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2
BREAKING OUT

SHORTLY AFTER the Rouse case was decided, Paul Porter, one of the senior partners in the firm, stopped me in the hall. “Congratulations,” he said, draping a long arm over my shoulder. “I read about your victory in your effort to bring law and order to the dank back wards of Bedlam. I hope this means that you’ll be able to bill some hours next month.”

Porter’s remark brought to a head the dilemma I had been worrying about for some time. The Rouse case had given me a taste of running my own show, dealing with big issues that I really cared about. Now I was back in my old slot as a junior associate in a big firm whose business was representing large corporations. After the public policy challenges and emotional highs and lows of the Rouse case, I was immersed once again in the routine business of the firm: the junior person advising a bank in New York City that wanted to open a branch on Long Island, working for Coca-Cola before the Federal Trade Commission to avoid a requirement that it list its caffeine content on the bottle.

What was I doing in this place, doing this kind of work?

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My path to Arnold & Porter began long before law school. By the time I was in eighth grade, I was already thinking about legal principles and the important role played by the courts. My father was a judge, and the dinner table conversation in my home often focused on that day’s cases in his courtroom. If he had an interesting case before him, such as the case about the unequal treatment of female bartenders, then called barmaids, he would lay out the facts for my brother Jim and me and solicit our opinions on how it ought to be decided. He was good-humored about it, relishing funny stories and probing and critiquing our efforts to put together just decisions.

One case that was famous around our dinner table involved the death of a ruptured pig. The farmer had filed suit against his garage mechanic, who had failed to fix his truck on time, making it impossible for the farmer to get his ruptured pig to the veterinarian and thus causing the pig’s premature death. It was an unusually valuable pig and much loved by the farmer, and he was tenaciously pursuing his legal rights against the mechanic. Jim and I were invited to think about the mechanic’s liability and to formulate a just rule that would take care of this situation and others like it. We concluded that it was the farmer’s tough luck, that the mechanic had no way of knowing that the late delivery of the farmer’s truck would cause a prize pig to die, and that the mechanic’s supplier may have been slow in getting him the necessary parts. From that time forward in our house, whenever I made a claim that I had lost some treasured possession, I was met with the rule in the ruptured pig case—it was just my own tough luck, and I was going to have to learn to live with the consequences of my action and my sense of grievance.

My father was a rationalist. He believed that law fostered order and justice. And to the extent that disorder and injustice persisted, that was a challenge and opportunity for rational analysis and reform through law. I wonder whether his commitment to rationality was in part a way of distancing himself from the irrational 27horrors that had overtaken the Jews of Europe in his lifetime, overwhelming the German legal system. Although the rationalist training he gave me was invigorating and useful throughout my life, it was also unbalanced; my emotional skills were not honed with the same vigor, and the legal analysis did not leave a great deal of room for compassion.

Before deciding to join Arnold & Porter, I had interviews at a number of corporate firms in New York and Washington, including such pillars of the Wall Street establishment as Sullivan & Cromwell, recommended to me by a brilliant young professor, Ronald Dworkin, who had recently left that firm to teach at Yale Law School. “Excellent training,” he said.¹ As I walked along Wall Street for an interview, surrounded by lawyers and investment bankers striding purposefully to their offices in dark topcoats and regimental Brooks Brothers striped ties, I began to have doubts. It wasn’t that I didn’t look like one of them—I did—but I felt that I shouldn’t, that I was wearing a disguise. I stopped and bought a pretzel from a street vendor, and slathered it with mustard. I was still wiping mustard off my fingers as I stepped into the oak-paneled elevator to ascend to the firm’s office for my interview. I didn’t know much about myself at the time, but I knew enough to know that this place wasn’t right for me.

Sullivan & Cromwell and a few other firms offered me jobs—and some firms did not. I was most interested in Arnold & Porter because of its reputation for outstanding legal work, for unconven-tionality, and for taking on politically controversial clients.

One of the firm’s eccentricities was that it delegated to Victor Kramer the responsibility for recruiting new lawyers. Kramer was a small, irascible antitrust lawyer who prided himself on absolute 28candor. When I went for an interview, he paced around the office with manic energy, frequently consulting his fat, gold pocket watch, puffing nervously on his pipe and peppering me with questions, sometimes from behind me when his pacing carried him to the far end of the office. “Why do you want to practice law? Why do you want to join this firm? Do you think that this kind of practice will satisfy your impulse to do good? Have you thought about going to the government first and coming here when you’ve gotten public service out of your system? Do you realize that if you spend five years here you may not be able to afford to leave?”

He never made any offers until he had established that the offer would be accepted. It was an extremely awkward process and Victor’s personal quirks did not make it easier. When I succeeded in persuading him that I thought that the firm would be a good place for me to begin practice, he made an offer. At that time the firm was called Arnold, Fortas & Porter, but a few months later it lost its middle name, when Abe Fortas was appointed to the Supreme Court. I was the thirtieth lawyer in the firm, an intimate and informal office with few visible indications of hierarchy. Still, I had to struggle to get comfortable calling senior partners by their first names.

