She Stood Up

The Life and Legacy of Deborah L. Rhode

The 1978-1979 Term was a busy one at the Supreme Court. That’s the Term, civil procedure buffs might recall, where, in Parklane Hosiery Co. v. Shore, the Court introduced offensive non-mutual collateral estoppel—an inelegantly named device that has eased the burden of many a plaintiff. 1 439 U.S. 322 (1979). It yielded Dunaway v. New York, which helped to clarify what constitutes a “seizure” for purposes of the Fourth Amendment. 2 442 U.S. 200 (1979). And, it brought us Orr v. Orr, a decision that struck down an Alabama law that required only husbands to pay alimony because, said the Court: “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” 3 440 U.S. 268, 280 (1979) (quotation marks omitted).

Something else stands out about the 1978-1979 Supreme Court Term: the annual clerk photo. A tradition for Supreme Court law clerks, that portrait displays an impressive number of esteemed individuals. Luminaries include USC’s Susan Estrich, the first female President of the Harvard Law Review and the first female manager of a major presidential campaign (the ill-fated Dukakis-Bentsen run of 1988); Robert Post, the 16th Dean of Yale Law School; Stanford’s own Hank Greely, a prolific and pioneering scholar of bioethics; and Merrick Garland, longtime D.C. Circuit judge, onetime Supreme Court nominee, and now United States Attorney General. 4 For Estrich, who was, at the time, clerking for Justice Stevens, see Susan Estrich USC Gould School of Law Biography, https://perma.cc/4ER9-M92E. For Post and Garland, who were both clerking for Justice Brennan, see Marcia Coyle, Inside Merrick Garland’s Year as Brennan Clerk at the Supreme Court, Nat’l L.J., Feb. 8, 2021. And, for Henry “Hank” Greely, who was clerking for Justice Stewart, see Henry T. Greely Stanford Law School Biography, https://perma.cc/C9SY-HED8.

Assembling so much budding talent in one frame is, itself, quite a feat. But, that’s just the half of it. Because if you look closely, you will see an anomaly. There are twenty-seven men and five women pictured. Of the latter, four are in dresses and sitting. One, however, is in pants. And she is standing up.

That woman is Deborah L. Rhode. She’s standing because, when she was instructed to sit, she politely but firmly refused. 5 See Email from Ralph Cavanagh to author, June 6, 2021. As Cavanagh recalls: “She was told to wear a dress and sit down. Not a chance.” Id. And that, my friends, is the point.

On this earth from January 29, 1952 to January 8, 2021, Rhode lived a remarkable life in the law. Her accomplishments, even by the numbers, are staggering: thirty books written, more than 200 articles published, thousands of students enriched by her teaching and mentorship, and nearly 6,000 citations to her far-ranging scholarship. 6 For the books and articles, see Clay Risen, Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68, N.Y. Times, Jan. 18, 2021. The “nearly 6,000” statistic comes from a search of “adv: deborah /3 rhode % AU(deborah /3 rhode)” conducted on Westlaw’s Secondary Source database on August 11, 2021, which yielded 5,986 results. She was, by a large margin, the nation’s most frequently-cited legal ethicist. See Brian Leiter, 10 Most-Cited Legal Ethics/Legal Profession faculty in the U.S. for the period 2013-2017, Oct. 15, 2018, https://perma.cc/2U9E-879N. Her “firsts” are similarly legion. Rhode was the first woman elected president of the Yale Debate Association and the first female graduate of Yale College to be elected an alumni fellow of the Yale Corporation. 7 For the Yale Corporation, see A Timeline of Women at Yale, https://perma.cc/TS4M-GFSA. For the Yale Debate Association, see Risen, supra note 6. She was the founder and first President of Stanford’s Center on Ethics, the founder and first Director of Stanford Law School’s Center on the Legal Profession, the founder and first Director of the Stanford Program on Social Entrepreneurship, the founder and first President of the International Association of Legal Ethics. 8 See Harrison Smith, Deborah Rhode, Stanford Law Professor and Authority on Legal Ethics, Dies at 68, Wash. Post., Jan. 12, 2021; Sharon Driscoll, Leading Legal Academic Deborah L. Rhode Dies at 68, Stanford Report, Jan. 12, 2021, https://perma.cc/L52T-VXQS. And of course, she was just the second woman granted tenure at Stanford Law School, her scholarly home for forty-one years. 9 The first was trailblazer Barbara A. Babcock, another giant in the profession, who was also a mentor and friend. See Katharine Q. Seelye, Barbara Babcock, a Force for Women in Law, Dies at 81, N.Y. Times, May 11, 2020. For the fact Rhode was the second woman granted tenure, see Driscoll, supra note 8. For the forty-one years, see Joanna L. Grossman, Katharine Bartlett, & Deborah L. Brake, Remembering Deborah Rhode: Co-Author, Friend, and Feminist Co-Conspirator, Verdict, Jan. 12, 2021, https://perma.cc/ZT6N-RZEK.

