I worked as a staff law clerk for the Eighth Circuit Court of Appeals from 1979-1981 during the period when Judge Donald P. Lay became Chief Judge of the Court. Judge Lay had been appointed to the Court by Lyndon Johnson in 1966 at age 39 after achieving professional success practicing in plaintiff’s personal injury work. He was a self-avowed liberal on the Court and one could occasionally discern his inclination to see cases from the plaintiff’s point of view on the bench. He was on the Eighth Circuit panel that decided McDonnell Douglas v. Green, the landmark Title VII Supreme Court case. He served the Court as chief judge for 12 years and continued to serve the Court after he took senior status in 1992 almost until his death this past Sunday.
Judge Lay was an incredibly hard-working and collegial judge whose many former law clerks have become prominent teachers and practitioners. Judge Lay himself taught at law schools within the Eighth Circuit as well as the University of Uppsala in Sweden. The University of Iowa has posted a good capsule biography in connection with its holding of Judge Lay’s papers. The Star Tribune obituary quotes my former Eighth Circuit boss Judge Myron Bright and highlights a few of Judge Lay’s notable opinions.
In the first big case I argued before Judge Lay after I left the Court for private practice, I worked with George Flynn at Faegre & Benson in Drake v. Honeywell. The case had been brought by a seriously injured plaintiff. As I recall, Judge Lay was on the panel and I think also wrote the opinion holding that personal injury plaintiffs could not predicate a private cause of action on the alleged violation of an interpretive rule under the Consumer Product Safety Act. It was an important decision for manufacturers defending product liability cases. I mentioned the case to Judge Lay when I ran into him at a Twins game months after the opinion had been issued. “It was the law review piece that really influenced us,” he said, referring to a Minnesota Law Review note by Will Goetz (now of Dorsey & Whitney) that had come out on the issue after the argument while the case was pending before the Court.
Judge Lay not only prized collegiality on the bench, he believed that counsel should be treated professionally as well (and that counsel should treat each other professionally). A distinguished appellate practitioner, who for obvious reasons must remain anonymous, writes to share his “favorite story about Judge Lay, as told by a another Eighth Circuit judge”:
Judge Lay was sitting by designation in the Seventh Circuit. A regular Seventh Circuit judge (who shall remain nameless but will be readily identified by active Seventh Circuit practitioners) dominated the first five minutes of the argument.
Judge Lay then interrupted the Seventh Circuit judge, stating “we know what you think. Now, let’s hear from the lawyer.” Ever thereafter, Judge Lay refused to sit in the Seventh Circuit.
He will be missed.