Marshall’s Retirement Supreme Court after Marshall Thurgood Marshall Scholarships

Marshall's Retirement

 

Steiker's Tribute

Wilkin's Tribute

Brewer's Tribute

     By the late 1980s and early 1990s, Marshall was an outnumbered liberal on a conservative court. His one true friend among his colleagues, Justice William Brennan, had retired, and he missed Brennan greatly. Marshall was the only strong, consistent liberal voter left over from the Warren Court era. Thus, he was rather isolated and very frustrated, because was continually outvoted by the majority of 6 strong conservatives.

   Marshall had always insisted that he would live out his life appointment, saying, “I’m going to outlive those bastards.”1 However, by 1991 he had poor eyesight, poor circulation to his legs, and had suffered a heart attack. On June 27 of that year he announced his retirement from the Court. In retiring when he did, Marshall reluctantly gave George Bush the opportunity to replace him with a conservative Republican, namely Clarence Thomas (see Supreme Court after Marshall).
 

    Among his awards at his retirement were two very prestigious awards: the Spingarn Medal, which he won in 1946, and the Liberty Medal, which he won in 1992. The Spingarn Medal is an annual award, instituted by the NAACP in 1914, which is given each year to the Black American who reached the highest achievement in his or her field. Marshall was the fourth recipient of the Liberty Medal, established in 1988 to honor “an individual or organization from anywhere in the world that has demonstrated leadership and vision in the pursuit of liberty of conscience or freedom from oppression, ignorance and deprivation.”2

1 A Defiant Life (p378)
2 Warrior at the Bar, Rebel on the Bench (p359)

 

In Memoriam-A Tribute by Carol Steiker*

"Did You Hear What Thurgood Marshall Did For Us?"‑A Tribute 

* Assistant Professor, Harvard Law School; law clerk to Justice Thurgood Marshall, 1987 Term. A. B. 1982, Harvard‑Radcliffe Colleges; J. D. 1986, Harvard Law School. This tribute was delivered at a memorial service for Justice Marshall on February 22, 1993, at Faneuil Hall, in Boston, Massachusetts. The service was sponsored by the Boston and Massachusetts Bar Associations, the Civil Liberties Union of Massachusetts, the New England Committee of the NAACP Legal Defense Fund, and the Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association.

 

    On January 27, 1993, three days after Justice Marshall's death at the age of 84, his body lay in state at the Supreme Court from 9:00 in the morning until 9:00 at night. It was a very cold day, with a biting wind. But throughout the day and into the night, the line around the Supreme Court continued to grow, always stretching at least several hundred yards. People stamped their feet and blew on their hands as they waited patiently to file past the flag‑draped coffin. A young black police officer came to attention in front of the casket and saluted smartly. An elderly Asian man approached the casket and gravely bowed three times. A local elementary school teacher brought her entire class of remarkably well‑informed youngsters to pay their respects. What was most notable about the crowd of twenty thousand that filed past Justice Marshall's coffin was its very ordinariness. Of course, there was the expected turnout from the Washington establishment. But the vast majority of people who came to honor Justice Marshall were ordinary people dressed in their everyday work clothes and carrying their children.

    Watching the crowd that day made me realize that despite the extraordinary heights that Justice Marshall scaled in his legal career, he remained connected in a fundamental way‑in his commitments and his point of view‑to ordinary people. Some people who "pull themselves up by their own bootstraps" have nothing but contempt, or at best a condescending pity, for those who are left behind without the strength or luck to do likewise. But Justice Marshall's personal experiences of exclusion gave him empathy for those still battling the demons he had come to know so well. And that empathy was an expansive one: Justice Marshall's commitment to racial justice broadened to encompass the concerns of all ethnic and religious minorities, of women, of the poor, of those expressing unpopular views, and of criminal defendants. Justice Marshall seemed naturally to understand the position of the outsider, the underdog, and the silenced-and he gave that position his powerful voice.

