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Feature

Paul Brest

Photographs by Brian Smale and courtesy of Stanford Law School

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brest-paul--109.LSPaul Brest was given a Yiddish proverb when he stepped down as dean of Stanford Law School in 1999 to become president of the William and Flora Hewlett Foundation.

“With money in your pocket, you are wise and you are handsome and you sing well, too.”

While at the helm of one of the nation’s largest philanthropic organizations, Brest kept the proverb framed on his desk as a daily reminder of the power that foundation executives hold over applicants for grants—a power, he says, that deans do not hold over faculty, alumni, or even students.  Over the next 12 years, he would oversee the growth of the Hewlett Foundation in both scope and assets to a $7 billion force, tackling weighty issues like global poverty, climate change, education, and reproductive rights.

In a 2012 farewell note to the Hewlett community, Brest wrote, “As I prepare to return to Stanford—though happily not as a dean—we’ll see whether I continue to sing quite so well.”

Barely a year on, it is the Stanford community that is singing—and marveling at what their former dean has accomplished since returning.

PaulBrest_portraitIn spring 2013, a group of Stanford Law students filled Manning Faculty Lounge—eager to hear about a new policy program in the works. Paul Brest, dean of Stanford Law School from 1987 to 1999, together with Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution and associate dean for graduate studies, had organized the meeting to talk about a new initiative that they hoped would start by fall. Brest introduced himself to the group and asked for their thoughts—he wanted to hear about their experiences in and aspirations for work in the policy area. Five months later, a memo to students announced the launch of the Law and Policy Lab, with 13 unique opportunities for students to work with faculty on policy research and analysis on timely issues—and for real clients.

Brest has influenced generations of lawyers as their teacher, colleague, mentor, and friend. After more than a decade-long hiatus, he has settled back into academic life at Stanford, with a full-time course load teaching Problem Solving and Decision Making for Public Policy and Social Change at the law school and Measuring and Improving the Impact of Social Enterprises and other courses on philanthropy at the business school. And, of course,  leading the effort to get the practicums up and running.

“I didn’t believe that something as broad and innovative and important could be put together so quickly,” says M. Elizabeth Magill, Richard E. Lang Professor of Law and Dean. “It’s the kind of program that would take years to work out elsewhere—not months.”

Turning the idea of a Law and Policy Lab into a reality was a huge undertaking. Brest took on the role of ambassador, reaching out to faculty, alumni, friends, and colleagues in government, nonprofits, and NGOs in search of policy research needs. He identified faculty members whose scholarship aligned with those needs and invited them to direct practicums, adding intense policy research with students to their existing course loads.

“It was, essentially, a matchmaking process,” he says. “It was enjoyable to do.”

Brest was uniquely qualified for the challenge—and he embraced it.

PaulBrest_blackandwhite.LS“He had the perfect experience. He was on the faculty, he was dean, he led Hewlett,” says Larry Kramer, former dean of Stanford Law School who took over from Brest as president of the William and Flora Hewlett Foundation in 2012. When Kramer heard that Brest was stepping down from Hewlett, he called him “right away” and invited him to return to full-time teaching and to work with Hensler to develop the Policy Lab.

“It’s sort of amazing that years after being dean, years after expending all of this energy innovating at the law school, Paul is still enthusiastic about creating an important new program,” says Mark Kelman, James C. Gaither Professor of Law and vice dean.

The successful launch of the program in fall 2013 and its growth to more than 20 practicums in the ensuing months demonstrate a determination and vision that few possess.

“He is a working intellectual, a thinker who is also a doer,” says Thomas Grey (BA ’63), Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus. “He is always thinking about how to put his ideas into practice, about impact.”

When Paul Brest was nearing the end of his liberal arts studies at Swarthmore, he sought the advice of a music professor about his prospects for going on to study musicology. “He said I might do that. Or I might try something I could be competent at,” recalls Brest, admitting that the words did sting at the time.

