Interview with Monroe E. Price, November 29, 2017 (Session Two)

Annenberg School for Communication


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Q: This is session two of an oral history interview of Monroe Price conducted by Jefferson Pooley at the Annenberg School in Philadelphia, Pennsylvania. The interview is part of the Oral History Project of the Annenberg School for Communication Library Archives. The date is November 29, 2017. So, when we left off in the last session, Monroe, we were just starting to talk about your post-Yale years. You had taken a job at the American Heritage magazine, I think in 1961, which had been launched, maybe a year or two before, by Oliver Jensen. So I was hoping you could talk a little bit about what that was like for you and whether it sparked—or perhaps even dampened—your interest in journalism.

PRICE: Well, first of all, it was a kind of compromise between scholarship and journalism. That was the essence of American Heritage—and later Horizon. I think it was interesting because it was about publishing and the publishing industry, and about New York City. Thinking about it in retrospect, it was about various power structures, various ways to rise in American society through publishing, through books, through not only writing books but accumulating the power of books through publishing companies. Oliver Jensen had come from Time, Inc., and the whole establishment of American Heritage had come from Time, Inc. It’s interesting thinking of it now as it’s being acquired by Meredith. But here’s the history of the country somehow embodied in these institutions in New York—not the railroads, not the finance companies, but the publishing companies. And what that culture was like and who streamed in and out of it and in what way.

Q: And at the time, when you were twenty-two or so, were you aware of that kind of shift from the railroads to print institutions like American Heritage?

PRICE: I’m not sure about the shift part, but I think it continued one of the educational, important parts of the Yale curriculum, which was, what’s America about? How do you succeed in America? Who are the elites and how are they formed? So, in some sense it was a kind of carryover from some part of Yale to some part of New York City.

Q: So the editorial staff of the magazine was pretty star-studded at least in journalistic terms—

PRICE: It was quietly star-studded. Bruce Catton, who’s a famous Civil War historian, was there. He was a wonderful writer. Rob [Robert] Cowley, Malcolm Cowley’s son, was, slightly, my boss. But that was a good example of a star, and also the son of a star. That is to say, it’s part of another learning process of New York, which is the role families play, and things like that. And Eric Larrabee, who was another person who was really important. And someone named Richard Ketchum, who had been, I think, more in advertising and created a vehicle in American Heritage in which he took one photograph and then wrote a thousand words about that photograph. And that would be a feature of the magazine. And they were beautiful. It made a big impression on me and on how to style something, how to package it in some way. The other thing American Heritage was doing was moving from writing essays, which they wanted to be aggressively accessible by a larger group—not everybody but a larger group—to a kind of, how do you develop a publishing empire? Do you have books like The American Heritage Book of the Civil War [The American Heritage New History of the Civil War, 1960], American Heritage games like some version of Monopoly, American Heritage cards, etc. I got involved in that publishing aspect of it as well as the editorial side. At least I got exposed to that.

Q: Can you talk a little bit about what you did on the editorial side for that brief stint?

PRICE: For the editorial side I read manuscripts and I maybe suggested manuscripts. I just came across a note that I wrote recommending a subject or writer, and the response I got from Catton and Larrabee. So I was learning that process in some ways. I think I worked on some of the game-related 00:05:00processes as well. I think I wrote a couple of things which were—either the captions were included or I had my early rejections, and things like that.

Q: When it came to those publishing spin-offs and the notion of having a game and so on, do you remember any of the specifics of what you did and whether those were successful ventures?

PRICE: Well, I think some of them were moderately successful. Again, it was how do you monetize history and popularize scholarship? These were important things—for example, American Heritage Junior History. We repackaged material and books for 15-year-olds or 16-year-olds. And again, I still like what they did and I’ve tried to get my grandchildren to read these kinds of books as well.

Q: And do you think that this effort to repackage and to take scholarship and make it more accessible, did that have much influence?

PRICE: I think that definitely has an influence, which is—how does one think about writing? What role does scholarship play, impressing some audiences with footnotes and a kind of format? To what extent can you repackage and think about scholarship playing a different role—reaching out to a different community? And certainly American Heritage and Horizon stood for that question. Also in a nice New York, American way, which was: maintain the integrity of the material, doing it not to become a billionaire or millionaire, but because there’s some social value in accomplishing this. So it was that kind of interesting Yankee aristocracy playing a certain role. And I think, thinking that Time wasn’t doing it sufficiently, so they created this enterprise which they thought could do it better. They started by taking over a history journal published by the scholarly historical society, which was trying to do something like it. Heritage came in and bought it and then moved it into a hardcover format.

Q: Do you think that effort to translate scholarship to a public audience and to maybe repackage in the way that they did—even this social mission that you’re talking about—stuck with you? Did it influence any of the ways you packaged your scholarship going forward?

PRICE: I think, definitely, it suggested the importance of being able to use and reuse material—thinking about audience, thinking about larger audiences, all of that. Definitely.

Q: Speaking of a Yankee aristocracy, you had described your Yale experience in part as a dress rehearsal for power and leadership. And I wonder if you consider that American Heritage period as an extension of the education or something different?

PRICE: It was this small extension of it, with maybe too short but, as I say, a window into thinking about it into the New York framework, the New York publishing framework.

Q: I think right after or maybe even during the American Heritage employment you left to help out Robert Wagner’s campaign. And of course this probably exposed you to a very different New York—and you were, as you describe it, an advance person.


Q: So can you talk about what you did for Wagner?

PRICE: That was fabulous and it was—certainly not my initial, but my most important immersion in American politics, in politics. Robert Wagner was a wonderful candidate. I learned many, many different things from him. My advance responsibility was to be with Wagner or [Paul R.] Screvane—it was Wagner, Screvane and [Abe] Beame. This is a typical New York Irish/Italian/Jewish ticket, as it were. I would find out where their next stop was. I would go there, talk to people for twenty minutes, come back and say, Make sure to mention X, Y, or Z. Something like that.