    One small fact that illustrates this commitment is the way Justice Marshall organized the day-to-day work of his chambers. Each week, approximately one hundred petitions for certiorari arrive at the Supreme Court. (As a statistical matter, the Court grants review in only about two percent of the cases.) The petitions arrive in each Justice's chambers in two bundles-the paid petitions in brightly colored and neatly printed covers from those litigants with sufficient means to pay the substantial printing costs, and the in forma pauperis (IFP) petitions from those too poor to pay printing costs. The IFP petitions have no brightly colored covers and are typed or even handwritten rather than printed. In most other chambers, the paid petitions take priority-they arrive a day earlier each week, and they are generally thought more likely to present issues worthy of the Court's review. But Justice Marshall made it clear that we clerks were to turn our attention first to the IFP petitions. Before I served as Justice Marshall's law clerk, 1 had seen the classic movie Gideon's Trumpet, starring Henry Fonda as Clarence Earl Gideon, the indigent criminal defendant whose case established the right to court-appointed counsel for poor people in criminal cases across the United States.[1] In the movie, the law clerks read Gideon's handwritten petition, painstakingly penned from a Florida prison, and the music swells as they go running to inform the Justices. The reality of current Court practice is quite different. Most handwritten claims get only the most cursory inspection from overburdened chambers. Justice Marshall, however, made sure that his chambers conformed to the idealized vision of the silver screen, so that latter-day Gideons would not slip through the cracks.

    Justice Marshall admonished us to pay particular attention to death penalty cases, which always appeared in the IFP bundles of petitions for certiorari. Although Justice Marshall, along with Justice Brennan, voted as a matter of course to grant every death penalty petition (and also to stay every scheduled execution), he made it clear that our job was to scour every death penalty appeal for issues that might convince the requisite three other Justices to vote to grant certiorari. When Justice Marshall believed that we had spotted such an issue (or, as frequently happened, he spotted one that we had missed), he would instruct us to draft dissents from denial of certiorari. These "dissents" would be circulated to the other Justices well before the actual vote in the hope that they would affect the vote; as a result, a number of these "dissents" later became majority opinions in cases that the Court accepted for review and decided in favor of the defendant. Justice Marshall's views about the care which death penalty cases demanded can be summed up in the phrase that I watched him write in his big blue marking pen, as he edited a draft of a death penalty dissent: "A man's life is at stake. We should not be playing games.”[2]

    Justice Marshall carried this sense of urgency with him when he sat on the bench to hear oral arguments. During these sessions, he never asked questions to score debaters' points off of litigants, though he might easily have done so with his extensive experience as an appellate advocate. (Justice Marshall himself had argued thirty-two cases before the Supreme Court, winning twenty-nine of them.) Rather, Justice Marshall was known for injecting points into oral arguments only infrequently, and usually for the purpose of reminding the litigants and the Court about the real context (and thus, the real significance) of the cases before them. Just a few years ago, the Supreme Court decided Florida v. Bostick,[3] a case challenging "bus sweep" searches-the practice by which armed police officers would board interstate buses and ask passengers if they would "consent" to a search of their luggage or person for drugs. The Florida state Attorney General's office was arguing to the Court that such searches were in fact 14 consensual," because the presence of an armed officer blocking the door of the bus did not necessarily indicate to the targeted passengers that they weren't free to leave or to decline to be searched. Justice Marshall asked the Florida A.G.'s office only one question about a fact buried deep in the record of the case, but a fact Justice Marshall deemed crucial to the exercise of police authority in the case: "Was the defendant in this case by any chance a Negro?" The Florida A.G.'s lawyer and the coterie of lawyers at counsel table all turned red and shuffled their feet before giving what was by then the obvious answer: "Yes." Justice Marshall sat back; he had made his point. His question illuminated the single most troublesome aspect of this method of law enforcement-that those targeted for such "consensual” encounters with the police tend to be overwhelmingly members of racial minorities.

    In a similar vein, Justice Marshall demonstrated his impatience with hypertechnical notions of "consent" and "voluntariness" the year that 1 clerked for him in a case called United States v. Kozminski.[4] The case involved the proper definition of "involuntary servitude" in jury instructions regarding a criminal statute drafted to enforce the Thirteenth Amendment. Some farmers in the Midwest had kept a pair of retarded men on their farm as resident laborers. The laborers lived in appallingly squalid conditions, housed in an unheated trailer and fed moldy bread. The farmers' lawyer was arguing to the Court that the means by which the farmers had kept the men on the farm did not constitute "involuntary servitude," because the means were primarily psychological rather than physical. Justice Marshall leaned forward and asked gruffly, "Were they [the laborers] getting paid?" Startled, the farmers' lawyer repeated, "Paid, your honor?" "Yes," barked Justice Marshall. "Paid. Money. Green." In disgust, Justice Marshall leaned back in his chair and said, just loud enough for counsel to hear, "I bet the only 'green' that they saw was the mold on their bread." By juxtaposing green mold with what should have been green money, he painted a powerful picture of the absurdity of cramped notions of "involuntariness" in the context of such utter poverty and degradation.