It was 1962 and the civil rights movement was starting to reach college campuses. Brest had already participated in picketing a local Woolworth’s, and the idea of becoming a civil rights lawyer had crossed his mind and finally taken hold. He went on to earn his JD from Harvard Law School and clerked for Chief Judge Bailey Aldrich of the U.S. Court of Appeals, First Circuit. He then accepted a position with the NAACP Legal Defense and Educational Fund to work on civil rights cases, focused primarily on school desegregation, moving with his wife, Iris, and their young daughter to Jackson, Mississippi, in 1966.

Stanford_Lawyer_issue-49_1996-SPRING-VOL30-NO2_018.LS“It was an area with very hardcore segregationists,” says Brest, adding that the work was tremendously rewarding.

He might have stayed on at the NAACP for a while longer doing the work he loved, but for a chance phone call from a former Harvard Law professor. U.S. Supreme Court Justice John Marshall Harlan, II, was looking for a clerk. Brest jumped at the opportunity. “I could not refuse,” he says. “And it was wonderful. He was a lovely, great man. He treated his clerks like his own grandchildren.” Brest was by then considering a career in the legal academy and the clerkship wound up being opportune. “In those days law schools came to the Court to interview clerks for teaching positions. And that’s when I got really excited about the idea of teaching law.”

He joined the Stanford Law faculty in 1969 willing to teach anything. “It just happened that the year I came the school was understaffed in constitutional law teachers and Dean Mann asked me if I would teach it,” Brest said in a 1974 interview in the Stanford Lawyer. “It scared me tremendously because, in a sense, it really isn’t one subject but a whole series of subjects. And although the subjects have various coherences with each other, they cover a very broad field.”

It wasn’t long before Brest was rethinking the way the subject was taught and producing thought-leading scholarship. In 1975, the first edition of his innovative casebook Processes of Constitutional Decisionmaking: Cases and Materials was published, restructuring the course with a legal process approach rather than doctrinal categories and adding history, philosophy, and political theory.

And his scholarship was impactful. “As someone who had gone to Mississippi after law school to be a civil rights lawyer, Paul could no more be a pure academic theorist than he could be a traditional untheoretical scholar; his work would have to count in the world of the courts and government,” wrote Tom Grey and Barbara Babcock, Judge John Crown Professor of Law, Emerita, in the 2000 Stanford Law Review dedicated to Brest. They noted Brest’s Harvard Law Review article “The Supreme Court 1975 Term. Foreword: In Defense of the Antidiscrimination Principle,”(1976) as “an enduring statement and analysis of the core principle of American civil law.” And of his 1980 article “Misconceived Quest for the Original Understanding” (BUL Rev.), the first to name the notion of constitutional originalism, they said he “both clearly delineated and forcefully criticized what would later be [the Reagan administration’s] official constitutional doctrine … .” Stanford_Lawyer_issue-48_1995-FALL-VOL30-NO1_033.LS

In addition to writing innovative scholarship, Brest was also a natural leader and very enthusiastic about Stanford Law School. He quickly became a member of the appointments committee, where he helped to shape the direction of the law school for years to come.

“My sense was that he already had this deanly feel, though he wouldn’t become dean for another thirteen years,” says Kelman. “The social life of the school seemed to revolve around him and Iris. He was incredibly central to the place, the ship’s social director. Wildly enthusiastic, he exuded, ‘This is a great place to come.’ And so I did.”

What Kelman could not have known when he was interviewed in 1976 was that faculty hiring at Stanford Law School was changing, with Brest initiating much of that change.

“Here was this brilliant, imaginative guy on the market, in the critical legal studies area. He had already written several excellent pieces, but he was considered a controversial hire,” recalls Brest. Kelman hadn’t been on the law review or done a clerkship, so he didn’t fit the mold. But Brest could see how Kelman would contribute to the law school and lobbied hard for him to join the faculty. “In the end, it was a bit of pure politics and negotiation. And we ended up hiring two new faculty members rather than just one.” The point, Brest says, was that Stanford was taking the lead in moving beyond the usual faculty hiring credentials and traditional doctrinal scholarship to valuing innovative, interdisciplinary work. In the intervening four decades this has become the norm.

But early on, Brest stood out for his deep commitment to improving legal education and promoting constant review of what worked and what didn’t.

“He was always pushing forward,” says Kelman. “He was an experimentalist; he always wanted the school to be doing things better. It was a mix of tremendous loyalty and admiration for the school plus innovation and academic ambition.”

