New York Times

October 22, 2009

Stephen Barnett, a Leading Legal Scholar, Dies at 73

Stephen Barnett, a legal scholar who campaigned against federal law exempting news companies from antitrust legislation and who challenged practices by the California Supreme Court as secretive, died in Oakland, Calif., on Oct. 13. He was 73.

The cause was cardiac arrest, said his wife, Karine Barnett.

In scholarly essays and newspaper opinion articles, Mr. Barnett, who taught at the University of California, Berkeley, took aim at the Newspaper Preservation Act of 1970, which allowed competing newspapers in the same market to enter into production and revenue-sharing arrangements known as joint operating agreements.

The intent of the law was to help multiple newspapers survive in the same city. Mr. Barnett, a specialist in intellectual property and First Amendment law, argued that in practice it promoted the consolidation of newspapers into large national chains.

In recent years, Mr. Barnett devoted his efforts to challenging the rules under which the California Supreme Court and the state bar association operate. He regarded both as unaccountable to the public, and made a prime target of the practice known as depublication.

Under current rules, the California Supreme Court, on its own initiative or after being petitioned, can order that an appellate court decision be deleted from official bound reports. Once deleted, the appellate opinion cannot be cited in subsequent court cases, leaving it analogous to the tree that falls in the forest with no one to hear, or, as Mr. Barnett put it in the title of a scholarly article, “The Dog That Did Not Bark.”

“Stephen Barnett was probably California’s leading analyst and critic of the way the California Supreme Court goes about its business,” said Stephen Sugarman, a professor and associate dean at Berkeley’s law school.

Stephen Roger Barnett was born in Brooklyn on Dec. 25, 1935, and grew up in West Hartford, Conn. In 1957 he earned a bachelor’s degree from Harvard, where he was president of The Crimson. He graduated in 1962 from Harvard Law School, where he was the note editor of the law review.

After serving as a clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit and Justice William J. Brennan Jr. of the United States Supreme Court, he became an associate with Cleary, Gottlieb, Steen & Hamilton in Manhattan and Washington.

In 1967 he joined the law school faculty at the University of California, Berkeley. He remained at the university for the rest of his career, except for a stint as deputy solicitor general in the Justice Department from 1977 to 1979.

His writing on issues pertaining to government regulation of the press and television helped European governments shape communications policy in the 1980s. In this regard, his “Law of International Telecommunications in the United States” (1988), written with Michael Botein and Eli M. Noam, was a significant textbook.

He was a fierce critic of California’s Supreme Court and the State Bar Association. His campaign to bring greater openness and accountability to California’s legal system led to significant victories, notably a 1999 ruling that compelled California’s Commission on Judicial Performance to disclose the way individual members vote.

In addition to his wife, Mr. Barnett is survived by a son, Alexander, and a stepson, Levon, both of Oakland; and a sister, Linda Beizer, of Avon, Conn.