Q: So you’re referring to local citizens that you would approach on the street and ask them what a local issue is?

PRICE: Yes. In those days


people traveled in limousines. It was a sad day when candidates decided they couldn’t stay in limousines anymore and they had to be in Lincoln Town Cars or SUVs or something like that. But Wagner or Screvane would be in the back seat of the limousine, and you’d whisper to their assistants or whisper to them, Here’s something important you could raise in your next stump speech. So that was my advance work.

Q: Then you also would interact with a journalist too, I assume?

PRICE: Yes. Murray Kempton, whom I admired tremendously, was in the campaign. It was one of the great pleasures to hang around and be around journalists, in that sense.

Q: And since you were a journalist as a college student and at American Heritage, did you interact with the other journalists on the campaign as an intermediary or—

PRICE: I don’t remember so specifically, but I’m sure—now that you mention, I certainly remember working with Murray Kempton and a couple of other people. But I don’t think I was feeding stories to them. Maybe I was trying, it’s possible.

Q: What about the education that you got there, about—you described it in your memoir as being in a way about tribe politics?

PRICE: Well, as I say, these balance tickets were a really interesting feature. You could see the bones of old New York in this campaign. You could see Wagner harkening back to his father, who had been the mayor. You could see the role that the clubs played. It was definitely an older, established New York, and politically important in that way.

Q: And probably on its way to fading out?

PRICE: Yes, well Wagner himself was reinventing himself as a reformer. It was interesting because he would—I can’t remember all the details of it, but that was another fabulous aspect of it—was Wagner redefining himself not as an establishment person because—although he came from an established family—but as a reformer.

Q: Do you remember how you got the opportunity in the first place? I’m also just curious about whether you felt like you caught the political bug, and if so, why you just left after that one campaign—though you did run for office later.

PRICE: Well, yes. This could be a complicated question: Why do I enter in to leave? And I can’t remember how I got involved in it. I’ll think about it.

Q: Did any of your aspiration to be a journalist get dampened by that experience in politics?

PRICE: I don’t think so. It was really New York politics, New York writing. It was exciting.

Q: OK. And it was around that time that you must have been contemplating going to Yale Law School, and you made that choice. One of the things that I was curious about is why you decided to go back to law school when you had this aspiration and interest in journalism?

PRICE: This is—I’m not sure it’s embarrassing—but it really had to do with the draft. It was not a conscious decision. I was happily ensconced and doing all these things—but the draft still existed and the question was, Would I serve for six months? That really came up after I graduated from Yale in the first place, when I was thinking of becoming a journalist. And it came up in June or July of that year. So I had to come to a conclusion about whether I would go to graduate school or whether I would possibly be drafted, and I decided to go to law school. And that’s why I went to [University of] Virginia [Law School] for my first year of law school. I don’t know if you know that.

Q: No, I didn’t. So you went to the University of Virginia’s law school?

PRICE: Yes, because I decided so late in the year to go to law school, and I wasn’t able to go to Yale immediately. I think—this could be apocryphal but could be true—that I had turned down the Yale Law School to go work in American Heritage and I couldn’t renew it in time for that fall. And so I went to the University of Virginia [UVA], which I loved, for one year and then transferred to the Yale Law School.

Q: OK. Why law school as opposed to other graduate school options you could have done, you know, in history, for example?

PRICE: For some reason or other I didn’t think of myself as a PhD candidate historian. So I thought of myself as law—as the graduate school to which


I would go.

Q: And with that year at UVA, were there any memorable classes or teachers there?

PRICE: Yes. I thought I had the best legal education in the country, which was a first year at Virginia and a second and third year at Yale. Because I got a really classic first year of legal education from extraordinary professors. But none in the communications—nothing in the communications field as I recall. It was great because I also got a sense of a different part of the country, a different sense of grace, a different community of students, etc., and things like that.

Q: Were there any teachers in particular? I know there were no communication-related classes that stood out, but anything that stuck with you?

PRICE: There were wonderful professors: Charles Gregory, Richard Speidel, Daniel Meador. It was an exceptional and classical legal education.

Q: And then the switch.

PRICE: One of the strange things I reflected on at the time. It was the first place where I was a stellar student. I hadn’t been a stellar student—I’d been a really good student at Yale, but not a stellar student. And, I mean, I didn’t think of myself necessarily as a stellar student. But at Virginia I ended up at the top of the—maybe it was a debate whether I was first or second in the class. And it was interesting for me to be in that position. I had never been in quite that position before.

Q: Once you transferred to Yale, did you feel—

PRICE: I stayed in that—it was interesting. The dynamic continued in a peculiar way.

Q: And of course Yale had a different caliber of student, plus it had such a different curriculum and intellectual culture than, I would assume, UVA?

PRICE: Definitely that was true. Of course, I thought it was superior—superior for me. But the Virginia curriculum was superior in other ways, etc., I would say. And I’m trying to think what it taught me that’s related.

Q: Well, I’ll ask a little bit about Yale itself because it was, even then, such an intellectually vibrant law school, especially in the second and third years.


Q: The courses were wide-ranging and faculty could take them anywhere. I know you mentioned this class by Charles Reich, who sounded quite eccentric—

PRICE: Charles Reich.

Q: Yes.

PRICE: That was a wonderful class and he was a great figure in American law, and a great poetic figure. I’m not sure I mentioned but I remember—the seminar was, I think, on the law of the [American] West or something like that—there were maybe eight of us in the class. Gary Hart was one. I’m not sure Jerry Brown was in the class, but he might have been. Gary Weatherford, who became a great water lawyer—rivers and also Native American as well. And that’s where I got some greater interest in Native American law. Because he was asking the sort of conceptual question, which is how did people who were pioneering in the West, how did they think about law? How did they think about institutions? So the thing that I worked on was mining law—so, how ethnographically or anthropologically or within legal institutions did miners think about who owned what, or how do they define things etc., etc. It’s the same with water.