The named partners were New Deal alumni who had been creative designers of government institutions and programs to promote the public welfare. Paul Porter, the first chairman of the Federal Communications Commission when it was established in the mid-thirties, was a tall, elegant Kentuckian with oiled-back hair and immaculately tailored suits. A two-martini lunch was, for him, the kind of lunch you have if you have important business to do in the afternoon. Otherwise, you didn’t stop with two. His great skill was not legal analysis, but wooing clients. One of his younger partners said of him, “He is like necessity; he knows no law.” But that did not stop Paul from being a critically important partner in this firm.

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Abe Fortas was a powerful legal mind, an intimate counselor to Lyndon Johnson, and the center of the firm. He had the reputation of being the shrewdest tactician in the Washington bar. His career in government during the New Deal era gave him an intimate knowledge of its workings. A superb draftsman, who had turned the legal brief into an art form, he was famous for his brutality to associates and partners who made mistakes or failed to live up to his high standards of performance. Some quite senior partners in the firm still bore the scars of their encounters with him. Unfortunately, their experience had not made them kinder to their juniors.

Fortas enjoyed the wealth that law practice had brought him. He and his wife, Caroline Agger, the head of the firm’s tax department, lived in a mansion in upper Georgetown. Famous for her misanthropic toughness, she dressed in subtle pastels and smoked thick cigars. “Our swimming pool has two deep ends,” she said, “so that people aren’t tempted to drop by with their small children for a swim on a hot summer day.” Fortas was a serious amateur violinist who played chamber music with Isaac Stern when Stern was in town for concerts.

The third named partner, Thurman Arnold, had grown up in Wyoming and once served as mayor of Laramie. He later became a professor at Yale Law School and wrote The Folklore of Capitalism, an irreverent and influential book that won him the attention of President Roosevelt, who appointed him head of the antitrust division of the Justice Department and later a court of appeals judge in Washington.² By the time I met him, he was a profane, messy old man, full of salty frontier humor and utter disdain for conventional thinking and habits. He had made peace with capitalism in a way that seemed to have deepened his cynicism.

Neither Porter nor Arnold could see a balloon without sticking a pin in it, usually with wit and enthusiasm. They presided over cocktails in the firm’s garden room every day at six o’clock, telling 30stories about Washington during the New Deal and the ways in which people had been making fools of themselves for decades. They were wonderful storytellers, their tales always drawing from a good-natured belief that people are absurd and greedy and that anybody who does not look out for his own interests is a fool. I once asked Judge Arnold why he had resigned from the court of appeals, where he had a lifetime appointment, to start a law practice. “Simple,” he said, shaking with laughter and sprinkling his vest with cigar ashes. “I’d rather talk to a bunch of damn fools than listen to them.” Shortly after I joined the firm, Fortas was persuaded by Lyndon Johnson to take a seat on the Supreme Court. By all accounts, he had wanted to stay in private practice, at which he was exceedingly successful, and also to take advantage of his intimate ties to the occupant of the White House. Nonetheless, Johnson’s legendary persuasive powers moved Fortas to the Supreme Court. I was still at the firm a few years later, when he resigned from the Court in disgrace because of an inappropriate financial relationship with a former client, a convicted felon with business before the Supreme Court. I wondered if his ethical failure had something to do with the peculiar schizophrenic career he lived as a lawyer—a New Deal liberal and a brilliant legal innovator in his youth who later offered his unique gifts to corporations selling cigarettes.³

I postponed my starting date at the firm to spend a month in Louisiana with the Lawyers Constitutional Defense Committee doing volunteer legal work in support of the civil rights movement. The previous summer was the Mississippi Freedom Summer, when many northerners went south to work in the civil rights movement and three heroic civil rights workers were murdered in rural Mississippi. Though I had not been actively involved in the civil rights 31movement before, I felt that I wanted to be part of it. The risk in going to Louisiana did not seem to be inordinate, and I thought that going as a lawyer might afford me a measure of protection.

In Shreveport, in the tough northern section of the state, I shared a small rental house with two other northern lawyers in the black part of town. We ate our meals in black restaurants, where we were the only white customers. I had never lived in a black world and eaten collard greens before, nor had I ever seen such deep poverty. In virtually every town we came to, I could tell where the black neighborhood began because the streetlights and the street paving ended, giving way to darkness and dusty unpaved roads.

At the time I was there, the Free Southern Theater—an integrated company of actors and improvisers doing political theater to nurture the growing civil rights consciousness among the local black population—was touring Monroe and Jonesboro and the smaller towns in the northern tier of the state. The company was harassed everywhere they went, and much of my time was spent getting them out of rank and dangerous county jails before guards or inmates could beat them up. At a confrontation in Jonesboro, one of the lawyers with me, a soft-spoken man on leave from the Coast Guard judge advocate’s office, was arrested for talking too aggressively to a sheriff’s deputy. We talked him out after a few hours in jail. The jail was overshadowed by the huge paper mill operated in the town by the Crown-Zellerbach Corporation, with a strictly segregated workforce, reserving the high-paying jobs for white workers.