In all of this—and in the face of formidable obstacles and frequent underestimation—just as in that clerk class photo, Deborah L. Rhode defiantly, steadfastly, and resolutely stood up.

An early example dates to 1975, before her days as a law clerk, when Rhode was still a student. Serving as an intern at New Haven’s Legal Aid clinic, Rhode was assigned to the divorce section, charged with helping clients who wanted to end their marriages. 10 Deborah L. Rhode, Professionalism In Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. Rev. of L. & Soc. Change 701, 702 (1996). Demand for these services vastly outstripped supply, and, to keep from being overrun, the clinic used what it called a “floodgate strategy,” meaning that it accepted new clients only one day per month. Given this bottleneck, Rhode observed: “If you were a poor person in New Haven and you did not show up on that day, you did not get a legal aid lawyer, nor did you have any decent alternative.” 11 Id. Alternatives were not appealing because, at the time, even for a routine uncontested divorce, local attorneys charged a minimum of $500 to $750 (roughly $2,400 to $3,600 in today’s dollars), for many, an impossible sum. 12 Ralph C. Cavanagh & Deborah L. Rhode, Project, The Unauthorized Practice of Law & Pro Se Divorce: An Empirical Analysis, 86 Yale L.J. 104, 153 (1976) (reporting that 88.4% of respondents paid at least $500 for their divorces, and 38.5% were charged more than $750). For the conversion to today’s dollars, see https://perma.cc/2UFK-3J8M.

Many de-couplings were theoretically simple enough that individuals could navigate the system themselves, if furnished minimal guidance. At the time, a no-fault divorce could be obtained in Connecticut by submitting “several standardized forms” and attending “a hearing that lasted an average of four minutes.” 13 Rhode, supra note 10, at 702. But, that minimal guidance, in the form of do-it-yourself (DIY) kits for pro se litigants, was not available. Or it wasn’t, that is, until Rhode and her colleagues stepped in.

To address some of the unmet need for legal services, Rhode and lawyers at the clinic created a DIY kit for local divorce petitioners. But, the profession—ever eager to defend its turf—struck back. Bar association officials threatened to file charges, alleging that, by its distribution of self-help kits, the clinic was engaged in the unauthorized practice of law (UPL), a crime in most states. 14 Divorce kits, which were available in some other states at the time, tended to range in price from $3 to $180 and contain “samples of legal forms necessary to secure a decree of marital dissolution, together with instructions on how to complete them.” Rhode & Cavanagh, supra note 12, at 109. Aware that similar efforts had been judicially enjoined, the Legal Aid clinic ultimately capitulated and shelved its self-help innovation. 15 Deborah L. Rhode & Lucy Buford Ricca, Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82 Fordham L. Rev. 2587, 2587 (2014).

Rhode wasn’t so easily deterred. “[A]ppalled” by the bar’s narrow “self-interest,” 16 Deborah L. Rhode & Benjamin H. Barton, Rethinking Self-Regulation: Antitrust Perspectives on Bar Governance Activity, 20 Chap. L. Rev. 267, 267 (2017). as a mere law student, she decided to “reframe the unauthorized practice debate.” 17 Rhode, supra note 10, at 703. Joining forces with another YLS student, Ralph Cavanagh—whom she went on to marry—she began to research UPL restrictions. 18 Rhode & Barton, supra note 16, at 268.

In the course of their research, Rhode and Cavanagh found that, when cracking down on the kits, bar leaders tended to voice two basic arguments. Distilled to their essence, these were: (1) Despite the advent of no-fault divorce, marital dissolution remains an adjudicatory process and, as such, demands a lawyer’s special expertise, and (2) lawyers play an essential advisory role that transcends their court-related function. 19 Rhode & Cavanagh, supra note 12, at 115–16.