Q: It sounded like you worked on a paper on a kind of miners’ legal doctrine about mineral deposits being owned by the discoverer at the point of access?

PRICE: Yes, this is a question of who owns the load. Is it under the person who owns the property above it, or is it the person who discovers the kind of vein itself? So this became a difference between mining law in the West and mining law in the East. And there were other examples like that with respect to water.

Q: And it sounds so esoteric, but do you think it had anything to do with how you think about the law—and maybe this has something to do with Austria and coming to recognize your past and so on?

PRICE: I’m not sure I have to go that far. I think the part


of the Yale Law School that’s stayed with me through a variety of things is how law is constructed. That’s maybe a way that connects to communications—so we weren’t literalists. We weren’t just looking at what the codebook said and what the scholar said and how it came down, but rather how law was formed in public life, and in private life.

Q: I was curious about whether you were exposed in those two years at Yale to any media or communication regulation coursework or anything like that?

PRICE: Sure. Well, I was fortunate enough to have Telford Taylor as a professor. Telford Taylor had been general counsel of the FCC [Federal Communications Commission]. He also had been a prosecutor at Nuremberg. He was one of the young people brought into the administration—like William O. Douglas, etc.—but he was younger. And so he taught a course on the FCC and I don’t think this course was taught—and it may be—anywhere else in the country. But it was his philosophical approach, his exposure to these other elements like Nuremberg, that gave him a sense of what bureaucracies were, how decisions were made, what was behind them, etc. And then I think he brought that to bear in the course on the FCC. I’m trying to remember what I wrote for that course. It might have been on localism, but I’m not quite sure.

Q: Yes, I don’t know. It must not have been published—

PRICE: No, wasn’t published. I don’t think it was published.

Q: Do you remember anything about his particular kind of tenets or approach to broadcast regulation in the context of the U.S. Communications Act?

PRICE: Well, I think he was sort of interested in what what was meant by public interest, convenience, and necessity. I’m trying to remember what was salient. One was the whole idea of this structure of broadcasting in the United States, so that each Congressional district would have a radio station, or each community would have a radio station, and then there would be an opportunity for a second one. So one of the questions was this notion of a kind of broad local network and how competition—what role competition played, what role local monopolies played, the formation of networks like NBC, CBS and ABC. So those were very strong elements of this course. What he brought to bear—for example, in the localism—was the political foundation of this idea of how to distribute frequencies. It was a way to satisfy Congress, as it were, that each community or each Congressional district would have one station before another community would have two—so this was like, how do you deal with equity? Why should New York have seven stations and Philadelphia have one or nine or things like that? So these were all issues that were of interest to him—and I think they must have been very active at the time that he was general counsel.

Q: And that set of, or bundle, of issues around politics and policymaking in the law and how they intersect and so on, that must have been the core of the class, it sounds like?

PRICE: Yes, he was not purely a doctrine guy. It was about why these doctrines were the way they were. So that was very much in the spirit of the Yale Law School. And I think he must have come up from New York once a week to teach this class. And then of course it was the period when Fred Rodell—I don’t know if you know Fred Rodell—was a very significant figure. He was a kind of alcoholic ne’er-do-well who wrote a book called Nine Old Men [Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955, 1955], which was the first kind of bible of legal realism, which was like, these decisions are just—they’re human decisions. You have to know a lot more about the justices to understand the doctrines, as it were. And he also believed in journalism. He hated footnotes. He wrote law review articles without footnotes. And he was an important influence on a variety of people,


including me indirectly. But I have friends who became legal journalists and they were sort of trained at the feet of Fred Rodell.

Q: Was he faculty at Yale?

PRICE: He was a famous faculty member. He’s a bit forgotten, but he stood for this very critical view—not in the way that the crits—but critical of the kind of style and stuffiness. He stood for the opposition between Yale and Harvard. So he mocked the case method, he mocked the whole—he mocked the kind of religious devotion to a certain way of thinking about law. And he stood for this in a very radical, interesting way. And I recommend Nine Old Men—and he also wrote some beautiful, mocking poetry about all of this.

Q: A kind of academic satire?


Q: So I noticed, looking at your published papers from the period and all the way through the ’70s, that you often will start with a clever phrase or something that was absolutely accessible and maybe an aperçu of some kind—in the beginning of each of these articles. I wondered maybe if his influence on legal writing was being felt?

PRICE: It could be. By the way, Robert Bork was also on the faculty, and I took Bork’s first class at the Yale Law School on antitrust law. He taught it together with an economist named Ward Bowman. There are other wonderful people—many, many other wonderful people at the Yale Law School, but the students were extraordinary as well.

Q: And do you remember any particular students who were—you mentioned Gary Hart and a couple of others—but that you interacted with and collaborated with later?

PRICE: I’m very close to the class because I’m the class scribe and I write 4,000 words about the class every year for 50 years. It’s my favorite piece of writing, basically—and one of the aspects of that has been to think of the class as it’s moved through the years—what changes people have in their careers, etc.

Q: It seems in some ways resonant with the practice that you and Danny [Daniel] Horowitz have to read the Sunday [New York] Times?

PRICE: Yes, it could be. Yes, that’s true. So, the answer is that I’m close to a lot of people in the Yale Law School class.

Q: And though probably it would take too long to list them all, but are there one or two that you’ve stayed in touch with, especially that you’ve worked with?

PRICE: I just was saying I was just in Cuba last week. We can talk about that another time, there’s not that much—but one of my classmates was Louie Stuchinsky [phonetic], who had grown up in Cuba and left and became a law student at the Yale Law School. And we became very close, and I encouraged him to come teach at UCLA for a short period of time—even to this day I’ve been interested in his love of Cuba, his sentimentality about Cuba, how he brought his family here and how how he married his 16-year-old sweetheart—and they came to the United States together—how Yale Law School welcomed to him, which was a very nice thing. That’s one example, but there are many. As I say, I was very close, somewhat close, to Jerry Brown, who was the governor and watched him in his early, first administration—how he’s matured, how he’s changed, how he’s enveloped—become a kind of embracing figure of a way to govern—and strong governance in a positive manner.

