IN MEMORIAM
W. PAGE KEETON
On January 10, 1999, Page Keeton, dean emeritus and W. Page Keeton
Chair Emeritus in Tort Law at The University of Texas School of
Law, died in his sleep at his home in Austin. He was 89. Dean Keeton
was survived by his wife, Madge Stewart Keeton; his daughter, Carole
Keeton Rylander, the Comptroller of the State of Texas; his son,
Richard Page Keeton, a prominent Houston attorney; his sister,
Willie R. Keeton Spencer of Dallas; two brothers, the theologian
and educator Dr. Morris T. Keeton of Columbia, Maryland, and U.S.
District Judge Robert E. Keeton of Boston; seven grandchildren;
and four great-grandchildren.
During his fifty-eight years of service to
The University of Texas School of Law – twenty-five of them
(1949-74) as its dean – Page Keeton became "fabled" for his
remarkably varied and lasting achievements as law school dean,
teacher, torts scholar, lawyer, and public citizen. In the words
of the current dean, Michael Sharlot, Keeton was unquestionably "the
greatest dean this school ever had." Another of Page's successors,
Mark Yudof, now president of the University of Minnesota, says
that "Page built one of the great law schools in America." Former
Texas Chief Justice Jack Pope, who was taught by Keeton, calls
Page "one of the great American educators." The former dean of
the Yale Law School, U.S. Circuit Judge Guido Calabresi, states: "When
the history of tort law in the last half of the twentieth century
is written, no person will loom larger than W. Page Keeton." Former
Texas Chief Justice John Hill notes that Page was "a giant among
lawyers." And on top of it all, as Charles Alan Wright once wrote,
Dean Keeton was simply "a great human being." Page was deeply admired
by virtually everyone who knew anything about him. And thousands
of us whose lives he touched in person loved him. At her swearing-in
ceremony as Comptroller of the State of Texas, Carole Keeton Rylander
might have been speaking for all of us when she put it so movingly: "Page
Keeton is my real-life hero."
Roots and Early Education: The 89-pound handball
champ.
Werdner Page Keeton was born in McCoy, Texas – an
unincorporated northeast Texas community in Red River County about
five miles southwest of Clarksville – on August 22, 1909.
McCoy consisted of a few homes, a Methodist church, a one-room
schoolhouse, and Page's father's general store. Page, the second
of five siblings, attended the one-room schoolhouse through fourth
grade. Thereafter he went to school in Clarksville, graduating
in 1925 at the age of 15. Both of Page's parents were college graduates,
and it was taken for granted that Page would go to college and
enter a profession. By the time he entered high school, Page knew
he wanted to be a lawyer, and in his words he "didn't ever change,
never had any questions about it." When a mathematics professor
at The University of Texas urged him to pursue a career in that
field, Page was flattered but unswayed: "I had already made up
my mind. Nobody could change my course at that point in time."
In the late summer of 1925 when Page got
off the train and saw Austin for the first time, he was a "homesick" 16-year
old who weighed "89 pounds stripped" and was "about the greenest
freshman that ever came to The University of Texas." Austin was "a
huge place, about 30,000 people." The university had between three
and four thousand students. At that time one could enter the law
school with two years of college work, but, according to Page, "I
was 16 and not very bright, so I decided to take the three-year
[prelaw] program." During those years Page lived on summer earnings,
the proceeds of loans, and a little help from his parents, but "[I]
didn't have to work while I was going to school. I concentrated
on my studies," which emphasized courses in economics and government.
He also concentrated on bridge and handball, becoming "a real good
bridge player" and in handball "comparable to the best at the university.
I'm quick, and [handball] didn't call for much strength. It just
called for agility, and quickness, and things of that kind."
As Page remembered it in a recent oral history
interview, when he entered The University of Texas School of Law
in the fall of 1928 there were eight faculty members and about
300 students. Because the standards for admission were so low, "close
to two-thirds of the [entering] class were unqualified to study
law." The faculty, on the other hand – which included Dean
Ira Hildebrand and Professors Frank Bobbitt, Bryant Smith, Robert
Stayton, George Stumberg, and A. W. Walker – were "outstanding." Because
so many of the students were unqualified, "we weren't the great
law school that we could've been." But because of the strength
of the faculty, "it was a great deal better law school than it
was recognized to be nationally. I didn't know it then. But I know
now it was, because I know what those people were, I know what
they did, and I know what people are today, and I'm around them
all the time."
