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April 03, 2007

From Cannibals to Coase: An Interview with Brian Simpson

By Malak Hamwi

Professor A. W. Brian Simpson’s primary interest is in the historical development of law and legal institutions. He is also an expert on the European Convention and on human rights, and frequently speaks on these subjects in Europe and the United States. He does some pro bono consulting in connection with cases before the European Court of Human Rights. Simpson is the Charles F. and Edith J. Clyne Professor of Law at the Law School, and has held professorships at the University of Kent, the University of Cambridge, the University of Chicago, and the University of Ghana. Professor Simpson earned an M.A. and a Doctorate of Civil Law from Oxford University. He is a fellow (honorary) of Lincoln College, Oxford, and a fellow of the American Academy of Arts and Sciences and the British Academy. In June 2001, he became Honorary Queen’s Counsel.

Res Gestae: What does the A.W. in your name stand for?

Professor Brian Simpson: Alfred William. I was always intended to be called Brian, but my parents for some peculiar reason put Alfred William first. Those are family names. They wanted to give me some family names, and for some reason they put them in that order and I don’t know why. They never explained it. It’s crazy.

RG: Tell us about your road to Michigan.

PBS: I started teaching at the University of Chicago Law School in 1979. Then I became a tenured member of the faculty. Then I was invited to Michigan to teach contracts and I decided I liked it better than Chicago. So after a lot of doubt I moved. I didn’t dislike Chicago, but I thought that this place was more varied and more diverse basically, in terms of the academics. And also Chicago, at that time, had a poor reputation for minority students. There were hardly any minority students when I taught at Chicago. It’s become different, but this place has always had a policy of having a diverse student body, which I like better.

RG: Have you always known you wanted to be a law professor?

PBS: I was uncertain when I finished at Oxford whether to go for a career at the English bar or become an academic. I got married very young, and there was an attraction to getting a steady income. It was always a possibility. I wasn’t absolutely settled I would become an academic, but I became one and I stayed one.

RG: When you first came over from the UK to teach in America, was the adjustment difficult?

PBS: American law schools are very, very different. To start with, all the students here are graduate students, and in the UK, most law students are undergraduates. And the system of big class teaching doesn’t exist in English universities. In Oxford you taught students in groups of two. And all my formal lectures at Kent were classes of about twelve students. But these big-case classes just don’t exist. English students just won’t participate in them.

RG: Do you think big classes are effective?

PBS: I think they’re quite enjoyable. They work best in the first year because the students are more enthusiastic. I’m not sure that doing big-case classes is sensible for the whole 3 years. But I would much prefer it here if we taught in smaller classes. At one time, we used to have a program for teaching in smaller classes, but it’s collapsed because there aren’t enough people to run it.

I think the trouble with the big classes is you have very little real contact with students. I mean, if you’ve got 95 students, how on earth are you supposed to get to know them? You tend to get to know a few of them, but it’s not like seminars. You get to know them. I have them over to my apartment, but I can’t have 95 students to my apartment. There’s no room for them.

RG: How do Michigan students compare to others you’ve taught at different institutions?

PBS: The Chicago students tended to be rather right-wing. They’re very hard-working, and they worked just as hard for a class in the third year as in the first year. Michigan students seem to me to be more sensible, more relaxed, and so on. And the student atmosphere I think is less competitive and more friendly and I prefer that. The Chicago students were intensely competitive. Students here are competitive, but it doesn’t sort of break up personal relationships. But I mean Chicago had the problem of students hiding books and so on.

The students here seem very good. I think the admission policy here has worked extremely well in getting a mixed crowd of interesting students. I hope we’ll be able to continue to do that, but we can’t break the law, you see. We can’t deliberately flout the law, so we have to adapt.

RG: Are you worried the character of Michigan will change after Prop 2?

PBS: I think it may change. I think we will tend to get less minority students for a year or two. It will probably come back to much the same, but it’s difficult to tell. It’s a policy that’s worked well. We have lively classes and the students that come here all do well. We have studies about what happens to them, and they all do great out there in the real world.

RG: How do you determine what cases are worthy of scholarly inquiry?

PBS: Sometimes for pure chance reasons. The cannibalism book was because I obtained access to the government files on the case (Dudley and Stephens) and immediately saw that there was a really good story in it. Otherwise you pick them because you think there will be material that will throw light on them. That’s to some extent guess work because sometimes you can’t find out anything apart from what’s in the law reports. I have tried to do studies of some cases and so far got nowhere with them because I can’t find out anything about them.

RG: Like what?

PBS: Armory v. Delamirie. I’ve tried to find out more information about that case, but so far I’ve got nowhere. I’m still trying. But the trouble is that if the people in the case are poor, they tend to leave no trace in historical records. So if you do a case involving fairly wealthy people, you often find information. It’s easier to find information in the nineteenth century, because there are extensive newspaper reports. They often give very detailed accounts of litigation, so you get a lot of information from them, but the further back you go, the more difficult it gets.