But these claims, Rhode and Cavanagh realized, are, at bottom, empirical. As such, by definition, they are susceptible to empirical validation (or refutation). With that insight, as mere law students—and at a time when empirical legal studies were still rare—they set out to test the bar’s twin premises. To do that, they analyzed 331 uncontested divorce files from two Connecticut counties, reviewed questionnaires completed by 106 Connecticut attorneys, and conducted telephone interviews with 99 lawyer-assisted petitioners as well as 93 DIY divorce kit purchasers (who, once the Legal Aid clinic blinked, purchased kits from a substitute provider). 20 Id. at 116–22.

Ultimately, Rhode and Cavanagh concluded that, along various quality dimensions, there was scant difference between those with lawyers and those without—which, of course, seriously undercut the bar’s arguments. True, assisted pro se petitioners, like lawyers, occasionally made mistakes. But, when they did, invariably, the errors were corrected. 21 Id. at 128. In their words: “Where the parties agree on custody, finances, and the necessity for a divorce, guidance concerning procedural formalities need not be the exclusive province of lawyers.” 22 Id. Or, as she later summarized, “[t]his study found almost no support for the consumer protection rationale.” 23 Rhode & Barton, supra note 16, at 268.

Call this the Rhode Treatment. She identified a problem and invested serious sweat equity and no shortage of ingenuity in trying to understand the roots of that problem, and then she devised and implemented a solution thereto. In future decades, this became Deborah’s modus operandi, when confronting a wide array of causes and interests. She applied the Rhode treatment to many such areas, including attorney accountability, law school accessibility, lawyer leadership, and all dimensions of legal ethics, both in the U.S. and internationally. But I will discuss just two domains closest to my own heart: gender equity and access to civil justice.

Gender Equity

After reading Simone De Beauvoir’s The Second Sex in 1970, Rhode became a staunch and unapologetic feminist, and, in the ensuing years, she became a leading—if not the leading—feminist legal scholar. 24 Reading that book, she said, was “the spark that never went out.” AALS Section on Women in Legal Education Oral History Project, Interview in 2016, at 6:40-7:30, https://perma.cc/466J-36RL. Another “pivotal moment” came even earlier. It was watching her mother ask her father for “her allowance.” She recalled: “I just thought that was unbelievably degrading, even as a child, and I sort of vowed that I wanted to be an independent person.” Id. at 2:27-2:41. In this work, she repeatedly grappled with the valuation and devaluation of difference and analyzed how to use the levers of law to catalyze change. 25 For an elegant discussion of Rhode’s contributions to the field, see Grossman et al., supra note 9. See generally Deborah L. Rhode, Speaking of Sex: The Denial of Gender Inequality (1997); Deborah L. Rhode, Justice and Gender (1991); Deborah L. Rhode, Feminism and the State, 107 Harv. L. Rev. 1181 (1994); Deborah L. Rhode, The “No-Problem” Problem: Feminist Challenges and Cultural Change, 100 Yale L.J. 1731 (1991). Along the way, she interrogated a wide array of topics, such as sexual harassment, pay equity, sexual assault, pregnancy discrimination, reproductive freedom, and appearance discrimination (which she dubbed “the beauty bias” in a popular book).

A through-line of this vein of her scholarship was to ask why it is that women, who have accounted for approximately half of all law school graduates for more than two decades continue to lag so far behind their male counterparts when it comes to attaining real positions of influence. 26 For law school statistics, see generally Richard K. Neumann Jr., Women in Legal Education: What the Statistics Show, 50 J. Legal Educ. 313 (2000). (Still today, only 19% of equity law firm partners, 26% of Fortune 500 General Counsel, 27% of judges, and 32% of law school deans are female. 27 See generally Am. Bar Ass’n, A Current Glance at Women in the Law (Jan. 2018). )

She attributed the movement’s stalled success to various things, including rigid gender stereotypes, such that women are underestimated when they act in a traditionally “feminine” manner and skewered when they veer toward the “masculine”; a dearth of mentors and informal support networks; and rigid workplace structures that do not bend to accommodate familial commitments, which women disproportionately bear. 28 See generally Deborah L. Rhode, Gender and the Profession: The No-Problem Problem, 30 Hofstra L. Rev. 1001 (2002). In the course of diagnosing the problem, Rhode even ironically blamed the gains that the movement had already achieved. As she put it: “Our partial progress has itself become an obstacle to further change.” 29 Deborah L. Rhode, Midcourse Corrections: Women in Legal Education, 53 J. Legal Educ. 475, 476 (2003). Elsewhere, she elaborated: “A widespread assumption is that barriers have been coming down, women have been moving up, and it is only a matter of time before full equality becomes an accomplished fact.” Rhode, supra note 28, at 1001. Here, Rhode recognized the conventional view that women have come so far so fast, it is just a matter of time before they reach true parity. Yet, Rhode’s scholarship, at its core, put the lie to that notion. Her work documented the structural barriers and cultural biases that continue to thwart women’s advancement, and it showed that these barriers and biases are sticky and stubborn. They will not magically disappear but will continue to divert women from reaching the highest echelons of the profession, unless we work, actively and deliberately, to remove them. 30 See generally Grossman et al., supra note 9.