Page was an extremely successful law student,
publishing three law review pieces and ultimately graduating first
in his class. But graduation year, 1931, "was the depth of the
Depression" and there were no jobs. "The only ones that got jobs
were sons of lawyers, who had law firms, and who could bring them
into their establishment."
Early Career: "We're going to learn this together."
In June of 1931, Page Keeton was a stellar
graduate of The University of Texas School of Law, not yet 22 years
old, and jobless. He went to West Texas – to Vernon, in Wilbarger
County, where his parents had moved – and persuaded a lawyer
there to let him share office space. He intended to scramble for
whatever legal work he could find and to run for county attorney.
But destiny intervened. Mastin White, a law
professor at the university, announced that he would be leaving
at the end of the 1931-32 academic year to become general counsel
of the Department of Agriculture. Page, whose "very good average
at the law school [had] impressed the faculty," was invited to
fill the vacancy. "So I came back." During the 1931-32 academic
year, Page stood by to take up the faculty post by working as research
assistant to Professor Stayton and as business manager of the Texas
Law Review. During that year he wrote a law review article, "and
it's always good for somebody to have an article written if he's
joining the faculty. So that went well. And hell, I got [paid]
about $150 a month," at a time when the few beginning lawyers who
could find jobs were being paid $50 or less. "I guess if there'd
been good times and been jobs available, I'd have been a practicing
lawyer. But I ended up on the law faculty." In the fall of 1932,
Assistant Professor Keeton, age 23, faced his first torts class,
feeling extremely lucky to have the opportunity. And fortune was
indeed smiling; one of the students in Page's first torts class
was Madge Anna Stewart, his future wife. (Madge and Page were married
in 1934.)
While a law student, the idea of teaching
had (emphatically) "never" occurred to Page, "but I liked it after
I got into it." The fact that he was no older than most of his
students caused him no problems. "We got along very well. I never
attempted to indicate that I knew it all, and I started out saying,
'We're going to learn this together.' No, we never had any problems."
After teaching for three years, Page followed
Dean Hildebrand's advice and took a leave of absence in 1935-36
to do graduate work at Harvard, where he wrote a thesis under the
supervision of the torts scholar Warren Seavey. Seavey liked Page's
work so much that he invited Page to be a coeditor of a forthcoming
edition of Seavey's leading torts casebook. Many years later, Page
reminisced: "The point is, you never know what's going to happen
to you that's good for you. But it just turned out that my association
at Harvard was the best thing that ever happened to me nearly." Page "jumped
at the opportunity . . . to get some national recognition" by coediting
the Seavey book, which eventually became the famous Keeton and
Keeton torts coursebook, currently in use at more than sixty law
schools.
By the time he had completed his year at
Harvard, Page had opportunities to teach at law schools then considered
better than Texas, but he "didn't have any desire to go anywhere
except back. I wasn't talking to anybody else. I wasn't negotiating
with anybody else. I wanted to come back to The University of Texas."
Back at UT, Page continued to teach successfully
and to publish often. In 1940, Dean Hildebrand resigned and was
succeeded by Charles T. McCormick, who immediately appointed Keeton
as assistant dean. By that time the school's enrollment had grown
to around 750 students, and Page was "primarily in charge of students,
and their registration, and their problems." He believed his relative
youth was an advantage in this job: "I wasn't so far removed myself,
and so I think I understood [the students'] problems. I don't think
there ever was a rule that a faculty could adopt that didn't need
some equity in the administration thereof. . . . I got pretty well
acquainted with dealing with problems of that kind. And later on,
when I became dean, I got an assistant dean that operated the same
way. That's the only way I would've had one."
The War Years: "Foolish requirements" and
policy decisions.