And push he did. He was an early advocate for experiential learning and helped students start the East Palo Alto Community Law Clinic in the early 1980s. (The Kenneth and Harle Montgomery Professorship of Public Interest Law, which he held from 1983, was the first chair in the country dedicated to clinical legal education.)

Brest also advocated for interdisciplinary coursework and seminars in ethics and decision making long before they became as common as they are today.  Those ideas were perhaps most clearly realized in “Curriculum B,” the innovative first-year curriculum that Brest designed and the law school offered for several years in the early 1980s. Brest describes the  alternative 1L curriculum as emphasizing clinical lawyering skillswith an emphasis on professional ethics. It also embraced an interdisciplinary approach to teaching, with faculty working more collaboratively.

The experiment ended after a few years, but the ideas introduced proved long lasting.

“Curriculum B was a harbinger of a lot of the change that followed in legal education, some of it fairly quickly, some of it much later,” says Kelman.

Brest’s enthusiasm for learning extended outside of the law, too, and he was quick to adopt new technology.

Brest and his wife taught themselves CP/M programming (before DOS) and developed a footnoting program for Wordstar, aptly named Footnote, and a database management system they called Notebook. They named their tech startup Pro/Temp Software and sold the Footnote program to the company marketing the first portable computer. “I’m sure I was the first member of the faculty to own a personal computer,” Brest says.  And he shared his enthusiasm with faculty.

Brest batting for the Stanford Law baseball team (1988) and at commencement in 1995

Brest batting for the Stanford Law baseball team (1988)

“He was our tech support person before there was an IT department,” says Barbara H. Fried, William W. and Gertrude H. Saunders Professor of Law, noting that Brest happily came to the aid of colleagues with tech problems, even late at night.

Brest was keen to see how developing technology might be used in the law. In 1980 he introduced a class called Artificial Intelligence and the Law, one of the first of its kind, in which he and his students attempted to create a program that knew all the rules in some limited domain of the law so that someone with limited knowledge of the law could interrogate it. “I didn’t think it was really possible because the legislative intent and language in law are sufficiently open-ended that there would always be some cases that a computer program wouldn’t know about,” he says. “But we had fun trying.”

Together with some colleagues, Brest and his wife also developed a basic estate-planning program. But the legal community wasn’t quite ready for that. “It was before the IBM PC came out, so before its time,” says Brest.

That innovative spirit and technical knowledge was put to use when Brest took on the deanship of Stanford Law School and helped to put the school on the map as the center for legal education in the heart of the tech world.

In 1987, Stanford Law School was facing some steep challenges. Faculty salaries had not been keeping up and were by then about 30 percent below those at peer schools. At the same time, the cost of living in the Bay Area was steadily rising. Brest knew the law school needed to raise funds to become more competitive in hiring. He began, though, by listening.

“One of the first things Paul did as dean was to reach out to the alumni in the business community,” says Dan Cooperman, JD/MBA ’76. “It’s one of the reasons I admire him so much.”

Cooperman, who later became GC of Oracle and then Apple and is now a distinguished visiting lecturer at Stanford Law, a fellow at the Rock Center for Corporate Governance, and of counsel at Bingham McCutchen, describes the law school before Brest as sort of stuck in a traditional law firm world.

“He said he wanted to talk about my perceptions of the law school and what affiliations I maintained,” Cooperman recalls. “We immediately got into a discussion about the disparity between the business curriculum at the law school and everything else. The school did not distinguish itself in the business curriculum—the offerings were very slim. I felt there were enormous shortcomings. And the opportunity to foster relationships with the GSB and other grad schools was missed.”

But the changes Brest wanted to make at Stanford Law School and the faculty he wanted to hire would require significant funding. So he launched a capital campaign in 1992 and embarked on an effort that would be all consuming—both personally taxing and rewarding.

“Fundraising was not my forte,” says Brest. “But it had to be done.”

“Here’s a guy who really was the epitome of an academic. And a legal con law scholar. Yet he transformed himself into a fundraiser,” says Cooperman.

Daunting too was the sheer ambition of the campaign, which had an initial goal of $50 million, the largest at any law school at that time. So he hired a seasoned fundraiser, Susan Bell.

