Rick Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law: My colleague — and friend, teacher, mentor, inspiration — Prof. Thomas Shaffer died on Tuesday, Feb. 26. A former dean of the Notre Dame Law School, he was a creative, provocative, and incredibly prolific scholar. His writings on legal ethics, narrative, literature, poverty, religion, clinical teaching, and other things are a wonderful legacy.
I first discovered his work during my second year of law school, when I was in a (great) seminar taught by David Luban on "The Legal Profession." He assigned an article of Tom's called The Legal Ethics of Radical Individualism. The piece's claims, tones, and premises were very different from most of what I was reading as a law student, and his unapologetic transparency about the relevance to lawyering of one's religious faith and commitments was welcome and inspiring. It opened with this:
"Most of what American lawyers and law teachers call legal ethics is not ethics. ... Its appeal is not to conscience, but to sanction. It seems mandate rather than insight. [It] rests on two doctrines: first, that fact and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of us is alone on a moral planet tamed by terror. ...
Ethics properly defined is thinking about morals. It is an intellectual activity and an appropriate academic discipline, but it is valid only to the extent that it truthfully describes what is going on. ... [O]rganic communities of persons are prior to life and in culture to individuals — in other words, ... the moral agent is not alone."
This article led me to Tom's books, American Lawyers and Their Communities, On Being a Christian and a Lawyer, Faith and the Professions, and then to his radically (think Hauerwas, etc.) Christian brand of communitarianism more generally. I wrote a paper for Luban's seminar on the legal ethics issues raised by representing so-called "death row volunteers" that became, eventually, this early article of mine. I mailed my paper to Tom — whom I'd never met and who was, after all, being paid to teach other students, not me! — and he wrote me back a three-page, single-spaced letter with helpful feedback, comments, and encouragement. I was so happy to be able thank him, five years later, when I came to Notre Dame to be his colleague.
Tom was a deeply good person with a genuine heart for those on the margins. He was a chaired professor, but insisted on working and teaching in the Legal Aid Clinic. I believe that I very well might not be a legal academic today, but for him, and I'm very grateful to him for that (and many other things). RIP.
Christine Venter, Professor of Law; Director, Legal Writing Program: I first met Tom when I was a student studying for my Masters’ degree in the Center for Civil and Human Rights. Tom was a good friend of Fr. Bill Lewers, the Director of the Center, and they both loved Cubs baseball. I know nothing about baseball but I was always intrigued by the fact that Tom meticulously scored every baseball game, recording the numbers of hits, walks, balls, strikes, etc. Tom managed to turn even baseball into an intellectual pastime — a pretty impressive feat to someone like me, who is a baseball philistine.
Tom was a true intellectual with a wide range of interests — and I mean wide. When I was working on my doctoral dissertation on women’s rights in Africa, one of the advisors on my committee was in poor health and was unable to continue working with me. My dissertation director, Bob Rodes, told me to contact Tom and ask him to serve on my committee. I was initially a little skeptical. I knew that Tom was an expert on legal ethics, law and morality, wills, trust and estates, but women’s rights in Africa? Nevertheless, I went ahead and asked him. Tom agreed and threw himself into the project with his usual vigor and enthusiasm. Not only did he read what I would send him to read, but he read widely on the topic on his own. In fact, so much so, that when the time came for me to defend my dissertation in front of my committee, Bob Rodes and Tom entered into a protracted discussion and academic disagreement on the topic, that resulted in a fascinating back and forth between the two of them. Needless to say, I was delighted by that, as I just had to sit back and listen and contribute a comment every now and then while watching two gifted scholars duke it out. Their discussion continued for months after I had turned in my dissertation — they would email back and forth, including me on the emails, suggesting new insights and continuing to read around the topic.
I also had the privilege of working with Tom in the Legal Aid Clinic. Tom had joined the Clinic after attending a lecture by the author Jonathan Kozol, who had talked at the law school about working among the poor. One of Tom’s old friends, Tom Broden, told him that he would learn more about this issue by being among people in need, than by just reading about it or attending lectures on the subject. Tom already knew that, of course, from observing his wife Nancy’s work with the poor and marginalized in South Bend. So Tom joined the Clinic to learn and to serve. Tom loved his work there — he was influenced by the work of Gustavo Gutiérrez, and would always talk about our clients as people who are close to the heart of God.
