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IN MEMORIAM
MICHAEL P. ROSENTHAL
Professor Michael P. Rosenthal, Thomas
S. Maxey Professor of Law at The University of Texas School of Law,
died March 14, 1989. He joined the faculty of this school in 1968 as
a professor after having served as a visiting associate professor during
1967-68. He died at his home in Austin at the age of 52 after a long
and courageous battle with cancer. His untimely death interrupted a
distinguished career as a scholar and deprived the school of a very
special teacher and colleague. At the time of his death, he was survived
by his wife, Mimi, and his daughter, Regina.
I. The Early Years
Mike Rosenthal was a New Yorker, born
and bred. He was one of those precocious young men who emerged from
the Bronx High School of Science, a nationally recognized intellectual
nursery. Mike was one of that school's extraordinary alumni: smart,
energetic, and committed to making the world a better place. After a
Phi Beta Kappa performance in economics at Columbia, he attended Columbia
Law School. When he graduated in 1959, following an outstanding law
school career and service on the law review, he chose to postpone practice
or a clerkship to serve a year as assistant director of the Legislative
Drafting Research Fund at Columbia. From his work at the Fund, Mike
developed the theoretical and practical skills that would make him an
important figure in the drafting of federal and state legislation throughout
his career.
Next, he obtained a coveted clerkship
with the famous jurist Harold R. Medina of the United States Court of
Appeals for the Second Circuit. After his clerkship, Mike practiced
law for three years with two different New York City law firms, including
the high-powered Kay, Scholer, Fierman, Hays & Handler. With these
important experiences under his belt, he began his teaching career at
Rutgers Law School, Camden, in 1965.
From the start, Mike committed himself
to teaching and scholarship in the field of criminal law, with special
attention to problems of drug abuse and juvenile justice. Within two
years of joining the Rutgers faculty, he was named a consultant on narcotics
and drug abuse to the President's Commission on Law Enforcement and
the Administration of Justice and published a leading article on drug
law reform, A Plea for Amelioration of the Marihuana Laws, in
the Texas Law Review. He then served as a consultant on these
matters to the National Commission on Reform of Federal Criminal Law.
Dean Page Keeton, with his usual shrewd eye for young talent, invited
Mike to visit at the Law School that same year, 1967. As Mimi Rosenthal
told the story, she agreed to come to this strange and distant province
on Mike's solemn promise that it was just a visit, absolutely nothing
more. Since Mike was a man of his word, we have to conclude that it
turned out to be the longest visit in the history of legal academia.
II. Scholar and Teacher
After Mike became a tenured professor
at Texas in 1968, he increased his important and very visible work in
the field of drug abuse. On the national and international levels, in
addition to the positions mentioned above, he served as a consultant
to the National Commission on Marijuana and Drug Abuse, to the National
Academy of Sciences-National Research Council, as well as to the Canadian
Federal Commission of Inquiry into the Non-Medical Use of Drugs (the
Le Dain Commission), and was a member of the Committee on Drug Abuse
of the American Bar Association’s Criminal Law Section. On the
state level, he was a consultant to the Drug Education Division of the
Texas Education Agency in 1971-72, and the reporter on drug offenses
to the Texas State Bar's massive, multiyear project to rewrite the state's
criminal laws from 1969-71. This project came to fruition in 1973 with
the enactment of the state's first new penal code in 117 years. Mike's
work on the Penal Code marked the beginning of many years of
service he provided the legislature, bench, and bar of his adopted state.
Yet he did not let all of these public service commitments interfere
with a continuing stream of law review articles and books. Virtually
all of his publications were inspired by the same impulse: the amelioration
of the harshness of existing law through the application of rational
thought to empirical data. This inspiration was certainly evident, for
example, in his 1979 article, Partial Prohibition of Nonmedical Use
of Mind-Altering Drugs: Proposals for Change. This piece, published
in the Houston Law Review, was named the outstanding article
of the year by that Review's alumni association, and it is one
example of Mike's thoughtful approach to the terrible problem of drug
abuse. At a time when drug abuse has once again become a focus of emotionally
charged public concern, we should remember Mike's approach: steady and
reasoned, balancing a search for needed solutions against a candid appreciation
of the difficulties of the problem and of our ignorance about the effectiveness
of proposed solutions. Mike actively assisted his students in doing
their own research and writing. Using seminars and the Criminal Justice
Project as curricular vehicles, Mike imparted his superb writing style
and careful research methods to a generation of law students. He spent
time on these tasks because he loved teaching and research, and working
with students on their writing was the perfect blend. Proof of his work
is the number of articles that his students published. For example,
volume seven of the American Journal of Criminal Law, published
in 1979, contains three articles on different aspects of juvenile justice
written by students under Mike's supervision.
