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4
CREATIVITY IN THE COURTROOM

WE BEGAN on a sweaty August day in 1969, in a row house on Swann Street, a street well-known for its high crime rate. Geoff Cowan had rented the house from friends of his who were in Paris on assignment for the Washington Post. “I have the whole house to myself,” he said, “and I only need one bedroom.”

Oddly, I worried about legalism, not about crime. “We are running an office in a place zoned for residential use. That’s a hell of a way to start a new public interest law firm.”

“You think too much like a lawyer. No one gives a damn about the zoning,” Geoff said. “The District of Columbia government doesn’t have it together to arrest the heroin dealers selling on the corner of our block in the middle of the afternoon. They certainly don’t have the resources or the interest to come after us for violating the zoning laws. If you are going to worry, you should worry more about getting mugged after a long evening working on a brief.”

I let go of my legalistic scruples, and we moved in. We paid no rent—which is what we could afford. Geoff assured us that his landlord wouldn’t care about the use we were putting his house to. “He’ll be proud of it,” Geoff said. We took over the house, except Geoff’s bedroom, and put our Xerox machine on the kitchen table.

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The place had the secondhand look and casual maintenance that was characteristic of the activist, nonprofit organizations we expected to represent—different from the interior-designer offices of the corporate firms or establishment charities.

We also decided that we did not want to dress like conventional lawyers. We would wear khakis or jeans with bell-bottoms and save our conservative ties and pin-striped suits for court appearances. It may seem a small matter, but our clothes helped establish our identity. And rewriting the rules in small ways made it easier to think about rewriting them in larger ways—about the roles of the courts, about the way lawyers use the press, about the legitimacy of unconventional advocacy strategy, about the definition of a successful legal career.

The dress question made me conscious of the shifts I was making from my old identity and of the compromises that I was now compelled to negotiate. I was living between two worlds, with a suit hanging on the back of my office door to put on if I had a court appearance or an unexpected visit from a foundation officer. My effectiveness lay, in part, in my ability to change clothes at the right times, keeping alert and flexible, sensitive to subtle signals in the environment. As I traveled the distance from our laid-back office on Swann Street to the federal courthouse, I could feel my face falling into the earnest, purposive mask of the young professional. I was developing the skills of a tightrope walker.

In the months after we began CLASP, we had a wonderful sense of possibility. In our makeshift offices, sitting on worn-out furniture, we played with ideas for novel lawsuits and hypothetical clients. We talked over articles from the newspapers, reviewing outrageous situations that seemed to have no remedies—the takeover of the 83media by giant corporations, the failure of the Nixon administration to carry on Lyndon Johnson’s War on Poverty. We discussed the power of corporations to shape the agenda of government. We spun out legal theories that could permit us to intervene in these massive problems, demanding that federal agencies exercise their rarely used powers to protect the public good. We made contact with nonprofit groups that might be able to use our legal advocacy.

Nothing seemed impossible. We had been in jobs where our choices were severely restricted. I had felt it sharply at Arnold & Porter, where my time was accounted for in six-minute segments. I thought of a conversation I had had with Dick Sobol in New Orleans a year earlier. He had left Arnold & Porter to work in the civil rights movement in Louisiana, and we talked about my plans for leaving the firm and starting CLASP.

“You’ll never know how good it is until you try it. You don’t even know that you aren’t free, that you aren’t your own person, until you get out of there. Then you can see—feel, really—what it means to be free. It’s not just that you’re free from time slips and assignments to cases you don’t care about. You can launch any new project you want to, without anyone looking over your shoulder. You have been in harness, pulling someone else’s wagon most of your life—first as a student, then as a lawyer. Now you can try it on your own.”

Dick was right. When we started the Center, I had an exhilarating sense of freedom. We had the opportunity to invent a new institution—its goals and governance, its internal role definitions, and its place in the legal world. We had the opportunity to identify social and legal problems and do something about them. We could choose our issues and cases, and carry them as far as our imagination, ability, and courage could go—with only the courts and the clients to shape our efforts.