I don’t know if Tom ever referred to himself as a feminist, but I am going to claim him as one in the best sense of the word. While working at the Clinic with four women, Barbara Szweda, Eileen Doran, Judy Fox, and me, along with our students, many of whom were women, he was our tireless champion and advocate. He even described in an article how he had been struck by “the experience of working in a feminine place, of dealing with things from a feminine perspective.” He acknowledged the stress that all of us four young mothers experienced when trying to juggle our home and work lives. Tom was very sensitive to all of our needs — he saw himself as a kind of grandfather, encouraging us to bring our children in to work when we needed to — back in a time when this was not a common practice. In fact, Tom, along with the others, was very supportive of the idea that I bring my infant daughter to work with me, when I was struggling with the idea of not returning to work because I could not bear to leave her in child care. Tom and my colleagues helped set up a crib in my office and would often hold the “clinic baby” when I had to meet with a client. I really think Tom loved that environment, although he did sometimes fake grouchily complain there was way more hugging that went on in our office than any other law office that he knew.
I have read all of Tom’s books, American Lawyers and their Communities, which he proudly co-authored with his daughter, Mary, Faith and the Professions, and On Being a Christian and a Lawyer, as well as many of his articles. However, whatever I have learned about what it means to be a Christian and a lawyer I did not learn from Tom’s books or his scholarship; I learned from being in his presence. We all dearly loved Tom and will miss him.
Left: Judy Fox and daughter Ashley present Tom with the Thomas L. Shaffer Retirement Chair. At the podium: Clinic co-director Barbara Szweda.
Judith Fox, Clinical Professor of Law: We are lucky if we are blessed with one good teacher in our lives. I have been blessed with several, but two of the most important and influential in my life have been Tom Shaffer and my own father — two men so alike in character, intellect and moral compass that it is bit eerie. I first met Tom as a 1L law student, when I was assigned to his property law class. I later became a student in the clinic with Tom, his research assistant and then his T.A., where I led a discussion group for his property law class one day a week. After a short career in legal services, I had the privilege of returning to Notre Dame to teach with him in the clinic.
Tom had a long list of expressions that he often repeated. I was amused to learn recently that Tom’s children created little signs, reducing many of those phrases to abbreviated letters — TOOP — the oppressors of the poor, being one of the classic favorites. The clinical staff collected many of those phrases and had them painted on a rocking chair we gave Tom on the occasion of his 2nd retirement party. For those of you who don’t know, Tom retired twice: once from the law school, when he came to work full time at the clinic and, a second time, from the clinic.
I benefitted from many of Tom’s expressions personally. Two examples stick out: When I was his research assistant, I would occasionally receive bonus checks and, when I inquired, he always replied that “it is always ethical to lie to the accountants,” That one made it on the chair. When I made law review at the end of my first year of law school, I was told by the law school administration that I could not participate in both law review and the clinic. Tom assured me that it was “better to seek forgiveness than permission” — another of his favorites — I did both and ended that unofficial rule.
Tom had a gentle way of teaching, always with a twinkle in his eye. I remember so many moments … but only have time to recount a few. My earliest memory comes from that first year property class. We were discussing a certain property law hypothetical, and someone asked Tom, “What’s the law on that?” He got that twinkle in his eye and responded, “What does your client need it to be?” It was like a light going on. I understood that the law was not static. It was an active, pliable thing that could change and be influenced in the cause of justice. But, more importantly, I realized that the law was not just an abstract, theoretical exercise — it was about real people with real problems — it was about the client.
Tom created models for counseling clients that have influenced lawyers across the country — and certainly influenced me. He taught lawyers to treat their clients as they might treat a friend, working in collaboration to tackle the moral implications of decisions. He also taught the importance of respecting the dignity of clients and understanding the lives they are living and decisions they were forced to make — and doing it without judgment.
