'What is a Kamisar?' (Michigan University Law School Professor Yale Kamisar) (Testimonial)

• Author: LaFave, Wayne R.

A food friend is often better than a brother.

One old friend is better than two new ones.

--old Yiddish proverbs

My good and old friend Yale Kamisar is said to be "retiring" (1) after a remarkable life in academe spanning almost half a century. I deem it my extraordinary good fortune to have been able to count Yale as a friend for thirty-seven of those years (not that we were enemies the rest of the time (2)), and to have been able to serve as a collaborator of his, working together in the vineyards of the law, for virtually the entirety of our acquaintance. And thus I am especially delighted to have this opportunity to offer up a "fair and balanced" (3) appraisal and assessment of Yale as he settles into his new-found status of alter Locker.

1. THE QUESTION

   One fool can ask more questions than ten wise men can answer.

   --old Yiddish proverb

   The concern here is with a single question (the interrogatory serving as the caption for this Pantagruelian panegyric) which in itself might provide a shtikel of shtuk for the aforementioned wise men. I believe it first entered my psyche many moons ago--most likely, as best I can recall, in the early 1970s, not long after Yale and I and Jerry Israel first coauthored the Modern Criminal Procedure casebook now in its tenth edition. It was one of my first efforts at teaching from the book, and we were just starting the chapter on confessions, which began with excerpts from commentators of various stripes (including Kamisar) about police interrogation. In class, I commenced quizzing my students about their own preliminary views on this subject, and after one student of a liberal bent set out his thoughts, I tried to tie it in with the assigned readings by commenting that the position we had just heard could well be labeled "the Kamisar perspective." No one challenged or questioned that characterization, and the discussion continued until the hour ended, after which a few students approached the podium with a variety of questions. One student held back until the others had left, and then he somewhat hesitantly stepped forward and said, "I didn't understand one comment you made during the class. Just what is a Kamisar?"

   I was dumbfounded and a bit farmisht. Had this student not read the assigned material containing the Kamisar excerpt? For that matter, did he not even have a copy of the casebook with Kamisar's name prominently displayed on the cover? I could not bring myself to explore either of those possibilities, and thus I muttered "good question" and stalked out of the classroom, leaving the befuddled nishtgutnick to stew in his own juices. But once back in my sanctum sanctorum, I began turning the student's query over and over in my mind--what is a Kamisar?; yes, what is a Kamisar, anyway? It really is a good question, one I then felt ill-equipped to answer fully to my own satisfaction. From that day to the present, I have pondered that provocative perturbation time and again, but still have been unable to sort out entirely that complex personality we know as Yale Kamisar. Perhaps I never will! But I have at last been able to put together some of the pieces of the puzzle, sufficient I hope to allow me to make at least some meaningful observations about my longtime coauthor, colleague, and friend.

   As I see it, a Kamisar is made up of four more-or-less equal parts --kemfer, redner, shrayber, komiker--which I shall now expatiate seriatim.

2. THE FIGHTER

   When your enemy falls, don't rejoice--but don 't pick him up either.

   --old Yiddish proverb

   If I were to accuse Yale of being a philopolemicist, I am sure he would instantaneously respond with an argument to the contrary--probably without even pausing to look up the word first. And that would be the proof of the kugel, for he is indeed a person who loves to argue and debate. Just what accounts for this highly competitive (indeed, combative) aspect of the Kamisar personality is beyond my ken, although I once had occasion to sound out someone whose professional expertise extends to such matters. During a teaching visit at the University of Michigan Law School several years ago, I co-taught the criminal law course with the distinguished alienist Dr. Andrew Watson, and after each class we would retire to the restaurant across the street for some java and whatever was on the good doctor's mind until each session was abruptly terminated by Watson leaping to his feet and shouting "to horse" (something else I have long wondered about). Anyway, early on at one of these coffee breaks I soon learned that one of Watson's burning professional interests at that time was how to explain Kamisar, and his theory was that Yale had been profoundly affected earlier in life by one (or perhaps several) physical assaults to his person.