One night I attended a meeting in a rural black church near Monroe, addressed by the charismatic James Farmer, then president of CORE, the Congress of Racial Equality. The audience was made up of local people—shopkeepers, students, and sharecroppers, who were risking their livelihoods and possibly their lives by being there—a few civil rights organizers, and two white lawyers. After hearing Farmer’s resonant voice describe a new world in which 32blacks would be able to vote and to go to integrated schools, we all sang “We Shall Overcome.” It was a powerful moment for me. I believed in the possibility of Farmer’s vision, and I thought we could overcome, and that I was part of the “we” who would make it happen. We walked out the double doors at the back of the sanctuary, shaking hands with the pastor who had offered his church for this meeting, into the moonless night, under a dense canopy of stars. We got into our car, drove slowly past the squad cars pulled off the road by the church driveway with their lights off. All the way back to Shreveport, I kept an eye on the rearview mirror.

I was deeply impressed by the civil rights workers and the local people I met—by their courage, commitment, and optimism. The other lawyers and I believed that the license plates on our rental car were registered with the police and that we had been placed in the category of carpetbaggers, Communists, and outside agitators. If I saw a police car pull in behind us on the highway, I knew that an enemy was following me. For the first time, I was on the wrong side of the law.

Sometimes, brief experiences can assume a large psychological significance. My few weeks in northern Louisiana were a small episode in a long career in law, and I was on the periphery of the civil rights movement that was remaking the country. Yet those few weeks had a disproportionately large impact on the way I thought about myself and the future direction my life should take.

I joined the firm in the fall of 1965, after my life-changing experience in Louisiana. I had a different perspective on the firm and on the compromises I was prepared to make. I had glimpsed another kind of law practice. I didn’t want to let go of the intensity, the exploration of new experiences, and the sense of meaningful 33engagement I had felt during my time in Louisiana. I wanted to see if these feelings could exist in the urbane, self-satisfied, and legalistic world of Dupont Circle. The firm was still a small group of lawyers and a pleasant place to work. From my early days there, I was considered a person with an overactive social conscience, a type often drawn to the firm because of its well-known history.

Some of these young lawyers left after a few years; some made peace with themselves and their work. There were a number of partners who thought that this level of tension was a positive thing, giving the firm its distinctive character, and helping some of the corporate lawyers to feel good about themselves in their profession. There was room for an associate who would push the boundaries, who would be recognized in the bar as a leader in pro bono work. Perhaps I could find a niche here.

Most of the lawyers in the firm were liberal Democrats who spent their days representing large corporations, managing with apparent ease the built-in dissonance between their politics and their careers. It was clear that I was going to have to make some compromises in my life, and this firm might be able to accommodate my needs. I valued the professional prestige and its national leadership in pro bono work. Here was a group of lawyers who apparently had values like mine, and they seemed to enjoy their very lucrative work.

In general, I was assigned to cases that were intellectually interesting and relatively neutral from a moral perspective. I was one of the utility infielders who would be sent into the library to research a novel point of law that arose when one of our corporate clients was trying to buy a competitor. I developed a nodding familiarity with antitrust, banking, food and drug, real estate, and litigation. I was never assigned to work on the ethically toxic matters involving Philip Morris and the Tobacco Institute.

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Like many lawyers, I did this work that I basically didn’t believe in, taking satisfaction in the skillful and responsible way that I executed my assignments. I was thoroughly familiar with the theory: lawyers work in an adversarial process. Judges reach just results if contesting parties represented by skilled advocates present their arguments as forcefully and effectively as they can. The legal system is set up for zealous advocates who need not think too much about the value or merit of any particular position they take. But this justification never fully satisfied me.

My colleagues thought of me as tough-minded, aggressive, and lawyerly. When they came to dinner and met my children, they found something quite different. Susan and I had moved into a small brick house just north of the District of Columbia, with a dogwood tree in the front yard. We had married young and promptly began to have babies—two by the time I came to Arnold & Porter, a third by the year I left. Although neither of us had ever taken care of a baby for even one hour before we brought our first baby home, Susan was a competent, grounded, and loving mother.

I had established the habit of spending time in intense interaction with the children. When we came into the house, adult conversations were interrupted by our children bouncing up and down, shouting, “Daddy! Daddy!” Dropping legal issues immediately, I got down on the floor, entering into their play, with dolls, with building blocks, and simply with imagination. I had the ability to leave the intensity of law work behind instantly and enter into the mind and games of small children.