RG: What’s your interest in that case?

PBS: It’s such a strange case. I mean, here’s this chimney sweep boy, they were the lowest of the low, somehow suing – who paid for his lawyer? He’s suing the most distinguished silversmith of the early eighteenth century. The defendant’s work now sells for a million dollars an item. And yet we don’t know anything about how the case happened.

RG: For how long have you tried to get information on that case?

PBS: I’ve done it intermittently for years, but I haven’t gotten anywhere. History is sometimes just hopeless. Sometimes you just have to give up.

RG: What are you working on now?

PBS: I’m the sort of person who doesn’t stick to any particular thing for very long. I’m like a butterfly. Now, I’m supposed to be writing a book this year on the common law tradition. A general account of the legal tradition in which you and I are working, which is the common law. There is no such book. There’s a book on the Roman law tradition, the civil law tradition. But no one has ever written a book on the common law tradition. It’s weird. So when students ask, “What is the common law?” there is no 200-page book you can give them.

It’s going to be an account which can be read by law students in their first year who wanted to have some idea what this common law system was. It’s thought there will be interest in it, if it’s any good, from lawyers in other traditions, like French lawyers or German lawyers, who want an account of the common law system. But it’s got to be written – that’s the problem. You’ve heard of writer’s block? That is a real phenomena where you just can’t spool yourself up to start. You spend time tidying out drawers, or washing your socks, or rearranging your books. Anything rather than trying to write the thing. I’m going to have to be very determined to get started on it.

Writing short books is harder work than writing long books because you have to really get your thoughts organized. That's not the case in writing great big long books like my book on human rights, known in the family as “The Beetle Crusher.”

RG: Your expertise is in common law history and also human rights law. Do you consider these two distinct areas of expertise or are they somehow linked?

PBS: I started life doing late medieval legal history. In recent years, I’ve gotten more and more interested in what you might call modern legal history. I edited a series for the Oxford Press called “Oxford Studies in Modern Legal History.” I wrote a book about detention without trial in Britain in the Second World War, mostly based on archival material, but also on a lot of interviews with people. We locked up about 1700 citizens, and quite a number of them belonged to the British Fascist Party. I interviewed a lot of these people. I also interviewed some of the security people who were chasing them. So that was history of the Second World War. Some of my international law writings have been historical. This book here is about how Britain came to sign up to the European Convention on Human Rights, and what difference it made to life. It’s the history of the 1940s/1950s. I published two pieces on international law, both based on post-Second World War legal history. One is on the genocide convention. Another one was on whether the British government during the Second World War paid any attention to international law in conducting naval operations. A lot of this is legal history but very modern legal history because there’s a huge volume of archival material nobody’s ever looked at.

Basically I’m interested in how law develops and how it interrelates with government organizations, with parliaments, with public opinion. Looking at law in a broader context.

RG: Having studied the development of medieval law and more modern law, is there anything about the development of modern law that worries you?

PBS: I’m quite concerned currently at overreaction to the threat of terrorism. I really think it’s a great mistake to throw away our civil liberties just because we have a panic about a bomb or two, however serious the bombs are. That’s one interest of mine in human rights work. Human rights protection, in Europe anyway, is a considerable control over governments. I think, like many Americans think, that America has overreacted. And I hope a lot of the Patriot Act gets repealed. It’s not necessary. It’s understandable, but it’s a great pity to ditch your civil liberties. They’re important.

Even in the Second World War, the repressive laws in Britain were not as bad they are now. And that was a BIG war. So I think there is an overreaction. But that’s a view shared by lots of people in America. And there is a sign that currently there is a sort of reaction against it -- it is sort of encouraging. You see more and more people saying we shouldn’t do this. We should restrain ourselves a bit.

RG: Have you thought about doing research on the topic?

PBS: I’ve written extensively on emergency powers, but only on their historical basis. But I don’t like get into political controversies in America. I’m not an American. I don’t direct writing to what happens over here. I think that’s better left to American scholars. Especially since they understand American constitutional law.

RG: Have you been involved in any political controversies in the UK?

PBS: Not really. The sort of activist side of me is confined to doing pro bono work on human rights cases. I’ve been involved in quite a number of those. But that’s all -- writing memos and documents and opinions for use in litigation. I’ve never been a politically active sort of person. I have political views but I don’t join political parties or go on marches or anything like that.
RG: You’ve maintained strong ties to the UK. Do you go back often?

PBS: I spend about half the year there.

RG: Why haven’t you become an American in all your years here?

PBS: Mainly family roots. I’ve got five children in England and heaven knows how many grandchildren. I’m English and an Irish citizen, too, and I think that’s enough. I like America but I wouldn’t want to spend my retirement in America.

RG: You mentioned retirement. Do you already have plans about that?