After Pearl Harbor, the law school's enrollment
fell from 750 to about 50. Most of the faculty left for military
service or other wartime work. Page tried to get a military commission,
but the military's "foolish requirements" led to his rejection
on grounds of imperfect eyesight and high blood pressure. So in
1942 he went to work as counsel for the Fuel Division of the Office
of Price Administration, a lawyering job. After a year or so with
the OPA, Page shifted to become pricing executive of the Petroleum
Administration for War. This was an administrative post, where
Page supervised people who had been oil and gas executives and "made
the policy decisions." He liked the importance of the work and
the satisfaction of achieving something so meaningful, and (as
he later said laughingly) he enjoyed the occasional controversy.
In this powerful position, administering the wartime program of
fixing oil and gas prices, Page "got a good deal of experience
in administration and . . . concluded that administering a law
school might be fun."
At the end of the war, Page turned down a
number of offers of positions in the oil and gas field – positions
with law firms practicing oil and gas law, executive positions
with oil companies, and the position of general counsel for the
Federal Power Commission – to return to his professorship
at The University of Texas School of Law. He later indicated that
this was not an uncomplicated decision, but nevertheless it was
an easy one: "Madge wanted to come back to Austin."
The Oklahoma Deanship: Refusing to participate
in "an unsound step."
Madge's plan for the Keetons to live in Austin
soon suffered a mild setback. Back at The University of Texas for
the 1945-46 academic year, Page resumed his teaching, now facing
huge classes of postwar law students. ("I taught contracts in the
spring of '46 to 250 students in one room. They were hanging out
the windows.") During this year he was offered the deanship at
the University of Oklahoma Law School. While Oklahoma "wasn't nearly
as good as this [University of Texas] law school, I wanted to experience
running a law school. [So] I decided to take it, and we moved to
Oklahoma in June of '46."
When the 36-year-old Keeton arrived in Norman,
the University of Oklahoma's most obvious and immediate problems
were postwar overcrowding, underfunding, and the turmoil of the
early days of racial integration. Page played key roles on all
these fronts. He served as chair of the Space Allocation Committee
for the entire university, thereby presiding over (and enjoying)
a series of relatively insignificant but nevertheless heated controversies.
He began private fund-raising for the law school – over the
objections of the university administration, who distrusted the
potential loss of control. And he took a strong hand in trying
to implement and smooth the process of racial integration.
Three of Page's actions in the integration
struggle are especially revealing of his character, personality,
administrative style, and legal skill. First, he testified "calmly
and rationally" on behalf of the black student applicants that
the State of Oklahoma's hastily-assembled "separate but equal" law
school for blacks was anything but equal. Second, he saved the
job of a colleague who testified to the same effect – but
who started "the wolves to howling" by giving his testimony "emotionally
and in many ways poorly" – by writing a long letter to the
chair of the University Board of Regents ("who was general counsel
of Phillips Petroleum Company, and a very able and progressive
individual"), pointing out the disastrous consequences to the school's
national reputation of such a firing. (Page's letter concluded
with the sentence: "After all, one of his forebears lit the lantern
that sent Paul Revere on his famous ride." This claim, Page later
insisted, was true. In any event, the colleague did not get fired.)
Finally, after first securing the permission of the university
president, Page steadfastly refused to have anything to do with
setting up the ersatz "separate but equal" school. His explanation
for refusing was characteristic of Keeton: "I just didn't want
to participate in what I regarded as an unsound step."
Early Years as the Texas Dean: "It's better
to have money and problems than no money."
In the fall of 1948 Charles McCormick announced
his intention to resign as dean of The University of Texas School
of Law at the end of the 1948-49 academic year. In May of 1949,
Keeton was named as McCormick's successor. Immediately on taking
over, Page had to decide how to maintain the institution's peace
and decorum while overseeing the court-ordered racial integration
of the university. In September of 1949, Heman Marion Sweatt was
admitted to the law school pursuant to court order. The situation
was extremely volatile, involving protests from irate parents of
law students, strenuous objections from a handful of the students
themselves, and the importunities of those whom Page considered
sensation-seeking journalists. He handled all of these matters
in the same way in which he had dealt with similar events at Oklahoma – calmly
but forcefully. For example, Page told a group of journalists who
(correctly) saw the moment of Mr. Sweatt's enrollment as a unique
photo opportunity: "I'm not going to allow it. We're going to enroll
him, we're going to enroll him calmly and without fanfare, and
I don't want the people stirred up over this thing." When the journalists
persisted and indicated that they meant to come in any case, Page
said: "I've got a bunch of law students around here that says you're
not." No fanfare occurred.