            The depth of Justice Marshall's special solicitude for the poor and the downtrodden was matched only by the breadth of his distrust of those whom he called, collectively, the "fat cats"-the rich, the privileged, and the powerful. One day he came back to chambers from a conference with the other Justices at which they had discussed and voted upon a corporate case-one big corporate entity suing another. Justice Marshall announced, with what we clerks by then could recognize as mock solemnity, 1 proposed a new rule at the conference today, but nobody else voted for it." We all asked in unison, "What rule was that?" With an air of official pronouncement, he proclaimed, "When one 'fat cat' sues another 'fat cat'-we don't have jurisdiction!"

            Despite his substantial girth, Justice Marshall never became a "fat cat" himself. Given his meteoric legal career, there seems little doubt that he could have amassed a fortune in private practice had he ever sought to use his considerable talents to do so. However, his energies were all directed to non-remunerative causes. Each year, when the Justices were required by law to publish financial statements, Justice Marshall's was always by far the most modest. I remember when I told Justice Marshall of my plans to join the local Public Defender Service upon completion of my clerkship, he asked with mock severity, "Why aren't you going to get out there and earn some money!?" When 1 'reminded him that he had represented indigent criminal defendants at the start of his career in Baltimore, he broke into a broad smile and then pretended to shake his head sadly. "My boys [his two sons, Goody, a lawyer on Capitol Hill, and John, a state trooper] are always telling me that, too. I guess I haven't set the right example. "

            In addition to ignoring wealth, Justice Marshall avoided-indeed, deflected-the adulation that his accomplishments often evoked. The stories that he recounted of his multifaceted legal career were the opposite of self-aggrandizing; many of Justice Marshall's favorite punch lines were at his own expense. One story that he loved to tell was about winning one of the big post-Brown[5] desegregation cases in the Supreme Court. The Court's decision had been made public, and it was being broadcast on the radio as Justice Marshall hailed a taxi in downtown Washington, D.C. As he got into the cab, the black cab driver turned around, gestured proudly to the radio, and said to Justice Marshall, "Did you hear what Dr. King just did for us?"

            Justice Marshall not only refused to blow his own horn, but he also hated to be feted and celebrated by others. He couldn't even stand to be thanked: when he brought us, his clerks, a box of chocolate-covered macadamia nuts back from his yearly trip to Hawaii and we jumped up to begin to thank him profusely, he scowled, threw the box on a chair, and backed out of the room muttering, "Cissy [his wife] made me do it." Justice Marshall was even more reluctant to accept formal expressions of appreciation. The year 1 clerked for him was the year of his eightieth birthday and his twentieth year on the bench. Justice Marshall met all of the suggestions of his former clerks for various celebrations with a grimace and an impatient wave of his hand. When the inevitable festivities occurred anyway, he responded to them graciously enough, but with his usual wry self-deprecation and pointed remarks about the assembled "knuckleheads" -his favorite collective description for his generations of law clerks.

            I think, however, that Justice Marshall would have greatly enjoyed the one ceremony that he was not able to attend-his own interment at Arlington National Cemetery. He would have appreciated the collection of family, friends, and colleagues who assembled to pay him tribute at this final ceremony. But he particularly would have relished the fact that his gravesite is overlooked by Robert E. Lee's old house, surrendered to the federal government after the Civil War. As Thurgood Marshall was laid to rest on the slope below, the flag in front of the Confederate General's house flew at half-mast to honor the passing of the great-grandson of a former slave.


 

[1] Gideon v. Wainwright, 372 U.S. 335 (1963).

[2]  Ross v. Oklahoma, 487 U.S. 81, 91 (1988) (Marshall, J_ dissenting).

[3] 111 S. Ct. 2382 (199 1).

[4] 487 U.S. 931 (1988).

