This post, by Noah Rosenblum (Assistant Professor of Law, New York University School of Law) is the ninth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber. In Outside In, Silber uses italicized, indented text to present digressions related to the main narrative account. Rosenblum has adopted a similar convention below.
An Illustrious Immigrant: Guido in Historical Time
As readers of the blog know, Guido has already left his mark on history. This symposium has stressed the significance of his development of a version of the “economic style” in legal thinking, reformulation of the common law, influence on the law of the workplace and religious freedom, and transformation of the judicial role. Yet we could multiply the list of Guido’s influential contributions many times over and still not be done. At Yale University’s recent commencement, where he received an honorary doctorate in laws, the citation did not even try to list his accomplishments. “[T]he name ‘Guido’ says it all.”
Guido has not only shaped history, though; he is himself a historical figure. Norman Silber, in his note at the start of Part One of Outside In, professed some small surprise at how deeply rooted in history Guido turned out to be. “When our project started,” he writes, “I planned to cover Guido’s memories of his Italian childhood and his family tree briefly before getting on to Guido’s life in America. Then, on meeting his wife Anne for the first time, she told me emphatically that it was impossible to understand him without plunging full bore into his Italian roots. I have found this to be true.” (I:5)
Norm and Anne are, of course, correct, as the other contributions to this symposium and Volume I of Outside In all make clear. Guido’s style, taste, and habits are inexplicable without knowing where he came from, and that he came from somewhere else. Indeed, to grasp Guido we need to grasp his character. And for that we need to understand him as a particular kind of Italian immigrant from the first half of the twentieth century.
Not for nothing does Guido love both fine espresso and Arethusa ice cream; the opera and the Yankees; olive orchards and orange rinds. Guido is 100% Italian and 100% American. And not just any Italian: he is the scion of a particular strain of Italian haute bourgeoisie, the Italian instantiation of a pan-European cultural configuration that flourished and reached its apogee in the years before the Great War. Guido was born into that world and, even as he left it, took its lessons with him. He dresses like only a man who has seen his father wear a properly tailored cutaway can: with complete confidence and without a care. When you know the old rules cold, you can play in the world of the new with relish.
I am serious about the fashion. When I first saw Guido as a student, I remembered thinking that he must not care overmuch about his dress. Next to the fancy turnouts of some of the professors, Guido’s modest ancient madder ties, threadbare sweaters, and dangling glasses were aggressively déclassé. After reading Outside In (and listening to Season 3 of Articles of Interest) I am convinced that I was wrong. Guido’s style is classic prep, tweaked to put students at ease. You need only see him once in black tie, looking the picture of the dashing New Yorker, to realize that Guido cares about clothes. His deshabille always hangs together with a certain elegance.
Outside In confirms that Guido learned the old rules of fashion, internalized them, and chose when and how to depart from them. In Norm’s pages we find the little boy, who would not part with his beautiful Italian fur coat (I:32) and who still remembers, the “nice American . . . blue parka which was rainproof, with a flannel lining,”—“azure”—which he eventually traded it for when he finally felt ready to assimilate a bit more (I:103). (The astute reader will note Guido’s judgment, decades later, of his brother’s unwise decision to swap him fur coat too soon, for some cheap and chintzy but temporarily on trend department store number.)
Visiting Guido, years ago, I threatened to wear sneakers with a tuxedo to a co-clerk’s wedding. Guido smiled benevolently, reminded me that there are times to break rules and times to observe them, and sent me off to buy a proper pair of loafers. It reminded me of a story he told me once, about how, as Dean, he pulled a poorly dressed law student into his office, handed him a wad of cash, and sent him to Brooks Brothers to buy an appropriate suit before the firms came for on-campus recruiting, repeating an act he had seen the Dean perform for a student when he was in law school.As a historical figure, Guido is part of a specific phenomenon in American (or, better, Atlantic) intellectual and social history: what Laura Fermi, the writer and wife of physicist Enrico Fermi, and Harvard historians Donald Fleming and Bernard Bailyn called “The Intellectual Migration.” As a result of the rise of fascism, Jewish and anti-fascist intellectuals across the Continent fled to the United States. These scholars included the cream of European culture. Many of them, like Guido’s family, belonged to the haute bourgeoisie. And like Guido and his family, many eventually made their way into American high society and higher education upon their arrival.
Their impact on American intellectual and cultural life is hard to overstate. Several institutions, including most prominently the Rockefeller Foundation and the New School’s University in Exile, arranged for European researchers to become part of American academe. (It is striking in this context that Guido’s father landed a fellowship at Yale, as it took substantially fewer émigré scholars than other leading American universities.) Once here, they revolutionized film and literary fiction, seeded the new disciplines of political theory and psychoanalysis, invigorated economics, sociology, philosophy, and social theory, and made the United States into a powerhouse for social, empirical, and natural science research. We owe the pre-eminence of American higher education today to the legacy of these “illustrious immigrants.”