In my last year of law school, the clinic students got together to create t-shirts with a very special logo in the corner: It was a picture of Tom’s balding head, wearing his Chicago Cubs baseball hat — something we rarely saw him without. We unveiled the shirts in a group, and called ourselves Shaffer’s Army. And to you millennials out there — we were first, Dumbledore’s Army came after us. We were an army dedicated to leaving law school with the needs of the poor and oppressed always foremost in our minds.
Tom is the reason I was able to fulfill my dream to make a career of — as he would say — fighting the oppressors of the poor. I graduated from law school during the 2nd worst law market, the worst being the most recent, post-crisis market. I wanted to do public interest law, but due to family circumstances had a very small geographic market to explore. I found myself with multiple job offers — and many for jobs I had not even applied for. Tom had called his friends and many of them offered me a job. After working at Legal Services in Benton Harbor for a few years, Tom is the reason I came back to Notre Dame to teach. The Thomas Shaffer Public Interest Fellowships have allowed other students to pursue their dreams. It has also helped erode the myth that people only do public service for want of a better job. Unfortunately, this is something I still hear occasionally in the law school. I can assure you all that public interest law is “the better job” and the field is full of gifted, talented and smart people who could have done anything — but chose to assist those most in need of their talents.
Working in the clinic every day with Tom was a pleasure. It was a laboratory for ideas. We debated ethics, morality, religion, public policy, Anthony Trollope novels and Mortimer’s Rumpole of the Bailey. We had our staff meetings at a local bar so we could eat goulash and Tom could have his whiskey. Tom welcomed me and my entire family into his world. While I was still a student, my older children occasionally came to class with me and Tom always welcomed them, and even occasionally engaged them in the discussion. Once I came back to teach, he used to share popcorn and conversation after school with my youngest daughter, Ashley. He even introduced her to Harry Potter.
Perhaps the most important thing that Tom taught me — and this is where he so resembled my father — was to always speak truth to power. They both stressed the imperative that one must always do what is right to do, knowing it is unlikely to make you popular, wealthy or famous. You need to fight those that oppress the poor, the dispossessed, and the vulnerable. Tom was blessed. He was able to fight the oppressors — and still be popular and famous. He fought big banks, bureaucracies and even those of his own employer. I had heard about the legend of Tom Shaffer even before meeting him. He had become famous among the female faculty at Notre Dame for taking a stand against the discrimination of women faculty at the University.
Tom didn’t stop his fight for the powerless when he left the law school. He and Nancy used their precious time and treasure to create the Stone Soup Community, a not-for-profit to assist poor clients with emergency food and shelter needs. It soon developed into a place where people could obtain financial counseling, advocacy, and other assistance toward the goal of self-sufficiency. Tom was one of the few who understood that the poor also need estate planning and continued to assist with estate planning until he no longer could. The world of civil legal services is only just beginning to recognize the need for this service and the years of unwinding and disentangling that results when it is absent.
I want to thank the Shaffer family for sharing this amazing man with us … with me. He was my teacher, mentor, colleague and friend. I am a better person for having known him. We are a better world because of him. I will miss him terribly, but he lives on through the hundreds of lives he has touched and the thousands that have been helped as a result.
Right: Shaffer’s Army in 1992: Tom (far left) and clinic students, including Judy Fox (first row, third from right) don T-Shirts emblazoned with Tom’s caricature.
Joe Bauer, Professor Emeritus of Law: Tom Shaffer was Dean when I came to the Law School in 1973, never having set foot in Indiana until I was hired. I was the 14th full-time faculty member; by comparison, today the Law School has about 45 regular faculty members.
Tom asked me to teach Antitrust and Civil Procedure — the same two courses I taught in my last semester at Notre Dame, in the fall of 2015. The chief differences were that back then I had never taught any class of any kind before in my life, and that as a 27-year-old, I was younger than some of the returning Viet Nam War vets in my class. I was doubtless overwhelmed and intimidated, and that was reflected in the low Teacher Course Evaluations I received after my first semester.
Very distraught, I went to Tom for advice. In addition to giving me multiple suggestions, he reassured me that he, and the Law School, would not have hired me if they didn’t think I could succeed as a teacher. And, those TCEs did indeed improve. Part of that was more experience, but much of that progress derived from the confidence and mentoring that Tom gave me. And, as my career evolved, Tom continued as a supporter, constructive critic and role model.