Q: Right. Well, I am curious if there’s any other faculty member that you connected with? And the reason I ask is in part there was this paper that got published, but you must have written it while you were there, because it was labeled as having a prize. It was 1964.

PRICE: A copyright prize.

Q: It was on the “Moral Judge and the Copyright Statute.”

PRICE: Oh, yes. That was a wonderful—that was a good example, although I didn’t take copyright law at Yale.

Q: You didn’t?

PRICE: No [laughs]—and it was a challenge. This is a competition for the best copyright paper—and they 00:30:00had a, I don’t know, $500 prize associated. I guess you could win at the law school and then you would compete at the national level. And it was a very important paper—and it does have some relationship to communications about copyright. It was about a more general problem, which is where you know something’s wrong, and it doesn’t fit within a legal category, and how do courts cope with this. So that’s why it’s called the “Moral Judge and the Copyright Statute,” and it was about the copying of certain characteristics in lamps—Stiffel lamps, as I recall. For some reason or other the statute was unclear about this or had—it was a gap, and the question was, what role did judges play in closing the gap, as opposed to Congress, in closing the gap? And so I wrote an essay on that subject.

Q: So what constitutes the moral judge then?

PRICE: It’s not outcome-dependent, but it’s whether the judge really tries to determine whether there’s a role to play in fixing this hole. And we see it all the time. I can’t—I’m not sure I can, right this second, point to an example of this. But this occurs over and over and over again. Some people think there’s a kind of pattern, that Congress passes a statute, people live under it, they find flaws in it, and then it has to be fixed, as it were. And the question is, do judges apply band-aids—this is the old debate about do judges legislate, because in a way gap-filling is a form of legislation. And of course they should. There’s a significant role for judges to play in trying to think of how Congress would do this if Congress were doing it. But it’s all a series of fictions. But it’s an interesting process—a dynamic. And I think I’ve thought about it in communications law, in thinking of the FCC as being in a kind of conversation with Congress. You could think of judges as being in a conversation with Congress, where Congress plays a role and then the court sometimes “interprets” it but sometimes sort of embraces it or tries to encapture what Congress would have done if it were doing it. This is what I might call a conversation between Congress and the court or the Commission and the court.

Q: And that idea is there in that moral judge piece, in a way, right?

PRICE: It’s in there. Yes, I suppose so.

Q: And the interest in copyright, was it merely because there was a prize offered or was there some—

PRICE: I think I was interested in copyright. I wasn’t doing this in construction law or something like that. I think I was interested in the field. This is back—thinking of American Heritage, continuing that idea of publishing and things like that.

Q: Well, if I’m not wrong, you were the executive editor of the law review and in that role—which probably was linked to your class rank in some way—but was that important to you?

PRICE: It was a very important thing. First of all, it was thrilling to me, because I had come from Virginia to the Yale Law School, and the question was, what would be my role within the dynamic of the Yale Law Journal? And there was some sort of contest of who would be editor-in-chief, and I became executive editor partly because of my, then, writing ability. I think the idea was that I could help make it a better-written, more interesting journal. Whether that turned out to be the case I don’t know.

Q: And that was your role? As executive editor you did—

PRICE: Well, I was a kind of associate of the editor—and thinking about these questions, and smoothing the process of assigning topics, editing, and getting things ready for publication.

Q: Do you think it had any influence on your own writing style as a scholar in law review articles—but not just those—going forward, working as the executive editor?

PRICE: Yes. Well—maybe I’ll put it this way. One of the things that’s odd about the law schools, and the Yale Law School, is this idea of student-edited 00:35:00journals, which we don’t have in—we have peer reviews and the peers are other scholars. So the idea of student-edited journals—at the Yale Law School, and other law schools as well, but certainly at the Yale Law School, the students saw themselves as capable of taking on the biggest issues and trying to struggle with authors and making sure that the articles were right. And they were real—people worked day and night on the—I would say the Yale Law Journal became the most important curricular thing you were doing—was working on the journal. You’d work on it all night and it would be on a very broad array of subjects. It was terrific.

Q: It’s sort of an echo of the Daily News, I mean very different, but in terms of the role it plays.

PRICE: Yes—no, it was a great role.

Q: Yes, you know, and I think you mentioned somewhere—

PRICE: It’s a bit like being a publisher.

Q: You mentioned that you still saw the law through a journalist’s eye—was the phrase you used when you were at Yale Law School—that you looked at statutes from a journalist’s eye. I’m just as curious if—that was a phrase you used—

PRICE: Oh, well great. I like that.

Q: [laughs] Do you feel like it stuck with you—that you continued as a young UCLA professor applying that sort of view?

PRICE: Well, I think it also goes back to Fred Rodell. It goes back to this kind of skeptical view of the law. It’s not looking at the law as seriously as fixed in some ways, or as divinely given, and subject to criticism, and subject to analysis, and also questioning formation theories of how the law came into being and what it should do.

Q: In the case of Western mining, for example.

PRICE: Yes. So I think this probably carried through in many areas of teaching or writing.

Q: So one wrinkle around that time—it must have been during a summer after Yale Law School, after you finished it—but you worked as a researcher for the Warren Commission. And I’m not sure of the exact timing but—what was your role?

PRICE: [Earl] Warren was chairman of the Warren Commission, Chief Justice Warren, and he borrowed—either offered or compelled—I think probably offered—law students, people who had clerkships, to spend the summer before they became a clerk, or something like that, helping in finishing off the work of the Warren Commission. So I and probably several other law clerks went and worked at the Warren Commission. And I was assigned to do footnotes on the chapter of [Lee Harvey] Oswald in Russia.

Q: Oh, wow. And did he do it alone?