The double life I led saved me from some of the excesses of the law world. Being a father to small children gave me the experience of unconditional love and a deeper sense of connection to other 35beings than I had ever felt before. It also gave me exposure to the frustration that comes from dealing with irrational beings who are unresponsive to reason.

I did not think about cultivating wisdom at this time. The word wisdom was hardly in my vocabulary. But as I look back, I can see that I was beginning to practice wisdom, instinctively and without a plan, as I found that my family life was calling me into a life of balance, building the resources of the heart as well as the head. It helped blunt my lawyers’ tendency to self-importance and to see the world as fitting neatly into logical frameworks. The time I spent with my children taught me a lesson in the limited effectiveness of logic and rules. I had certainly not planned on having my first child when I was twenty-one years old, but this proved in many ways to be a fortunate accident.

We began as an Eisenhower-era marriage, with a sharp division of responsibility and traditional gender roles—Susan’s life focused in the home, mine outside. We had limited emotional resources to help us negotiate our differences and make peace after angry confrontations. Still, we improvised together and taught ourselves how to be adults, parents, and a married couple. Susan brought greater psychological sophistication into the marriage as she completed a master’s degree in social work and became a psychotherapist. She helped me to constrain my lawyer’s mindset, which would sometimes leech into domestic conversation, bringing rules of evidence and relevance invented for the courtroom into the bedroom.

At law school they had promised to teach us to “think like a lawyer.” I had no idea what that phrase meant since I only knew one way to think: like a lawyer, the way that my father thought— logical, unemotional, doubtful of intuition and passion. My experience as a young husband and father was a milestone in my learning to think like a nonlawyer. My immersion in the joys and responsibilities of parenthood accelerated my enjoyment of the 36

fullness of life. Susan and I developed together the skills we needed to build our marriage and our family. I don’t believe that it was just good luck that we found each other so young, though I sometimes thought so at the time. I believe that we each responded to an inner knowing—deeply reliable but inaccessible to the rational mind— that this was the person we were to spend our lives with.

While I was finding my way in the firm and thinking about the possibility of my making a career there, I was assigned to an antitrust case, representing Allis-Chalmers, a large farm equipment manufacturer in Milwaukee, that has since been devoured by John Deere, an even larger manufacturer. It was a bread-and-butter case for the firm, a prosecution by the government involving a novel legal theory. I welcomed the assignment as a way of getting to see the inside of a major corporation.⁴

Allis-Chalmers had considered going into the lawn-mowing business by designing and building its own line of riding garden tractors, the hefty minitractors that people ride while mowing their suburban lawns. Instead, rather than developing a new product line, the company decided to acquire a successful manufacturer, Simplicity Manufacturing, in a neighboring Wisconsin town. The Justice Department claimed that this decision was anticompetitive, in violation of the antitrust laws, because it removed Allis-Chalmers as a potential competitor with its own product line and reduced the choices available to the consumer. This legal theory was novel and potentially significant in a wide range of industries, but it turned on a simple factual question: Do riding garden tractors compete in the same market as ordinary power lawn mowers, which can be bought in any hardware store? If all power lawn mowers competed in a single market, the market was huge, and any anticompetitive 37effect of A-C’s purchase of Simplicity would be trivial. If, however, riding garden tractors were their own market, then the acquisition would be a significant anticompetitive development in a small market. Our job was to establish that the relevant market was all power lawn-mowing equipment—the $55 walk-behind power mower and the riding garden tractor that sold for several thousand dollars.

I spent weeks traveling around midwestern towns in the dead of winter, talking about lawn mowing to riding garden tractor dealers, lawn mower dealers, and manufacturers. I felt like Willy Loman on the road. Most of the people I spoke with were hostile to government interference in business, so they were naturally sympathetic to our client. I picked a half-dozen potential witnesses who saw the world our way and discarded the rest.

This case taught me how to travel well on an expense account. For the first—and only—time in my life, I flew first class. As we were sitting in the first-class cabin, enjoying a martini on a flight to Milwaukee, one of the partners I was working with told me, “They are lucky to have us working for them, coming to Milwaukee for a client conference when there is a foot of snow on the ground. They have no complaint if we travel first class. We’ll get to know the best restaurants in town. I’m just sorry that we have to eat so much sau-erbraten in Milwaukee. Too bad the place wasn’t settled by the French.”

About this time, the firm established a hiring committee, a symbol of creeping bureaucratization as efficiency-minded managers asserted their influence. It was also a polite way to retire the quirky Vic Kramer from the hiring process. Thinking it would be good for the firm’s image to have a young, public-spirited associate on the 38committee, they chose me. At that point I had never hired anyone for anything, and I started at a rarified point of elite sensibility. My initiation was a discussion on the committee about whether the firm should look beyond the Harvard, Yale, and Columbia law schools to recruit new lawyers. The consensus: Why bother? An exception might be made for someone who was first in the class at another law school. Such a person might have had good reasons for not going to Harvard—such as the need to stay near home to care for a sick mother—and might have excelled if he or she had gone there. In addition, if a partner had business in San Francisco, he might swing by Stanford or Boalt Hall in Berkeley and talk to their best students.

