For Joe Gerken, a new point of reference

Generations of law students learned the craft of legal research in the courses he taught and developed, especially Federal Legal Research and Advanced Legal Research. They also gained perspective on the nation’s highest court in Gerken’s popular seminar Brandeis and Holmes, which explored how the justices’ life history influenced their judicial decisions.

“There was a long period after I graduated from library school when I had my fingers crossed for an opening here,” says Gerken, a graduate both of UB School of Law and UB’s School of Information and Library Science. He has called the reference librarian role his “dream job.”

That came as a result of a midlife career change. Before entering academic librarianship, Gerken held public-service positions representing indigent clients, disabled individuals and state prisoners, and served as a confidential law clerk in U.S. District Court for the Western District of New York.

At the law library, he was a familiar face for students seeking advice on how to research an arcane point of law, as well as for faculty members in their own research and writing. Faculty also regularly asked him to lecture on research methods in their substantive law courses, and along the way he wrote two books on legal research.

A few colleagues shared some thoughts on his legacy at the law school:

Elizabeth Adelman, vice dean for legal information services and law library director:

“Joe was the quintessential law librarian—knowledgeable, passionate, and a super sleuth reference librarian, as well as a beloved professor and the author of impactful books and articles. Joe has been a great colleague and friend whose sense of humor and distinct laugh permeated the law library for two decades. He is sorely missed.”

Nina Cascio, international law librarian:

“Joe Gerken is a historian at heart. His students of legal research do not just learn the modern research tools of the trade but are treated with a historical context that makes one understand how a tool developed over time and the genius of those who first saw a need and invented a method to tackle the challenge. Joe enjoys the hunt involved in legal research, and his excitement and joy in the process is palpable and infectious among both his colleagues and his students.”

Bernadette Gargano, vice dean for experiential education and social justice initiatives:

“I first met Joe Gerken twenty-five years ago when I began a federal clerkship in the Western District of New York.  Joe was a permanent attorney there at the time and was tasked with some of the most difficult cases facing the court.  We met again years later when I took a position at the law school. Knowing Joe was in the law library made UB Law feel like home to me.  Joe was always there when you needed him for whatever type of problem was at hand.  Despite his acumen, experience, wealth of knowledge, and list of publications, he remains one of the kindest and most unassuming individuals that I have ever met.  He understands how privileged we are to be working in the law, and he shared that joy with others.”

Marcia Zubrow, retired reference librarian:

“The Law Library very much benefited from Joe’s prior legal experience, both his professional experience and his joy in doing research and in having time to develop that research. That came through whether he was answering reference questions or teaching or interacting with his colleagues. Although he had very strong, definite opinions and felt comfortable conveying those opinions, he always was willing to listen to others. I know his students very much enjoyed his classes. He was constantly searching for new ways to present information to the students and always doing research himself when he was preparing for classes. In sum, Joe felt he had found the perfect job.”

Gerken reflected on his career in a conversation with UB Law Links.

You made a significant career change at midlife, from legal practice to law librarianship. What prompted that change, and was it hard to leave practice behind?

The real question here is, what took you so long? In the mid-1980s, I was a clinical instructor for six years at UB Law. I’d always loved libraries, so during those years I pursued a master’s in library science. In 1988, having obtained that degree, I took a position as a research librarian at the University of Maryland Marshall Law Library. I enjoyed that work, however, it was difficult being separated from the ones I loved: my parents, whose health was tenuous, my daughter, Jenny, and my then-girlfriend and future wife, Eileen. I took a staff attorney position with Prisoners’ Legal Services in Buffalo and moved back home. I worked there for 10 years, then as confidential law clerk for U.S. District Judge William Skretny for six years.

The Charles B. Sears Law Library is the only academic law library in Western New York. During that entire period, there was no turnover among reference librarians. Finally, in July 2002, a position opened up and I got that job.

As a UB Law student, you must have had your own research projects. What’s different about the process for today’s law students?

In a word: everything. Here is how I introduce my book The Invention of Legal Research (Hein, 2010): “The past three decades have witnessed a revolution in legal research methodology. Beginning with the invention of Lexis, legal research databases have transformed research from an entirely print-based process to one comminated by online methods. Lexis and Westlaw have justifiably garnered most of the attention; however, a host of other databases have contributed to this revolution. Sitting at one’s desk, the researcher can access virtually every law review article … and retrieve their full texts. He or she can … retrieve the text of virtually every Congressional committee hearing and report ever published, as well as the text of the entire Congressional Record and its predecessors. Even treatises, the last bastion of print sources, are now online.”

You’re careful to give your students the historical perspective on whatever they’re researching. How does that enrich their analysis and their argument?

To be honest, I got in the habit of including “history lessons” in my research courses because I thought those stories were interesting, and the students seemed to enjoy them. On reflection, that history also gave students a way of appreciating why particular sources and methods were deemed essential. As to substantive legal research, in the same way that legislative history sheds light on the reasons why a statute was enacted, a historical POV can be enlightening in discerning why a legal doctrine took a particular turn, and in predicting the future application of the doctrine in new contexts.