PRICE: Definitely. I actually have personal knowledge that he’s the only—But it was an interesting experience. One of the things that I learned in footnoting this section is that he was interviewed in Moscow by Priscilla Johnson, who was a journalist who—because the traffic of Americans to Russia was so small—probably spoke to every interesting American who came through—maybe every American, or tried. She had talked to me when I had gone to Moscow a couple years before. So that was interesting for me.

Q: Doing the footnoting for that chapter, was there anything related to your Moscow—not your Moscow visit per se—but was that assigned to you because of your exposure?

PRICE: No. I don’t think so.

Q: Totally random?

PRICE: Yes. Unless there’s a conspiracy that I don’t know about.

Q: And the rest of the summer—since the report was, I think, released in September of that year, you must have been part of the process of finalizing—

PRICE: Yes, I have a copy of the Warren Commission signed by all of the members of the Commission, which is exciting. I hope I still have it—I’m trying to think of if there was anything compelling about it, other than seeing how Washington works, and the kind of formation of public opinion about something—I didn’t come away with a more skeptical idea of 00:40:00decision making or anything like—I didn’t become cynical as a result of it or an enthusiast as a result of it.

Q: So that was right before you started as a clerk for Justice—

PRICE: Although—I guess, it was interesting in terms of the packaging of ideas—these are the facts, or how do we package this so that it’s complete, and it’s coherent, and it’s acceptable to the American public. So I wasn’t engaged in that, but I must have been on the side of it in some ways.

Q: Well, it was right before you were just to start as Justice Potter Stewart’s clerk. Right. And was that an opportunity that you applied for or were you tapped to be the clerk?

PRICE: You applied, but basically—yes, you applied. But Potter Stewart’s practice was to take one student from the Yale Law School and one student from somewhere else, often Harvard.

Q: Your experience over that year—you knew the preceding Yale Law School clerk—and were prepared, therefore, for the year, more or less. But was it—in his case, did he use his clerks to farm out writing of opinions and things like that?

PRICE: We did drafts of opinions, and we did petitions for certioraries. So those were the two—and we reviewed drafts circulated by other justices.

Q: And when you took that role did you have in mind that you were going to go to a legal professor position beyond it?

PRICE: Not necessarily, no.

Q: Did it help convince you to go to UCLA?

PRICE: I guess. I think as I rehearsed this, I’m not sure that this is the direction I would have taken. But somehow or other it was like I was on a train, ever since I did better than I expected at Virginia—then I went to Yale and did better than I expected at Yale, and then got a clerkship and etc. So that led me to a teaching position. But I’m not sure that that’s the very best possible outcome, but it was OK.

Q: But it was a trajectory.

PRICE: It was a trajectory—yes.

Q: From that year was there any kind of encounter or, I don’t know, memory of Stewart himself that you recall, that stuck with you after?

PRICE: Sure. Well, first of all, Stewart was a journalist too, and Stewart loved The New York Times. He loved newspapers—and he was a kind of model of a certain civic American, Middle-, slightly Middle-Western. But he was a very decent guy, and not doctrinaire—there were consequences in that he was not one of the leaders. He wasn’t the leader on a conservative side—but he was, basically, a very decent—and he was a very good writer. So his idea of a decision was linked to these journalistic goals as well. But also there was this certain idealism to him that was quite interesting and passionate.

Q: And did that connect with his humane treatment of you and others who are clerks?

PRICE: Yes, but I think also—I was just thinking about it because this—the court is thinking now about cell phones and the Fourth Amendment and searches and seizures. And one of his great decisions of that term—I think it might have been called Stanford v. Texas [379 U.S. 476 (1965)], but I’m not sure—was a kind of very penetrating opinion about the Fourth Amendment. And he’d gotten a handwritten note from Hugo Black saying, That was a wonderful opinion, Potter—or something like that. Potter Stewart was really proud of getting this note from Hugo Black.

Q: Were there other memorable cases or, I mean, media-related, communication-related cases?

PRICE: Yes, there were a couple of media-related cases. One was Estes v. Texas [381 U.S. 532 (1965)], which was about cameras in the courtroom—that was interesting about how to think about trials, and the public. And, oddly, it reminded me of my trip to Cuba because—one 00:45:00of the things I witnessed in Cuba were trials in stadia, a kind of trial against one of Fidel’s [Castro] favorite examples of a cruel policeman of the Batista era. And it taught me that public has a limit—that is, a public, it needs to be a certain degree of openness for it to be public. But too open is not public either. This is an idea that I don’t think has been adequately explored, but a trial in a stadium is not a public trial. It’s something more like a carnival. And so the Estes case, Estes against Texas, raised these questions for me—which is, what do we mean by the ritualness of a public trial? What’s the limit to it one way or another? And it was a case in which the court, for the first time maybe, published photographs as part of the decision—showing wiring, showing a kind of disrupted courtroom, and the idea that the jurors would be swayed by all of this external stuff hanging around. And Stewart, I think, dissented, and he also described the courtroom in a way that showed that these wires had been sort of hidden. So it was about this process of representing things, use of cameras in the courtroom, use of photographs in the decision. So there are a lot of communications-related aspects of that. And another—if I can just briefly answer—another case was Ginzburg, Ralph Ginzburg and the publication of Eros magazine [Ginzburg v. United States, 383 U.S. 463 (1966)]. It was a period in which pornography was still an important issue at the court and the justices were trying to figure out how to get rid of these questions. But Eros was a magazine that, I think, was particularly prosecuted because the pornography was interracial. And the question was whether the court would hear the case Ginzburg had been sentenced to. The court was kind of split on this—and Stewart voted to grant certiorari—there was an idea that, if cert was granted, the case might be affirmed and that would be bad. So this actually occurred—so, it was where the right vote was both to grant certiorari so you have a chance to hear, but you should recognize that you might be mauling the law by having a court affirmation of things, so—.

Q: And was he in the majority in that?

PRICE: He wasn’t. I don’t think so, as I recall, but I’m not sure I remember. I’d have to go back and check.

