Benjamin C. Duniway served on the Ninth Circuit Court of Appeals for 25 years, earning the reputation as a judicial heavyweight. According to William A. Norris, JD ’54, who served with Duniway, “he was a judge of outstanding ability, exemplary fairness, and complete integrity.”

Duniway, LLB ’31, also had an uncommon connection and commitment to Stanford Law School. During his tenure on the Ninth Circuit, he employed an astonishing 34 clerks from his alma mater.

Duniway passed away in 1986 just as his clerks were planning a reunion to celebrate his 25th anniversary on the Ninth Circuit. But they formalized their appreciation for him in The Judge Benjamin C. Duniway Memorial Scholarship Fund at Stanford Law School as a tribute to this 
extraordinary jurist. This year marks the 50th anniversary of his appointment to the bench and the 25th anniversary of the establishment of the fund. It is through his former clerks that his legacy has been preserved and his influence lives on.

Duniway’s Stanford connection began at birth: He was born at Stanford in 1907 and grew up on the Stanford campus, where his father was a history professor. He attended Stanford Law School during the deanship of Marion Rice Kirkwood and later served as a university trustee from 1962 to 1972, filling the seat vacated when Herbert Hoover retired from the board.

Duniway was an active member of the Democratic Party and a California appellate judge in 1961 when President John F. Kennedy appointed him to the Ninth Circuit. Tall, thin, white-haired, and courtly, Duniway “resembled Alistair Cooke,” Joseph Sneed, a fellow Ninth Circuit judge, once observed. Former clerk Jonathan Weisgall, JD ’73, vice president of legislative and regulatory affairs for MidAmerican Energy Holdings Company, agrees and describes Duniway as “straight out of central casting.”

While Duniway’s judicial appearance certainly impressed his clerks, it was the least of the marks he made upon them.

According to Barbara Bergman, JD ’76, a former clerk who is now a professor and the associate dean for academic affairs at University of New Mexico School of Law, Duniway was at heart a teacher and clerking for him was like having a personal tutor for a year.

“He would go to great lengths to explain where attorneys had succeeded or failed at trial, for example in preserving—or not preserving—issues. This was tremendous training for being a litigator and for really understanding what judges are looking for.”

Duniway did not have his clerks write bench memos; he read all the briefs and prepared himself for oral argument, reaching a preferred disposition, which he then communicated to his clerks, who were given responsibility for writing draft opinions. Even then, his clerks were invited to disagree with him.

“It was a remarkable opportunity—one that a lot of law clerks never get,” according to former clerk Gordon Davidson, JD ’74 (BS ’70, MS ’71), chairman of Fenwick & West LLP.

It also was somewhat daunting, as Duniway was known for his brilliance and for his ability to get quickly and succinctly to the heart of a controversy. He eschewed embellishments in his opinions and trained his clerks to do the same in their drafts.

Former clerk Diane M. Johnsen, JD ’82, now a judge on the Arizona Court of Appeals, says that her writing style was forged while clerking for Duniway and that she still aspires to emulate the judge’s “spare elegance” in her own opinions.

Davidson echoes that sentiment.
 “He taught us how to write. I still don’t use adverbs.”

Davidson also learned the importance of attending to others before tackling his own projects: “Judge Duniway’s highest priority was to deal with other judges’ opinions before doing his own work. That way, he never would hold up anyone else. I still do that to this day—my work comes second if someone else’s project needs my attention.”

Indeed, the clerks were responsible for reviewing other judges’ opinions and for compiling a list of “nits”: typos, 
errors in grammar and citation, and the like, which Duniway could not abide.

Bergman confesses to being keen on attention to detail herself and attributes this, among other traits, to the training she received as a Duniway clerk. “His standards for excellence reached to every corner of an opinion, and I have tried to maintain those standards—including and beyond ‘nitpicking’—to this day.”

David F. Levi, JD ’80, formerly chief judge of the United States District Court for the Eastern District of California and currently dean of Duke Law School, recalls his introduction to Duniway’s high standards when he was charged with drafting his first opinion.

“The judge said, ‘I run these chambers like an artisan’s shop.’ And by that he meant that he expected our drafts to resemble the highest quality, handcrafted work. He wouldn’t tolerate any sloppiness.”

Duniway then proceeded to take Levi’s first opinion and check every citation and quote for accuracy and relevance. Levi, who had been president of the Stanford Law Review, passed, but Duniway was not lavish with his praise. Levi remembers Duniway being somewhat stern, letting him know that there were “no glaring errors” and that he should be sure to adhere to these standards throughout the year.

“From that experience I learned the importance of first impressions. And I later told my own clerks that I ran my chambers like an artisan’s shop—a tribute to Judge Duniway.”

Duniway also impressed his clerks with his personal and intellectual integrity and with his conscientious and rigorous approach to decision making.

According to former clerk Michael A. Kahn, JD ’73 (MA ’73), senior counsel at Crowell & Moring LLP, “Judge Duniway was a lot like Learned Hand. He took the job of judging quite seriously and exhibited great fidelity to statutes and precedent.”

Kahn says his career as a litigator has been largely shaped by Duniway’s 
priorities.

“In making an argument, I look for a four-square principle that will drive the court to an inexorable conclusion. Judge Duniway would not be swayed by ideology, personalities, or sexy arguments. I ask myself what he would have needed to decide in my favor.”

Johnsen also hews to Duniway’s judicial philosophy in deciding her cases: “He wasn’t interested in establishing 
policy. He felt the role of a judge was to rule in the case at hand.”

In addition, Johnsen admired Duniway’s treatment of lawyers—and she endeavors to follow suit in her courtroom.

“Judge Duniway was always very respectful of the lawyers at oral argument, even though he preferred certain styles,” says Johnsen. “It would have been easy, just for sport, to give a lawyer a hard time. Judge Duniway never did that.”

Duniway also was a firm believer in the importance of public service, another value that he instilled in his clerks. Before becoming a judge, Duniway had been one of the original San Francisco organizers for Harry S. Truman’s presidential bid. He joined Truman’s famous cross-country train ride as an advance man in which role, according to Weisgall, Duniway would stand in the crowd and yell, “Give ’em hell, Harry!”

Weisgall traces the acceptance of his first pro bono case to Duniway’s influence. When Weisgall was a young associate at Covington & Burling LLP, he took up the cause of nuclear testing victims in the Bikini Atoll. And he has been involved in the case for the last 37 years—his own version of “giving ’em hell.”

Similarly, Kahn devoted a number of years of his career to managing California’s electricity crisis under governors Davis and Schwarzenegger. He likewise attributes his dedication to public service to Duniway’s example.

Last, but certainly not least, was Duniway’s love of and allegiance to Stanford. According to Kahn, Duniway hired his clerks from Stanford Law School not only because they were the best, but because he also believed in supporting the institution. “My own family never had that relationship with a university,” says Kahn, “and Judge Duniway taught me the importance of giving back.”

It’s not surprising that several of the former clerks keep a photograph of Duniway in their offices. Kahn says, “We all had a better career because we clerked for Judge Duniway—and we got to clerk for Judge Duniway because we went to Stanford Law School.” SL