Brill Speaks!

Professor Howard Brill of the University of Arkansas School of Law was kind enough to allow us to interview him. It’s typically no big deal to get an interview with a law professor, of course, but Brill is no ordinary law professor. Governor Asa Hutchinson appointed Brill to be the Chief Justice of the Supreme Court of Arkansas in 2016 after the sudden retirement of Chief Justice Jim Hannah. Brill allowed himself to be interviewed extensively by Ernie Dumas last year, but some readers felt that interview raised more questions than it answered. You, the reader, will have to decide whether this second interview is also subject to that criticism.
We interviewed Brill on two occasions in 2017 — once in late September, once in early October. Because we weren’t interested in surprising him, we gave him a list of topics we wanted to ask him about beforehand. It took us a while to get around to publishing the interview — after we received a transcription, we rearranged a few of the questions and accompanying answers, and we otherwise lightly edited the transcript for readability. (Since then, our interviewer Dan Greenberg left the Advance Arkansas Institute to work for the U.S. Department of Labor.)
Because of its length, we will run this interview on TAP over a period of days. We hope you enjoy the first part of our conversation with Howard Brill, a great Arkansan.
 
GREENBERG: So, I wanted to begin by asking you some questions about, I guess, your personal life or personal psychology. And one of the things I was curious about was whether you felt that your experience serving as Chief Justice for, I guess, what, about 18 months…

BRILL: Sixteen months.

GREENBERG: Sixteen months. Did that kind of affect your psychology or your social life? Did people recognize you in the supermarket, or did you feel like people were behaving towards you in a different way than they did when you were a law professor? Tell me a little bit about that, if you don’t mind.

BRILL: Frankly, I did not think that I was treated any differently by anyone. Now, admittedly, lawyers and judges would perhaps treat me with a little more deference. I mean, they would call me “Chief”, or “Justice.” But people at the law school and people in my personal life, either they were not aware of my position, or they didn’t know how to respond or treat me, and so I did not feel affected psychologically.

I guess my identity has always been as a law professor, and I knew this was a temporary job, and I knew I was going back to being a law professor, and I sometimes had to remind myself, frankly, that I was the Chief Justice. But, I don’t think that my psychology, or my view of myself, was changed in any way.

GREENBERG: And I know this is kind of an odd question, but just to continue on that, so you don’t feel your experience of yourself or your sort of perception of yourself is all that different because of your 16 months on the Court? You’re still more or less the same person you’ve always been?
BRILL: Absolutely. I feel I’m the same person I always was, and a month or two after I was back here, teaching at the law school, I felt totally at ease teaching again. I would open the newspaper and say, “Oh, yes, here’s the decision from the Court, and that used to be my job,” but I don’t think my 16 months there changed me in any significant way.

GREENBERG: Do you think, for instance, law students are more deferential towards a law professor who was a Chief Justice for 16 months than they are deferential towards your typical law professor?
BRILL: I think that they listen more carefully because I can work in experiences at the Court or insight from the Court…. This semester, I’m teaching a course on remedies, and I have talked about several cases the Court decided last year on contempt, and I’m able to give some insight and background that I couldn’t have done before I went on the bench.

Earlier this year, during all the death penalty litigation, I was able to talk to my class, on a daily basis almost, on what was probably happening at the Supreme Court as the Justices were dealing with all these petitions that were coming in, motions that were coming in on an hourly basis.

So, because of this experience, I think I can say things that I wouldn’t have said before, and the students, I believe, are interested in the insights that I now have.

GREENBERG: Well, so let me ask you, one thing I found quite interesting was, you sort of retold an episode, in an [earlier] interview, from your earlier life, having to do with alleged plagiarism.

BRILL: Yes.

GREENBERG: And the way you described it, I thought, was so interesting, and it really kind of raised a number of questions I was very curious about. Were you treated fairly during that process?
BRILL: I believe I was treated fairly. I was 18 years and 3 months old. Looking back, I had no evil intent. I was young and did not understand or appreciate the rules of scholarship and plagiarism. I believe that I was treated fairly, and looking back on it, I’m inclined to say it was a good thing that happened to me. I believe it educated me. It helped me caution students. I can give advice to students. I warn students about problems they may run into. And so, looking back on it, I think I was treated fairly, and I think that it has turned out to be beneficial.