I thought of asking, “Does it trouble anyone on this committee but me that if Paul Porter or Judge Arnold were graduating from law school today, neither one could even get an interview?” But I thought better of it.

During the committee’s meetings I also became familiar with the distinctive humor that I came to identify as “lawyer humor.” For example, when we were talking about a partner who had recently left the firm after a psychological crisis, the chairman said, “His departure did not leave a vacancy.” With regard to another partner who had left Arnold & Porter to join another prominent firm, the chairman remarked, “When he moved over to the other firm, the average IQ of both firms went up.” The jokes were ironic, witty, and cruel. They reminded the people who heard them about the kind of treatment they might expect from their partners when they were not in the room. Although I found them funny and I was good at the form, these jokes left me with an uneasy feeling that I was buying my way into the club at the expense of others and of my own humanity.

I didn’t have the words to express it at the time, but I felt a growing disharmony between the person I was becoming and the norms of the firm—not just the clients that they represented, but the way 39the other lawyers lived, the things that they found funny, their competitiveness, their sense of entitlement. I felt that I could go in that direction, and I didn’t want to.

Susan and I were in New York, staying at the East Side suite that Arnold & Porter maintained for traveling lawyers. It was available for recreational weekends, one of the firm’s ancillary benefits. We called our old friend Fred Reinglas, whom we had met long ago at summer camp in Ontario. He was a small, intense man, the child of actors in Yiddish theater who had survived the Holocaust in Eastern Europe with their young son by traveling east, performing and hiding, always staying one jump ahead of the German army. At the war’s end they moved to Toronto.

Fred’s career in theater had carried him to New York. He spent several years in the mid-sixties as stage manager for the musical Hair—first in the New York production, and then casting touring companies and installing them in theaters around the country.⁵ He was deeply engaged in the drugs and rock ‘n’ roll culture that the play embodied, and he had developed a flamboyant persona that suited his role. Once, he came to dinner in our home in suburban Chevy Chase dressed in dark glasses and a floor-length robe of carpetlike material with long filaments of green and orange wool. Amused by our respectable suburban lifestyle, he took particular pleasure in shocking us and initiating us into ways of life that we could barely imagine.

Fred invited us to an outdoor performance of Hair that would take place in Central Park. He assured us that it would be worth attending. It was easy to find the amphitheater because of the heavy haze of marijuana smoke hanging over it and the sweet smell drifting on the wind. We followed our noses to the performance. 40Although there were many policemen in attendance, the concert-goers were comfortably passing joints around the audience. At first we simply passed the joints by, but after a bit we found ourselves taking a puff as each one reached us. The music seemed to improve as the afternoon wore on, and a feeling of beautiful friendship suffused the crowd. We had never smoked marijuana or had an experience like this before, and we found ourselves slipping into the ease and good humor of the moment.

The loud throbbing music was penetrating and irresistible, totally absorbing us in the rhythm and dance, in the brilliant sunshine and the joyous feeling in Central Park. We allowed ourselves to go with it and be taken over, letting go of our plans and commitments. We found ourselves on our feet, dancing alone, with each other, and with smiling strangers, moving languidly through the crowd, patiently rubbing past the pliant bodies responding to the music.

We left the concert with broad smiles and a freshness of vision that made the busy city vivid and exciting. The dense traffic seemed to be a sophisticated and complex ballet, the reds and greens of stoplights glowing like rubies and emeralds as we sat in the backseat of a taxi on the way to LaGuardia Airport.

It was a far cry from our Chevy Chase home, our two beige station wagons, and the law firm where I worked. We reflected on the self-imposed limits of our lives, acknowledging the subtle but powerful ways that my life as a corporate lawyer was narrowing our vision and isolating us from the cultural currents that were blowing through the country.

The Allis-Chalmers case wound on to a successful conclusion. We were able to marshal a convincing case in federal court in Milwaukee, 41in a long and boring trial, in which my primary responsibility was to keep track of the voluminous exhibits and depositions. We had hired, for a handsome fee, the former dean of the University of Wisconsin Business School, who shared our view of the economics of the lawn-mowing business. His testimony was persuasive to the judge, and he ruled in our favor.

At the celebration dinner, held in a private dining room at the Milwaukee Athletic Club, well-lubricated with alcohol, I found myself feeling empty. Amidst all the gaiety, I confessed to myself that I really hadn’t cared at all whether we won this case or not.

About this time the firm had just finished computerizing the time-record system, so it was easy to find out how many hours I had spent working on our recent victory. I found that I had logged more than two thousand hours, a full year’s work, representing Allis-Chalmers in something that made little difference to anyone.

