Tribute to Judge Rabinowitz

• Citation: Vol. 15
• Publication year: 1998

§ 15 Alaska L. Rev .197. Tribute to Judge Rabinowitz

Alaska Law Review
Volume 15
Cited: 15 Alaska L. Rev. 197

Tribute to Judge Rabinowitz

JUDGE ANDREW J. KLEINFELD

FOOTNOTES

Justice Rabinowitz gave me my first look at the work of an appellate judge, when I was his law clerk from 1969 to 1971. Much of what I do now is influenced by how he did his work then.

The State of Alaska was only ten years old, so many cases were matters of first impression. The Alaska Supreme Court was of a vigorous and confident temperament, not inclined to dodge issues. In R.L.R. v. State, ^[1] Justice Rabinowitz passed comprehensively on all of the major constitutional issues which then affected juvenile justice: The right to jury trial, the right to public trial, the right to be present during trial, and the procedure for waiving rights. R.L.R. was among the first of the state supreme court opinions that used the state constitution rather than the United States Constitution as a basis for deciding these kinds of issues. The practical effect of this analytic device is to foster federalism and a diversity of approaches from which the nation may gain the benefit of experience, without the risk of experiments being imposed by federal courts on the entire nation.

In State v. Chaney, ^[2] Justice Rabinowitz articulated the goals of criminal sentences in Alaska in a manner which has stood up well for three decades. In National Indemnity Co. v. Flesher, ^[3] he explained with clarity the distinction between a liability insurer's duty of defense and its duty of coverage. To most law students and law professors this would not sound important, but to most practicing lawyers, it obviously is. The law controlling insurance is perhaps the most important body of law in practice for determin[*pg 198] ing who gets sued for what, because it determines who is worth suing.

My personal favorites among the cases I worked on as a law clerk tended to be the more ordinary ones, rather than the great cases. Rego v. Decker ^[4] was a particularly nice analysis of when a contract is specific enough to be enforced. It dealt sensitively with the distinction between a judge making up the contract, and a judge filling gaps as the parties would have had they had the time and money to draw up a more complete document. Brand v. First Federal Savings and Loan Ass'n ^[5] was...