When I was expelled, I remember going to talk to a Dean of Students who said, “There’s a passage in the Old Testament about iron. ‘When iron is put into a fire, it is made stronger.’” And as I was being kicked out, he said, “Now, this is going to make you stronger in the long run.” I didn’t appreciate that at the time, but since then, I have appreciated it.

GREENBERG: I hear you. Yeah, one thing I couldn’t quite tell from your description in the earlier interview, did you feel that the offense you committed was more in a gray area, or do you feel like it was more clear that you had crossed some line? That was one thing I was curious about. And were you thinking in those terms then?
BRILL: As a lawyer, I could make a great argument that it was a gray area, that I had cited a particular source, it was in the bibliography, I had referred to this scholarship in a certain place, but I had not done so consistently … So, it’s not as if I pretended I had not looked at this, or copied massive amounts of material. There were places where I should have given a citation, and I didn’t. And, you know, looking back, I suppose I could say that was a harsh result. It was harsh because I didn’t have evil intent, I was young, and I did cite the source. But, at the time, I was so shocked at the outcome, that I did not think about how severe it was or whether it was fair. But, I have no complaints about the fairness of the process or the outcome.

GREENBERG: Okay. But, I want to ask you, more or less, the same question in a different way. Do you feel like you were given adequate notice of the operations of the rules as a freshman in college?
BRILL: Yes, judged by the standards of the 1960s, I was given adequate notice. Judged by the standards of today, and judged by the standards that we use at the university level today, I think it’s fair to say I did not have enough notice. I mean, I didn’t talk to anyone. Perhaps if I had talked to a roommate, or a parent, or a friendly professor, or someone, they might have said, “Can I come with you? Can I offer some suggestions? Could you present yourself in this way?” And I was in such a state of, number one, embarrassment, and number two, shock, that I didn’t think of doing any of those things.

GREENBERG: So, and I want to be sure I understand you, are you suggesting that the standards of today with respect to plagiarism are a little bit more lax in some respects?
BRILL: I don’t know if the standards are any more relaxed.

GREENBERG: I was just trying to understand what you were getting at, with the two standards.

BRILL: I’m suggesting that from a standpoint of notice, notifying an accused student of a hearing, and the charges, and persons who might attend, and the possible consequences. I think that type of notice is more established today, it is more clear, and properly so.

GREENBERG: So, you know, one thing I was struck by in your retelling of that thing is that, I mean, it clearly left its mark, but I think that, is it fair to say, you have some difficulty recalling what took place during the hearing?
BRILL: Yes. I don’t recall, clearly, what happened during the hearing. I can remember going in, and there were, let’s say, 12 undergraduate men, and they all looked like lawyers-to-be. And I was, I suppose, somewhat intimidated, or frightened, or overwhelmed by the whole setting.

GREENBERG: Sure. So, how would you describe how this left its mark on you? I mean, what lessons did you take from this, or how, if at all, did this change your perceptions of things or your views about things?
BRILL: It left its mark in that, number one, I was determined to return to college and to graduate with my class. Number two, it left its mark in that I knew I had made a mistake. I would have to reveal this mistake in the future in different settings, such as applying for admission to the Arkansas Bar, or applying for admission to law school. But, I also realized that, at an appropriate time, it would be a beneficial lesson.

So, when each of our children became a senior in high school, I took them out for dessert one evening. I sat them down in a restaurant over dessert, and I told them this story. They’d never heard it before, and I waited until they were 17 or 18 years old so they would understand it, and I told them before they went off to college. Up until now, I have not revealed it publicly. So, before I mentioned all this to Ernie Dumas, I had never talked about it with anyone else.

GREENBERG: Okay. So, let me ask you a different set of questions. Say a little bit about how or whether your experience as a law professor prepared you to be the Chief Justice, or alternatively, say a little bit about some respect in which it did not help. Say a little bit about that.

BRILL: Being a law professor prepared me, and would prepare anyone, for serving as the Chief Justice because, in law school and in the legal environment, we are always involved in the give-and-take of discussion. We are exposed to competing ideas. We have to challenge those ideas. We have to be able to respond. And so, that type of education as a lawyer and as a law professor, I think, is very necessary and beneficial because that’s what judges do. They listen to competing arguments, and ask questions, and respond. I think that being a law professor and dealing with law students for 40 years is also very beneficial because I’m helping to shape them in the law, and that gives me insights into how the law developed and how the law changed.