Tom Shaffer was not only my first Dean, my colleague and my mentor. He, and his wife Nancy, were dear friends. When my two children were in grade school at Stanley Clark, there was an annual Grandparents Day. Unfortunately, their grandparents lived about 1,000 miles away. So, who stepped into the breach? For several years, it was Tom and Nancy. And, as the parents of eight children, they certainly needed no lessons on being warm and caring. To this day, those were acts which my wife and I, and our children, recall with appreciation.
Robert F. Cochran, Jr., Louis D. Brandeis Professor of Law at Pepperdine University School of Law: Tom was my teacher, mentor, co-author (Lawyers, Clients, and Moral Responsibility), and friend for 43 years. He mentored me in law school and into and through law teaching. Most of what I know about law and religion I learned through his guidance.
Tom was a visiting professor at the University of Virginia during my third year of law school, 1975-76 (shortly after he left the Notre Dame deanship). He taught a course on law and religion in his and Nancy’s rented home. (The afterword of On Being a Christian and a Lawyer identifies that class as the genesis of the book and identifies each student by name.) Three aspects of the class stand out. First, when Tom discovered that all in the class were Christians — though of almost every stripe — he had us open with prayer. That, no doubt, would have been troubling to the University’s founder, Thomas Jefferson. We envisioned him looking down on us, and he was not pleased. Second, we closed with beer. That would have been troubling to my Baptist forebears, but to this Baptist boy it seemed to balance out the prayer.
The third thing I recall was that the class changed my life with a message that runs through Tom’s books. Prior to the class, I lived a schizophrenic existence. I saw little connection between what I learned in law school during the week and what I did in church on Sundays. The following extended metaphor from Tom's American Lawyers and Their Communities captures Shaffer’s central call to Christian lawyers. Shaffer envisions a town square. On one side is the church; on the other is the courthouse. “We American lawyers learn to look at the community of the faithful, rather than from it. We stand in the courthouse looking at the church. We see the [church], even when we claim to belong to it, from the point of view of the government.” (210-11)
“[The legal] part of the academy, more than any other, has systematically discouraged and disapproved of invoking the religious tradition as important or even interesting. It ignores the community of the faithful so resolutely that even its students who have come to law school from the community of the faithful learn to look at the [church] from the courthouse, rather than at the courthouse from [the church].” (214)
Tom encourages lawyers to "walk across the street and look at the courthouse from the church ... ." (210) “Faithfulness to the tradition of Israel and of the Cross means that the lawyer stands in the community of the faithful and looks from there at the law. Faithfulness means that a lawyer imagines that she is first of all a believer and is then a lawyer.” (198)
From the vantage point of the church, Tom called on lawyers to do many things.
1. Consistency: A lawyer should be (as was said of Atticus Finch in To Kill a Mockingbird) the same person in town that he or she is at home. Lawyers should bring the values that they are taught at home and church — truthfulness, justice, and mercy — to the legal profession, rather than playing a role.
2. Concern for All: Lawyers should be concerned about the interests of all who might be affected by legal representation. Lawyers should resist the “radical individualism” encouraged by exclusive focus on client’s worst instincts.
3. Concern for Clients: Lawyers should be concerned with the whole, client, not their most selfish instincts. “[T]he goal and purpose of a virtuous life in a profession is to help others become good persons ... .” (94)
4. Moral counsel: The apparent tensions between concern for other people and for clients is overcome if lawyers raise moral issues in client counseling as they would with a close friend, not imposing their values, but raising them for serious discussion.
5. Speaking Truth to Power: Christian lawyers should speak prophetically to those in power (both government and wealthy clients).
6. A Preferential Option for the Poor: As the holder of a prestigious chair at Notre Dame, he chose to serve poor people in the law school legal clinic (one of the less prestigious positions at most law schools).
I was able to visit Tom and Nancy a few months ago. Attached are a few pictures. You will recognize the expressions in the pictures of just Tom — the first showing curiosity, in the old days maybe about an odd comment from a student or young law professor; the second, Tom's generous suggestion that he would reflect on the comment.