In the day to day, Rhode took that insight to heart—and she did everything humanly possible to pave the way for women’s promotion and success. She advocated for gender equity publicly, by, among other things, chairing the ABA Commission on Women in the Profession and testifying as an expert witness on behalf of women seeking to enforce their rights under Title VII. 31 For ABA leadership, see Grossman et al., supra note 9. For expert work, see, for example, Deposition of Deborah L. Rhode in Ravina v. Columbia Univ., No. 1:16-cv-02137, Mar. 19, 2018, available at 2018 WL 8369181. And, closer to home, she directed Stanford’s Institute for Research on Women and Gender and also prodded the University to publish salary information broken down by gender and to create a parental leave policy, back when such a policy didn’t exist. 32 The Institute has since been renamed to the Clayman Institute for Gender Research. See Clayman Inst. for Gender Research, Remembering Deborah Rhode, Jan. 21, 2021, https://perma.cc/3VKZ-G657.

Rhode was similarly indefatigable—and effective—behind closed doors. Out of the limelight, she championed generations of female (and also POC and LGBTQ+) lawyers and law students. She worked the phones, drafted letters, and sent countless emails to promote those from underrepresented groups, whether for promotions, prestigious clerkships, or other coveted posts. Her mentorship was just as important. She mentored many—from all corners of law and academe—and to the dozens of us lucky enough to have been taken under her wing, she offered sage advice, steadfast support, and a sense of belonging, inspiration, and possibility.

Access to Justice

Just as consequentially, she repeatedly stood up to expand access to justice—a preoccupation, kindled at a New Haven Legal Aid Clinic nearly half-a-century ago, that pervaded Rhode’s life and scholarship. “It is a shameful irony,” she frequently noted, “that the nation with the highest concentration of lawyers fails so miserably at making their services available to those who need them most.” 33 Deborah L. Rhode, Legal Education: Rethinking the Problem, Reimagining the Reforms, 40 Pepp. L. Rev. 437, 445 (2013).

Time and again, she called out the glaring deficiencies in our criminal justice system, where competent counsel is a right but too rarely a reality, producing a world where, she memorably put it, “it is often far better to be rich and guilty than poor and innocent.” 34 Deborah L. Rhode, Defining the Challenges of Professionalism: Access to Law and Accountability of Lawyers, 54 S.C. L. Rev. 889, 893 (2003).

Rhode’s assessment of the civil side of the docket was similarly unsparing. For civil claims, of course, there is no entitlement to counsel, 35 E.g., Turner v. Rogers, 564 U.S. 431 (2011); Lassiter v. Dep’t of Soc. Servs. of Durham Cty., 452 U.S. 18 (1981). fueling what many now acknowledge is a “pro se crisis,” as the majority of litigants—even when facing serious deprivations—are consigned to navigate the system alone. 36 In federal courts, more than a quarter of claims are filed by pro se plaintiffs, and the majority of appeals are pursued by unrepresented individuals. Judith Resnik, A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations, 96 N.C. L. Rev. 605, 607-08 (2018) (compiling statistics). Within state courts, where the vast majority of claims are litigated, at least one side is unrepresented in about three-quarters of claims. Id. at 608. For the fact that many, of all stripes, now acknowledge the scope and seriousness of the crisis, Richard Posner’s foray into the issue offers an illustration. Upon leaving the Seventh Circuit, the celebrated jurist set up the Posner Center for Justice for Pro Se’s. But that Center was quickly shuttered. The stated reason was “that the Center was receiving many more requests for assistance from pro se litigants than it could handle.” Joe Patrice, Judge Posner Highlighted the Pro Se Litigant Crisis—The End of His Project Underscores It, Above the Law (Sept. 10, 2019), https://perma.cc/TF5N-8MCF. But the pro se litigants we see in court are merely the tip of the iceberg, for below the pro se crisis (which is visible), lies a larger but hidden crisis. That consists of the tens of millions of Americans who are currently confronting a legal problem (such as an ex-spouse who is falling behind on child support, an employer who refuses to pay overtime, or an insurer who has denied a legitimate claim), but who are “lumping it,” i.e., taking no steps to protect their interests. 37 See generally Rebecca L. Sandefur, What We Know and Need to Know About the Legal Needs of the Public, 67 S.C. L. Rev. 443 (2016). The most recent national survey found that only 14% of legal problems “involved courts.” Id. at 448. This fact indicates that, though the pro se crisis is itself a national disgrace, the crisis represents only the visible tip of a much larger iceberg. For the origins of the term “lumping it,” see William L.F. Felstiner, Influences of Social Organizations on Dispute Processing, 9 Law & Soc’y Rev. 63, 81 (1974). Another comparative perspective on the problem: The World Justice Project ranks the United States 109th out of 128 countries, when it comes to the accessibility and affordability of civil justice, behind, among others, Uzbekistan and Angola. WJP Rule of Law Index (index 7.1), World Justice Project (2020), https://perma.cc/W4WV-L7T7.