On the other hand, any law professor, including myself, only teaches in certain areas of the law, and serving on an appellate court, particularly the Arkansas Supreme Court, raises numerous types of legal issues that law professors never deal with. And I said to a group, a few weeks after I went on the Supreme Court, that in 40 years, I have never practiced and never taught criminal law. I took it in law school, of course, I passed the Bar exam, but I’ve never practiced criminal law. Suddenly, on the Supreme Court, I’m hearing major criminal cases on a weekly basis. I had to put in extra time, and go back and check fundamentals, and get up to speed on criminal law issues. And so, that was a major challenge.

And, I suppose, another challenge for which I was not prepared was that the Chief Justice, in particular, has a large number of administrative responsibilities. To some extent, they came as a surprise to me. I mean, I knew there was some administrative work, but I was surprised at how much of my time went into administrative work. And because I only had five days’ notice before I became the Chief Justice, I was a little behind the 8-ball in getting up to speed on some of these things.

So, those are the two things that stand out to me. Number one, the preparation that comes from being a law professor, but number two, some of the limitations from being primarily a law professor.

GREENBERG: That’s interesting. I’m just curious, speaking generally, did you find it satisfying to serve as Chief Justice when you were dealing with legal issues? Was that a satisfying experience, generally?
BRILL: It was absolutely satisfying.

GREENBERG: How about from an administrative perspective? When you were, essentially, the Chief Administrator of the Arkansas Court, and forgive me for misdescribing it, probably, but something like that, when you were the Chief Administrator of Arkansas Courts, speaking generally, was that a satisfying experience?
BRILL: Yes. I enjoyed, immensely, the ability to work with trial judges, to work with Bar committees and Supreme Court committees, and the Clerk’s Office, and the Administrative Office of the Courts. I enjoyed all that immensely, and that gave me insights into the legal profession that I never had before, and those are insights I can now bring into the classroom. So, yes, I enjoyed that.

GREENBERG: Say a little bit about the differences between when you’re discussing a technical point of law with, say, a group of law students after class, and you’re analyzing something, say something about how or whether those are different kinds of discussions than when you’re sitting around that table in the Supreme Court building with the other six justices and you all are having a dialogue or a discussion about the best results in the case. Are those types of discussions similar, or are they very different?
BRILL: They are similar, but there are significant differences.

Number one, when I talk to law students, they are going to defer to me because I’m the professor. And second, when I’m talking to law students, I can be much freer as to what I think, and what the law should be, and what’s wrong with the law.

When I’m deciding an actual case, I’m simply one of seven people, and no one is going to defer to me because of who I am. And second, I have to put aside, from my own mind, questions such as, what should the law be, what is the law in other states, what do I think about the law, do I even agree with the law. Those types of concerns are not relevant or important when I’m deciding a point of law.

Having these discussions in law school and at the Court, although they have a similar focus, there are major differences.

GREENBERG: So, I want to ask you kind of a tough question. Did you feel that the discussions that you had around that table in the Supreme Court building, did they meet your standards for intellectual seriousness, as a general matter?
BRILL: Yes, as a general proposition, I thought that the discussions that the Supreme Court had on legal issues were quality discussions. They were serious discussions. They were discussions about the law, about the particular facts in prior decisions, the interpretation of statutes. Yes, I have a high respect for the nature of the intellectual discussions that the Supreme Court had.

GREENBERG: But there were occasional exceptions?
BRILL: In general, the discussions were always serious, quality discussions on the law, yes. I mean, obviously, there are some issues that come before that Court that are pretty straightforward, everyone says yes, and everyone agrees, and you have a short discussion because it’s an easy legal issue. So, I’m putting those aside. But, where there are difficult questions, we had quality discussions.

GREENBERG: Okay. Was there any sense in which your academic experience gave you some unfulfilled expectations about the intellectual aspect of serving on the Supreme Court? I know these are large questions, so feel free, if the answer doesn’t come to mind, feel free to pass.

BRILL: No. As I said before, I was taken aback by the amount of administrative work that the Chief Justice has to do, so I think that surprised me. So, that’s not an unfulfilled expectation, but it was a surprise. As I said, from an intellectual aspect, my opinion was that the court participated in quality discussions on the legal issues.

Tomorrow, Brill discusses the “mystification about the Courts,” his judicial philosophy, and other issues.