I am sorry to see Tom pass, but I look forward to spending eternity with him and Nancy in the New Heavens and the New Earth. I am grateful Tom's and Nancy's influence in this world on me and so many others.
Douglas W. Kmiec, Caruso Family Chair in Human Rights and Constitutional Law, Pepperdine University School of Law (NDLS faculty, 1980–99): My friend Bob Cochran has penned a beautifully written remembrance of Tom Shaffer. And while Tom might give Bob the quizzical look Bob captured on film; that look of genuine modesty would nevertheless signal Tom's warm acceptance of your expression of love for "the other."
As Professor Cochran's note of remembrance also reveals — Tom is not gone from us, for his ever gracious Nancy continues to walk with us as marital reminder of two becoming one. There are no spaces in "TomandNancy," today, and never were. They are champions of the poor and rescuers of the poor in spirit. How many of us who taught with him and visited with them along the river were transformed? How great the number of clients who found real justice by choosing not what the law allows, but what a good heart desires? It is customary to pray that the deceased now rest in the Lord, but unless that is a direct order, it will be lost on Tom. It surely delighted Tom that a man of great energy and empathy and who has written that "the name of God is mercy" sits upon the throne of Peter, though I am equally certain Francis and Tom envision the throne as a simple folding chair.
Jane Farrell '80 J.D.: Dear Tom, (You know it took me years to call you that—you are and always will be in my heart “Prof. Shaffer”),
I couldn’t be with those gathered at your memorial service, so I have asked my daughter Kate Ginsbach, a 3L, to read this letter to you, as I have no doubt that you are present and enjoying this gathering.
I grew up watching my dad practice law in a small town in South Dakota. I watched how he treated clients and the service he provided. When I came to Notre Dame, I spent my first year of law school surrounded by classmates all of whom I was sure were much smarter than me. They spoke the names of big law firms in big cities as if their names would soon be added. It was very foreign to me and I wasn’t sure where I fit in.
Then I became a student in your Wills and Trust class. It was somewhat intimating as you were the author of the textbook we used. (Little did I know that it would be the only textbook I would open for its practical guidance when I had my own clients.) Not only did you know where South Dakota was (thanks to your Colorado and Wyoming upbringing!), but you talked about people, not just law, and how to help them navigate difficult family issues. You had me interview a couple with a special needs child. You talked about the ethics of what we were doing and the importance of really listening to a client, hearing their needs and finding good solutions. You reinforced what had been in my heart and the type of law practice that I watched growing up. I began to feel more at home at Notre Dame. You talked about the law as I think it should be — a service profession. You challenged your students to give back and to be part of human solutions. Although I had much to learn when I joined my Dad in his practice, I brought with me some practical knowledge and not just theory because of you — and I know he was grateful! Through the years you sent me copies of your various publications — some were a little esoteric for me, but I felt honored to receive them.
And I remember the one year that I did not mention my dog in my Christmas letter you and Nancy wondered about it so from then on there was a paw print drawn next to Frank, Kate and Mary’s names!
Know that there many practicing law in small towns or working at nonprofits across the globe that due to your teaching know that we are in the right place. You touched many with your goodness and your vision of a Notre Dame Lawyer — and I will always be grateful that I was blessed to be one. Thank you for that. Know that you and Nancy will always be part of the fabric of my life. Keep watching over us and until we meet again, May God hold you in the palm of His hand. God bless.
Right: Tom Shaffer with Clinic co-director Eileen Doran and students in 1994.
Ave atque vale
The Old Testament wisdom teacher Sirach tells us that around the campfires, there are troubadours and poets to sing of kings, warriors, heroes, great leaders of the people. But, the author asks, who sings the songs of the common man or woman?