Three former Stanford Law deans  with the current dean: (l-r) Paul Brest, Kathleen Sullivan, Larry Kramer, and Elizabeth Magill

Three former Stanford Law deans with the current dean: (l-r) Paul Brest, Kathleen Sullivan, Larry Kramer, and Elizabeth Magill

“He was sort of an unlikely fundraiser, which made it all the more interesting and fun for people to deal with him and to work with him,” says Bell, who became the associate dean of development in 1992 and later joined Brest at the Hewlett Foundation as a vice president in 1999. “He isn’t the most suave and polished salesman ever. But he disarmed people by being himself.”

The campaign exceeded all expectations by engaging many alumni in the law school—and raised well more than double the initial goal. And under Brest’s deanship, many new members of the faculty were hired.

Cooperman credits Brest with seeing the potential for Stanford Law graduates to help shape the nascent tech industry and contribute to the development of Silicon Valley.

“There was always the misfit of his demeanor—he was a nerd,” says Babcock. “But under that was this dynamo, this go-getter. And he won people over by how well he did things.”

One challenge that Brest faced during his deanship was particularly troubling, personally and professionally. Law school faculties across the country were, despite other social progress, still largely white and male, and students were demanding more diversity, with protests and sit-ins. Perhaps because Brest had worked for racial justice, expectations were high that he could single-handedly solve the imbalance.

It was a turbulent time. But as one former student recalls, Brest listened—his door always open.

“I told Paul we would be occupying his office. And he said he wanted to join us. So he did and he even ordered pizza for everyone,” says Eduardo Bhatia, JD ’90, a student leader while at law school. Now the president of the Senate of Puerto Rico, Bhatia laughs, recalling the night. “When Paul left, he handed us the keys and asked if we would please lock up when we were done. He was an incredible teacher in so many ways—both in and out of the classroom. He and Iris would have us at their house. They were very welcoming.”

“Those were tough times, yet Stanford Law School got through it all in pretty good shape—in large part because of Paul,” says Grey. “Some law schools fared much worse.” One reason for that might have been that under Brest’s deanship there was a genuine effort to hire more diverse members of the faculty and to develop a career track to the academy for them. Through an effort known as the Aspiring Law Teacher program, primarily women and minority aspiring academics came to campus for mentorship and guidance. Today, Stanford Law has one of the most diverse faculty of its peer schools.

Perhaps not surprisingly, it was during his deanship that Brest developed a course on decision making and problem solving, both central to the job of any administrative leader. He published Problem Solving, Decision Making, and Professional Judgment and introduced a course with the same name, he says, in the belief that lawyers had much to gain from the insights of decision analysis and behavioral economics.

Brest’s willingness to build bridges and develop relationships was and is a key characteristic of his leadership.

Paul Brest raising his hand, with his wife, Iris, at a Stanford Law event

Paul Brest raising his hand, with his wife, Iris, at a Stanford Law event

“Paul brought people together to talk, calming things down,” says Babcock.

As a member of the faculty and as dean, Brest was not only respected for his scholarship and innovation, but also warmly regarded.

“He was an unbelievably fabulous dean,” says Fried, who joined the faculty the year Brest became dean. “He has an incredible mind and wide intellectual tastes and talents. He was always a cheerleader for anything I wanted to do as an academic.”

Fried has also gotten to know Brest outside of the law school through their shared love of music. She recalls a concert Brest and his wife hosted at their home, something they did often, where a cellist played a Bach piece. “I mentioned that I had played the same piece as a kid and his eyes lit up,” she says. Brest asked her to play with his chamber group. She said no at first because she hadn’t played since before college. “Eventually he lent me his daughter’s cello and I had to say yes.”

One former student credits Brest with helping her to follow her dream, even though that meant leaving law school.

“He was a wonderful mentor and encouraged me to take risks with my writing. Without his support, I might not have written Legally Blonde,” says Amanda Brown Chang, who left Stanford Law in 1996 after two years to write her first novel. “I shared with him that I wanted to take a break to write it and he was very encouraging. I owe him so much.”

