McLaughlin, Joseph M.

English

Fordham University School of Law

Fordham Law Review Volume 65 Issue 1 Article 5 1996 In Memoriam: William Hughes Mulligan Joseph M. McLaughlin Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Joseph M. McLaughlin, In Memoriam: William Hughes Mulligan, 65 Fordham L. Rev. 15 (1996). Available at: https://ir.lawnet.fordham.edu/flr/vol65/iss1/5 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. In Memoriam: William Hughes Mulligan Cover Page Footnote United States Circuit Judge, United States Court of Appeals for the Second Circuit, 1990 to Present This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol65/iss1/5 DEDICATIONIN MEMORIAM:WILLIAM HUGHES MULLIGANJoseph M. McLaughlin*In his lifetime a man plays many roles. I was fortunate-blessedwould be a better word-to know Bill Mulligan in his many incarna-tions: teacher, Dean, Judge, and most memorably, friend. Our livesand careers spiraled and intersected for forty-two years.A superb teacher, a fine administrator, and then a gifted judge, henever lost that sense of humor which gave him the fortitude to serveFordham for a quarter of a century, under five presidents during timesranging from the halcyon days of the '50s through the Vietnam era. Aman without mirth is like a wagon without springs: he is jolted byevery pebble in the road. And, indeed, there were many pebbles inthe career of William Mulligan from the Bronx to the Bench.He came to Fordham College in 1935 and achieved success as Edi-tor of the Ram, when the school paper was still literate. Young Wil-liam Mulligan came to Fordham Law School in 1939 as just plain Bill,and later adopted the clerical middle name when he learned that hewas a collateral descendant-in those days the clergy did not acknowl-edge direct descendants-of John Hughes, the first Archbishop ofNew York. He served as an editor of the Law Review and upon grad-uation entered the Army. He spent all of World War I chasing spiesin New York City, more particularly in Brooklyn, where he protectedthe Gowanus Canal from German treachery.Doffing his uniform, he came back to Fordhiam Law School, first asa part-time teacher, while he practiced law at what would evolve intothe Shea Gould firm, and then on a full-time basis. Professor Mulli-gan taught me Criminal Law in my first year at the Law School. Hesubsequently taught me three other courses. At the end of my firstyear, he became Dean of the Law School.His accomplishments as Dean require no Boswell for it is univer-sally known that Dean Mulligan brought Fordhiam Law School to Lin-coin Square. For fifteen years his constancy demonstrated to studentand faculty alike that DEAN is not just another four-letter word. Ar-istotle has observed that there are some professions in which a gen-tleman cannot be virtuous. Bill Mulligan's career as Dean sorelytested this dictum, but I think Dean Mulligan bested Aristotle in thatarena.It was the boast of Ceasar Augustus that he found Rome of brickand left it of marble. While I know that Dean Mulligan would have* United States Circuit Judge, United States Court of Appeals for the SecondCircuit, 1990 to Present. Formerly, U.S. District Judge (E.D.N.Y.) 1981-1990.1996]FORDHAM LAW REVIEWshrugged off that comparison, I succeeded him as Dean and can attestthat the Law School he left had grown to prominence on his watch.I became Dean on July 1, 1971. I remember it well. July, 1971 wasa steamy, sultry month, and Dean Mulligan had just been elevated tothe Court of Appeals for the Second Circuit. Also ascended with himwere his desk, the better office appointments, and his secretary.Working alone, midst a motley assembly of three legged chairs anda table-not unlike what I had seen in a M.A.S.H. unit in Korea-Ianswered the phone to hear a man asking to speak "to Dean Mulli-gan." "He is not here," I responded, "for he is risen as he said hewould."' Risen he had, to make a lasting impress on the Second Cir-cuit and to leave us a trove of hundreds of opinions, sparkling withgrace, learning, and, most notably, that lightening wit that was hissignature.He first sat in August of that annus mirabilis. The judicial planetswere in alignment that month, for his first opinion, a criminal case,2had drawn a galaxy of legal stars who would themselves eventuallyascend to the Bench: for the Government: Raymond J. Dearie (nowan Eastern District Judge) and on the brief David G. Trager (also aDistrict Judge). For the Defendant: Phylis Skloot Bamberger (nowan Acting State Supreme Court