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3
SOCIAL ENTREPRENEUR

IN 1968, I invited a group of friends to discuss the problems with our law work and the failings of the justice system. In evening meetings at my home, we were driven both by our dissatisfactions and a sense of possibility, a feeling that we could be doing better with our lives. This wasn’t what we had become lawyers for. We wanted to work on problems that were socially significant, and we were prepared to make waves. We liked the idea of working as a community of friends, with people we cared about. We were in a position to take risks, since our work in prestigious legal institutions provided us a substantial safety net. We were inspired by other people who were taking bigger risks—in the resistance to the war and in the civil rights movement.

In unstructured and wide-ranging conversations, we talked about the social turmoil and the people who were challenging the sluggishness of institutions and the performance of leaders. Student takeovers closed down university campuses; urban ghettoes were in flames. The 1968 Democratic Convention became a landmark of urban disorder and police violence against young people. The assassinations of the Kennedy brothers and Martin Luther King made the search for new forms to reinvigorate democratic processes urgent. The Weathermen and the Black Panthers engaged in 54violence in a misguided effort to end racism and oppression. People were making big bets with their lives. They were burning draft cards and they were burning their bridges—moving to Canada to avoid going to fight in a war they condemned, going to jail, or dropping out into the worlds of spiritual quest, drugs, or rock music. People who had been on career and achievement tracks their whole lives were suddenly being derailed.

We explored the ways that a group of activist lawyers could contribute to the movement for social justice. We discussed the corporate domination of governmental decisions through the effective advocacy of Washington lawyers. We discussed the Arnold & Porter representation of Phillip Morris, how successfully the firm defeated effective regulation of the tobacco industry and muzzled government efforts to get the truth out about smoking and health.

From cataloguing our frustrations with law practice and chafing against the inadequate performance of courts and lawyers in difficult times, we moved slowly on to thinking that maybe we could do something about this. We started with the seminal work of Thurgood Marshall and the NAACP Legal Defense Fund, using federal litigation through three decades to expose the evil of racial segregation, and step by step, dismantling the structures of segregated institutions.

I had been encouraged by my experience with the Selective Service Law Reporter. “And look at Ralph Nader’s work,” I said. “He’s been incredibly successful in his one-man crusade for new legislation on automobile safety, with nothing but his courage, hard work, and imagination.” In 1968, the country was in the middle of an enormous release of energy for the creation of new institutions and the radical challenge of old ones. Change was in the air, making conversations like ours possible. The time was ripe.

As we sat in my living room on beanbag chairs, around a fire on a wintry evening, the outline of a project gradually emerged. I suggested 55that we put together a foundation proposal. I had had a little experience with foundations, so I knew that they were in the strange business of giving money away, and a few of them were interested in social change. We would set up a nonprofit organization to handle cases representing unrepresented interests in Washington, dealing with big policy issues—the environment, consumer rights, corporate responsibility, the rights of mental patients. “We can be an Arnold & Porter for the other side, as sophisticated and skillful as they are. It will be a significant experiment, and if we are successful, we could shift the dynamics of courts and law practice,” I said.

My suggestion set off a long, sometimes contentious discussion. We were all good lawyers, so we led with our criticisms and caveats, putting out objections and then trying to work through them and around them. We were going to be challenging basic corporate interests, which was going to make foundations uncomfortable. In addition, foundations were notoriously fickle; they might support us for three years and then go on to whatever next caught their fancy. One participant, who was already committed to a more radical course of action, argued that our proposal was going to strengthen lawyers too much, and not strengthen the movement.

“This is an experiment,” I said. “If we run this thing for three years, that’s great. Who knows where it’s going to lead? This is a chance for us to make a contribution to the public interest, to work together on big issues, to get out of the rigid hierarchies that we’re trapped in, and do something creative and exciting.”

We took environmental law as an example. The environmental movement was growing. Yet, although there was inchoate interest in environmental law, nobody was practicing in the field regularly and systematically—building a body of case law, developing experience, working with grassroots groups, getting to know the government decision makers, proposing new laws, training the next generation of activist lawyers.

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We also discussed including an educational component, offering internships, and tying in some law schools. We agreed that this strategy would let us tap into the rebellious energy that was rocking university campuses, give us more person-power to increase the number of cases we could handle, and take advantage of the institutional prestige of the law schools so we would look more connected and grounded. If the people at the Ford Foundation asked why they should fund a group of thirty-year-olds to take on this project, we could respond that we were supported by these law schools that were entrusting their students to us. We could begin to build a public interest bar, and we could give those students a head start on a different way of thinking about their law career, one in better alignment with their values.

I thought about my own legal education and the impact that this kind of Washington internship would have had on my career. My classmates at Yale were an ambitious and talented group, with more than our share of valedictorians and returning Rhodes scholars.

