Old North News

Duke University School of Law issued the following announcement on May 05.

The founder of the Law School’s Program in Public Law, Schroeder served as chief counsel to the Senate Judiciary Committee and head of both the Office of Legal Counsel and Office of Legal Policy in the U.S. Department of Justice.

Christopher Schroeder, whose scholarship and teaching reflect insights drawn from extensive government service on congressional staffs and as a top executive branch lawyer, retired from teaching at the end of the academic year.

Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies, joined the faculty in 1979, initially focusing on environmental law and policy and co-authoring a leading casebook on the subject. But as he took on such government posts as chief counsel to the U.S. Senate Committee on the Judiciary (chaired by then Sen. Joseph Biden) and in the U.S. Department of Justice as deputy assistant attorney general leading the Office of Legal Counsel (OLC) in the Clinton administration and assistant attorney general in charge of the Office of Legal Policy (OLP) during the Obama administration, his research agenda and teaching expanded to include constitutional law, Congress, and the scope of executive power.

Government service has had “a natural kind of hydraulic pressure” on his career, said Schroeder, the founding director of the Law School’s Program in Public Law. “Every time I’ve gone into government I’ve come to be interested in something slightly different. And those times away have really recharged my batteries for coming back to doing academic work and teaching. I think I’m a better classroom teacher, I’m a better colleague, and I’m a better commentator on other people’s work because of the time I’ve had away getting excited about new topics.”

Douglas B. Maggs Professor Emeritus of Law Walter Dellinger, who recruited Schroeder to the OLC as his deputy when he became assistant attorney general in 1993, said few people have held as many senior positions advising the United States government as his longtime Duke Law colleague. “There is no one I have ever encountered who has better judgment than Chris Schroeder. Just within the Department of Justice he’s the rare person who has headed both the Office of Legal Counsel and the Office of Legal Policy, demonstrating the respect that people have, both for his legal acumen and for his sense of wise policy. It is an extraordinary range, not to mention his academic success as a scholar and a teacher and his work in private law.”

Embracing law as agent for social change and environmental protection

Born in Ohio, Schroeder and his family moved at regular intervals due to his father’s career as a Presbyterian minister. He initially felt called to the ministry, too, an aspiration rooted in admiration for his father, but he reconsidered after undertaking some “self-evaluation” while pursuing his Master in Divinity at Yale. By then he was drawn more to law, having engaged with law students who were fellow volunteers in a campus social service organization. “This was the early ’70s, when a lot of us were pretty optimistic about the possibility of law being a substantial agent for social change,” he said. 

Schroeder landed at the University of California, Berkeley — “by far the most affordable law school for me” — where he served as editor-in-chief of the California Law Review and met his future wife, Kate Bartlett, the A. Kenneth Pye Professor Emerita of Law and former Duke Law dean, who was a year behind him.

While in practice with a San Francisco firm following his 1974 graduation, Schroeder began helping the Environmental Defense Fund — pro bono — file objections to the rate plans of California electric utilities, part of an effort to drive them towards economizing through conservation. That prompted him to take a year’s leave to research the social and legal obstacles to renewable energy and conservation with a group at the Earl Warren Legal Institute (now the Institute for Legal Research) at the Lawrence Berkeley National Laboratory. When the year was up, he resumed practice at a firm he launched with four of his former fellow associates, devoting half of his time to pro bono work on behalf of environmental organizations.

After two years, Schroeder decided his primary interests were in teaching, research, and scholarship. He admits accepting Duke’s offer over others in 1979 partly on the assumption that a move to North Carolina would be beneficial for Bartlett’s career in public interest law. “That did not turn out to be true,” he said, laughing, recalling the absence of Legal Aid jobs in the state, which ultimately led her to accept a teaching post at Duke Law. “We have absolutely no regrets about our choice — far from it. Duke’s been a wonderful place for both of us.”

Schroeder was granted tenure in 1985, receiving the Charles S. Murphy Distinguished Professorship in 2001 and a secondary appointment at the Sanford School of Public Policy in 2011. He focused his teaching and scholarship on environmental law, regulation, and policy for the first 15 years of his academic career. Widely published in the field, he is the co-author of Environmental Regulation: Law, Science, and Policy (Wolters Kluwer), now in its eighth edition, and the co-editor, with Rena Steinzor, of A New Progressive Agenda for Public Health and the Environment (Carolina Academic Press, 2005).