Looking for culprits to explain this layer cake of a calamity, Rhode frequently returned to the UPL restrictions that had piqued her interest years before. 38 E.g., Deborah L. Rhode, Meet Needs with Nonlawyers: It Is Time to Accept Lay Practitioners—and Regulate Them, ABA J., Jan. 1996, at 104. These restrictions, she observed, foreclose the option of licensed lay practitioners—and, with that middle option off the table, the restrictions effectively force litigants through one of two doors: either hire Cadillac counsel (door number 1) or forego representation (and often, action) altogether (door number 2). Given that many simply cannot afford door number 1—they don’t have thousands of dollars to retain a licensed attorney—UPL restrictions, then, effectively consign millions of individuals to pro se status (or worse). 39 To be sure, as Rhode well recognized, the high cost of legal services is a reason, but not the sole reason, why people fail to seek help with legal problems—and, it follows, a reduction in the cost of legal services will ameliorate, but not eliminate, our access to justice woes. For a discussion of certain other impediments, see Sandefur, supra note 37, at 448-50; Benjamin H. Barton & Deborah L. Rhode, Access to Justice and Routine Legal Services: New Technologies Meet Bar Regulators, 70 Hastings L.J. 955, 986-87 (2019). On top of that, Rule 5.4’s fee-sharing prohibition plus UPL restrictions require law to be practiced in lawyer-owned and -operated firms, which inhibits firm growth and deprives firms of efficiencies that would presumably come from greater specialization and flexibility, further increasing the cost of J.D.-provided legal services. This, in turn, narrows door number 1, channeling ever more individuals to door number 2. 40 See generally Gillian K. Hadfield & Deborah L. Rhode, How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering, 67 Hastings L.J. 1191 (2016). Finally, individuals who do go it alone (the door number 2 folks) do so without much help, as electronic assistance to guide pro se litigants (essentially, the modern version of the DIY divorce kits of yore), continues to be stunted by the bar’s protectionist activity. 41 E.g., Deborah L. Rhode & Benjamin H. Barton, Rethinking Self-Regulation: Antitrust Perspectives on Bar Governance Activity, 20 Chap. L. Rev. 267, 276-78 (2017) (documenting battles between LegalZoom and the North Carolina bar).

It’s a complex picture—which Rhode painstakingly refined through decades of analysis. But once she’d done so, she was not content to merely talk, lecture, or write about it. Instead, once she really understood the root of the problem, she gave it the Rhode Treatment. She set about, in other words, to make things right.