Despite the Law School’s reputation for being relatively humane and relaxed, in my first semester my civil procedure teacher, James William Moore, undertook to make sure that we did not fall into sentimental patterns of thought. A short, round man from Montana who smoked fat cigars and wore large silver belt buckles, he prided himself on his tough, frontier manner. During our first meeting he drawled, “In this class I want to you to get up on your hind legs and make sounds like lawyers.” One unfortunate student said that he felt sympathy for a plaintiff who had waited too long to file a lawsuit and lost his right of action. Moore banged on the desk and barked, “I don’t care how you feel about the case, just tell me what the judge’s ruling and reasoning was. Your feelings are irrelevant.” 57The fate of the litigants—what actually happened to the particular person who filed the case—was of no interest. The court’s ruling was the only significant thing—the legal principles relied on the substance and the logic of the judge’s decision.

We were learning the language and the tough demeanor of lawyer discourse. Our vocabulary became skewed. Being tough-minded, hard-nosed, and thick-skinned were virtues; there was little talk of altruism or kindness. During a contract negotiation, for example, our job as lawyers was to imagine all the negative outcomes that might possibly happen and draft contract language that would protect our clients’ interests in the event of fraud or chicanery by the other contracting parties. The law presented a Darwinian world, and the possibility that people would act out of selfless or generous motives was considered highly unlikely. I found it alarmingly easy to slip into this mindset—suspicious, lawyerly, aggressive.

Although this was the talk in the classroom, the conversation in the corridors was often about the burgeoning civil rights movement and the courage of the movement activists. We talked about the heroic roles played by lawyers for the NAACP and CORE. We talked about the new poverty law offices that were offering free legal services to poor people. I admired those members of the faculty who were actively involved in the civil rights movement and the defense of civil liberties—Charles Black, Louis Pollak, Tom Emerson.

The Law School was a paradox. While it supported a culture of activism and engagement, the reality was that it was training extremely smart lawyers to assume their places in corporate law firms. We quickly got used to seeing law firm recruiters on campus. I could always tell which of our classmates had interviews, because they would be wearing conservative suits—and the few women would be in business dresses or suits—on those days. It was flattering to have senior corporate lawyers courting us and dangling substantial salaries. Richard Nixon, between his terms as vice president 58and president, visited the Law School to recruit students for his Wall Street firm. With such solicitous attention and no obvious alternatives, it is not surprising that most of the students, who had never held more than a summer job, ended up in corporate firms.

After a long evening of discussion, I agreed to take the first crack at drafting a memorandum that would describe the organization we were setting up. I put together a half-dozen pages, proposing that we establish a nonprofit, tax-exempt organization with connections to leading law schools, supported by foundations, and directed by a board of trustees made up of activists and leaders of the bar.

We were talking about something genuinely new. Some elements of our program existed in other places—the NAACP Legal Defense Fund, the ACLU, the Legal Services program. But this combination of skills, goals, funding, and organizational structure had no precedent. A few months after we began, journalists began to refer to us as a public interest law firm, and the name persisted, eventually stretching to encompass a public interest law movement.

We agreed that we wanted to have environmental law in the mix, because there was so much stirring on the environmental front. Rachel Carson’s Silent Spring had been published in 1964, with its radical indictment of what modern technology was doing to the planet.¹ The book received much attention, but it had not generated a shift in policy or practice. We thought we could do something to translate Carson’s critique and the growing environmental awareness into court cases and to make it impossible for government bureaucrats to ignore her findings.

I circulated the draft to the others in the group, and in our next meeting we worked it over and moved toward a viable foundation proposal.

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Then came a big step: we had to determine who among us was actually prepared to commit to the project, to attach our résumés to the proposal. I canvassed the people who had moved in and out of our group. It quickly became clear that most of them had enjoyed the conversations and wished the new venture well but didn’t want to make a commitment. It was too risky, something else had turned up, or they had never planned to make the venture a full-time job.

I was surprised and disappointed. I probably would have dropped the whole thing if I had been the only survivor. But Bruce Terris, a veteran of the Solicitor General’s Office, where he had argued many cases before the Supreme Court, was looking for something new, and he stepped forward. With his shy laugh, he said, “Well, I guess it’s just you and me. I say we give it a try.”

Bruce and I felt that four lawyers made a critical mass—to maintain a credible educational program and to permit some collective sharing of diverse experience and talents. We needed to bring two more lawyers into the project, one of them with environmental expertise. Our search led us to Jim Moorman, toiling in an obscure corner of the Lands Division of the Justice Department, the closest he could come, at that time, to being an environmental lawyer since there were no environmental law firms or law-oriented advocacy groups.

Moorman got excited, even evangelical, when he talked about protecting wetlands and safeguarding public lands from exploiters. We described the job and discussed salary in a hypothetical way. “You mean that you would pay me to do the work that I dream of? You are talking about the best law job in the country. Where do I sign up?” he asked.