Making a difference through government service

Schroeder’s first foray into government service came during President Ronald Reagan’s second term, when the chief counsel of the Senate Judiciary Committee, Mark Gitenstein, acting on Dellinger’s advice, asked him to help evaluate the president’s judicial nominees with academic backgrounds. Many of them, Schroeder noted, had ties to the nascent Federalist Society, which advanced originalism as the correct approach to constitutional interpretation. “I spent time educating myself on these various constitutional interpretive conflicts and got more and more interested in them.”

When the president nominated Judge Robert Bork of the U.S. Court of Appeals for the D.C. Circuit to fill the seat vacated by the retirement of Supreme Court Justice Lewis Powell, Gitenstein charged Schroeder with doing a complete analysis of his jurisprudence. Gitenstein and Biden liked his work, and after a law review article came to light in which Bork articulated an extremely narrow view of the First Amendment, they asked Schroeder and Jeff Peck (now a principal of Peck, Madigan, Jones & Stewart in Washington and a senior lecturing fellow at Duke Law) to do an even deeper analysis.

In addition to countering the administration’s assertions that Bork was a champion of civil liberties and civil rights, they used his own statements and those of his judicial colleagues to demonstrate a pattern of conservative judicial activism. That analysis, said Gitenstein, now senior counsel at Mayer Brown and former U.S. ambassador to Romania, “defined the debate on the Bork fight. It was really good and important work.” The Senate’s ultimate rejection of Bork for the seat, later filled by the more moderate Justice Anthony Kennedy, is thought to have slowed the conservative shift of the Court by decades.

Schroeder went on to advise Biden on four subsequent Supreme Court nominations, first as special nominations counsel and, from July 1992 to February 1993, chief counsel to the Judiciary Committee. At the same time, he began to refocus his scholarship and teaching at Duke Law on constitutional matters. Ted Kaufman, Biden’s longtime chief of staff and successor in the U.S. Senate representing Delaware, said that Schroeder was one of the first people the senator would ask him and other aides to call for counsel on an issue dealing with the Supreme Court, the judiciary, or the Constitution. “Dozens of people can say that Sen. Biden and Vice President Biden has asked for their help at different times, but I don’t know a single person that can say they were brought in in this capacity more and for better use than Chris.”

In the spring of 1993, Dellinger, who was heading the Office of Legal Counsel (OLC) as assistant attorney general, appointed Schroeder and their Duke Law colleague Professor H. Jefferson Powell as counselors. From April 1995 until January 1997, Schroeder led OLC as deputy assistant attorney general while Dellinger served as acting U.S. solicitor general.

“I loved all my time at the Office of Legal Counsel,” said Schroeder. “It might well be, if you forced me to choose, the highlight of my professional career, working with all those wonderful people on hard problems and thinking that you were doing something that was of some consequence.”

 Schroeder’s time leading the Office of Legal Policy from 2010 to 2013 was largely consumed with policy development, although he also oversaw the division that vetted and prepared judicial nominees for their confirmation hearings. For example, he worked on developing a menu of options available to the executive branch for improving the efficacy of firearm background checks as well as an administration proposal for modernizing the laws that govern electronic surveillance, a subject that has been a focus of his teaching since.

“At least during the Obama-Holder years, a large part of what that job entailed was convening large internal working groups to work on problems that were of consequence to more than one division within the Justice Department, such as the Drug Enforcement Administration, the FBI, the National Security Division, and the Criminal Division if they all have some reason to be genuinely interested in a policy proposal,” he said, characterizing OLP as a sort of designated honest broker. “It’s not supposed to have a dog in the fight, but has the ability to convene meetings and do the kind of synthesis work and background work to make sure policy drafts are fairly presenting the views of all the members.”

Dellinger credits Schroeder’s success in his government roles to his “abiding decency” and lack of a personal agenda. “He is always seeking to advance the public good and the public welfare. And he has never treated government and politics as a sport but as something serious — people working together in society to advance their common goals.”

Promoting understanding of and participation in public law

Schroeder’s scholarship, teaching, and on-campus activities also reflect his commitment to advancing a deeper understanding of constitutional principles and an appreciation for public service.

