Elena Kagan

In Memoriam: Clark Byse

Clark Byse was a member of that great generation of scholars that created administrative law. He worked with Walter Gellhorn, Louis Jaffe, Kenneth Culp Davis, Nat Nathanson, and a handful of others. They began with a few traditional common law rules, a new federal statute, a group of New Deal agencies, and a growing number of judicial decisions. They formed these materials into more coherent legal principles, approaches, and systems of interpretation. They helped to define the proper relationship between citizen and government in a world that must rely upon administrative expertise to translate the electorate’s desires into effective policy and action. In a word, Clark and those few others were the intellectual architects of the modern democratic administrative state. Clark Byse as scholar participated fully in that great enterprise. His casebook with Walter Gellhorn, now in its tenth edition, is a legal classic.1 He did not limit his writing to administrative law, however, for he also wrote much of value about, for example, contracts, civil procedure, and academic freedom. Clark Byse as teacher taught administrative law and contract law to generations of law students. His object was to transmit what we call “legal thinking” — the disciplined, critical, purpose-oriented approach that underlies American law. Indeed, Clark made a point of telling his students, “[N]ever forget that the emphasis in this class is on what and how you think, not on what some judge or treatise writer or