April 01, 2014

Human Rights Hero: The Legacy of Hans A. Linde

by Ronald K.L. Collins

Hero is not a word one would find in Hans Linde’s lexicon. Not because he does not value heroism, but because he is too modest to claim the word even if his actions warranted the appellation. Justice Linde (now retired) is a substance persona; he does not deal in hyped rhetoric—ideas (coherent and cogent) are his stock and trade.

This year, Hans Arthur Linde turns 90. And what a career in public law it has been: law clerk to Justice William O. Douglas, attorney in the Office of the Legal Adviser of the Department of State, advisor to the U.S. delegation to the United Nations General Assembly, legislative assistant to U.S. Senator Richard Neuberger, law professor at the University of Oregon Law School (among other places), member of the Council of the American Law Institute, and justice on the Oregon Supreme Court (1977–90).

As a scholar, Linde has also distinguished himself: He delivered the Oliver Wendell Holmes Devise Lecture; co-authored a seminal casebook on the legislative and administrative processes; published in the Harvard Law Review, Stanford Law Review, and Yale Law Journal (among other publications); served as a member of the Oregon Constitutional Revision Commission; and authored legal opinions that have been widely cited. Those works have provided commentators with much food for thought. See, e.g., Intellect and Craft: The Contributions of Justice Hans Linde to American Constitutionalism (Robert F. Nagel, ed. 1995), Symposium on the Work of Justice Hans Linde, 70 Or. L. Rev. 679–905 (1991); Unparalleled Justice: The Legacy of Hans Linde, 43 Willamette L. Rev. 157 passim (2007).

Central to Linde’s jurisprudence is that government can only do what it is properly and specifically authorized to do. “Unconditional delegation of open-ended lawmaking power to a single executive, elected or not,” he wrote in 1999 in the Cardozo Law Review, “amounts to legislative abdication. It is the essence of modern dictatorships and incompatible with a republican form of government.” (Hans A. Linde, Structures and Terms of Consent: Delegation, Discretion, Separation of Powers, Representation, Participation, Accountability, 20 Cardozo L. Rev. 823 (1999)).

Of course, Linde is best known for being, as Jeffrey Toobin tagged him, the “intellectual godfather” of the revival of interest in state constitutions as protectors of liberty. (Jeffrey Toobin, Better Than Burger, The New Republic, Mar. 4, 1985, at 10, 11). That reputation has attracted considerable attention among scholars, judges, and practicing lawyers intrigued by what was known as the “New Judicial Federalism” campaign. For Linde, reliance on state law makes sound constitutional and practical sense—a case of theory wed to practice. (See Hans A. Linde, First Things First, 9 U. Balt. L. Rev. 379 (1980)).

Whether the issue was free speech (State v. Robertson, 649 P.2d 569 (Or. 1982)), equality of treatment (State v. Clark, 630 P.2d 810 (Or. 1981)), search and seizure (State v. Lowry, 667 P.2d 996 (Or. 1983)), or treatment of prisoners (Sterling v. Cupp, 625 P.2d 123 (Or. 1981)), this grand persona of American law has enriched our understanding of that law while also buttressing our commitment to human rights.

In a world where rigorous thinking matters, Hans A. Linde has made a real difference, and we are much the better for it.

Ronald K.L. Collins

Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. He was a law clerk to Justice Linde in 1980–81.