You’ve done a lot of teaching at the law school. What have you found best engages your students and sparks their intellectual curiosity?

In spring 1971, the semester before I began at UB Law, I sat in on a law school class to see what it was like. I expected to hear a dry recitation of rules and principles. I was thrilled to discover how dynamic and fascinating law could be. The class, Property Law, was taught by William Greiner, who went on to become dean of the law school and president of UB. Greiner had been brought to Buffalo as the first faculty proponent of multidisciplinary or “law and …” studies, an approach essential to the “Buffalo model” of legal studies. Long story short: I was smitten.

In all my years of affiliation with UB Law, as a student, clinical instructor and reference librarian, I recall only a handful of times I encountered a student who was flat-out bored. The secret to engaging students, IMHO, is to give them an opportunity to study or research something they are interested in. In my Advanced Legal Research and Federal Legal Research courses, each student selects a topic that they will research all semester. Thus, each student works on a different issue, looking for secondary sources, cases, statutes, legislative history and non-law material on their chosen topic. The first two weeks of a semester were devoted to brainstorming topics, going to articles and sometimes books on a general area of the law. Since one key component of a “good” topic was how interesting it was, engagement was seldom an issue. When I did one-time talks for seminars or other courses with a writing component, I questioned the professor as to what issues seemed to pique the students’ interest.

Your seminar on Louis Brandeis and Oliver Wendell Holmes has been hugely popular. What makes those two Supreme Court justices compelling as a subject of inquiry?

There is so much to say about Hon. Louis Brandeis and Hon. Oliver Wendell Holmes. I created this course because I knew that they were giants in the history of U.S. Supreme Court adjudication. As I delved into their illustrious careers on the court as well as their respective early careers, I was dumbfounded.

Holmes and Brandeis are probably best known for their ringing dissents in a string of First Amendment cases that ultimately became the basis of modern free speech and freedom of the press doctrine. Notably, Holmes in the Abrams case and Brandeis in Whitney demonstrated that free, uncensored expression of ideas is a sine qua non for a democracy.

Brandeis singlehandedly invented the right to privacy. That is not an exaggeration. Brandeis co-authored “The Right to Privacy,” a landmark article in Harvard Law Review that spawned legislation or court rulings in every state prohibiting invasion of privacy. His dissent in the Olmstead decision laid the groundwork for a constitutional right to privacy, in Katz v. U.S. Before ascending to the Supreme Court, Brandeis had an illustrious career as “the people’s lawyer.” Holmes authored possibly the best-known work on legal history, The Common Law.

Artificial intelligence has the potential to revolutionize legal research. Is there a place for it in academic law librarianship?

There absolutely is a future for AI in academic librarianship. My former colleague Brian Detweiller has been studying how AI can be employed in legal research and law practice.

I am concerned with hubris on two levels—that of the people employing AI, and that of AI itself. I am not sure that AI will be humble enough to appreciate its limitations and the catastrophic result of improperly implementing it. In academia, I don’t doubt that authors can and will use AI to rough out initial drafts of articles, or at least portions of articles. In that context, I’m sure it will be functional.

There are two ways AI might not work well—the personal and policy-oriented decision making. I’m curious, for example, what AI would come up with if asked to answer these questions. Does it know me well enough? As to policy, the potential for harm is much less in academia than in the real world. We’ve all heard anecdotes about AI-generated legal documents—cites to imaginary cases, etc. One hopes that attorneys who employ AI will be conscientious enough to scrutinize its output. Had I not retired, I think I would have enjoyed exploring this potential.

How has the transition to retirement been for you? What sparks your passion these days?

To be honest, retirement has been a challenge. I retired when I did in part due to health reasons, and initially my time and attention were devoted to getting better. Once that occurred, I realized how much I missed being in the library, and the camaraderie of my fellow reference librarians, how they are always there for each other. The emotional support from Beth Adelman, library director, and her associate, Brian Detweiler. The overall “can do” attitude, the enthusiasm, positive energy and generosity that they share.

I miss running into students who have become old friends, and hearing from UB Law grads on how their career is going. And, of course, the law faculty. UB Law has such an egalitarian faculty. So much so that I felt welcome to participate in faculty presentations, including the Q&A.

Having said that, most days are a blast. I’ve been rereading novels by my favorite authors—Thomas Hardy, Edith Wharton, Virginia Woolf, and my all-time favorite, Marcel Proust. I’ve also been perusing my collection of books on the Italian Renaissance. Fra Angelico, Donatello, Carpaccio. Now that the weather is better, I’ve resumed my almost-daily walks around Hoyt Lake in Delaware Park. I have a few local bistros when there is a chamber concert or soccer match to see, notably Duende in Silo City. My ex, Eileen Pleasure, and two mutual friends are my usual companions. Eileen, who is an excellent artist, just completed a three-person show at the Carnegie Art Center in North Tonawanda.

I like the slower, quieter pace of being retired—the chance to let my mind wander and dwell on all the lovely memories that this blessed life has brought.