Larry Kramer recalls a particularly draining period during his own deanship, when he was advocating to align the Stanford Law course schedule with that of the broader university. It was a pivotal change that Kramer believed had to happen in order for real interdisciplinary education to take hold at Stanford Law School. He decided to seek Brest’s counsel.

“It was late, probably 11 at night when I emailed Paul about some hard conversations I’d been having with faculty and how emotional it all was,” recalls Kramer. “Within a minute Paul called me and said I should come over. I did—and he opened a bottle of wine, Iris brought out some food, and we all talked. I don’t even know if Paul agreed with the calendar switch—it didn’t matter to him. He listened.”

Kramer has gotten to know Brest in a way not many have, having walked in his shoes not once but twice—first as dean of Stanford Law and now as president of the Hewlett Foundation. The two talk often, probably once a week. And they co-teach a course on the ethics of philanthropy. “Technically, we’re co-teachers, but I regard myself as one of his students,” says Kramer.

When Kramer was asked to become president of the Hewlett Foundation, it seemed natural that a former dean and constitutional law professor might be just right for that challenge—there was a ready example in Brest. But when Brest first took that path, it wasn’t so obvious a career move. Once again, serendipity paved the way for Brest, this time to the Hewlett Foundation, where he was able to have an impact on a much broader range of issues.

Brest played chamber music with Walter Hewlett (MS ’68, MS ’73, DMA ’80) and Condoleezza Rice, who were both on the board of the Hewlett Foundation. And he had gotten to know Jim Gaither, JD ’64, who had chaired the successful Stanford Law campaign—and was also on that board. So when Brest was asked to meet with a few board members to discuss its future, he went, not expecting to be vetted for the job of president.

Paul Brest advising a student

Paul Brest advising a student

“I had little idea what the foundation did—let alone about philanthropy more generally,” says Brest. After the meeting, “I still didn’t know anything about philanthropy. But I remember calling Iris right afterward and saying I wanted this job.”

Susan Bell, who was consulting for the Hewlett Foundation before Brest was appointed, explains that the timing was right for him to lead the foundation.  “It was anticipated that the foundation’s assets might quadruple. They were in need of a leader who could both embrace change and define the modern-day Hewlett Foundation without disrupting what had been a very progressive and sound culture,” says Bell, who is now back at Stanford furthering her environmental work as a senior research scholar at the Woods Institute.  “And that was the perfect fit for Paul, who is indeed quite a visionary and change agent but who does it in a way that people don’t feel rocked.”

At Hewlett, Brest guided key strategic grants, focusing particularly on global warming and the environment. But it was in the administration and management of philanthropy where his critical analysis was put to work. He encouraged measurement of goals and results and the addition of metrics to grantees, what he calls “outcome-oriented philanthropy.”

“It’s simply the idea that foundations—and the organizations they support—should be clear about their goals, about how they plan to achieve those goals, and how they will know if they are making progress,” says Brest.

“It meant being thoughtful and intentional about your philosophy, strategic about what you’re trying to do and how you’re going to get there,” explains Bell, who adds that at the time strategic plans were not typically required. “Today, it’s very accepted. Everyone thinks you ought to know what you’re doing and how you’re going to have an impact and how you’re going to try where possible to measure them.”

Brest sees his successes leading Stanford Law School and the Hewlett Foundation as part of the same journey.

“My ignorance about philanthropy may have turned out to be an advantage, analogous to my ignorance about development when I became dean,” he says. “I didn’t come to the foundation with an agenda, but rather learned by observing and listening. While I lacked expertise in the Hewlett Foundation’s areas of grant making, I brought reasonably good analytic skills to the job, as well as a broad curiosity.”  SL

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3 Responses to “Paul Brest”

  1. eleanor swent says:

    Paul – This is a wonderful tribute. Thanks for all you [and Iris] have done for Jeannette. It’s been a benefit to all our family. All best wishes — Lee

  2. Iris Litt says:

    A fitting tribute to someone who continues to lead by example.
    What a privilege it was to have worked with you over the past year of your Chairmanship of the Board of CASBS.

  3. A pleasure to read this long-but-worth-it article in the Stanford Lawyer about the work of Paul Brest, before, during and after his stint at the Hewlett Foundation.

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