In the mental health field, that meant trying to think about the next steps beyond the Rouse case, developing ways to promote the 84interests of mentally impaired people, who were unorganized and held in disdain. In the environment field, Richard Nixon signed the National Environmental Policy Act into law in January 1970, just as we were beginning our work. NEPA could support a powerful new way of engaging the courts in protection of the environment or it could become a dead letter, setting forth high-sounding principles with no impact on the way government or corporations did business. We might be able to participate in the process of giving meaning to the words of the statute, helping to turn it into an effective environmental charter.

We were taking the idea of entrepreneurship into new arenas. An entrepreneur traditionally had been identified as a person driven by a desire to get rich. We were social entrepreneurs, driven by a different set of values—a desire to make political and economic institutions work more fairly, to protect the environment, to encourage democratic participation, to build community.

Then I realized that I had a close precedent, in my own family, to support the entrepreneurial direction I was taking. My father had succeeded as an entrepreneur of the self—moving from the narrow horizons of his immigrant family into the highest reaches of a learned profession that was not hospitable to Jews of immigrant stock. He had created a new identity that would have been unrecognizable to his father, who had delivered laundry with a pushcart— a new self, comfortable and effective as a judge, a professor, and a dean. It was entrepreneurship of a high order, and his inspiring success buoyed up my confidence and supported my effort. It also reminded me of the high-risk subtext of my venture. I was not only creating a new kind of legal institution; I was becoming an entrepreneur of my self. I could already see some of the shifts beginning— my ambition shifting away from material success, a greater openness to the new culture, development of my leadership capacity. And I was open to further changes in the person that I was becoming.

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As an entrepreneur I discovered that I had a number of relevant skills. I could pick up and synthesize ideas and give them institutional form. I was willing to take risks, trust my intuition, and put myself on the line. My enthusiasm and confidence drew other people to these projects, attracting able people to work with me. And I had enough resilience and confidence to bounce back—and learn—from setbacks.

The payoff for my entrepreneurship was, of course, negative from the financial point of view. At the outset I sacrificed about 15 percent of my annual compensation when I moved from Arnold & Porter to become director of CLASP for a salary of $25,000. But this was enough money for my family to live on in our modest suburban house, and we didn’t worry about the future. The nonfinancial payoffs turned out to be much more significant: a sense of meaning in my work and the satisfaction of working with friends, people who shared my values. CLASP gave me the opportunity to cultivate latent capacities—leadership, imagination, and institutional innovation. It was both a framework for striking a balance between my work and family life and a vehicle for participating more fully in the deep cultural and social changes of the times.

The first group of a dozen CLASP students arrived at our new office on Hillyer Place during a cold, slushy January, a particularly distasteful surprise for the students from UCLA. It was the end of the first year of Nixon’s presidency and the war in Vietnam was escalating. The Weathermen had gone underground to “bring the war home” with their bomb attacks.

The students came from law schools that were at the elite edge of legal education—well-established, comfortably set up, and 86predictable. They had moved successfully through the orderly hierarchy of academia, taught by tenured professors, watched over by deans, meeting ever more challenging academic hurdles. We welcomed them to a different world. We had not worked out the rules about how we would learn and live together, and the content of their studies was only beginning to emerge from the cases that the lawyers were taking on. We invited them to participate in the cocreation of an institution and a curriculum with us. This level of openness and improvisation was foreign to their educational experience. The more progressive law schools were beginning to offer a few credit hours for clinical work supervised by academic faculty, within the ivy-covered walls. These adventurous spirits who came to CLASP were gambling a sixth of their legal education on an untried experiment with a group of lawyers who had never taught even one hour in a law school.

Since we had more applicants than we could take, we had to adopt criteria for selection. In particular, we had to decide how to weigh outstanding academic performance in law school against proven commitment to public interest work. With the dust of Arnold & Porter still on my cuffs, I favored a heavy reliance on academic success, which at that time I erroneously identified as the best predictor of successful performance in our odd setting and in public interest law. “Twenty years from now,” Geoff asked, “will you want to point to CLASP alumni who are leaders in the environmental movement and are leading antismoking campaigns—or to senior partners in Wall Street firms? They have all been admitted to incredibly selective law schools. That should be good enough for us. We are looking for qualities of heart and mind that the big law firms and the law schools don’t value.” I backed down, startled at the reflexive way that I had fallen back on the conditioning I had assimilated in my years at Harvard and Yale, capped by my experience on the Arnold & Porter hiring committee.