[5] Brown v. Board of Education, 347 U.S. 483 (1954).

 

 

Professor David B. Wilkins' Tribute

     In 1959, Thurgood Marshall persuaded Derrick Bell to leave his position at the Justice Department and join the Legal Defense Fund. Ten years later, Bell became the first black professor at Harvard Law School. In 1961, Marshall left LDF for the federal bench, eventually becoming in 1967 the first black Associate Justice of the U.S. Supreme Court. During his 27 years on the bench, Marshall hired more law clerks from Harvard Law School-most of them members of the Harvard Law Review-than from any other single law school. In time five of these HLS graduates-Lewis Sargentich ’70 (1970 Term), William Fisher ’86 (1983 Term), Howell Jackson ’82 (1983 Term), Carol Steiker ’86 (1987 Term), and myself (1981 Term)-became tenured professors at Harvard Law School. When one adds the three former Marshall law clerks who had the "misfortune" of not attending Harvard Law School-Martha Minow (1980 Term), Randall Kennedy (1983 Term), and Scott Brewer (1990 Term)-there are now more Marshall clerks on this faculty than law clerks of any other single justice. (Former HLS faculty member and current D.C. Circuit Court Judge Douglas Ginsburg is also a former Marshall law clerk.)

In 1975, the long absence of black editors on the Harvard Law Review came to an end when Christopher F. Edley, Jr. ’78 was elected to membership. His father, Christopher F. Edley, Sr., was a 1953 graduate of the Law School and a protégé of both Hastie and Marshall. Befitting this legacy, after working in the Carter administration, the younger Edley returned to Harvard, where he became the Law School’s third black tenured professor in 1987 and, in 1996, the first director of the Harvard Racial and Ethnic Justice Research Program.

In 1978, the Law Review reached another milestone. In that year, Adebayo Ogunlesi ’79 and W. Randy Eaddy ’79 became editors, marking the first time there had ever been two blacks on the Review at the same time. The next year, 1979, a new record was set when I joined Ogunlesi and Eaddy. We called ourselves in jest the "dirty half of a half dozen" and we wondered whether there would ever again be three black editors on the Review staff. For the next few years, it seemed as though our pessimistic predictions might come true. No black editors joined the Review in 1980 or 1981.

Happily, this situation has changed dramatically. In 1982, Annette Gordon [Gordon-Reed] ’84 became the Review’s first black female editor. Since that time, there has been a steady stream of black editors, including two elected to the Review’s presidency: Barack Obama ’91, in 1990-1991, and David Panton ’97, in 1996-1997. Today, there are nine black women and men following in Houston’s footsteps. Perhaps most tellingly, when I asked these editors whether they knew how many blacks had served on the Review since Houston, no one could tell me. This is as it should be. It is a testament to how far we have come that every new black editor no longer needs to know his or her exact place in the history of this 75-year connection between the Harvard Law Review and the struggle for racial justice.

What should not be forgotten, however, is the connection itself. For this is a part of the legacy of this august institution about which every editor, regardless of race, gender, creed, or politics, should feel proud. When Law Review editors claim this tradition-when they become, in their own way, social engineers for justice-they not only honor the best of the Harvard Law Review’s heritage, they add their considerable talents to seeing to it that this nation lives up to the best of its traditions as well.

 

Scott Brewer's Tribute

Texas Law Review May, 1993

In Memoriam

*1121 JUSTICE MARSHALL'S JUSTICE MARTIAL

Scott Brewer#

Copyright © 1993 by the Texas Law Review Association; Scott Brewer

    It is said, profoundly, I think, that one's "goodness must have some edge to it,--else it is none."1 Justice Marshall's life was marked by a great goodness and, as I was privileged to know him in his last year as an Associate Justice, it was a goodness that had a distinct, sometimes delighting, sometimes discomforting edge as well. I have in mind the edge of his indefatigable humor, his skill at wielding the samurai sword of sarcasm or even the unsubtle sabre of silliness to poke fun at everybody: at those who worked for him, at members of the Court, at his family, at himself and, most deliciously, at hapless attorneys making what appeared to him to be arguments in the disservice of justice.

    One of the innumerable times he teased us clerks is especially vivid for me. On the day he announced his retirement, he called us into his office to tell us his decision. When he saw how upset we all were, he barked out, in his own consoling way, "When I saw this group of clerks, I shoulda quit the first week!"