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Geoffrey Cowan, a graduate of Yale Law School who had been an activist in the civil rights movement and an innovating force in Democratic reform politics, filled the fourth spot. He had experience on Capitol Hill and an impressive Rolodex. He was full of enthusiasm, positive energy, and creative ideas for developing a practice in communications law.

The two agreed to join us in developing the new institution, and we added their résumés to ours in the appendix at the back of our proposal. Yet none of us made a firm commitment. It was always contingent—if we could bring everything together, then we would do it. I was certainly not prepared to leave my day job until we had made some substantial progress. Still, we were prepared to risk a large and public failure, because the payoff in public benefit could be tremendous.

Many tasks lay ahead of us, and they were mutually interdependent and had to be accomplished simultaneously, a problem common to many start-ups. All of the pieces had to be brought together at the same time: We couldn’t recruit trustees if the project wasn’t going to happen. We couldn’t get commitments from law schools unless there was a real entity with educational credibility and money in hand. And we couldn’t raise money without trustees, staff, and law school endorsement.

We pursued all these elements and components at the same time, trying to put together enough interest and contingent commitments to provide momentum. But we were in our twenties and early thirties, relatively young as age is measured in the law world, where forty-year-old partners often carry briefcases for their seniors when they go into combat. None of us were proven wizards in the courtroom or in organizing new institutions.

We did, however, have a number of assets that we were able to draw on. Our enthusiasm and persuasive powers were good starting points. We believed in this unformed organization enough that we 61were prepared to leave the security of traditional jobs. Still, we recognized that we didn’t have the gravitas, by ourselves, to persuade a foundation to put real money into such a novel and untried enterprise. I was convinced that after four years of law practice, at age twenty-nine, I was ready to launch a unique enterprise that was using law in new ways, but I knew that others might not see it that way.

Our first step was to think of a name for the venture, and stop referring to it as “our new project.” We could name it after ourselves, like a law firm—but we wanted to create something new. We were not just a law firm. We were doing a different kind of law, creating a new community, with students, secretaries, and lawyers working together for the larger good. One afternoon, we sat in a bar on Connecticut Avenue and tossed around possible names. In the background the new video game, Pong, was emitting electronic beeps and blips that mimicked a ping-pong match.

“How about naming it with some evocative words that have no particular content?” I suggested. “Like a music group—the Jefferson Airplane, the Rolling Stones, the Grateful Dead. Or corporations that called themselves Citgo or Motorola. Why be limited to words in the dictionary, by ordinary meanings and syntax? Green-ingLawClub, Advocus, Public-Interested, Publius Central, Pop-ulegal, Newlaw, Voxpopuli. We’re building for a new era, aren’t we?”

“Too far from the mainstream, too alienating to people whose support we need,” Bruce said. “It has to sound serious and weighty. Better to err on the side of pomposity than frivolity. Better to choose a forgettable name than one that would offend the dean of the Yale Law School.”

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Institute, Center, Forum, Fund, Council, League. Public Affairs, Social Justice, Equality and Freedom, Law and a New Consciousness, Law in the Public Interest. Finally, we agreed on the Center for Law and Social Policy. A center sounded like it would house a number of functions, and maintain a variety of connections. Law and social policy—we were going to retain our identity as lawyers, and do lawyers’ work, but always paying attention to social policy— what the legal issues would mean for people whose lives would be affected. And CLASP was a pleasing acronym, one that implied connection, holding things together, at a time when things were falling apart.

CLASP needed a board of trustees to lend the operation weight and reassure the foundations and law schools that we really were an institution to be trusted and taken seriously, not just a group of radical young lawyers frustrated by limited career opportunities, with a vague desire to do good. We would be dealing with serious institutions with eminent boards of trustees accustomed to dealing with institutions that were similar to them. They would want assurance that a grantee, especially one that was receiving a big, multiyear grant, was going to be around for a while, would do the things it said it would do, and would not use such poor judgment that it would get itself and its funders into trouble. Furthermore, when we started filing lawsuits that would infuriate corporations and politicians, we would need some trustees with credibility to stand up for us.

We had never assembled a board of trustees, so we had to feel our way. It is not easy to persuade busy people to join the board of an organization that does not exist. Part of the job was to make CLASP seem substantial, to appear to be something that important people would want to support. Our connections certainly helped, and we 63had good people to vouch for us. This was something that we deeply believed in, so our enthusiasm for the project carried people along. Drawing on our advocacy skills, we could make a credible argument that we were likely to succeed in pulling it together, and we got better at it with experience.