PBS: I’m getting very old. I’m coming up to 76. I can’t go on forever, so at some point I obviously will retire here, but I haven’t taken any decision about that. It’s a great mistake to go on working too long because then you become an embarrassment to the Dean. You don’t want to do that. At some point I’ll retire, but I’d like to maintain a connection with Michigan.

RG: What will you do in retirement?

PBS: Much the same sort of writing I do now. I have hobbies. I like gardening, bird watching – though I can never tell most birds apart – and I run a boat. I still have a sailing boat, but I’m getting a bit old for sailing it on my own so the family is pressuring me to confining my activities to a motorboat.

I was thinking of writing a book on markets. And I might do that. About how markets work, the different sorts of markets, the regulation of markets, the weird markets for selling bizarre things. There’s a market in Russian brides. Markets in saints' relics. All sorts of strange markets out there and there isn’t a little book on markets that gives an account of how strange these markets are. I give a seminar on this.

RG: You have such an extensive body of work. What project are you most proud of?

PBS: I’m quite pleased with this book on human rights because it does relate the history of international law to the political and diplomatic history of Western Europe. I think other historians have really paid very little attention to the development of the human rights convention, which is the first effective human rights protection ever invented anywhere in the world. It’s an amazing make. I’m also fascinated because its ratification coincided with the dissolution of the British Empire and there’s the whole question to what extent did human rights protection affect that and lead to consequences in decolonization and so on.

But I think most writers are never happy with their books. The minute they’ve published it, they immediately see some fault in it. It’s a common phenomenon that once you’ve published a book you think, “oh God, that could have been so much better if I spent another year on it.” You’re always dissatisfied.

I think it’s sort of like being an athlete. Unless you think “I could be better,” you’re not being a good athlete. Those guys who run a hundred meters in 9.8 seconds are always dissatisfied because they think they could run it a bit faster. I think in any sort of creative activity, you have to be endlessly dissatisfied with what you’re doing, and think it’s dreadful and could be better.

RG: Do you have a preference for publishing books or writing law review articles?

PBS: I don’t like law review articles. People sort of belong either to the book writing culture or the article writing culture. I have published articles but I never regard that as my aim in life. The aim in life is a book. You find those people particularly connected with the humanities end of law tend to be happier publishing books. I also don’t like the endless wrangles with law reviews about the footnotes and so on. It’s just dreadful.

With books, you have more creative freedom. It’s also partly vanity. I feel better if I have a newly published book than if I have the off prints of an article. I don’t know why. It can’t be rational.

RG: Can you talk a little bit about your exchange with Professor Ronald Coase over his article “Law and Economics and A.W. Brian Simpson?”

PBS: Oh yes, he got furiously angry with me. I wrote a criticism of some of what Coase said, which was not meant to make him angry. I thought it was perfectly polite. He’s a great scholar. It was just a disagreement on academic things. But Coase got rather cross with me, instead of replying to the arguments, so I got slightly cross in reply. He said how dare somebody who’s not an economist write about this, and I said you don’t have to be a horse to write about horses. Most of what I was writing about was law anyway, not theoretical economics.

A large part of the article simply argued that he hadn’t quite understood the law. The law and economics movement, well if you’re critical of it, they tend to either get cross, or just ignore the criticism, and carry on as before. I don’t know why they do that. They’re sort of defensive about it. The arguments I put forth in the article, nobody’s replied to them.

RG: Let’s talk about some fun topics. You’re known for signing your books in blood every year for the SFF auction. Where do you get the blood from?

PBS: It’s a joke. It was to raise money. I get the blood when they draw blood for blood samples. I sometimes can persuade them to spare a little bit. But the medics are reluctant to do that, you see. Otherwise I just stick a thing in my ear lobe and squeeze the blood out. You just get a razor blade and cut it. You clean it and sterilize it, of course. It doesn’t hurt much. You don’t need much blood, just a little bit. Then I use a little brush.

It’s become an institutional joke. It’s been going on for 7 or 8 years. We had to give things to SFF. I don’t remember whether I suggested it or a student did, but we agreed to sign my book in blood and it’s been done every year since.

RG: I’ve also heard you remove articles of clothing at the SFF auction….

PBS: The stories about this are exaggerated. On one occasion I removed my shirt and that’s all. The stories are that I removed lots of clothes, but it’s not true. You see, to get the students to bid you have to be silly and clown about. I didn’t do it this year. I’ve bitten balloons and things like that in the past. You just have to be ridiculous to get them to bid. But it’s all for a good cause.

RG: You’ve also been rumored to have an exotic palate and to be a bit of a wine connoisseur.

PBS: I do cooking quite a bit for my family. I do some of it here, but when my children and their significant others come down, I always cook. I like cooking. And I drink too much wine. I like French white wines, but I drink lots of wine. I’m not a wine buff. I can’t tell you names and dates of dozens of different wines. I just like the stuff.