Bud Bailyn’s interest in the migration was personal: he was married to the daughter of Paul Lazarsfeld, a major professor of sociology at Columbia who emigrated from Austria. Famously, Lazarsfeld encouraged his students to “lose most of their European accent, but not all of it.”While the effects of this migration on American culture writ large are well known, its impact on American law has been less appreciated. There are, to my knowledge, only a couple articles on the subject and no monographic studies. The contrast with the United Kingdom is striking. There, the arrival of European jurists is the subject of a major, comprehensive book and remains a topic of ongoing research.
The emigration to the United States of continental jurists was not without consequence though. International law was remade as a result of the arrival of European legal intellectuals. The study of international relations, closely connected in the old world to law, diplomacy, and political science, was reborn through the work of Hans Morgenthau, a onetime European lawyer. Hans Kelsen, the great Austrian legal scholar, famously finished his career as a professor at Berkeley. And the papers of Felix Frankfurter, another European immigrant become American law professor, are full of letters from Jewish and antifascist European lawyers who tried, some without success, to make their way into the American university.
Guido is very literally the child of this migration. His family came to the United States because of the rise of Italian fascism. As Outside In recounts in arresting detail, Guido’s father was dispositionally antifascist and became publicly opposed to the regime as a student. The Calabresis were never as prominent as the major leaders of antifascist resistance. But they were connected to the antifascist Rosselli brothers, who were murdered for their opposition to Mussolini. And Guido’s father was violently assaulted at least twice by fascists; he was in genuine physical danger. The family was harassed and expropriated on account of their politics and, had they remained in Italy longer, would have been subject to even more severe oppression. As it was, leaving Italy meant giving up a life of incredible privilege.
I first came to know Guido because of a different illustrious immigrant, the contracts scholar Fritz Kessler, who fled Germany in 1934. His casebook was still the standard text in Stephen Carter’s contracts class when I was a 1L. Guido did not have him as a teacher, but shared his reminiscences with me when I drummed up the courage to go to his office hours.All the intellectual migrants remained marked by their experience of flight and exile. Some never overcame the loss of home and status. But not so Guido and the Calabresis. The most striking part, to me, of Outside In, is how his family managed to find a new place in the United States, neither fully assimilating nor living in the past, without apparent resentment or disappointment. Doubtless the Calabresis relative youth helped. Guido’s father was still a man on the make, and Guido and his brother were young and open enough to take on what America might offer.
But Guido never forgot the family he came from nor the circumstances that had led them to leave. His school friends were for Wendell Wilkie in the election of 1940, yet Guido was already for Roosevelt. When he meets with Justice Black to discuss his clerkship, they talk about fascism and he finds “this Southerner — who had never been to Fascist Europe — [had] a greater understanding of Fascism and what it was and what it means — and did not mean — than anybody I’d met in America” (I:239). Before Guido is the brilliant economist, the Rhodes scholar, and the precocious law student, he is the European immigrant, laid low by the twentieth century, but raised up again by the New Deal and a certain ideal of America.
This makes Guido’s story both more and less exceptional. Less exceptional, since by consigning Guido to history, we can begin to see him as of a piece with the others his generation. Not all of the European immigrants who came to the United States in flight from fascism became brilliant judges or thoughtful social democrats. But those immigrants who stayed largely did remain civic patriots of different stripes, their very success testifying to the promise of a certain vision of America. And more wound up in positions of glory in the Academy than one might except. Guido appears to us, here, as one of a type.
But the historical contextualization Outside In allows brings Guido out as one of a kind, too. So many of the others of the migration floundered in different ways on American shores. Some, like Guido’s friends the Orefices, never managed to find an American footing. Other intellectual giants, like some of the scholars of the Frankfurt School, recoiled at what they saw here, and rejected it while returning home to Europe.
Guido managed to fuse the old and the new. He kept the cultural sensibilities and richness of his European forebears, but without their prejudice or stuffiness. And he married the best of what that tradition could offer to the possibilities and opportunities of a growing country. That act of personal openness seems, to me anyway, more striking than any of the “merit badges” went on to earn. It helps us understand—correctly I think—Guido’s accomplishments a product of his character, rather than its contents.
“Ad Maiorem Gloria Hamiltoni” indeed (I: 178). Outside In presents Guido to us in that oldest of historical forms: the life as model. The more closely we look at it, the more edifying it seems. What a privilege to be able to share in Guido’s life with us now. And in telling and writing that story down, what a gift Guido and Norm have made the history that is to come.
-- Noah Rosenblum