"But of others there is no memory, for when they ceased, they ceased. And they are as though they had not lived, They and their children after them. Yet these also were godly men and women whose virtues have not been forgotten, their wealth remains in their families, their heritage with their descendants; Through God’s covenant with them their family endures, their posterity for their sake. And for all time their progeny will endure, their glory will never be blotted out; Their bodies are peacefully laid away, but their name lives on, and on. At gatherings their wisdom is retold, and assemblies proclaim their praise." Sirach: 44: 9-15
If I want to anticipate the church’s future then I must understand the church in at least three different ways. First, it is something given. Second it is something to be done, an involvement, a community, a family that demands commitment and work. Finally, the church is something to be handed on, a tradition in the dynamic sense. Tom involved me in community, demanded commitment, and called for me to hand on tradition.
Paul Gore '68 J.D.: Tom Shaffer was given to me by accident of location. We met at the University of Notre Dame Law School in the first course Introduction to Law. I still have his draft text Readings on the Common Law. The book never went to press. Yet, I treasure it, the law, the tension, and polarity, displayed in court cases, commentary, and the poetry. How odd! The poetry and juxtaposition of Robert Browning's Caliban upon Setebo and Pippa Passes was brilliant. I knew then that I was at the foot of Aristotle, Cicero, Plato and the great minds of lands far away and times long ago.
Tom told me one day that law is more than a job, a profession, yes even a jealous mistress. He said that law can be, if we let it, a ministry. That has been my polestar. When I retired from law in February 2018, I was confident that ministry had been a great part of my practice.
Tom and I worked seminars together and it was at the one in Jackson Hole, Wyoming, that I learned that this man-scholar-teacher had never seen Yellowstone despite the fact that he was from Billings, Montana, and resided for a time in Thermopolis, Wyoming. So we went and repeated the "Frolic and Detour" in Florida several years later when we visited the Everglades.
My life is changed and what it is because of this man. I shall sing his praise around my campfire here in Bozeman. He is now part of my tradition, my stories, and memories. I will tell his wisdom, I will proclaim his praise here in the land of his birth —Montana.
My last words are those of the Roman poet, Gaius Valerius Catullus: "Ave atque vale." Hail and Farewell. Or perhaps, "I salute you ... and goodbye."
Terrance R. Kelly '68 J.D., of counsel to Lass Moses Ramp & Cooper LLC: Tom Shaffer packed a lot into his allotted time. Inside the — what — sixty-plus year marriage to Nancy and their raising eight children, he was a journalist, a lawyer, a writer, a law school dean, and he ran a law student clinic providing services to the poor — often engaging in all of these pursuits simultaneously. As I recall, he also did an early stint as a military intelligence soldier, Cold War eavesdropping from a post in Iceland on Russian naval communications. Excellent training for South Bend winters. Fundamentally, Tom Shaffer was a teacher-student. And Tom Shaffer was a profound friend.
Tom and Nancy both were raised in the American Southwest — farms and ranches and hardware stores, small schools, small towns, small newspapers, and dry land — vast tracts of dry land. These had to be hard-scrabble places in the 1930s through the ‘50s — Fruita, Gunnison, Grand Junction, even Albuquerque.
Later, rooted in Notre Dame, the Shaffer Family became itinerant teachers. They moved a lot. During their lengthy home-stays at Notre Dame, Tom and Nancy and their eight kids did visiting professorships throughout the U.S., from urban California (UCLA) to rural Virginia (Washington & Lee), and a lot of places in between. They made many temporary moves—one year, two years, and I expect they did it by station wagon. By this time, interstate highway laws discouraged stage coaches. A great teacher is always a serious student.
Tom Shaffer’s life was really about the virtue of friendship. He was gifted in the art of friendship. He taught friendship. He wrote about friendship. He sought friendship. He practiced friendship.
His law students all left his wills and estates class with a model will for families with young children and no property. And we actually worked with young families at Notre Dame, providing them with these wills providing for their children. We took these “no estate” wills to our brothers and sisters and neighbors and other friends when we left Notre Dame. Tom believed that wills, a legal document dealing with final things, were best prepared by knowledgeable friends for friends. It was the favorite part of my law practice for many years.
Tom had close friendships with his law school colleagues, with people from other disciplines, with colleagues from all over the United States, with former students and current students. Nancy and Tom were accessible and encouraging on a deep, personal level. They were and are great friends themselves.