My real satisfaction and most imaginative work during my years at Arnold & Porter were associated with the pro bono matters that I took on, whether formally approved by the firm or around the edges of my work week. As the opposition to the Vietnam War grew in intensity, I was looking for a way to support the antiwar movement and the young people who were going to jail and risking their futures by resisting the draft and opposing the war. Some friends and I began to discuss ways to strengthen the legal support for people facing the draft and considering draft resistance.

Under the draft law at that time, each local draft board was free to make its own decisions based on its interpretation of the regulations put out by the Selective Service System. This meant that there could be wide variations, for example, in interpreting a phrase like conscientious objector. Some draft boards would only 42grant that status to members of peace churches like the Quakers or Mennonites, whereas other draft boards gave it to people with good-faith moral objections to war, not based on the theology of any church. Some would only recognize an objection to fighting in all wars; others would acknowledge a draftee’s objection to a particular war. The district courts, which reviewed draft board decisions, usually deferred to the boards, and often the opinions of the courts were not published. Prior decisions of draft boards and many courts were unavailable to counselors who were advising potential draftees.

We launched the Selective Service Law Reporter to build a network of draft lawyers who would report to us on their cases. The SSLR gathered draft decisions, indexed them, and organized them in practical categories to make them easily accessible to lawyers and draft counselors. We added commentary that was both scholarly and practical. Twice a month, SSLR sent out an installment to be added to the subscriber’s loose-leaf binder. Over time, lawyers were able to make increasingly sophisticated arguments to draft boards and courts, and a body of precedent emerged to replace the arbitrary decisions of draft boards. The Supreme Court decided important cases, establishing principles that were binding on courts and draft boards throughout the country. People confronting the draft could make informed choices about their risks and choices. Within a few months, we had better information about draft decisions than the Selective Service System itself. We knew we were successful when the Selective Service System ordered ten subscriptions to the SSLR.

Prior to the SSLR, the Selective Service System had existed outside the law. The arbitrary decisions of local draft boards had a radical impact on the lives of potential draftees—who went to Vietnam, who went to jail, who got deferments or exemptions. I got a firsthand look at the power of the SSLR when a friend of mine 43called me about his draft-age brother who had dropped out of college and become part of the music scene in San Francisco. He was prepared to go to jail rather than go to Vietnam. He actually seemed to welcome the idea. I checked out the SSLR and advised him of the process by which he could enroll as a part-time student and obtain a student deferment, encouraging him to reflect on how much more effectively he could oppose the war if he stayed out of jail. After much soul searching, he decided to follow the less dramatic path. Thousands of draft resisters received this kind of advice from lawyers who had consulted the SSLR.

Although this was a major pro bono project, it was not identified with the firm. I was flying below the radar, and no one in the firm ever raised an objection.

I was not so fortunate in regard to the Marc Raskin affair, which developed from my work with the Institute for Policy Studies, the progressive think tank established in the early sixties by Raskin and Dick Barnet, with Arnold & Porter doing the legal work.⁶ As I had searched among the firm’s clients looking for matters that I wanted to work on, I thought the Institute sounded unusually interesting.

I became corporate secretary of the Institute, the person who keeps minutes at board of trustees meetings and attends to corporate filings. It wasn’t the most interesting aspect of the Institute’s work, but it gave me an opportunity to sit in on board meetings and learn how a nonprofit organization operates. At the same time, I was introduced to the foundation world and the possibility of creating new kinds of institutions with foundation support, learning how to build a board of trustees and work with it.

A side benefit of my association with the Institute was the window it offered on movements growing in society. The Institute was 44a magnet drawing these forces into dialogue: the civil rights movement, coping with the tensions inside the movement as “black power” was coming to replace integrationism; the feminist movement, calling for equal treatment of women in the workplace; a deeper rethinking of relationships within the family; the interweaving of the personal with the political; and, of course, the rejection of the brutal war in Vietnam.

These forces were barely visible at Arnold & Porter. Although I read about them in analytic articles in the Washington Post, the seminars at the Institute brought them alive, flowing with energy and passion. And the energy flowed over into wonderful parties that were held at the Institute and at Raskin’s home. The conversation was always challenging, and I met new people who introduced me to a larger world—civil rights organizers from northern Mississippi, diplomats from Algeria, dissident intellectuals like Paul Goodman and Ivan Illich. At one Raskin party after a Pentagon demonstration against the war, Norman Mailer held court in one room and Robert Lowell in another, each surrounded by a circle of beautiful young protesters. Mailer chronicled the party in The Armies of the Night.⁷

