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Harry Wellington, scholar, writer led 2 law schools

By Adam Liptak
New York Times / August 12, 2011

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NEW YORK - Harry H. Wellington, whose half-century of studying and teaching law included a decade as dean of Yale Law School and eight years as dean of New York Law School, died Monday at his home in New York. He was 84.

The cause was a brain tumor, said his wife, Sheila.

Mr. Wellington made an early mark in labor law, enlivening what could be a drab and technical field with vivid ideas that drew on other disciplines and tested first principles.

For example, his 1972 book, “The Unions and the Cities,’’ which he wrote with Ralph K. Winter, now a judge on the US Court of Appeals for the Second Circuit in New York, argued that it could be dangerous to allow public labor unions to become too powerful.

The argument, controversial at the time, anticipated the current debate over public unions.

“His work had a kind of conceptual clarity and ambition that most labor law did not,’’ said Anthony T. Kronman, a professor at Yale Law School who has also served as its dean.

Harry Hillel Wellington was born Aug. 13, 1926, in New Haven.

He was educated at the University of Pennsylvania and Harvard Law School, and he served as a law clerk to Justice Felix Frankfurter of the Supreme Court.

After teaching at Stanford Law School for a year, Mr. Wellington joined the Yale law faculty in 1956.

The next year, he and another former law clerk to Frankfurter, Alexander M. Bickel, published an influential article in The Harvard Law Review, “Legislative Purpose and the Judicial Process.’’

The article was an early example of Mr. Wellington’s other major scholarly interest: the interaction of constitutional interpretation, institutional competence, and the adjudicative process.

In a 2001 tribute, Winter wrote that Mr. Wellington and Bickel represented a dying breed.

“Today it is difficult to find people with intellectual rigor who will criticize a court’s work based on its reasoning in decisions with which they agree,’’ Winter wrote.

Mr. Wellington was dean of Yale Law School from 1975 to 1985. In 1990, after returning to the faculty there, he published “Interpreting the Constitution: The Supreme Court and the Process of Adjudication.’’ The book was partly a response to the rise of originalism, a theory of constitutional interpretation that looks to the original understanding of those who wrote and ratified the Constitution.

Mr. Wellington argued that judges must be more than historians. The constitutional text, he wrote, is “vague, open-textured, sometimes ambiguous, and generally in desperate need of elaboration.’’

He was dean of New York Law School from 1992 to 2000. In addition to his wife, who once served as the third-ranking official at Yale after the president and the provost, Mr. Wellington leaves two sons, John of Mount Vernon, N.Y., and Thomas of New Haven; and two grand- children.

In his book on constitutional interpretation, Mr. Wellington said there was a reason judges had to fill in the gaps left by legislative compromises.

“Let’s understand one thing,’’ he wrote. “Purposeful ambiguity is to legislative drafting what the fastball is to Major League Baseball.’’