Q: Right.

PRICE: But so there were cases like that.

Q: You were in Washington for the first time for a lengthy period, right, that year? And you decided to stick around and you served as the assistant to the Secretary of Labor Wallard [sic] Wirtz.

PRICE: Willard Wirtz.

Q: Willard Wirtz, excuse me. And what made you decide to take that position? What was the circumstance?

PRICE: Well—it’s interesting. It’s another journalism plus ladder approach. So the clerk who preceded me, Alan Novak, was a good friend of Fred Graham, who was actually a journalist. He was a journalist for The New York Times, etc. Graham had been Willard Wirtz’s assistant. He was quitting to do something, and so Alan called me and said, Do you want this job? This is typical, the way Washington works, story. So I figured, you know, that was nice, it sounds like a good idea to me. And it was thinking about the possibility of government service in a different way, much more, I guess, like another—kind of like a New Deal-type Yale Law School, crossing from law into administration in some ways. So working for Willard Wirtz gave me a chance to see how that worked, and fulfilling that dream, as it were. And you would work there for a year and then Daniel Patrick Moynihan was there, a couple of other people. So it was an exciting—it was post [John F.] Kennedy in the [Lyndon B.] Johnson Administration. 00:50:00It was interesting.

Q: So were you working with some of those figures on policy drafts and discussion and early War on Poverty stuff?

PRICE: Yes, a lot of manpower things—the question of, for example, could you fashion a program to take those—a study which Moynihan did, called One Third of a Nation, which described people who were turned down for military duty, often minorities. And the question was, could the government work with that cohort of people who were interested but fell short, and somehow improve their performance so that they could serve in the military and then use that as a way of upward mobility? There were a lot of programs, initiatives like that that Willard Wirtz stood for. And the question was how to how to make them better—how to implement them and get them moving. That was sort of my role. And I was a speechwriter.

Q: Oh, for him as well. OK.


Q: Was there any particular initiative outside of the manpower project, that Moynihan was working on, that you had a hand in or were helping to at least fix in the sense of getting through?

PRICE: Yes. I’m trying to think of what any of them had to do with communications—the Watts riots took place during this period, some OSHA-related [Occupational Safety and Health Administration] activity—working conditions and things like that. But right now I can’t remember any specific—

Q: It must have been after that year where you were the assistant, so it was a year after the clerkship, that you took the UCLA job and moved out to California, but—based on at least what I’ve inferred—that summer before you started was when you did some consulting work for—and excuse my pronunciation—but the Agua Caliente [Band of Cahuilla Indians] tribe in Palm Springs.

PRICE: Yes, Agua Caliente tribe.

Q: Is that how you say it? So and I think it’s that summer in between, but how did that come about? You were kind of on your way to LA, in a sense.

PRICE: So there was—again the old network—but there was a professor—a fellow student actually, George Lefcoe, who had become a professor at USC [University of Southern California]. He was contacted about this case and asked for his assistance—to a kind of Long Beach lawyer. And he called me. I’m not sure how he knew about me, but he asked me whether I wanted to work on this case. So it was a very interesting case involving a complicated—I’ll try and make it easy. The main interesting question was that when the railroad was driven through to California, every other section became owned by the tribe and every other section became owned by the railroad company, and development in Palms Springs grew on the railroad land and the Indian land lay fallow. And the question was how to distribute this land to individuals and to the tribe, and whether it should be taxed. That’s when I first got into the case.

Q: Those legal circumstances were very strange, but it reminds me in some ways of that kind of Western mining case. And it was the first—or was it the first legal work you did for a tribe?

PRICE: Yes, I think it was the first legal work I did for a tribe. And the question was how to come up with a convincing argument that the land that had gone down to the individual Indians shouldn’t be taxed by the community, by the city of Palm Springs.

Q: And did you succeed?

PRICE: Yes, I succeeded—or the lawyer succeeded with some input by me. And that was a good thing.

Q: And when that offer to help out with the case came down, had you already been interested in Native American or Indian law?

PRICE: Well because of Yale—because this course that I had taken with, by Charles Reich at the Yale Law School. I also thought going West it would be nice for me to be involved in things that had something to do with the West.

Q: Of course you would go on to do lots of work for Indian tribes and entities, but I was curious, before getting to those, about UCLA itself. Was that your only choice or did you have a particular draw to California when you made the decision to take the post out there?

PRICE: Well, my wife—she’d graduated from high school in California and gone to Stanford. She wasn’t particularly 00:55:00eager, necessarily—and her parents—her mother lived there, her father died. And I had worked in California during one of my summers—maybe one or two of my summers at the Yale Law School, and so I kind of liked it. I liked the life. And UCLA, it wasn’t a start-up—I think it was already 10 or 20 years old—but it was in its beginning processes and that was exciting to me as well.

Q: Do you mind a brief digression about how you met your wife originally and what the circumstances were and when that was?

PRICE: Yes, well the first time I met my wife I was dating Nora Ephron, and we were in a Greek—some sort of restaurant, cafe, etc. And Aimée [Brown Price] and Nora had gone to high school together, and so Nora introduced me to her. But later, when I was fixed up with her, I said I’d met her, and she didn’t remember. But I remembered [laughs].

Q: And what what kind of timing was that?

PRICE: It’s all when I was at the Yale Law School—so it was in ’62, ’63, ’64.

Q: And so you spent quite a long time at UCLA in the law school—

PRICE: Sixteen years.

Q: —sixteen years and, you know, particularly in those first couple of years, I guess—it was the late 1960s—what was it like being a young professor of law there? Was there anything about the newness of the school that made it, you know, interesting?

PRICE: Well, trying to look at it backwards or through this perspective, I think partly it was about Los Angeles, and Hollywood, and the entertainment industry, and the arts, and how should all these come into the life of a law school in some ways. And even though I was just a young professor there, I was given some leeway—I’m not sure why—to help build these kinds of efforts. So I wanted to embrace thinking of the potential strengths of the law school in a kind of complicated national environment. There were questions of how to change the methodology of teaching, but also how to embrace certain sectors, including Indians and land use—which other people did—but the arts and entertainment law.