I learned at these parties that it was OK to dance. I had grown up thinking that dancing was something that intellectuals didn’t do. But at these parties, after hours of heady conversation, somebody would turn down the lights and turn up the music. Raskin and other people whose minds I respected were getting deeply into the music and dancing into the morning hours, tense debate and harsh judgment dissolving in the intensity of Dionysian rhythm and dance, minds and bodies becoming synchronized, opening new sources of pleasure. The music of Dylan, the Beatles, and the Rolling Stones was a critical part of the changes that were taking place, and the free-form dance increased the joy of it. Susan and I started dancing stiffly and ended up sweating, with a different sense 45of our bodies’ rhythms, and we experienced the joy of singing “I can’t get no satisfaction,” with friends and strangers, along with Mick Jagger. Our emergence as enthusiastic but tentative dancers was a small thing, but in retrospect I see that this lightening up, this grounding in our bodies, was a significant milestone in our moving toward wholeness. I began to see dancing as a metaphor for a certain way of moving through life—gracefully, with pleasure in the moment. Being a parent could be a dance. Practicing law could be a dance.⁸

The Institute became a hub of the antiwar movement, at first intellectually, later as a center for mobilizing action. At one antiwar demonstration, Marc Raskin, although he was well beyond draft age, burned his draft card in a show of solidarity with the young men facing the draft. Some months after this act, in 1968, he was indicted for conspiring with Benjamin Spock, the respected author of books on child rearing; William Sloan Coffin, the chaplain of Yale University; and others to obstruct the draft. The prosecution was a centerpiece in Lyndon Johnson’s strategy to throttle the growing opposition to the Vietnam War.

The day the indictments were handed down I flew with Marc to a preliminary meeting of the accused conspirators and their lawyers. Marc had never met or corresponded with several of them. None of his activity with any of his codefendants went beyond parallel efforts to work for an end to the war, activity that was clearly protected by the First Amendment.

We met the accused conspirators and their lawyers on a snowy evening at Leonard Boudin’s house in Greenwich Village. Leonard, a senior member of the left bar, had been retained to represent Dr. Spock. The defendants agreed that they would fight the charges, both legally and politically. “This trial will give us the forum that we need to indict the illegal war effort and demand the government be held to account. The courtroom will be the center of our defense, 46but it will overflow into the universities, the media, and the streets,” Reverend Coffin said.

I attended the meeting as an informal legal adviser to Marc, assuming that Arnold & Porter would represent him—a longstanding client—through what promised to be an important and exciting trial, and that I would be spending the next several months on the defense team. But I underestimated the firm’s loyalty to Lyndon Johnson and its unwillingness to displease him. Although Judge Arnold had formerly been a trustee of the Institute, he was a fierce defender of the Vietnam War and opposed our representing Raskin in what he characterized as a political trial. There was an intense debate within the firm, with me playing a leading role, and many of the younger partners supporting a commitment to the Raskin defense.

After one meeting, as we were leaving the conference room, Judge Arnold took me by the elbow. “I have an important lesson for you, Halpern,” he said with a laugh that shook loose a shower of cigar ashes. “You can’t piss in the soup—we all have to drink it.” The firm would not risk offending the Johnson administration.

Raskin had become a good friend, and I hated the idea that I would not be able to stand by him. I read about the trial, a catalytic antiwar event, in the newspapers. Raskin was acquitted by the jury. Some of his codefendants were convicted, but all convictions were overturned on appeal.⁹

An interesting idea for a pro bono case grew out of my civil rights work in northern Louisiana. The most frightening town in that area was Jonesboro, a center of racist resistance and CORE organizing. The main employer in the town was a paper mill that had been bought by Crown-Zellerbach, a San Francisco–based corporation 47with a reputation for good works and community responsibility. But it had done nothing to desegregate the plant or integrate the workforce. Blacks were kept in menial and low-paying jobs, and the physical facilities were rigidly segregated. The Civil Rights Act of 1964 made these practices illegal, but the corporation did not want to disrupt its operations and unsettle the local customs by complying with the law.

It occurred to me that stockholders ought to have the right to demand that the corporation in which they owned stock comply with the law. I did some basic research on the legal theory and found that there was a good argument that a stockholder could maintain such an action. When I discussed my theory with Phil Stern, an author, activist, and philanthropist who had deep roots in New Orleans, he was ready to file suit.

I was called into Judge Arnold’s office to meet with the firm’s management committee. Judge Arnold, in a seersucker suit, cigar ashes streaking his shirtfront and vest, greeted me with questions: “I don’t suppose that Crown-Zellerbach is doing anything different from other companies down there, do you? What does Phil Stern want to mess with it for?” After some desultory discussion, the committee turned the case down, and once again I was left frustrated, confronting the limitations on practice in a firm that is devoted to corporate representation.

My experience with the Crown-Zellerbach and Raskin cases reminded me of what I had been told at my job interview: “We are in business to make money; we are not a charitable institution.” I had never been confused about the point, but these incidents reminded me of how large the number of off-limits matters was likely to be. And I didn’t think that a little pro bono work on cases that were inoffensive to the firm’s clients and senior partners was going to be sufficient to reconcile me to a career as a corporate lawyer.