Incoming Dean Keeton was determined that
Texas would achieve national recognition as an excellent law school.
The biggest problem was the lack of sufficient funding "to recruit
and keep scholars of distinction" on the faculty. Page attacked
that problem on multiple fronts, including direct appeals to the
university administration, to the legislature, and to his many
friends and supporters among the law school's alumni. He also implemented
the formation of an official alumni association and instituted
a highly visible and ambitious program of continuing legal education.
But he later thought that "the greatest contribution perhaps I
made to the law school" was the formation of The University of
Texas Law School Foundation.
Page's experience at Oklahoma had taught
him that The University of Texas administration would not look
kindly on separate fund-raising efforts on behalf of the law school.
He also foresaw the danger that any success in raising funds for
the law school would produce a corresponding diminution in financial
support from the administration. So, he "didn't just run the fund-raising
through the [dean's office] by appointing someone." Instead, he
oversaw the creation of the Foundation, a separate educational
corporation with a "powerful board, [one] that the administration
just couldn't brush off." The members of the Foundation Board were
prominent and successful lawyers who could contribute funds, raise
funds, assure other alumni that their gifts would be used for the
law school and not some other purpose, and resist efforts by the
university administration and the legislature to reduce the law
school's funding in response to its successes in fund-raising.
As Page later summarized his thinking, "it pays to have a power
structure of your own." When the chancellor of the university objected
to the fact that the existence of the Law School Foundation's Board
alongside the University's Board of Regents meant "that you'd have
two boards to deal with, and you'd multiply your problems," Page
responded: "Look, it's better to have money and problems than no
money."
Slowly and steadily, Page began to get the
money, and he used it to build a nationally-ranked faculty by hiring
some promising beginners and, more dramatically, by attracting
outstanding people like Charles Alan Wright away from other law
schools. It should be noted that, while Page was willing to delegate
some of his administrative responsibilities, he "never delegated
the responsibility . . . of the employment of faculty . . .. I
had a [faculty recruitment] committee to help, but . . . I participated
in all of [its] discussions, and no one ever got appointed to the
faculty that I didn't approve."
Resisting Pressures for Political Orthodoxy: "I
think I succeeded in educating regents and all on the importance
of academic freedom."
On several occasions in the 1950s and 1960s,
Dean Keeton had to deal with efforts by various persons of power
and influence to police the ideological and political climate at
the law school. In this arena, Page's rock-ribbed integrity, potentially
pugnacious stubbornness, and political adroitness had perhaps their
finest showcase. For example, the university administration once
directed Dean Keeton to prepare a list classifying each faculty
member he had hired as liberal or conservative. (Recalling this
occurrence years later, Page remarked, "Can you imagine!") Page
wrote back "that 'under no circumstances would I do that, because
it's irrelevant. We appoint people over here on the basis of their
ability – competence to teach and write.' And we had all kinds
of viewpoints on the faculty. And I wasn't about to do that, and
if they tried to do anything of the kind, I would make it public." He
heard nothing further.
Several years later, the Board of Regents
set out to penalize the law school for having hired too many faculty
members who were perceived in some circles as "radicals or extremists" by
freezing the law school's budget at the previous year's level.
In what he later referred to as "my usual style," Page thwarted
this effort by contacting his many friends in the Law School Foundation
and in the legislature and by making a series of speeches to alumni
and student groups in which he defused the fears of radicalism
by putting a human face – essentially, his own – on the
matter. As Page later described this basic speech:
So I said to the alumni – let's see: 'Now
let me deal with the accusation about radicals. We have a faculty – carefully
selected, and without reference to race, religion, or political
philosophy – of diverse viewpoints. If it were not so, we
would be subject to criticism, because our students should be subjected
to a competition of ideas. For example, we have such radicals,
employed since I became dean, as Woodfin Butte – a rank conservative – Frank
Elliott, Bill Gibson, Stan Johanson, Albert Jones, Ernie Smith,
John Sutton, and Henry Wilkinson.' I was just mentioning those.
Everybody out there and the youth were more conservative than I
was. 'Then [laughing] we have right-thinking people like myself,
that I would describe as a liberal conservative.'