Mike was an excellent legislative draftsman.
He was skilled in employing the cold and precise language required to
deal with such subjects as the comprehensive regulation of drug manufacture,
distribution, and use. His skill is reflected in the federal and Texas
controlled substances acts. But he also looked beneath the surface of
the law in an effort to understand its animating impulse. In his 1988
Dickinson Law Review article on minimum drinking ages, he made
the following observation:
There was no significant quarrel
with the twenty-one-year minimum drinking age until the early 1970's.
At that time, a large number of states switched to minimum drinking
ages below twenty-one and also lowered their ages of majority. While
a number of factors were involved, the primary cause for this switch
was the Vietnam War and the youth culture that developed largely
as a result of the war. Young men under the age of twenty-one were
drafted and killed in Vietnam, but they were legally minors and
did not have the rights and privileges of adults. They could not
vote; they could not drink; but they could serve and fall in battle.
In the same article, Mike concluded
that largely because of the risks to life posed by teenage drinking
and driving, a minimum drinking age of twenty-one was preferable, but
he added in a footnote, "Principles of fair disclosure require
me to state that I am the father of an eighteen-year-old daughter."
Much of Mike's writing was concerned
with making difficult policy choices among competing considerations.
Mike recognized that often such choices must be made in the face of
imperfect knowledge. One such difficult choice is illustrated by his
American Journal of Criminal Law article on physical abuse of
children:
Before discussing the final balance
between the benefits and costs of criminalization [of physical abuse
of children] there are some things which I think it important to
reemphasize. First, the decision must be made under circumstances
where there is much that we do not know about both the benefits
and costs of criminalization. We do not know how much abuse
the criminal law prevents or can prevent, whether by general deterrence,
by intimidation, rehabilitation, incapacitation, or in other ways.
We do not know in many cases whether prosecution will prevent the
defendant from committing further acts of abuse, have no impact,
or actually reinforce abusive tendencies; we must make seat-of-the-pants
judgments. And, while abuse tends to be a repetitive crime, our
ability to predict reabuse in individual cases often is at the least
questionable.
In the midst of all this scholarly activity,
Mike found time to make one of his most important and long-lasting contributions
to the Law School. He was instrumental in obtaining a large, eleven-year
grant from the Ford Foundation to establish the Criminal Justice Project
at The University of Texas. The project did innovative empirical research
into the operation of the criminal justice system throughout the United
States. Under the supervision of Mike and his colleagues, each year
about two dozen students went through the three stages of the project:
a spring research seminar in the legal doctrines and theory of criminal
law and administration; a summer spent working as an intern with and
doing supervised empirical research on criminal justice agencies throughout
the country; and a fall writing seminar in which the students exchanged
insights arising from their summer experiences and produced extensive
papers integrating doctrine and theory with their empirical research.
This program provided one of the best nontraditional educational experiences
available to students at any American law school.
In the 1970s, Mike's specialized interests
expanded to include the legal problems of juveniles. It was typical
of Mike to be unsatisfied with mere book knowledge. He arranged to take
a leave of absence from the Law School so that he could serve as a clinical
intern with the Travis County Juvenile Court. He wanted to learn the
roles both lawyers and nonlawyers play in the juvenile justice system.
His aim was to take the knowledge thus gained and create a new clinical
program. To fund this effort at innovation, he arranged for his leave
to be jointly financed by the Council on Legal Education for Professional
Responsibility and the Hogg Foundation. His work with the Juvenile Court
led to his appointment as director of Community Programs for the Texas
Youth Council, a position in which he served for the spring and summer
of 1974. On the basis of these experiences and his continuing association
with the Criminal Justice Project, in the spring of 1975 Mike created
the Juvenile Justice Clinic at the Law School. Among the unusual features
of the clinic was the fact that the students participated in a variety
of roles within the juvenile justice system. Some served as prosecutors,
some as defenders, others as probation officers, and some as guardians
ad litem. They came together in the academic component to share
the varied insights these roles provided into the operation and problems
of the juvenile justice system. Even today students in this clinic benefit
from Mike's creative pedagogy.