Justice). Anyone who knew Bill cansense immediately that he struggled to restrain his natural impishstreak. He churned out a unanimous opinion of impeccable prose andlogic, but lacking the expected flashes of wit.His self-control lasted three weeks. In his second opinion, also agarden variety criminal case,3 Bill Timbers, a New Englander, first bydisposition and then by choice, was on the panel. A bank had beenheld up by three masked men, and without eye-witness identifications,the evidence was largely circumstantial. Trudo and Tatro were con-victed and mounted an appeal on sufficiency of the evidence grounds.Doubtless, with one eye on winning Timbers's concurrence, Mulligancapitalized on Timbers's flinty respect for the virtues of parsimony:There was abundant evidence of sudden acquisition of wealth onthe part of both Trudo and George Tatro after the robbery. Trudohad a very meager income in the fall of 1969 and lived very mod-estly. In the weeks following the robbery there was an abruptchange in his spending habits. He purchased a used car for $500and gave a $100 gift to a girl friend. In January, 1970 he paid $70 tohave his road plowed of snow, a most lavish and quixotic gesture forany Vermonter irrespective of means. George Tatro was regularlyemployed at a modest salary and did cash an insurance refund checkfor $542.44 on December 29th, 1969. However, in January, 19701. Matthew 28:6.2. United States v. Howell, 447 F.2d 1114 (2d Cir. 1971).3. United States v. Trudo, 449 F.2d 649 (2d Cir. 1971), cert. denied, 405 U.S. 926(1972).[Vol. 65DEDICATIONGeorge Tatro participated in poker games where the stakes were ashigh as $1,200 a hand. Although known as an average tipper, onthree occasions in January, 1970 he bought drinks for everyone atthe bar (8 to 10 people), paid his check with a $100 bill and left thewaitress a $10 tip, all of which was unprecedented4Bill Mulligan had gone to Cathedral Prep, which in those days pre-pared young men to enter the seminary. Though he abandoned hisclerical aspirations to enter Fordham College, that early clerical/Jesuitformation surfaced in many of his opinions. Thus, in one of the manyIBM appeals that filled the Federal Reporters in the early 1970s, hedissented on jurisdictional grounds from Leonard Moore's opinion re-viewing an interlocutory order. Loosing an anathema, Mulliganwrote: "It must languish in Purgatory until the Day of FinalJudgment."5A lifelong devotee of Latin and Greek classics, he often laced hisopinions with classical allusions. In that same IBM dissent he re-peated Judge Edelstein's (another classical scholar) caution againstopening "a Pandora's Box," which Mulligan quickly endorsed as being"not as Delphic a pronouncement as it might first appear."6His favorite allusion-and of this let there be no doubt-was to thefabled "Serbonian Bog." Because even the Colorado Supreme Courtwas befuddled by this reference ("Whatever kind of bog that is"),7 alittle background may be helpful. In the time of the Pharaohs therewas a marshy Lake Serbonis in Egypt. Herodotus, who was notori-ously given to exaggeration, reported that entire armies disappearedinto the marshes. John Milton, in Paradise Lost,' carried the storyinto English; and, then Cardozo, wrestling in insurance law, with thedistinction between accidental results and accidental means, charac-terized the dichotomy as doomed to "plunge this branch of the lawinto a Serbonian Bog."9 Teaching the Insurance course at Fordham (Iwas one of his students), Dean Mulligan had led us through this bog,only to become mired in the indemnity distinction between friendlyfires and hostile fires. The Serbonian Bog metaphor is about all I re-call of the course on Insurance.The Bog resurfaced a year after Judge Mulligan joined the SecondCircuit. The same dissenting opinion in the IBM case chastised Leo-nard Moore's majority opinion as destined to "lead us only into the4. Id. at 651.5. IBM Corp. v. United States, 471 F.2d 507, 519 (2d Cir. 1972), cert. denied, 416U.S. 980 (1974).6. Id. at 521.7. Equitable Life Assurance Soc'y v. Hemenover, 67 P.2d 80, 81 (Colo. 1937).8. John ilton, Paradise Lost, bk.ll, 1.592 (1667) ("that Serbonian bog... wherearmies whole have sunk").9. Landress v. Pheonix Mut Life Ins. Co., 291 U.S. 491,499 (1934) (Cardozo, J.,dissenting).19961FORDHAM LAW REVIEWSerbonian Bog."1 When I upbraided him (ever so mildly) for thisconceit he told me that nobody would know what it meant and, be-sides, said he, "the primary purpose of a dissent is to annoy the