Tom actually experienced the teaching and practice of law as great exercises in friendship. He was a prodigious and brilliant writer, and he wrote often about the role of friendship as being at the very heart of the lawyer’s relationships. In the 1960s, U.S. law schools taught substantive law — contracts, torts, agency, procedure, property, maybe tax. (Notre Dame’s then-Dean Joseph O’Meara was a tax lawyer, and I have to believe a most formidable tax attorney. We had a lot of tax.) However, Tom understood that the practical use of this legal knowledge of “law” required a personal lawyer-client relationship. The person bringing problems to the lawyer was filled with feelings, experiences, biases, often with troubles at home and at work, and had a childhood that provided a lens to how he or she saw the world working. Tom understood that the lawyer’s ability to have a relationship, a friendship, with the client, was essential to providing good and effective legal counsel. Tom was a highly respected pioneer in bringing this truth into the training of lawyers, the need to understand the role of legal counseling, and tools to help in the practice of legal counseling.
Tom was interested in the moral dimensions of the lawyer-client relationship. How does the lawyer work with moral issues that arise within the lawyer-client relationship? Three different approaches developed within the field of legal ethics. First, the lawyer is the one with specialized knowledge, skills and abilities, and the lawyer will tell the client what they are going to do. Second, the client is an autonomous human being with the moral right to make these decisions, and the lawyer crafts legal solutions that satisfy client interests. Third, the collaborative approach, the lawyer and client talk through and resolve moral issues together. Tom, of course, believed in the collaborative approach. For Tom, the lawyer was neither a dictator, nor a potted plant. The lawyer was a knowledgeable and trusted friend.
Fifty years ago, Notre Dame graduated 56 law students. All male. Mostly cradle Catholics. I believe that many if not most of us had never met an attorney before coming to Notre Dame Law School. Several of us got married during Law School, young brides joining us. (Attracted, undoubtedly, by the “prisoner of war camp” humor that brought the law students together, as well as South Bend winters.) Nancy and Tom Shaffer and their children taught us how to be married, how to be family, how to be great friends. I remember Tom writing that everything he had learned about the poor, he learned from Nancy. Nancy and Tom, both great teacher-students.
Rest in peace, Tom. God bless you, Nancy.
Right: A window in the Law School's St. Thomas More Chapel.
Pam and Rich Hennessey '68 J.D.: A favorite undergrad professor once said something to the effect that a tragedy in education occurs when a student is not moved by a book or a teacher. I am twice blessed because Tom moved me in both ways, many times over.
Imagine how Tom startled a bunch of impressionable first year, first semester law students in our first class in the History of the Common Law when, in his quiet, half-amused, western way, he announced his first and second principles of the common law: “people are no damn good and creditors always win.” (Over the years he announced his discovery of additional principles: undertakers get paid first; and if someone says it’s not the money, but the principle of the thing — it’s the money.) Thus began my introduction to a man one of whose great gifts was to see truths that lie deep beneath how most of us experience the world.
Or take his story of deciding, while working in a large Indianapolis law firm, to become a law professor: “I didn’t see anyone whom I wanted to be like and I realized it would be foolish or arrogant for me to think I wouldn’t become just same. Hoping I was neither, I decided to leave and to teach.” How many of us, young and ambitious, are capable of such self-awareness?
Tom was both a practical teacher and lawyer. He supervised Larry Miller and me, as third year law students, in our preparation of a Habeas Corpus petition on behalf of a death row inmate in Michigan City seeking to set aside his conviction because there had been prejudicial retrial publicity. After we had graduated and left Notre Dame, Tom argued the case in U.S. District Court, winning a new trial for the client.
Tom was a legal pioneer, not just as a prolific scholar uniquely integrating moral values into the daily challenges of lawyering but also as one of the first to teach legal counseling as a honed skill essential to good lawyering. In his first-of-its kind 1968 “The Psychological Aspects of Legal Counseling” seminar, sometimes referred to by skeptics as “the Psychedelic Seminar,” Tom and Nancy showed us that feelings matter and that listening, empathy and asking questions are critical to effective legal advice and representation.