Once again, as was true with his interest
in the control of drug abuse, Mike's creative teaching dovetailed with
his continuing scholarly productivity. In 1979, Mike wrote an important
article for the American Journal of Criminal Law on the then-emerging
issue of child abuse, and his last article, published in the spring
of 1988 in the Dickinson Law Review, discussed the problem of
teenage drinking and driving. At the time of his death he was finishing
an article dealing with his groundbreaking empirical study of the actual
workings of Texas laws designed to control spouse and child abuse.
During this period, Mike's involvement
in drug abuse and other aspects of criminal law and administration grew.
He was appointed to the Board of Editors of the Journal of Drug Issues
and worked with various state agencies to produce manuals and teaching
materials concerning problems of alcohol and drug abuse. Mike was in
demand as a speaker both in Texas and elsewhere on these subjects and
on issues of mental health and retardation. Mental health and retardation
had gained his attention through his ongoing relationship with the Hogg
Foundation and led to his participation in the education of staff psychiatrists
and allied personnel in the state mental health and mental retardation
system.
III. Influence on Educational Policy
Mike's creativity and openness to pedagogical
innovation led to his playing a leading role in the most significant
study of the curriculum ever undertaken at the Law School. In 1980,
Dean John F. Sutton appointed an Alumni Curriculum Advisory Committee.
The work of the committee, which involved some of our most energetic,
perspicacious, and sympathetic graduates, went on until 1985. During
this period Mike served as chair of the Faculty Curriculum Committee
and worked intimately with the alumni. The joint effort of faculty and
alumni led to far-reaching changes in the structure of the first and
second years of law school, a dramatic revamping of the legal research
and writing program, and the creation of new types of courses–short
courses, advanced specialty courses, and capstones. Mike's patience
and good humor were indispensable to the success of this most sensitive
of enterprises, involving, as it did, intrusions on ancient turf and
slaughtering of sacred cows. We all remain indebted to him for this
work.
Mike’s impact on legal education
was not limited to the school but extended to the continued education
of the practicing bar and even to students in high school. His membership
in task forces that focused on juvenile justice and domestic violence
at both the state and county levels, was aimed at educating all those
entrusted with the administration of these areas of the justice system.
One such contribution was Drug Abuse, in Of Counsel to Classrooms:
A Resource Guide to Assist Attorneys and Teachers in Law Focused Education
97 (Texas Young Lawyers Association ed. 1984) (coauthored
with C. Hampton). This was selected by the American Bar Association
as the best project done by a young lawyers or bar association in the
United States during 1983-84. Mike’s contribution was recognized
by an award given him by the Committee on Law-Focused Education of the
Texas Young Lawyers’ Association.
Mike's enormous contribution to clinical
education at the Law School culminated in 1985, when he was the central
figure in obtaining federal funding for the Elder Law Clinic. The clinic,
which was created by a grant from the Legal Services Corporation, introduces
students to the legal problems of the elderly and to the lawyering skills
necessary for their resolution. Mike was essential to the design of
the clinic's format and teaching methods. Like the Juvenile Justice
Clinic, it continued to serve students and the community after Mike's
death. These clinics are the continuing manifestations of his intellectual
curiosity, pedagogical creativity, and practical skills as an administrator.
Mike's service to the academic community
and to the government did not go unnoticed. He was named to his first
endowed position, the Wright C. Morrow Professorship of Criminal Law,
in 1970 and held that or another prestigious professorship until his
death. But of greater importance to him was the obvious affection that
his students felt for him. In the clinical programs in particular, he
established a rapport with his students that was important to him and
to them. A whole generation of Texas lawyers who specialize in criminal
and juvenile law felt a loss that was personal as well as professional
when he passed away.
IV. A Humane Teacher and Colleague
Although Mike had many academic and
professional accomplishments, he will be missed most keenly as a uniquely
sensitive and loving friend. Mike was one of those rare teachers to
whom the students went when they needed the counsel of an elder brother
to cope with the difficulties of being young in America. He was no less
important to his colleagues, who knew that Mike would always be there
to help in the midst of personal travail. A life-long friend captured
Mike perfectly when he confessed that he had tried and failed to think
of a single time, one solitary instance, when Mike had ever been mean
or ungentle to anyone. Everyone who is a busy professional, whose life
is filled with the urgency and pressure of seeking success in a chosen
field, could learn something important, even precious, from Mike's life.