His book, Keeping Faith with the Constitution (Oxford University Press, 2010) – co-authored with two other top constitutional scholars, Stanford’s Pamela Karlan and Godwin Liu, now an associate justice of the California Supreme Court – offers an accessible perspective on constitutional interpretation distinct from originalism. Presidential Power Stories (Foundation Press, 2009), a collection Schroeder edited with Duke’s William Van Alstyne Professor of Law and Public Policy Studies Curtis Bradley, a leading scholar of constitutional, international, and foreign relations law, highlights a dozen notable — and extremely rare — occasions of judicial resolution of presidential power questions. Schroeder’s chapter in that book on the Nixon tapes case exposes an early articulation of the powers of the unitary executive, one of the presidential power questions that continues to interest him. 

Schroeder established the Program in Public Law at Duke in 1998 to promote an understanding of public institutions, of the Constitutional framework in which they function, and of the principles and laws that apply to the work of public officials. It quickly became integral to the intellectual vibrancy of the Law School through its sponsorship of conferences, workshops, and informal brown bag lunches on topical public law issues, its sponsorship of visits by elected officials and public lawyers, and its encouragement and dissemination of public law scholarship and commentary by Duke faculty and others. Noting his gratitude to Richard Horvitz ’78 for his longtime financial support of the program (now directed by Alston & Bird Professor of Law Ernest Young and Professor Marin Levy) Schroeder identified one of its goals as being to raise the visibility of public lawyering as an option for law students to pursue at some point in their careers. It’s a message he hopes they will take to heart.

“I try to encourage students to avoid thinking of their careers as binary choices — ‘I’m going into corporate law or I’m going to work for Legal Aid,’” he said. “We’ll all take a number of different turns in our lives where we change positions and move to new jobs, and in that context, I tell them to think about public service as occupying one of those slots. At some point in time, you will respond to a request to volunteer that will become something larger or you’ll be invited to work on a campaign, or go into a state-level agency because there’s a new governor. And when those opportunities come, think hard about them.”

Along with Bartlett, Schroeder committed $100,000 to establish an endowment for the Loan Repayment Assistance Program for Duke Law students bound for public interest careers. The gift sparked other substantial donations, including a directed gift from the Class of 2006.

“I have found, working with lots of people in the federal government, lots of instances where people have really benefited psychologically and in terms of their career satisfaction by spending some time in public service of one kind or another,” he said.

A gifted teacher

Schroeder’s spring semester courses — first year Property, a course he’s taught since his earliest days at Duke, and a seminar titled CyberSecurity, Privacy and Government Surveillance — aptly reflect the breadth of his scholarship and practical experience in both environmental law and government.

Other teaching tie-ins to his work in Washington include the course on Congress he and Kaufman co-taught for more than 25 years and another seminar for law and business students on the relationship between government and business as well as Federal Policymaking, a seminar he taught with Kaufman and his former Judiciary Committee colleague Peck in the Duke in DC program.

For the past seven years, Schroeder has co-taught evolving seminars on information, privacy, and surveillance with a former student, David Hoffman ’93, who is now the director of security policy and global privacy officer at Intel Corp. and a professor of the practice at the Sanford School of Public Policy. Their classroom collaboration began after Hoffman, who has served in various advisory roles to federal agencies on informational privacy, taught a Wintersession course on privacy and surveillance in the wake of the Snowden disclosures. Schroeder, who had taught Hoffman 1L Property, had been interested in the subject since his time at OLP and audited the course.

“We then had a series of conversations about the substance of the issues and the different perspectives on the substance, and it reminded me of being back in property law class and bringing that sort of intellectual discipline and analytical ability to comparing different perspectives on the same set of facts and then through the lens of legal authorities,” said Hoffman.

“Chris is the most gifted lecturer I’ve ever been around. I am in awe of his abilities in the classroom to weave together issues and lines of reasoning that at first appear disparate and as he develops the analysis throughout the lecture, start exposing the connections and conflicts that are critical for whatever legal theory is being taught through the particular case or the facts that are being discussed.”

In that long-ago 1L Property class, he found, in Schroeder, a “paradigm example” of law as a way of thinking and analysis to be applied across disciplines with exceptional insight into both legal theory and the practical application of the law. In the years that followed, he found a generous colleague and friend.

“I often think of Chris as a role model for who I’d like to be when I’m being my best self,” said Hoffman. “He is one of the kindest people I’ve ever met.”

Original source can be found here.