan Museum of Art). Duccio andthe Origins of Western Painting.Yale University Press, February2009

Carl Djerassi (Stanford Univer-sity). Four Jews on Parnassus–AConversation: Benjamin, Adorno,Scholem, Schönberg. ColumbiaUniversity Press, October 2008

Wendy Doniger (University ofChicago). The Hindus: An Alter-native History. Viking/Penguin,March 2009

Gerald Early (Washington Uni-versity in St. Louis) and E. LynnHarris (Atlanta, Georgia; Fayet-teville, Arkansas). Best AfricanAmerican Fiction, 2009. Bantam,January 2009

Marian Wright Edelman (Chil-dren’s Defense Fund). The Sea IsSo Wide and My Boat is So Small:Charting a Course for the Next Gen-eration. Hyperion, September 2008

Robert Engle (New York Univer-sity). Anticipating Correlations: ANew Paradigm for Risk Manage-ment. Princeton University Press,February 2009

John Hope Franklin (Duke Uni-versity) and Alvia J. Wardlaw(Museum of Fine Arts, Houston).Collecting African American Art:The Museum of Fine Arts, Houston.Yale University Press, February2009

Henry Louis Gates, Jr. (HarvardUniversity). In Search of Our Roots:How 19 Extraordinary African Amer-icans Reclaimed Their Past. Crown,January 2009

Henry Louis Gates, Jr. (HarvardUniversity) and Donald Yacovone(Harvard University), eds. Lincolnon Race and Slavery. PrincetonUniversity Press, March 2009

William H. Goetzmann (Univer-sity of Texas at Austin). Beyondthe Revolution: A History of Ameri-can Thought from Paine to Pragma-tism. Basic Books, March 2009

Anthony Grafton (Princeton Uni-versity). Worlds Made by Words:Scholarship and Community in theModern West. Harvard UniversityPress, March 2009

Loren Graham (MassachusettsInstitute of Technology) andJean-Michel Kantor (Institut deMathématiques de Jussiu, Paris,France). Naming In½nity: A TrueStory of Religious Mysticism andMathematical Creativity. HarvardUniversity Press, March 2009

Francine du Plessix Gray (NewYork City). Madame de Staël: TheFirst Modern Woman. Atlas, Octo-ber 2008

James S. House (University ofMichigan), Robert F. Schoeni(University of Michigan), GeorgeA. Kaplan (University of Michi-gan), and Harrold Pollack (Uni-versity of Chicago). MakingAmericans Healthier: Social and Eco-nomic Policy as Health Policy. Rus-sell Sage Foundation, January2008

Ada Louise Huxtable (New YorkCity). On Architecture: CollectedReflections on a Century of Change.Walker, November 2008

Gwen I½ll (weta, Arlington,Virginia). The Breakthrough: Poli-tics and Race in the Age of Obama.Doubleday, January 2009

Ha Jin (Boston University). TheWriter as Migrant. University ofChicago Press, November 2008

Nicholas deB. Katzenbach(Princeton, New Jersey). Someof It Was Fun: Working with RFKand LBJ. Norton, October 2008

Thomas Keneally (Avalon Beach,Australia). Searching for Schindler:A Memoir. Doubleday/Talese,October 2008

Margaret Levi (University ofWashington), Susan Stokes (YaleUniversity), James Johnson (Uni-versity of Rochester), and JackKnight (Duke University). Design-ing Democratic Government: Mak-ing Institutions Work. Russell SageFoundation, September 2008

Lawrence Lessig (Stanford LawSchool). Remix: Making Art andCommerce Thrive in the HybridEconomy. Penguin Press, October2008

Leon F. Litwack (University ofCalifornia, Berkeley). How Free isFree? The Long Death of Jim Crow.Harvard University Press, Febru-ary 2009

Thomas Nagel (New York Univer-sity), ed. A Brief Inquiry into theMeaning of Sin and Faith with “OnMy Religion” by John Rawls. HarvardUniversity Press, March 2009

Mike Nichols (New York City),Twyla Tharp (Twyla TharpDance Company), MitsukoUchida (London, United King-dom), John Lahr (The New Yorker),and Andre Gregory (New YorkCity; London, United Kingdom).Performance: Richard Avedon.Abrams, October 2008

Richard E. Nisbett (University ofMichigan). Intelligence and How toGet It: Why Schools and CulturesCount. Norton, February 2009

Ronald Numbers (University ofWisconsin-Madison). Galileo Goesto Jail and Other Myths about Scienceand Religion. Harvard UniversityPress, March 2009

Hilary Putnam (Harvard Univer-sity). Jewish Philosophy as a Guideto Life: Rosenzweig, Buber, Levinas,Wittgenstein. Indiana UniversityPress, January 2009

Felix Rohatyn (fgr Associates).Bold Endeavors: How Our Govern-ment Built America, and Why it MustRebuild Now. Simon & Schuster,February 2009

Richard Rose (University of Ab-erdeen). Understanding Post-Com-munist Transformation: A BottomUp Approach. Routledge, January2009

David O. Sears (University ofCalifornia, Los Angeles), JamesSidanius (Harvard University),Shana Levin (Claremont McKen-na College), and Colette Van Laar(Leiden University, the Nether-lands). The Diversity Challenge:Social Identity and Intergroup Rela-tions on the College Campus. Rus-sell Sage Foundation, December2008

Eric J. Sundquist (University ofCalifornia, Los Angeles). King’sDream. Yale University Press,January 2009

Murray Weidenbaum (Washing-ton University in St. Louis). TheCompetition of Ideas: The World ofthe Washington Think Tanks. Trans-action Press, September 2008

We invite all Fellows and For eign Honorary Members to send notices about theirrecent and forthcoming pub -lications, scienti½c ½ndings,exhibitions and performances,and honors and prizes tobulletin@ama cad.org.

Academy News

William Julius Wilson (HarvardUniversity). More than Just Race:Being Black and Poor in the InnerCity. Norton, March 2009

Theodore Ziolkowski (PrincetonUniversity). Mythologisierte Gegen-wart: Deutsches Erleben seit 1933 inAntikem Gewand. Wilhelm FinkVerlag, January 2008

Theodore Ziolkowski (PrincetonUniversity). Minos and the Mod-erns: Cretan Myth in Twentieth-Century Literature and Art. OxfordUniversity Press, June 2008


Feb. 20, 1874

Down,Beckenham, Kent.

Sir

I beg leave to acknowledge yourletter of Jan. 28 in whichyou announce to me that theAmerican Academy of Arts& Sciences has conferred on methe distinguished honour of electingme a Foreign Honorary Member.I request that you will return tothe Academy my most sincere thanksfor this honour, & I remainSirYour obedient & obliged servant

Ch. Darwin

This year marks the bicentennial of the birth of Charles Darwin, the British naturalist whose work on natural selection andthe origin of species sparked intense debate. In 1860, Louis Agassiz, a zoologist and geologist, and Asa Gray, a botanist, par-ticipated in a series of meetings at the American Academy on Darwin’s Origin of Species. Agassiz presented arguments in favorof divine creation and Gray defended the variability of species as proof of adaptation.

Darwin was elected a Foreign Honorary Member of the Academy in January 1874. His letter accepting his election is amongthe Academy’s archival treasures.

Letter to the Secretary of the American Academy fromCharles Darwin, February 20, 1874, acknowledginghis election as a Foreign Honorary Member.

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Documents

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