Despite all of his professional activities and successes, Mike never
forgot the lesson the ghost of Marley taught to Scrooge:
Mankind was my business. The common
welfare was my business; charity, mercy, forbearance, and benevolence,
were, all, my business. The dealings of my trade were but
a drop of water in the comprehensive ocean of my business!
It is thus that all of us at
The University of Texas School of Law will remember, and
cherish, Professor Michael Rosenthal. Friends and colleagues have celebrated
his contributions in perpetuity by the creation of an endowed presidential
scholarship in his name.
<signed>
Larry R. Faulkner,
President
The University of Texas at Austin
<signed>
John R. Durbin, Secretary
The General Faculty
This is an edited version of a memorial
resolution written by Professor Jay Lawrence Westbrook and published
in 68 Tex. L. Rev. i. (Nov. 1989). The resolution was provided by
the special committee consisting of Professors M. Michael Sharlot
(chair), Robert O. Dawson, and Jay L. Westbrook.
Bibliography of Michael P. Rosenthal
The Minimum Drinking Age for Young
People: An Observation, 92 Dick. L. Rev. 649 (1988).
Drug Abuse, in Of Counsel to
Classrooms: A Resource Guide to Assist Attorneys and Teachers in Law
Focused Education 97 (Texas Young Lawyers Association ed. 1984) (coauthored
with C. Hampton).
Criminal Law, in 5 Academic American
Encyclopedia 349 (1980).
Partial Prohibition of Nonmedical
Use of Mind-Altering Drugs: Proposals for Change, 16 Hous.
L. Rev. 603 (1979).
Physical Abuse of Children by Parents:
The Criminalization Decision, 7 Am. J. Crim. L. 141 (1979).
The Legislative Response to Marihuana:
When the Shoe Pinches Enough, 7 J. Drug Issues 61 (1977).
fcisSymposium–Drug Issues: Retrospective
and Prospective, 7 J. Drug Issues No. 1 (1977) (guest
editor).
Interpretation Of The Mental Health
Code (5th ed. 1976).
Introduction, Symposium–Drug
Issues: Retrospective and Prospective, 6 J. Drug Issues 317 (1976)
(guest editor).
Texas Law: A Perspective On Alcohol
Use And Abuse And Alcoholism (1974) (prepared and distributed by Texas
Commission on Alcoholism and coauthored with W. Kuhn).
Legal Aspects Of Drug Abuse And Juvenile
Delinquency For The Public Schools (1973) (authored for Texas Education
Agency).
Legal Controls on Mind-and-Mood-Altering
Drugs, 27 J. Soc. Issues 53 (1971).
Book Review, Trial, May-June 1971, at
22 (reviewing J. Kaplan, Marihuana: The New Prohibition (1970)).
Two Problems and a Lesson for the
Draftsman of Drug Crimes Legislation, 24 Sw. L.J. 407 (1970).
Drug Crimes and the Revision of the
Federal Criminal Code, in Communication And Drug Abuse 431 (J. Wittenborn,
J. Smith & S. Wittenborn eds. 1970).
Report on Drug Offenses, in 2
Working Papers National Commission On Reform In Federal Criminal Laws
1059 (1970) (coauthored with Schwartz).
Amelioration of the Marihuana Laws,
in Drug Dependence 294 (R. Harris, W. McIsaac & C. Schuster
eds. 1970).
A Plea for Amelioration of the Marihuana
Laws, 47 Texas L. Rev 1359 (1969).
Marihuana: Some Alternatives, in
Drugs And Youth 260 (J. Wittenborn, H. Brill, J. Smith & S. Wittenborn
eds. 1969).
Proposed Texas Controlled Drug Law:
Preliminary Draft (January 8, 1968) (Reporter, State Bar of Texas Comm.
on Revision of the Penal Code).
Staff Comments on Proposed Texas Controlled
Drug Law: First Draft (January 8, 1968) (Reporter, State Bar of Texas
Comm. on Revision of the Penal Code).
Dangerous Drug Legislation in the
United States: Recommendations and Comments, 45 Texas L. Rev. 1037
(1967).
Proposals for Dangerous Drug Legislation,
in Task Force Report: Narcotics And Drug Abuse 80 (1967).
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