    As he was often teasing us, so he would tease himself as well. In a daily review with the clerks of pleadings and other papers, for a moment he became confused about the name of a case. When the clerk working on it pointed this out to him, he said, shaking his head, "I must be getting o-o-o-o-o-l-d and decrepit." I recall too a comment he made about the commissioned portrait of him, completed in his last year on the bench, now hanging in the Supreme Court. The portrait portrays him as a smiling, affable, avuncular old gentleman. He told us he didn't like it, and he told us why: "I'm a hangin' judge!"

    TM was a great family man. His wife, Cissy, his sons John and Goody, and their wives and children were obvious sources of pride for *1122 Justice Marshall. Yet, he couldn't resist teasing even his family. The irony of the fact that his son John became a Virginia state trooper certainly did not escape TM's notice, and so I recall one day he asked us a question that, according to him, the Virginia State Troopers were given on some kind of exam. Some wild- eyed, mouth-frothing ne'er-do-well is coming at you with a knife, goes the question; so what is the second thing you do? We played along and tried a few answers: Shout at him to stop? Hit him with your billy club? TM rejected each answer, insisting more and more loudly, "What's the second thing you do, the second thing?" When we finally gave up he gave us a wink and a smile and said, "Reload."

    Then I remember the time TM was comparing two high-profile public officials. I'll leave them unnamed, but I think it fair to say that he admired one and held the other in very low esteem. He described their relative merits this way: "It's the difference between chicken salad and chicken shit." It has been said of another figure who loomed large in the affairs of his time that he was in this world but not of it. By means of such comparisons, or the story--which I shall spare the somber readers of these encomiastic pages--of old Uncle Snazzy and his outhouse, and at least a dozen others, told in hearty, bawdy, ribald detail, TM would I think remind himself, and insist that we never forget, that while he was certainly in that august, white, marble Supreme Court building, he sure as hell was not of it.

    During the time I worked for him, I think I saw the biting edge of his goodness at its most effective when he deployed it in an oral argument concerning the death penalty, the criminal penalty that most deeply offended his impassioned sense of justice and fairness. Prior to the argument in the case I have in mind, 2 the Court, in an opinion written by Justice Marshall, had held that the Eighth Amendment prohibited a state from executing an insane person. 3 The issue in the case I'm thinking of was whether the Eighth Amendment also prohibited the State of Louisiana from forcing an insane person to take psychotropic drugs in order to render him sane, so that the state could then execute him. An assistant state attorney general was arguing--with a straight face, as far as I can remember--that the state could force these drugs on the person because, after all, the state was acting in his best medical interest, as well as in the interests of the state. Justice Marshall was, shall we say, not entirely convinced that medicating someone against his will in order to be able to kill him was in the person's best interest. During the argument, Justice Marshall asked how the drugs that were supposed to make the person sane were administered. The lawyer answered that the drugs could be injected, and then *1123 Justice Marshall said, "Well, if all you say is true in the interest of Louisiana, while you're giving him the injection, why don't you give enough to kill him then? . . . . It would be cheaper for the state." 4 The courtroom at first was silent, and then as I recall there was a tense laugh here and there, and the state's advocate nervously stumbled out the answer that "the State of Louisiana is limited by the Eighth Amendment and other provisions that we can't do things that are cruel or unusual or excessive in nature. And I think that we have to meet some minimal due process guidelines here procedurally in what we can and cannot do." 5 I won't soon forget the way in which Justice Marshall's sarcastic lance so swiftly punctured the meagerness of the state's justification for its eagerness to kill.

    The edge of Justice Marshall's goodness, the sometimes endearing, sometimes biting and angry edge of humor, has carved itself vividly in my recollections of TM and shapes what my encounter with him continues to mean to me. Clerking for Justice Marshall was like entering a tradition, a common law, as it were, of Thurgood Marshall, a common-law tradition that he began in his long and brilliant campaign leading up to Brown v. Board of Education and its aftermath, a common-law tradition that he carried forward almost seamlessly when he got up to the Supreme Court--much to the dismay of his opponents and critics on and off the bench.