We decided to focus our effort on identifying the board chair. If we had the right chair, the rest of the board would fall into place. We quickly agreed that our ideal candidate was Arthur Goldberg, who had been general counsel to the AFL-CIO, President Kennedy’s secretary of labor, a Supreme Court justice, and ambassador to the United Nations. Bruce knew him from his days in the Solicitor General’s Office, when he was arguing before the Supreme Court and Justice Goldberg was a member of the Court. Goldberg was accustomed to working with younger people and supporting their judgments. He had worked with staff and signed letters written by someone else without grumbling over commas. We were reasonably confident that he would support the kinds of cases we were planning on bringing. But he had no particular reason to agree to serve as chairman when we approached him. In fact, he had little to gain, having just resigned from his position as ambassador to the United Nations and entered private law practice. His association with us was not likely to attract fee-paying clients.

We were excited when he agreed to see us. “This is big,” I said to Bruce. “You argued before the Supreme Court all the time, but I’ve never even been in the same room with one of the justices.”

Justice Goldberg met with us in the United Nations ambassador’s luxurious suite at the Pierre Hotel in New York, with its crystal chandelier and gilded Louis XIV furniture covered in silk brocade. When we entered the suite, I knew that I was approaching a Presence. Dressed in an elegant double-breasted blue suit, his leonine head of white hair carefully combed and glowing, he was obviously at ease in these grand surroundings.

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When we described the project, he listened carefully and asked probing questions, rather like a Supreme Court justice interrogating lawyers from the bench. He was unsure about the law schools’ willingness to take the gamble. And he had a labor lawyer’s doubts about the foundations. “They’re awfully close to the corporate elites,” he said. After almost an hour of conversation, he paused. We sat, anxiously awaiting his verdict. Then he said, “If there is a board to chair, I will be happy to chair it. Let me know what I can do to help make it happen.”

Bruce and I left the Pierre grinning. We stopped in front of the hotel for a moment of celebration at this remarkable turn of events. “Justice Goldberg’s name certainly brightens up our letterhead,” I said. I felt undiluted joy as we stood on the East Side sidewalk. There had been something quixotic about our effort up to this point, and I had held the possibility that I would yet have to give up this dream and continue my career in private practice. But now it seemed that our plan was within reach.

I was in my office at Arnold & Porter, giving desultory attention to the firm’s business, and trying to juggle the start-up tasks of our new venture, when I received an unsolicited call from Derek Bok, dean of the Harvard Law School and later the president of Harvard. He had never called me before; in fact, no law school dean had ever called me. “Mr. Halpern,” he said. “I hear that you are planning to open a new kind of legal center that will have an educational component.”

“Well, we are trying, Dean Bok,” I said, attempting to sound assured but modest. “Justice Goldberg has agreed to serve as our board chair.”

“Give Arthur my best.”

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“I’ll be happy to.”

“I understand that you want to be the Arnold & Porter for nonprofit advocacy groups. And you want to teach law students to do that kind of law. It would be a good thing if you can pull it off. It would increase the ability of courts to do justice, and channel grievances off the streets and into the judicial system. Some student radicals don’t believe the courts can do anything right. I would like to invite you to describe your project to some of our more receptive faculty members.”

We had not even considered approaching Harvard with our idea. We thought it was hopeless. Bok assured me that it was not. “A long shot, perhaps, but not hopeless,” he said. At that point, like many law school deans, he seemed to be concerned with the radical rebellion erupting on the campus, and he wanted to make it clear that he was sympathetic to innovative educational ventures and to the use of law as a tool for social change.

Bok offered to convene a dinner meeting at Harvard’s Faculty Club, where Bruce and I would present the proposal to some senior faculty members. I had been an undergraduate at Harvard, and I knew the Faculty Club—a modest yellow clapboard building on the edge of the campus. I had seen my professors shuffling in and out for lunch. I never thought that I would be invited in—not only invited in, but asked to make a presentation to the dukes and barons of the Harvard Law School! I brought some of the awed feelings of an uncertain freshman into the Faculty Club with me.

When I arrived at Harvard in 1957 to begin my undergraduate studies, I found the place intimidating. The first night, my roommate Barney Frank and I went to dinner at the Freshman Union, and took our seats at a long, polished table beneath large chandeliers.

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Barney launched into a conversation about his favorite subject, politics. As we talked, I was both impressed and appalled by the depth of his knowledge. I knew that Congress had two houses, but I had no idea what the structure of committees in the two houses was. He explained, patiently and a little ostentatiously, the significance of the seniority system and what the power of the southern senators meant for public policy. He seemed to understand these institutions as well as if he had been a congressman for a decade. “I know the names of all the senators and three-quarters of the representatives,” he told me. He was willing to prove it, but I asked him not to bother. He had a well-defined, defensible political point of view, which he has continued to hone as a congressman from Massachusetts. I was embarrassed that I had none.