Q: So did you and your colleagues—

PRICE: And also one of the things that was interesting about the University of California was a great way of thinking of the relationship between the campuses and economic development and social development in the state. So under Clark Kerr, who’d been a famous chancellor, there was a very public-spirited dynamic between the university and the state, where new campuses would be lodged—the role that that would play in the development of the state. What role the scholarship of the faculty would play in terms of improving governance in some way. So I think that was a fabulous aspect of that environment, and I really appreciated that. I think it was truer than—it wasn’t untrue of other universities, but it was true in a very great way about the University of California.

Q: During that same stretch, at least the beginning of the time, the War on Poverty, and the kind of Great Society programs, were spreading around, including the Office of Legal Services.

PRICE: Right, yes. So, I got involved with legal services first. I worked with—one of the grants had been to California Rural Legal Assistance, which was designed to help farm workers. And there was one office that had a rush of Indian potential clients and didn’t know what to do with it, and I helped them think about that. And that led to the foundation of California Indian Legal Services, and we formed an office of that at the law school at UCLA.

Q: So can you just describe that in a little bit more detail? So you were working at this entity that was meant to serve Mexican-American migrant workers, and they had this crush of Indian applicants or potential clients. And so did you propose 01:00:00the Indian legal service spin-off?

PRICE: Yes. What happened—I think California Rural Legal Assistance, which is a wonderful enterprise, recognized that that they couldn’t do this alone, and also that there was an opportunity to create an Indian entity. And so, yes, I think I helped draft the proposal for California Indian Legal Services, and I became deputy director of it, I think.

Q: OK and George Duke—

PRICE: George Duke was the director.

Q: —was someone you worked with.


Q: I was curious about it in part for its own sake, but also it was the first institute or entity that you created, and you went on to create a lot of them over the years. And so I wondered whether—I knew you weren’t running it solely—but whether you got intoxicated by it, by having the building and founding—

PRICE: I’m not sure intoxicated would be the right word. But I think it turned out to be a tick [laughs], rather than intoxicated, I’d say. Or an organizing method within another entity to create something that could have a function, and could move forward, etc.

Q: OK, right.

PRICE: And also have someone else who could lead and develop it in some ways. And California Indian Legal Services was an excellent enterprise in the sense, and led to the Native American Rights Fund.

Q: Yes. Can you describe that? I read something—

PRICE: What was wonderful is the California Indian Legal Services, I think, became one of the best legal services offices—and best Indian legal services offices. And then the Ford Foundation asked me to comment on a proposal for an Indian version of the NAACP [National Association for the Advancement of Colored People] Legal Defense Fund. I read it and I recommended something like the Native American Rights Fund, and wrote that proposal with some of my friends who were working for California Indian Legal Services. Then that was funded and my colleagues took it over, and ran it, and they were great.

Q: OK, and that’s indeed what it became and what it is—


Q: Right?

PRICE: No, I think that—I love that as a small footnote, as it were.

Q: So it sounded like the OLS or the Office of Legal Services paid you to go around and see different legal service agencies and Indian ones in particular?

PRICE: This was also weirdly in the Nixon Administration, but a friend of mine became the head of Legal Services—Terry Lenzner. Terry asked me to help think through a strategy for Indian legal services in the country. I guess it must have been after California Indian Legal Services, etc. So I went to the Navajo Reservation and to Philadelphia, Mississippi, and to Alaska, and to a variety of places, and help set up Indian OEO [Office of Economic Opportunity] programs for legal services for Native Americans.

Q: Based on the model that you had developed—a little bit—and I don’t know the timing—could be, I’m just not sure of it—but you had published a paper called, like, “Lawyers on the Reservation,” in that period, 1969. And it perhaps was informed by all of this traveling around or else—

PRICE: I think it’s informed by all the traveling—

Q: And then that probably doubled back on to the California—

PRICE: Yes, and to Alaska. I don’t remember when I wrote that, but it was more my reflections on what was different about being a legal services lawyer for Indians on reservations from urban poverty—the mindset, basically, had been to move from urban legal services directly to the reservation. I was trying to show that there were different strategic opportunities and different historical necessities that could make these programs stronger.

Q: You used the phrase “the landed poor” to distinguish between, say, the urban poor, for example. And, you know, this turns out to play a huge role in the Alaskan case, of course. But I was wondering if you found yourself, in the very late ’60s, doing lots of this Indian legal work? And you put together a case book and all of this. If you had gone back to the Yale Law School—you had this one course—did you have in mind that you would have such a central part of your early legal career being around Indian law?

PRICE: No, I don’t think so. No—more likely communications 01:05:00than Indian law.

Q: Right, that’s what I was wondering, but a series of opportunities came up and they built off one another—

PRICE: Right. I think that’s true, and also they were just exciting. Also, I’m not sure when I started doing this work with this law firm called Munger, Tolles & Olson LLP or then called Munger, Tolles and something else. But it’s where I think I learned from my summer work—that’s why the “landed poor” question came up, which is—what’s the role of excellent legal counsel, with great financial acumen, and how do you transpose that collection of benefits from Rockefellers to the Navajos. And it had to do with what were the generations of lawyers for Native American entities, etc., and how that developed over time. So that was part of the “Lawyers on [the] Reservation” article.

Q: And your Yale law professor, the famous legal realist Rodell, if I’m pronouncing—

PRICE: Fred Rodell.

Q: —Rodell. The notion that he had about law does seem to apply to the particular circumstances, the peculiar ones that reservations face and their opportunities that are there but very hard to access.