Over the years Dean Keeton dealt in similar
fashion with a number of individual instances in which a prominent
alumnus or powerful politician would urge him to silence or get
rid of faculty members who were espousing unpopular or unorthodox
political and social ideas. Page would say:
Well, we have people on the faculty that feel
just as you do about the [particular social] issue that you're
talking about, except for one thing. They believe in the idea that
we ought to have freedom of thought on the faculty, and we ought
to tolerate people on the faculty that disagree . . .. In other
words, they agree with your position on this issue, except they
don't agree with your position that nobody else ought to be on
the law faculty with a different position.
As Page later put it, "it's pretty hard to answer" that
kind of argument. "I think I succeeded in educating regents and
all on the importance of academic freedom."
How to Teach Brilliantly and Publish Often
and Wisely While Building a Great Law School: Start at 7 a.m.
When Page was asked in 1986 to describe how
he had "managed to balance the various requirements of teaching,
of scholarship, and of administering the law school," he answered
by first describing his approach to teaching. His torts class was
always scheduled for 9 a.m., and he would arrive at the law school
no later than 7:00 to prepare for class. "When I got up here at
7:00 in the morning, I wasn't getting up here to study the law.
I was getting up here to think about how I was going to present
that day's lecture – how I was going to go about trying to
get across to students what I wanted to get across and trying to
induce them to think through some of the concepts that we were
going to be talking about. [I tried] to use [each assigned case]
as a basis for [getting students to think] about the problem that
the judge was dealing with. And I'd use hypotheticals all over
the place as to what this case meant with respect [to related problems].
We were there for the purpose of talking about the problem, rather
than just a lecture. You don't need but ten minutes [to prepare
for class] if you're going to lecture all hour."
Respecting research and writing, Page explained
that he did most of his work on weekends and during the summers.
He believed that his relatively frequent publications set a crucial
example for the rest of the faculty. "If I could write [a leading
article a year, on average], as busy as I was, I didn't understand
why a member of the faculty, [doing] his job, couldn't likewise
do so. [B]y example, [I] indicated to them what they ought to be
doing."
A Life of Extraordinary Achievement.
Page served as dean of The University of
Texas School of Law from 1949 to 1974. Thereafter he continued
to teach and write, and he began engaging in a considerable consulting
law practice. Prominent among his publications during this later
period is his lead authorship of the most-cited torts treatise
in the world, Prosser & Keeton on Torts (1984). Page's
professional accomplishments and many honors – far too numerous
to detail here – include A.B. and LL.B., 1931, The University
of Texas; S.J.D, 1936, Harvard; LL.D., 1964, Southern Methodist
University; national president of the Association of American Law
Schools; national chair of the Council of Legal Education Opportunity;
Torch of Liberty Award of the Anti-Defamation League; member of
the Advisory Committee on Revision of the Restatement (Second)
of Torts; member of President Johnson's Labor Management Policy
Committee; chair of the State Bar of Texas Penal Code Revision
Advisory Committee; chair of the State of Texas Medical Professional
Liability Study Commission; chair of the Texas Ethics Advisory
Committee; consultant to the U.S. Senate Committee on Commerce,
Science, and Transportation; American Bar Association Award of
Excellence as Educator. Page was frequently honored with banquets,
colloquia, festschrifts, symposia, proclamations, and the like.
(Today the address of The University of Texas School of Law is
727 Dean Keeton Street.) At the huge banquet marking his retirement
as dean, he concluded his brief remarks with a seemingly simple
statement that – for those of us who knew and loved him so
well and owed him so much – somehow managed to convey the
unique blend of affection, pride, modesty, generosity, courage,
and downright brilliance that made him such a great human being.
What he said, as we remember it, was this: "If I had it to do all
over again, I don't know that I could do near as well."
<signed>
Larry R. Faulkner, President
The University of Texas at Austin
<signed>
John R. Durbin, Secretary
The General Faculty
A copy of the bibliography is available on request from the Office of the
General Faculty, FAC 22, F9500.
This memorial resolution was prepared by a special committee
consisting of Professors David W. Robertson (chair), David A. Anderson,
and Charles Alan Wright.
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