Through the Center on the Legal Profession, which Rhode founded in 2008, she launched an aggressive, multi-faceted campaign to convince policymakers to embrace evidence- and risk-based regulation, which necessarily entails amending Rule 5.4 and relaxing UPL restrictions to permit the innovative delivery of legal services. These efforts, as I write, are rapidly bearing fruit. For instance, Rhode long championed the training and licensure of paraprofessionals (think, nurse practitioners for law), as a middle ground between full J.D.’s and pure self-help. After twelve years of study, Washington adopted such a model (for limited license legal technicians) in 2015, 42 Hadfield & Rhode, supra note 40, at 1221-22. The Washington experiment was, for a number of reasons, short-lived. Melissa Heelan Stanzione, Sunset for Washington Access to Justice Program Stuns Students, Bloomberg Law (July 2, 2020), https://perma.cc/MG68-2HQ9. and, very recently, Arizona and Utah have followed suit. 43 Lyle Moran, Arizona Approves Nonlawyer Ownership, Nonlawyer Licensees in Access-to-Justice Reforms, ABA J. (Aug. 28, 2020), https://perma.cc/3NUC-Y75K. In Utah, the program is part of a pilot project that was initially set to run for two years but has since been extended. Sam Skolnik, California Bar ‘Sandbox’ May Rattle Legal Competition for Firms, Bloomberg Law (May 11, 2021), https://perma.cc/792M-2PYL. For a discussion of other states’ tentative steps, see Jessica K. Steinberg et al., Judges and the Deregulation of the Lawyer’s Monopoly, 89 Fordham L. Rev. 1315, 1325-26 (2021). Permitting nonlawyer ownership was another of Rhode’s key prescriptions. In August 2020, the Arizona Supreme Court voted unanimously to eliminate its ethics rule that had long barred nonlawyers from having an economic interest in law firms; Utah is in the midst of a pilot to permit nonlawyer ownership; and, in California and Florida, the idea is under scrutiny. 44 For Arizona, see Moran, supra note 43. For Utah and California, see Skolnik, supra
note 43. For Florida, see Sam Skolnik, Florida Joins States in Testing Law Firm Ownership Models, Bloomberg Law (June 29, 2021), https://perma.cc/4RP9-LWKW. Rhode long advocated more technological innovation to assist pro se litigants. These days, from Hello Divorce, to Rocket Lawyer, to LegalZoom, these tools are proliferating. 45 See generally Rebecca L. Sandefur, Legal Tech for Non-Lawyers: Report of the Survey of US Legal Technologies (2019). And, in 2020, even the ABA got in the act—adopting Resolution 115, a resolution that “encourages U.S. jurisdictions to consider innovative approaches to the access to justice crisis in order to help the more than 80% of people below the poverty line and the many middle-income Americans who lack meaningful access to effective civil legal services.” 46 Am. Bar Ass’n, Resolution 115, https://perma.cc/6D6M-V59J. Fittingly, Rhode was the first academic cited in the accompanying report. See id. n.1 (citing Deborah L. Rhode, Access to Justice 3, 79 (2004)).

In sum, for the first time in decades, when it comes to promoting access to legal services, there is a palpable sense that we are on the cusp of durable change. 47 Steinberg et al., supra note 43, at 1315 (calling this a “revolutionary moment for the legal profession”); id. at 1326 (observing that “the market for legal services is undergoing its most dramatic reexamination in decades”). And Rhode’s fingerprints are all over it. In a 2021 panel surveying this landscape, Professor Gillian Hadfield perhaps said it best: “I really do think [this movement] will change the face of law, . . . and I think we owe that to Deborah.” 48 Stan. L. Sch., FutureLaw 2021:The Pioneering Work of Prof. Deborah Rhode, YouTube (Apr. 16, 2021), https://perma.cc/S4VB-Z2BD (statements of Gillian Hadfield).

* * *

In a 2016 interview, Rhode was asked how she wanted to be remembered. With a catch in her throat, she conjured her old mentor, for whom she was clerking at the time of that Supreme Court photo, and replied:

Thurgood Marshall said he wanted the epitaph on his tombstone to read: “He did what he could with what he had.” And I think changing the pronouns would work for me. . . . You can’t control your legacy. Pigeons will roost on your grave . . . . All you can do, really, is do the best with what you have. I’ve got to think that’s good enough. 49 AALS Oral History Project, supra note 24, at 51:06-53:12.

With conviction and courage, for sixty-eight years, Rhode stood up. She diagnosed problems and, in the face of obstacles and opposition, she set about to fix them. Ultimately, through her efforts, she made the legal profession incrementally more diverse, law a little fairer, and civil justice more widely available.

She did what she could with what she had. It just so happened that Deborah L. Rhode was endowed with enormous energy, a blazing intellect, deep compassion, and a spine of steel—and it is those gifts she put to extraordinary use. Deborah, my dear friend, it was more than enough.

*Ernest W. McFarland Professor of Law and Co-Director, Stanford Center on the Legal Profession, Stanford Law School. I am grateful to Ralph Cavanagh, John P. Freeman, Lawrence Friedman, David Freeman Engstrom, and Jason Solomon for helpful comments on prior drafts—and I am indebted to the indominable Eun Sze for surfacing this remarkable photo. All errors are mine alone.

The featured image is courtesy of Eun Sze.