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On the day after Martin Luther King was shot, in 1968, I sat with my radio at the breakfast table, mourning the loss of yet another great leader and listening to news reports of the riots, looting, and violence that were spreading around the country and through the District of Columbia. As I drove down Sixteenth Street to my office, the city was under military occupation, with soldiers in battle gear behind sandbag bunkers at major intersections north of the White House. Sirens wailed and low-flying airplanes buzzed overhead. Clouds of smoke billowed over the Fourteenth Street corridor, which was in flames.

A group of young lawyers at the firm got together early in the morning to go down to the District of Columbia courts to provide legal representation for people who had been picked up during the disorders. With our briefcases we were prepared to thread our way through the armed and divided city to see if we could be of service.

Just as we were leaving the firm, Paul Porter pulled into the U-shaped driveway in his long black Cadillac limousine, with his driver, a smiling African American named Henry Ford, behind the wheel. Paul asked where we were going, and when we told him, he insisted that Henry drive us to the courthouse. So we drove across the city in the Cadillac limousine, with gunshots in the air and the smoke from fires from the downtown area casting a pall over the city. Paul loved the humor of it, and we imagined him retelling the story over martinis at his favorite restaurant, the Palm, a hangout of Washington insiders. We self-consciously got out of the limousine before we reached the courthouse, walking the last few blocks. This odd incident captured for me some of the incongruities of the life I was leading. About this time, the term limousine liberals was developing currency, used to disparage the hypocrisy of people who 49espoused liberal views while riding around in limousines. Its literal application made me squirm.

One warm spring night not long after the limousine incident, I sat with Susan on the screened porch behind our little house in suburban Chevy Chase, watching the moon rise over the schoolyard behind our fence and the blossom-laden apple tree that stood in the corner of our yard. “I don’t want to find myself, after another twenty-five years of law practice, registering another hollow victory, spending my efforts on behalf of a client I don’t give a damn about. I loved handling the Rouse case with the excitement and the sense of public service that went with it.”

That night, as we sat, we sifted through the arguments for and against staying at Arnold & Porter. The firm was attractive in many ways. The people there were pleasant, the financial security was reassuring. It was still a small firm, fewer than fifty lawyers, and it was easy for a junior associate to engage senior partners. There was an appealing level of chaos, which gave me the flexibility to follow my own interests. And they genuinely supported pro bono work, up to a limit. “If he were alive, my father would advise me to stay and try to work things out. ‘These are first-rate lawyers, and they value your work,’ he would say.”

“He’s been dead for a while,” Susan replied. “Who knows how his views would have evolved in this cataclysmic decade? You know he didn’t care about money.” She reminded me that his partner used to complain that he didn’t charge his clients enough, and that he would be so grateful to a client who brought him an interesting legal problem that he felt that the client was doing him a favor. “Your father’s indifference to making money was something I liked about him,” she added.

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I worried about what a lifetime of work in a firm like this would turn me into. I looked around at the senior partners and I did not see anyone I wanted to be like. They lived with the insecurity of having to prove themselves continually in this highly competitive environment, both by turning out a great deal of highly polished work and by attracting corporate clients.

I had no skill at schmoozing with general counsels and chief executives in the clubhouse after a round of golf. I couldn’t imagine bringing new corporate business into the firm. Ultimately, that’s what the firm was all about. Lawyers who lacked that skill, no matter how brilliant, stalled partway up the ladder. The meritocracy that seemed to flourish in the law schools and in the first round of law firm hiring was replaced by a different meritocracy, one that was explicitly attuned to attracting corporate clients.

Susan and I discussed a series of articles in the New Yorker written by Charles Reich, my old Constitutional law professor. He criticized the traditional liberal response to social problems—passing new legislation, creating a new bureaucracy to enforce the law, increasing the size and power of the federal government. He had been moving toward a different, deeper agenda for change, which he spelled out in the New Yorker articles and later in his book The Greening of America.¹⁰ His analysis resonated deeply with me.

Reich contended that a new consciousness was emerging among young people that was going to transform our institutions, creating a new kind of revolution, one based in love, an expression of the authentic self, and an inclusive sense of community. The new consciousness was joyous, communitarian, ecological, compassionate, and spiritually rooted. His analysis seemed like a revelation, holding out a possibility of wholeness. It suggested that the intellect, the body, the emotions, and the spirit might converge.

I reflected on the orderly world I grew up in. Buffalo was a city that had been laid out in a strict geometrical grid by Pierre

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L’Enfant, the Enlightenment architect, who also designed the capital. Our house was large and solid, built of dark brick at the end of the nineteenth century. It crouched like a sphinx, facing a street vaulted by enormous elm trees. My family would sit after dinner on our front porch, a few steps up from the sidewalk, rehearsing our day’s activities, reading the Buffalo Evening News, and conversing with passersby.

“I don’t want to live a life that is too predictable and orderly,” I told Susan. “The lawyers in the firm have settled into lives of respectability and security—private schools, big houses, season tickets for Redskins games. Something new is emerging, and I don’t want to read about it in the newspaper.”