major-ity." His love for the Bog is evident in three" other majority opinionsthat he wrote. (As his faithful acolyte, I threw into one of my opin-ions 2 a Monet-Manet distinction to the bemusement of two of mycolleagues.)Judge Mulligan served for ten years on the Second Circuit. Withthe celestial regularity of Haley's Comet, the judicial planets onceagain fell into alignment for his final opinion. The panel, mirabiledictu, included Bill Timbers (again) and District Judge Kevin ThomasDuffy, two other jurists not adverse to a touch of Celtic wit. Neither,it would seem, were the defendant (Janet Byrnes) or the trial judge(Neal McCurn, N.D.N.Y.). The defendant was implicated in smug-gling rare birds from Canada into the United States and then lying toa grand jury about her involvement.This landmark case, United States v. Byrnes,13 affirmed her convic-tion unanimously. Bill Mulligan's opinion opened as follows:Who knows what evil lurks in the hearts of men? Although thepublic is generally aware of the sordid trafficking of drugs and aliensacross our borders, this litigation alerts us to a nefarious practicehitherto unsuspected even by this rather calloused bench - rarebird smuggling. This appeal is therefore accurately designated asrara avis. While Canadian geese have been regularly crossing, exit-ing, reentering and departing our borders with impunity, and appar-ently without documentation, to enjoy more salubrious climes,those unwilling or unable to make the flight either because of inade-quate wing spans, lack of fuel or fear of buck shot, have becomeprey to unscrupulous traffickers who put them in crates and shipthem to American ports of entry with fraudulent documentation inviolation of a host of federal statutes.' nSeveral of the footnotes command attention. Footnote 8, for exam-ple comments upon an observation that Judge McCurn had made dur-ing the trial:The trial judge, perhaps to relieve the tension, observed that whilehe had enjoyed goose dinners he had never consumed swan-someindication of the limited cuisine available in the Northern District.' 510. 471 F.2d at 519.11. Hunt v. Mobil Oil Corp., 550 F.2d 68, 77 (2d Cir.), cert. denied, 434 U.S. 984(1977); Diematic Mfg. Corp. v. Packaging Indus., Inc., 516 F.2d 975, 978 (2d Cir.), cert.denied, 423 U.S. 913 (1975); Agur v. Wilson, 498 F.2d 961, 968 (2d Cir.), cert. denied,419 U.S. 1072 (1974).12. United States v. Cropper, 42 F.3d 755, 759 (2d Cir. 1994).13. 644 F.2d 107 (2d Cir. 1981).14. Id at 108-09.15. Id at 110 n.8.[Vol. 65DEDICATIONThere apparently was a difference of opinion as to whether swanswere birds for purposes of the federal statute. Footnote 9 isilluminating:For a liberal construction of the term "birds," by a Canadian courtsee Regina v. Ojibway, 8 Criminal Law Quarterly 137 (1965-66) (Op.Blue, J.), holding that an Indian who shot a pony which had brokena leg and was saddled with a downy pillow had violated the SmallBirds Act which defined a "bird" as "a two legged animal coveredwith feathers." The court reasoned that the statutory definition"does not imply that only two-legged animals qualify, for thelegislative intent is to make two legs merely the minimum re-quirement.... Counsel submits that having regard to the pur-pose of the statute only small animals 'naturally covered' withfeathers could have been contemplated. However, had thisbeen the intention of the legislature, I am certain that thephrase 'naturally covered' would have been expressly insertedjust as 'Long' was inserted in the Longshoreman's Act."Therefore, a horse with feathers on its back must bedeemed for the purpose of this Act to be a bird, a fortiori, apony with feathers on its back is a small bird." Id. at 139.16The opinion concludes: "The judgment of conviction is affirmed,justice has triumphed and this is my swan song. '17It is not without significance that this last Mulligan opinion was filedon St. Patrick's Day, 1981.Sean O'Casey once observed that we Irish never hesitate to give aserious thought the benefit and halo of a laugh. In a city of carboncopies, William Hughes Mulligan was an original. He touched all whoknew him with his kindness and his unforgettable wit.In the melancholy words from the refrain of an old Irish ballad:The music in my heart I bore,Long after it was heard no more.16. Id. at 112 n.9.17. Id at 112.1996]

In Memoriam: William Hughes Mulligan

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In Memoriam: William Hughes Mulligan

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