Finally, Tom and Nancy — and often we said both names as one — have been lifelong mentors and friends, welcoming my family and me into their homes across this land whether in South Bend, Santa Monica, Lexington, Portland or Niles. Always interested, caring, and kind, they helped me and others through difficult times and celebrated the more joyful ones, too.
Tom — his love of Nancy and of his children, and with all his profundity, scholarly curiosity, clever humor, deep beliefs and enjoyment of baseball — is cherished, will be missed and lives in our hearts. With our condolences and love, Pam and Rich
Jim McGovern '68 J.D.: Professor Shaffer had the Maya Angelou touch- it wasn’t so much what he said or did but how he made you feel. As a financially-strapped married law student with three children (I know, I know, what was I thinking?) working a factory job at night, every day felt like climbing Mount Everest. Professor Shaffer message to me was unmistakable: yes you can.
I loved his sense of humor, which spoke to his gentle spirit. His advice, for example, for future wealth management: one wife.
He identified with his first year students, like me, bewildered by the rows and rows of law books, all seemingly identical in their appearance one to another. He talked about his first year in the law, working for a senior lawyer, who young Tom approached for assistance on his first legal research project. The older man walked into the library, wandered up and down those rows of books, stopped and pulled out a volume, seemingly at random. He flipped rapidly through the pages and paused to read one page. After a moment, he said, “No, that’s not it.”
Somehow that story made me feel that I could master the law. What a privilege it must have been for his children to have a father like him. You have our deepest sympathies.
Norman Smith '68 J.D.: To Nancy and the children of Tom and Nancy, Jean and I were saddened to learn of Tom's death. You all have our deepest sympathy on your loss and we join with other Notre Dame Law graduates who have a personal and professional respect for someone who truly had a great impact on their lives.
My legal education at ND was top notch. I learned how to define problems, find solutions by applying the law to the facts, try cases and write legal briefs, but Tom Shaffer showed me how interact with clients, witnesses and everyone connected to the court system. That skill was absolutely necessary to be a good private practitioner in a small community.
Tom AND Nancy designed an elective course for third year law students and their wives. He called it "Psychological Aspects of Legal Counseling." The course was an interactive experience and we often met in the Shaffer home, but sometimes we went to coffee houses and other places that may have had a scent of use by "hippies." We explored feelings like trust, remorse, sorrow, joy, pain, contemplation of death, etc. Under Tom and Nancy's direction, we learned how to be empathetic to our future client's feelings. Both Jean and I also found the course to be beneficial to our marriage. Tom also wrote a book that I always kept in my office desk and referred to when I had a client bouncing between emotion and logic.
Tom and Nancy were role models for Jean and I. We always enjoyed meeting with them at our law school reunions.
Vincent Johnson '78 J.D.: I was sorry to hear the sad news. Tom was a great teacher and scholar who positively impacted the lives of so many. He helped me — in so many ways and on so many occasions — to build a career that I enjoy every day.
It is sad to see someone so accomplished, so loved, so decent, pass on from this world to the next. But it is also a joy to see a life so successfully completed.
I have such good memories of both of your parents. Indeed, there is a photo of them, with you and me, and about four others, that was taken on the ND campus in 2009 after your father gave a talk at an alumni event. It sits in my faculty office in a prominent location, along with other special photos.
Please accept my sincere condolences. Give my best to your mother, and tell her that I will be thinking about her even more than usual in the coming days.
Hugh Griffin '68 J.D.: Allow me to join in the chorus of 68L’s most fond memories of your dad. As one of the married couples, my wife Mary Ann and I were fortunate enough to be occasionally invited to the house for a fabulous meal cooked by Nancy and great conversation on the topics of the day.
Tom Kapacinskas '68 J.D.: He was a friendly & decent presence in the law school despite being tasked with being dean, mediating many values that communicated through his person & that of your mother. A case in point was the "famous" psychedelic seminar that met weekly in the Shaffer living room. It was a partial concession to the spirit of the '60's & partially a process group, in fact lacking any psychedelics (at least I never saw any). TS's openness to such an adventure endeared him & your mother to all of us in the seminar & our spouses. Blessings upon all of you Shaffers, especially Tom Sr.! Vaya con Dios.