   At subsequent sessions, the esteemed shrink and yours truly spent some time speculating further about this matter. One thesis was that Yale's combativeness actually came from combat. Yale was a shavetail on the front lines during the Korean War (while others such as myself basked in luxury at an air base in Japan), and it was an established fact that during an American assault on T-Bone Hill Yale had picked up some hot North Korean lead in his tokhis. But Watson was inclined to the view that Yale's strong competitiveness came to the fore at a much earlier age, and the good doctor's thesis (supported by his earlier groundbreaking research at the National Institute for the Study of Jewish Eccentricities) was that the source was rabbinical in nature. To this I added the speculation that Yale might have been under the tutelage of an especially stern rabbi as he prepared for his bar mitzva, (4) for I had conjured up in my mind's eye this scenario: At one instruction session, the rabbi called upon young Yale to explain the

   Hebrew verses he had studied from the book of Leviticus, and the lad responded: "It forbids various abnormal sexual practices; the only thing is, rebiniu, I don't understand about abnormal sexual practices." The agitated teacher then laid a potch on his own forehead and followed this with a good zetz to the side of Yale's head, exclaiming, "And how is it about normal sex you're knowink?" What followed in my phantasma was a knock-down, drag-out tumel and sichsech until Yale was finally able to convince the rabbi he was tsnueh and not a paskudnik, or, for that matter, even a shkotz. (5) Watson acknowledged that something along those lines might have occurred, but his thesis was that the triggering event came much earlier in Yale's life, when he was but a pisher. "I think," Watson asseverated, drawing upon his cutting-edge research at the Institute, "that it goes back to Yale's bris, when his petseleh suffered at the hands of a mohel who was a bit of a shlemiel, leaving him with a shlecht shlang, that is, a plotzed putz, or, if you will, a shvachkeit in his shvantz." (Well, maybe so, (6) but I must say that I always thought Watson was himself a certifiable meshugerner.)

   But enough speculation about causes; the essential fact is that for whatever reasons Kamisar is one hell of a competitor who always relishes a good fight, at least on an intellectual level. As one reporter noted, some years back Kamisar "became a stalwart in a never-ending series of skirmishes in defense of the Warren Court's rulings," one "particularly dramatic example" being that when Attorney General Meese mounted a public campaign against Miranda, Yale quickly prepared "an angry rebuttal accusing Meese of 'exaggeration and distortion' [that] was widely reprinted in newspapers across the country." (7) While many other such examples could be given, I want to emphasize that Yale's lust for argumentation and debate is also reflected in various ways in his more academic accomplishments. For one thing, he has often published articles directly responding to and in opposition to a companion piece by an author of a different persuasion, tearing into the positions of his opponent with unabashed relish. The most recent illustration of such a debate-in-writing was in 2003, when Kamisar vigorously and most effectively challenged yet another proposed substitute for the Fourth Amendment exclusionary rule set out in an immediately preceding article by Judge Guido Calabresi. (8) Another most worthy antagonist was the highly regarded Wayne State law professor and Federalist Society guru Joe Grano, a former student of mine who "went astray," so to speak? But the most famous of such exchanges occurred some years ago in the pages of what was then called the Journal of Criminal Law, Criminology and Police Science, where Yale and Professor Fred Inbau of Northwestern University went at it tooth and nail debating public safety versus individual liberties in a most exciting series of articles. (10) Inbau's perspective on the subject is perhaps best revealed by the fact that he was affectionately known by his students, colleagues, and others as "Freddie the Cop"; curiously, Kamisar never became known as "Yalie the Perp."

   Because I have characterized this aspect of the Kamisar persona in gladiatorial terms, I should add that Kamisar's hassles with the aforementioned adversaries were only on the level of ideas, and were not personal. He did not call any of them a chazzer...