The basic Harvard system rested on large lecture courses with hundreds of people in the classroom and graduate assistants who made the only direct contact with the individual student. I chose a major—American History and Literature—which was familiar and broad enough to encompass both politics and culture. Arthur Schlesinger’s American Intellectual History course was a core element in the major. Three days a week, dressed in his tweed sport coat and bow tie, he would enter the long narrow classroom seating three hundred students. He would clip a microphone to the front of his shirt, unzip his leather folder, and begin to read through his prepared lecture in a self-assured voice, its authority only slightly undercut by an Elmer Fudd lisp. His brilliant presentation of the intellectual history of the country was reassuring and consonant with the world-view I had learned at home. Progressive values were moving ahead, with occasional temporary setbacks. Fringe ideas would come forward for a moment but then recede in the face of centrist common sense. At the end of fifty minutes, precisely, he would finish with the Transcendentalists, the Harlem Renaissance, or the transitory influence of Gurdjieff, zip up his leather folder, and leave.

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The day arrived for our meeting with the Harvard faculty. Sipping sherry in a room full of musty Victorian furniture and worn Oriental carpets, Bruce and I found the cocktail conversation unsettling. The Harvard Crimson had that day run an “exposé” of the existence of the Choate Club, a secret society at the Law School whose members included faculty and students, all male, of course. Membership in the club was by invitation. It met for an elaborate formal dinner once a month—brandy and cigars, eminent guests, and heady discussion. The Crimson story also reported the outrage of the Law School students who had been excluded and kept in the dark about this club.

My immediate reaction was to sympathize with those who had been excluded; I had no doubt that I would have been a nonmem-ber. If I had discovered that my roommate had made up a monthly lie to explain his tuxedoed exit and his whiskeyed return to our student room, and that he was, in fact, sharing evenings with the exalted professors who held such power over our future lives, I would have been furious.

Most of our dinner companions were members of the club. They presented the story to demonstrate how utterly paranoid law students had become, so much so that they were upset about the innocent Choate Club, a venerable Law School institution. “It’s not as if we invite only the brightest students to join,” said one professor, who was a member. “We just look for the most interesting.”

After listening to the discussions, I glanced over at Bruce, who had been a Harvard law student and a nonmember. We exchanged a look that confirmed my feeling that this dinner was not likely to produce our first law school affiliation. If these guys couldn’t see any problem with this gathering between the “most interesting” law students and their professors, they were unlikely to be drawn to our 68novel venture that was committed to making waves—disrupting comfortable ways of doing business in order to demand attention for people who had been excluded.

I had a sudden disquieting insight—we were, despite our high-minded objectives and egalitarian rhetoric, drinking sherry at the Harvard Faculty Club, relying on our tenuous but real connections to the old-boy network. We were using all of our elite connections to pull together this new antiestablishment institution. If we weren’t part of the network—albeit adjunct, probationary members—we could not have gotten this far. I began to acknowledge the paradoxes that framed our activities. We could push the edges, but we could not put ourselves outside the consensus of professional legitimacy. I was not about to jeopardize the goodwill in the room in order to tell them what I thought of the Choate Club. If I was going to bring this public interest law firm to life, I would have to live with carefully calibrated compromises and forego many opportunities to “speak truth to power.” As I look back on that evening, I see that the recognition of this tension and my decision to live with it, without resolution, was a step in my growing awareness of what it meant to cultivate wisdom. It meant taking in the situation with clarity of vision, and remaining flexible enough to live with contradiction and adapt to emerging needs.

After the sherry hour, we had a conversation about our new project over lukewarm chicken and peas. We explained our plans: an opportunity for two or three of their students to spend a semester in Washington, litigating important cases, with close supervision. There was a good deal of sympathy and interest, but no hint of willingness to take so radical a step—to release a Harvard student for a full semester to a program outside the Law School. “Have you thought about undertaking the program in Cambridge for fewer credits?” Al Sacks, the associate dean, asked. “Try it here as an experiment. Maybe after you have had a couple of years of 69experience under your belt, we could take a look at a program in Washington.”

Even though they felt that a semester in Washington for a few students was too radical a step for Harvard, these elders of the Law School seemed genuinely encouraging and supportive, and Bok gave us permission to list his name in our proposal as someone we had consulted, who supported the plan. After a glass of brandy and some secondary cigar smoke, Bruce and I bid them a cordial farewell.

As we left the club, Abe Chayes, a senior faculty member who had been chief legal adviser to the State Department during the Cuban missile crisis, joined us and said, “I’m glad that this meeting wasn’t open to students. We would be in a hell of a lot of trouble.”

We laughed about the idea of moving our venture to Cambridge, where it could be more closely watched by the Harvard faculty. “The whole point of it is that it has to be in Washington, D.C.,” he said. “Starting the program in Cambridge would be like establishing an oceanographic institute in Omaha.” Then we ran into Barney Frank, whom I was meeting for a drink. Barney was then a member of the state legislature and a second-year law student. When Abe saw Barney coming over to greet us, he said, “Oh, God, how are you going to describe this meeting to Barney? Are we going to look like a bunch of Neanderthals!”