PRICE: Well, I think maybe another way it ties to communications is that I learned the importance of narratives in legal representation. So this is a question of who’s your audience in making law, Congress. And what’s the story that you want to tell? How romantic is it? How emotional is it? Who does it bring along? How does it build constituencies? And things like that. So, that relationship between narrative and lawmaking was an important aspect of probably every field, but it was certainly important of Native American law.

Q: Was there a particular intellectual challenge involved given the mix of claims and treaties and legal precedents?

PRICE: I wouldn’t say it’s singular in this respect, but it offered an opportunity of both technical questions and narrative questions. On the technical side, there were these complicated interrelationships between federal jurisdiction, state jurisdiction, and tribal jurisdiction. And the question was how to learn to—I don’t want to say—how to look for lacunae that would lead to opportunities—my favorite example of this—well, there were two examples. One was Muhammad Ali, before he was Muhammad Ali, when he was looking—when the states were refusing opportunities for him to fight because they would get in trouble, etc.—could he have a bout on a Native American reservation? And so that was an early exploration, that never happened, of trying to understand what tribes could do that would be economic opportunities that presented because states wouldn’t do them. Gambling became a good example of this.

Q: And you mentioned a second example.

PRICE: Yes, a friend of mine was experimenting with a novel way of building buildings out of what was called Composite, which is some plastic plaster material. And he couldn’t get a local jurisdiction to allow him to build this, to do a test of this house. So a California tribe was found that would do it. But again this was playing, trying to play, with openings that law might provide for economic opportunity.

Q: I was wondering if your motivation for doing this work, in addition to all the other reasons, had anything to do with your refugee background or your Jewishness. I mean, you mentioned Felix Cohen as a role model.

PRICE: I was kind of interested—well, my weirdest way of thinking of this was that these reservations were all about assimilation and preservation of culture. So the question was, was there a place in American society where Navajos could be Navajos and what role would law or other structures play in permitting differentiations based on culture? So, to some extent some similar things could be said about 01:10:00religious groups or other cultural groups, etc. And so I was somewhat interested in Native Americans as playing the same—a different version of songs of assimilation and separateness.

Q: And Felix Cohen?

PRICE: And then the other thing was—yes, Felix Cohen was the great scholar of American Indian law. I’m not sure I’d make too much of the kind of chain of his Jewishness, but it was of interest to me.

Q: So the long legal relationship you ended up having with this Alaskan entity, and it was called the Cook Inlet Region, [Inc.], or still is, and began, it sounded like to me, in the early 1970s after a law had passed, the Alaska Native Claims Settlement Act


. You had visited Alaska when you were doing this OLS tour, but how did you come about that opportunity to represent the new entity that had been created after the law?

PRICE: Well, I think that I made some contacts when I’d gone up to study—it was actually a really important visit having to do, as I was saying, about legal services. But while I was there, one of the issues was whether easements would be provided for a pipeline that would go from Prudhoe Bay down to the south of Alaska and then shipping oil. I was asked this question whether all these groups had signed easements. And I suggested that maybe they were invalid because they had not been given adequate consideration, economic consideration. And that led to the stopping of the building of the pipeline, which gave the tribes leverage in terms of getting this 1971 bill passed. And I had recommended some lawyers to represent the tribe in this, etc., which was fun. But probably through that process I had been called about some involvement of the Cook Inlet Region and then that led to a long career—a decade of representation with them.

Q: And in particular, with this settlement, where they were able to essentially acquire—or were granted—real estate across the United States that was actually valuable and not—

PRICE: This was very exciting, but I think, again, this is about the mix of narrative and technique. And the question was—the Native Claims Settlement Act divided Alaska land assets among these 40 large and small Native corporations, and some of the land that Cook Inlet got was environmentally sensitive, and so had little economic value. And the question was, how could Cook Inlet’s dowry of land, or assets, be changed to make it more economically favorable? So that was the role—one of the roles that I played was helping to negotiate a settlement with the Department of the Interior, where Cook Inlet would exchange its environmentally sensitive lands for economically more extraordinary lands. And it led to this very weird aspect in that settlement, which was terrific, in which Cook Inlet could exchange its lands for bidding rights for federal surplus property in different parts of the country. So then we would then go to auctions and we would bid on land in Hawaii or Washington, DC, and stuff like that.

Q: And so the corporation became this landlord of lots of very valuable property. It sounded like there is a broadcasting-related focus there—

PRICE: Yes, and that was the other thing which brought these together, which is fabulous, and that was—there was an FCC policy to encourage minority ownership of television and radio stations. I helped Cook Inlet posture itself so that it would be a partner in this. And actually that occurred. It came to own the New Haven television station [WTNH, 1986], and it became the largest 01:20:00minority owner of television stations in the country. And then it went from there into some of the spectrum auctions, and things like that, after my time.

Q: Was there ever any connection between those ownership stakes, on the one hand, and programming of any kind, or interest in minority-related or Indian-related programming?

PRICE: Interestingly, the answer is no. Probably no is maybe the right answer. I remember when Cook Inlet acquired the New Haven station, they said, We’re only going to change one thing. We’re going to make the weather map so that Alaska is big and the United States is small, rather than the other way around. Which is not—they didn’t do that but it was a good line.

Q: Alaskan chauvinism. Yes. Well, it sounded like you kept working on behalf of that entity for decades, that you may indeed still have a relationship?

PRICE: No, I would just say a little over a decade. Then I moved to New York and it was inconsistent with my work as dean of the Cardozo Law School.

Q: Oh, I see, OK. And you continued to publish in the area. You wrote a few papers in the mid–1970s on various Indian law-related topics. But it seems that that represented, maybe the last of the, at least published, scholarship on this topic—aside from updating the case book and so on. So is that more or less accurate that the Indian—

PRICE: Yes, sadly so—yes. I’m trying to think if it flowed into anything else. But I would say that’s a relatively correct picture.

Q: Well, this is a perfect time, then, to wrap up this second session. And what we can pick up next time is the communication and regulation law interests starting with [the Alfred P.] Sloan [Foundation]. So around the same time, so thank you so much.