Most lawyers probably would not appreciate being compared to a cold-blooded terrorist responsible for thousands of deaths. But for John Banzhaf—an octogenarian litigator who’s been called the “Osama Bin Laden of Torts”—the comparisons are a point of pride.
Now an emeritus professor at George Washington University Law School, Banzhaf, 82, is among the most accomplished and aggressive public interest lawyers in the United States. His first legal jihad, waged in the 1960s against Big Tobacco, resulted in strict advertising restrictions on cigarettes as well as a ban on smoking in airplanes. Since then, Banzhaf has led litigious crusades against fast food chains, religious universities, and private clubs, using legal action—or the mere threat of it—to effect social change.
He’s hardly a right-wing zealot. It was Banzhaf who proposed and popularized the idea of appointing a special prosecutor to investigate former president Richard Nixon, setting in motion the legal drama that would ultimately end his presidency. A half century later, he filed a complaint with Georgia election officials over former president Donald Trump’s 2021 call to Georgia secretary of state Brad Raffensperger—in which the former president pressured Raffensperger to overturn the state’s election results—leading to a multi-year investigation and several subpoenas.
Now, though, this self-proclaimed “legal terrorist” has set his sights on an unlikely target: the Stanford Law School students who shouted down Fifth Circuit appellate judge Kyle Duncan.
Banzhaf told Stanford earlier this month that he will file a character and fitness complaint against the students with the California state bar.
“It appears that you have not taken any steps to discipline or otherwise sanction the student violators,” Banzhaf said in a letter to Jenny Martinez, the law school’s dean, who has since ruled out punishing the hecklers. As such, the complaint “will have links to video recordings of the disruption so that bar officials can judge the students’ conduct for themselves.”
The California bar requires applicants to demonstrate “respect for the rights of others and for the judicial process.” That means the students who disrupted Duncan—in part by telling him “we hope your daughters get raped”—could be in for a rude awakening if Banzhaf makes good on his threat.
This incident “seriously calls into question whether these students have proper temperament to practice law,” Banzhaf told the Washington Free Beacon. “It is completely unacceptable to shout down any speaker—much less a federal judge—and then face no consequences.”
Such statements have made Banzhaf the strange bedfellow of Senator Ted Cruz (R., Texas), who this month urged the Texas bar to “take particular care” with graduates of Stanford Law School. The horseshoe suggests that outrage about Duncan’s treatment crosses partisan divides—and offers a blueprint to fill the disciplinary void left by other elite law schools, which have refused to punish blatant violations of their free speech policies.
Anyone can file a bar complaint, including across state lines. And, Banzhaf says, the complaints needn’t derail anyone’s career in order to be effective: Even the threat of an investigation—or a delayed and stressful bar application—could deter would-be disruptors, sending the message that actions have consequences.
Martinez said last week that it would be unfair to punish the students because they received “conflicting signals” from Tirien Steinbach, the law school diversity official who confronted Duncan and praised the protesters. Banzhaf isn’t convinced: Stanford’s rules against disruption are “very clear,” he wrote in a press release, and “should not require student memorization or interpretation.”
Martinez’s argument for amnesty, he added, “would have earned a low grade if submitted by a law student.”
Stanford did not respond to a request for comment.
The stakes are personal for Banzhaf, who says that the attitude evinced by the Stanford students—”you can’t reason with people who disagree with you”—is antithetical to the legal system that’s enabled his victories. To fight the tobacco lobby in the court, he told the Free Beacon, “I had to understand its point of view.”
He also had to engage with lawyers who, from his perspective, “were paid lots of money to lie and literally kill people.” It’s a skill Banzhaf says is in short supply among today’s law students, in part, he argues, because they lack a sense of proportionality.
“Today, you have kids all upset about pronouns or the suggestion that there shouldn’t be treatment for an 8 year old who thinks she’s transgender,” he said. Smoking, on the other hand, kills nearly 500,000 people each year, but Banzhaf would still split a cab with tobacco lobbyists on his way home from court.
“We didn’t beat each other up,” he recalls.
The drama roiling Palo Alto, Calif., reflects a wider trend at the nation’s top law schools—including Yale, where hundreds of students disrupted a bipartisan panel on free speech last year. Those protesters, like the Stanford hecklers, were not punished for their role in the disruption.
The permissiveness prompted a heated debate about how best to discipline law schools that won’t discipline their own students, and led 14 federal judges, including James Ho and Elizabeth Branch, to announce that they would no longer hire clerks from Yale Law.
While some conservatives praised the boycott, others decried it as a form of collective punishment, denying opportunity for all students over the misdeeds of a few. Bar complaints avoid that objection, Banzhaf noted, by targeting only those students who broke the rules. They also create an incentive for administrators to lay down the law on their own, since bar passage rates are a key indicator in law school rankings—and character and fitness checks are a prerequisite for passing the bar.
In addition, Banzhaf said, filing legal complaints of any kind is a sure way to generate publicity, something most universities like to avoid. And complaints can create cover to act in the face of political headwinds—an excuse for bureaucrats, be they Georgia election officials or California bar examiners, to launch a potentially unpopular probe.
“Once you file a document, law and custom requires some kind of response,” Banzhaf said. “Bar officials don’t always investigate complaints, but they at least have to look and go through the motions.”
Though the California state bar is among the most progressive in the nation, its committee of bar examiners, who handle character and fitness issues, is older and relatively more conservative, Banzhaf said. It also includes at least one judge, with most members appointed by the California Supreme Court—factors that could make it less well-disposed to Duncan’s hecklers.
“Judges in particular should be outraged that a fellow judge received this kind of treatment,” Banzhaf said. “My guess is that the California bar will take this seriously.”