In retelling the story to Barney, I played it for laughs—the secret club, the air thick with self-satisfaction, the proposal that we operate our program in Cambridge.

“What did you expect?” he asked. “When I applied to Law School, they told me that they didn’t permit part-time students. I was already in the legislature at the time, and I thought I was too young to retire. They were actually going to reject my application. I threatened to sue, and they finally backed down. It’s my business how I spend my time outside classes, so long as I keep up my grades.”

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He continued, “I have had a few problems. I’ve dozed off in class a couple times, and for an instant, wasn’t sure where I was. But I’ve learned to pause and look around. If I’m surrounded by people with zits, I know I’m in Law School; if I see liver spots, it’s the legislature. The Law School continues to run on nineteenth-century ideas. I think they aren’t ready for CLASP.”

“Still, they invited us to come here,” I said, “and gave us a respectful hearing. I never imagined that Harvard Law School would take our project that seriously.”

We were looking for foundation support to permit us to begin, enough money to open our doors and give it a try. Foundations, which have existed in this country since the early twentieth century, are pools of money established by rich people to be distributed to groups that are certified by the Internal Revenue Service to be fit subjects of philanthropy—educational, charitable, or scientific.

Since we had decided to rely on foundations to float our new venture, I tried to educate myself about the foundation world. Based on my limited experience, I knew that the great majority of foundations were small, locally focused, and supportive of establishment institutions. They gave a lot of money to the colleges attended by the donor and his family and to local museums and hospitals, and they avoided the controversial questions that we were interested in—corporate responsibility, the rights of poor people, and environmental protection. Since their philanthropy was an accurate reflection of the comfortable social status of the donors and trustees, they were not likely sponsors of our new venture.

Most of the larger, national foundations were equally unpromising. They had a tendency to support research and scholarship, and they made big grants to big, stable institutions. They were unlikely 71to be interested in funding advocacy, sharpening social contention, or disrupting the status quo.

That left us with a small number of foundations that had a progressive social change agenda and a willingness to deal with politically charged issues, even if there was some potential for embarrassment of the foundation’s trustees at the country club. I had had firsthand experience with the support of such foundations for controversial new undertakings, so I knew that there was hope. The New World Foundation and the Stern Family Fund supported the Institute for Policy Studies, the Selective Service Law Reporter, and civil rights organizations. We found them receptive to our proposal, but they had small pots of money.

Among the big foundations, Ford was outstanding in its concern for social change and willingness to support innovation. It had made some early grants to provide legal services for poor people and for legal education reform. It was a critical foundation for our purposes; it had compatible interests and a large grants budget. I had hoped that they would greet us with enthusiasm and present us with a large check. Instead, we received a one-paragraph rejection letter from a Ford bureaucrat, notifying us that we were “not in an area of the Foundation’s program interests.” He would not even meet with us.

This was a demoralizing blow. It brought me to a point where I was almost ready to abandon the whole undertaking. I didn’t see where the money would come from if Ford wouldn’t give us anything. And the momentum of our project felt fragile. Maybe the Harvard faculty was right that we were trying to move too fast.

But I believed deeply in the program, and I didn’t want to give it up because one foundation bureaucrat didn’t get it. I was meeting interesting people, learning more about the world, and having fun. The Johnson-Humphrey administration, weighted down by the Vietnam War, had been turned out of office, and Richard Nixon was taking over, making our work seem more important than ever. 72So we pressed ahead, looking for other foundations and vowing to come back the next year—not just with a proposal, but with concrete accomplishments: a board of trustees, an education program in place, and some important courtroom victories.

As we had hoped, Justice Goldberg helped us in recruiting other board members. Because they would receive an invitation from Justice Goldberg, not from us, we let ourselves aim high. Former members of the Kennedy and Johnson cabinets, Attorney General Ramsey Clark and Secretary of the Interior Stuart Udall, joined the board. The letter from Justice Goldberg opened the door, and we effectively presented the case for the Center. Udall was particularly drawn to our plans to launch an environmental program. “I’ve seen it from the inside,” he said. “If we are going to protect the nation’s resources, someone has got to start butting heads with the corporations that are poisoning the water and clear-cutting the forests.”

At first, I was surprised that I could get such people on the telephone and even more amazed at how readily they agreed to serve on the board. I soon realized, though, that the recent change in administration meant there were a significant number of formerly powerful people around who no longer commanded large bureaucracies and who found that their phones didn’t ring as often as they would have liked.