    We all mourn great losses in different ways. I myself do not think of Justice Marshall's legacy in highly sentimental terms, in part because the man I had the honor to serve was not, as I knew him, a sentimentalist. For me, perhaps the most powerful and enduring precedent of the common law of Thurgood Marshall, a precedent that goes beyond his written opinions and dissents, was the quality of gruff, humorous, biting, and angry compassion--what I have been referring to as the edge of his goodness--that animated his work right through his very last dissenting opinion.

    When I fight battles that I recognize as, in part, his battles, I want to keep with me that TM precedent, that spirit of gruff, humorous, biting, and angry compassion, a spirit, I suspect, that was essential to his ability to maintain his struggle for justice as he saw it through long campaigns and debilitating setbacks.

    And so I return to the philosopher. One's "goodness must have some edge to it,--else it is none." The surrounding passage in which Emerson embeds this dictum can serve to illustrate an important truth about Justice Marshall's carriage of virtue. Emerson imagines a conversation with a hypocritically moralizing abolitionist: *1124 I ought to go upright and vital, and speak the rude truth in all ways. If malice and vanity wear the coat of philanthropy, shall that pass? If an angry bigot assumes this bountiful cause of Abolition, and comes to me with his last news from Barbadoes, why should I not say to him, "Go love thy infant; love thy wood-chopper; be good-natured and modest; have that grace; and never varnish your hard, uncharitable ambition with this incredible tenderness for black folk a thousand miles off. Thy love afar is spite at home." Rough and graceless would be such a greeting, but truth is handsomer than the affectation of love. Your goodness must have some edge to it,--else it is none. 6

    Justice Marshall came--and went--"upright and vital," speaking the rude truth in many ways. Truth in the service of his moral passion was far handsomer, both to him and in him, than the affectation of love. Emerson suggests, and Thurgood Marshall surely believed, that politeness is not always a virtue, nor "rough and graceless" confrontation always a vice; that doing justice does not always require (if ever it does) sparing the delicate feelings of the unjust; that civility is a dispensable norm when equity is at the stake; that one's goodness must be prepared to cut, to draw blood, and to bleed.

    As I was privileged to know him, Justice Marshall's goodness was great, and it certainly had an edge. It was, I think, the sharp edge of a sword one carries into battle. His favorite song, we are told, was "The Battle Hymn of the Republic"; his justice was the kind that must be won in battle; his justice, we might say, was a martial justice. Yet while Thurgood Marshall never forgot that power, including power dressed in the raiment of law, concedes nothing without a demand, no one who worked with him or for him could fail to see that his deep devotion to the law and its ideals ever tempered and suffused his combative spirit. Thus, to contest his nation's bigotry, he came with a sword, not in peace, but he also came to fulfill the law, not to destroy it.

    Those who are inspired by the principled edge in the common law of Thurgood Marshall might pay tribute to him, in part, by seeking to let their own goodness have an edge to it, that it not be none. That is how I shall try to marshal the courage to do justice to Justice Marshall's martial justice. This is my eulogy, my "good word" for a Thorough-good man.

 

This is a revised edition of remarks delivered at a memorial service for Justice Marshall, "A Celebration of the Life of Thurgood Marshall," February 28, 1993, St. Cyprian's Episcopal Church, Boston; and at a separate memorial service, "Equal Justice Under Law: A Tribute to Supreme Court Justice Thurgood Marshall," February 22, 1993, Faneuil Hall, Boston.

# Assistant Professor, Harvard Law School; law clerk to Justice Thurgood Marshall, 1990 Term. B.A. 1979, State University of New York at Stony Brook; Diploma 1979, City University of New York Latin-Greek Institute; M.A. (Philosophy) 1980, Yale University; J.D. 1988, Yale Law School.

1 RALPH WALDO EMERSON, Self Reliance, in THE COMPLETE WORKS OF RALPH WALDO EMERSON 51 (1968).

2 Perry v. Louisiana, 498 U.S. 38 (1990) <http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1990161704> (vacating and remanding after oral argument).

3 Ford v. Wainwright, 477 U.S. 399 (1986) <http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=780&FindType=Y&SerialNum=1986132787>.

3 Official Transcript, Proceedings Before the Supreme Court, No. 89- 5120, Perry v. Louisiana, Oct. 2, 1990, p. 37.

5 Id.

6 EMERSON, supra note 1, at 51.