It was an example of what I began to think of as “the ex-great-man syndrome.” People who serve in the president’s cabinet often have trouble returning to the ordinary world—no chauffeured limousine, no corps of assistants and secretaries, no fawning reporters. This was a sobering and important lesson, and it made me rethink my life objectives. Becoming a cabinet member seemed much less desirable when I saw that it led inevitably to becoming an ex-cabinet member.

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One reason we found it easy to recruit lawyers to join our board was that we were doing something that many lawyers felt was needed. The reputation of the legal profession was tarnished, and the imbalance in representation led to results skewed toward corporate interests. Public interest law firms might be a way to restore some balance, to show the disaffected that the system really was concerned with fairness and balanced advocacy. It was a response to the “never-trust-anyone-over-thirty” radicals who wanted to burn the courthouses down and start over. The system had its own self-correcting mechanisms. CLASP was evidence that it was possible to work within the system.

After Ramsey Clark joined the board, he suggested we invite retired Chief Justice Earl Warren. Chief Justice Warren no longer heard cases, so there would be no conflict-of-interest problem. Clark addressed a “Dear Chief letter to him at his office at the Supreme Court, explaining the proposal to him and inviting him to join the board. We received no answer for several weeks, and we were about to resend the letter when we received a response turning down “our kind invitation,” from the new chief justice—Warren Burger. It seems that our invitation had been delivered to the wrong office by the Supreme Court mailroom, and Chief Justice Burger had not read the address carefully. “It could have been worse,” Clark said with his dry Texas drawl. “He might have accepted.” (We sent another letter to Chief Justice Warren, who praised the concept but said that he lacked the time.)

Of course, the eminent board substantially enhanced our credibility, but it also subtly affected our behavior. We did not want board members resigning in protest over a shoddy brief, an ill-considered lawsuit, or a flamboyant press release. The board reinforced my tendency to act in a lawyerly, respectable way.

I defined myself primarily as a lawyer, not a political actor. I wrote and spoke in lawyer-speak—cool, rational, dispassionate, avoiding 74arguments that rested only on my own instincts, convictions, and values. My writing avoided poetic expression and appeals to the emotions, making it a little gray and dull. Any claims we made to protect the environment were couched in public policy terms—no appeals to the glory of wilderness, the duty of stewardship, or the ecstasy of canoeing down a rushing mountain stream in spring.

The nature of our board membership also contributed to a subtle shift in the way we saw our venture. We had undertaken the project as an experiment. We were tentative in our claims of where it was leading or whether it would work. When important people began lending their prestige and reputation to help it succeed, we started to take ourselves more seriously.

Despite our discouraging debut at Harvard, we proceeded with the five law schools we had targeted—Yale, Michigan, Pennsylvania, Stanford, and UCLA. We chose schools inside the elite circle because we believed they would give the biggest boost to the CLASP reputation and were also likely to send us capable, well-trained students who could work effectively on our cases. We also chose schools where we had friends on the faculty who could open doors and vouch for us to their colleagues. Perhaps most important was Tony Amsterdam, a brilliant intellectual leader of the civil rights litigation efforts of the sixties, who was then in transit from the Penn to the Stanford faculty. He prepared a memorandum to both faculties, analyzing our concept and setting out the benefits to students. It was persuasive at both places.

At most of the schools we were invited to make a presentation to a faculty meeting. This was my first exposure to such meetings, and I did not find them places I would voluntarily choose to spend time. The atmosphere was heavy, freighted with a sense of institutional 75self-importance. We brought enthusiasm, energy, and urgency into our description of CLASP, grounded in our deep belief in the importance of the project. Most of the questions and comments we received were skeptical, cautious, and guarded.

“You want us to send students to CLASP for one semester. Which sixth of our curriculum do you suggest that we drop?” asked a crusty senior professor at Michigan.

“You have already adopted an elective program after the first year,” I said, “so you have decided that a graduate need not take any particular courses.”

“How will you assure sufficient uniformity of experience for the students who participate? How can you evaluate their work?” We answered their concerns as well as we could, though we were handicapped by our lack of experience in teaching and by the novelty of the enterprise.

We did well enough—in part because we tapped in to an underlying feeling of goodwill discernible among most members of these faculties. Even those who doubted that we would succeed seemed to hope that we would. They seemed to think that the existence of CLASP would be good for the legal profession and good for legal education. They knew that many law students were demoralized by the limited opportunities for public service careers.

By the fall of 1969, the five law schools had committed to send us their students for a semester’s credit—if we were successful in opening our doors. It was an extraordinary achievement, obtaining commitments from these conservative institutions, especially because no law school had ever given a full semester’s credit for clinical work, on or off campus. Moreover, CLASP had no track record and none of us had ever been a law teacher. A full semester’s credit for work in a nonexistent institution, from the point of view of the law school, was a large commitment, and the fact that five major law schools were willing to entrust us with their students 76lent us respectability and the appearance of solidity. In retrospect, the success of our clinical program helped pave the way for the wide variety of clinical programs that have blossomed in the law schools in the intervening years, substantially enriching legal education.

These law schools may ultimately have been influenced by considerations that we hadn’t even thought of. They liked the idea of being seen as educational innovators. And the program presented them with a chance to get some real troublemakers—activists who were at that time making life miserable for faculty and administrators—out of town for six months. Later, when we told the dean of the University of Michigan Law School the name of a student we had selected to come to Washington in 1970, he said, “Make sure that he brings his Vietcong flag with him.” He was, of course, making a battle-weary observation about a problem that we had naïvely underestimated: we were going to attract many students who didn’t like traditional law study or law practice, and who, indeed, didn’t much care for authority at all.

Abe Goldstein, then dean at Yale Law School, referred to this period as the Dark Ages. Student critics were loudly raising issues of race, complicity in the Vietnam War effort, and corporate domination of the law and the law schools. It would be challenging to try to deal with such students at CLASP, to define ground rules and decisional processes. I was, after all, a person who didn’t much like authority myself. I had been inclined to challenge authority my whole life, and I had little experience or enthusiasm for exercising it. So leading an institution with a mission of confronting authority was certain to be an important learning experience and a source of internal and external tension.

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Having pulled together trustees and affiliated law schools, we were in a position to make a more credible approach to the foundations. I had had some early successes with two activist foundations, after persuading them that we were not too cautious, lawyerly, and elitist for them, and that we could really be effective in promoting social change.

But we could not begin the student program with so little money. At the eleventh hour, the Rockefeller Brothers Fund gave us a grant of $75,000, permitting us to accept students beginning in January 1970. The grant, which gave us enough money to run for four months, affirmed that it was not only the left fringe of the foundation world that would support a venture like ours. But it created some tension for us, because this money would not quite carry us through to the end of the semester and we would be assuming litigation obligations that would last much longer.

After we had raised $100,000 in foundation grants, I arranged a meeting with Paul Porter to discuss CLASP. We met late in the day, with the afternoon sun slanting through the large windows of his opulent office. He offered me a drink from his private supply, and we sipped bourbon on the rocks while discussing the new project and my future. I liked Paul and I think he liked me. He might have seen in me a shadow of Ben Cohen or some other idealistic Jewish kid who was around Washington in the thirties, during the early days of the New Deal. He seemed to like young idealists, but also thought they were funny.

I had decided to ask for a leave of absence from the firm, rather than resign outright. I thought that we would know within a year whether we were going to be able to sustain this new venture or not. The leave of absence was an insurance policy. If the whole 78thing collapsed, I could return to the firm and not disrupt my life totally. Paul happily agreed to my taking a leave. He seemed to think that this was reassuring evidence that I had not gone completely mad.

I asked him about the experience that he, Thurman Arnold, and Abe Fortas had had when they were setting up their own firm. I imagined at that point the energetic young man he must have been in the 1930s, when he was appointed by Roosevelt to be the first chairman of the new Federal Communications Commission. As he spoke about their establishing the firm in the late forties, I could sense some of the excitement and energy that must have animated their venture—three New Deal veterans setting up a high-energy law firm in the staid world of Washington law practice. It was the firm that would carry forward New Deal ideology into the postwar era. I felt a sense of connection with that new firm. I also wondered at what point along the way Paul’s last vestige of idealism had sunk below the waves of cynicism.

I believed that we could create a mirror-image law firm, representing people who couldn’t afford to pay for Arnold & Porter advocacy. As it developed, CLASP was far from a mirror image of Arnold & Porter.

I didn’t foresee how moving out of the legal establishment would open up new possibilities for community, institutional forms, and creative advocacy. More important, I didn’t realize that my new professional direction would create the opportunity and necessity for personal growth in every dimension of my life. At the time I felt this was simply a career move, but it proved to be much more than that. In retrospect, I see that I was taking charge of my life, abandoning the linear path of academic success and professional ambition. At some risk, I was aligning my work with my values, assuming leadership in a complex situation in which difficult choices would be a regular part of my work, in a world that was in flux and where 79few rules stood unchallenged. There were no maps to guide me through the legal issues, the institutional innovations, or the personal, psychological complexities.

As Paul and I rattled the ice in our bourbon glasses, I told him, “I’m reasonably confident that the country is on a progressive trajectory and that we can help to move it. I’m gambling that the country is moving in the direction of a deeper commitment to shared well-being.”

Paul looked at me for a minute. Then he said, “I hope you’re right. My crystal ball has grown cloudy, and I don’t try to make predictions. But good luck with it.” He took a long drag on his cigarette and added, in his husky rasp, “Go ahead and pursue truth, beauty, and justice. You may fail like everybody else. Just make sure you don’t look too ridiculous in the process.”