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The students we selected were an interesting mix—diverse in age, race, and politics (from center to left). They brought with them the powerful forces flowing through the universities at that time—the early manifestations of feminism, the struggle against racial injustice, rage about the Vietnam War, and an enthusiasm for experimentation with the texture of their lives, known by the shorthand—sex, drugs, and rock ‘n’ roll.

We wanted to develop relationships that were unlike the rigid hierarchies of the law firms and law schools. Our roles were fluid collaborations—students and lawyers bound together by common purpose. We were trying to interact as whole people, not just valuing the parts of ourselves that made us the quick, clever students who stood out in the stylized dialogue of the law school classroom. We adopted many of the nonhierarchical trappings that were being tried out in various institutions in the late sixties. Lawyers and students dressed alike, adopted an irreverent work style, called each other by first names, spent a lot of nonwork time together.

Nonetheless, despite our intentions, we were an institution with its own peculiar hierarchy. We lawyers, after all, would have to evaluate and certify the students’ work to the law schools at which they were enrolled. We were being paid a salary while they were paying tuition. We signed the pleadings and briefs and presented the oral arguments. When there was conflict between getting the brief filed on time and carefully dealing with the sensibilities of a student who had done the first draft, we usually put efficiency ahead of kindness and participation.

I learned, with the students, about the limits on the ways in which we could imagine and create a new kind of legal and educational process. I learned that some kinds of hierarchy are extremely hard to dislodge, and that some stubborn realities of institutional life don’t change significantly, no matter how worthy its goals. I discovered, to my surprise, that there were some aspects of hierarchy 88that I was prepared to defend, that I thought were essential to effective operations. Questions of hierarchy and authority were always up for debate—often confrontive, always irreverent. One of our students came from Michigan with a rubber stamp that read BULLSHIT. He applied it frequently to my memoranda posted on the bulletin board.

Our educational endeavor took concrete form every Monday afternoon at four o’clock when the lawyers and students squeezed into our library/conference room for our weekly seminar. We had promised the law schools that we would offer this recognizably academic event each week, to give the students an opportunity for intellectual review and reflection on their work at CLASP. In fact, our most exciting seminars were about the experiment itself—the shape of the organization, the decision whether to file a particular lawsuit, the discussion of possible legal strategies and complementary public relations efforts. A different lawyer led each seminar, and all lawyers participated in all of them. The seminar became an occasion for teaching students, for working out our own ideas, and for understanding the meaning of the new kind of law that we were pioneering.

I led the first seminar during the week of the students’ arrival. Before I began to speak, I looked around the room with satisfaction and excitement. The walls were lined with secondhand law books—treatises on administrative law and civil practice, and long series of tan volumes reporting federal court decisions going back to the beginnings of the Republic. It was a real, functioning law library. We were all here, lawyers and students mixed together around scarred tables, sitting on unmatched chairs. Five leading law schools had certified the educational value of our unique enterprise, 89and now it was time to deliver. The students had already begun work on their assigned cases.

I wanted to invite the students into this historic moment, to introduce them to the concept of CLASP and to the idea of public interest law, then turn to a specific issue—possible ways to follow up on the Rouse case. “CLASP is a new kind of institution in the legal world. We want to give the adversary process a chance to be more effective,” I said. “Think about this as an experiment to test whether the courts might work more effectively if a broader range of stakeholders were given a day in court—if environmental advocates had the same right to seek judicial review as the corporations that are being regulated, if mental patients could get courts to review the nature of their confinement.”

Kenny, a student from Michigan, who had indeed brought his Vietcong flag, sat slouching in his chair at the corner of the table, pulling on his scruffy beard. He interrupted before I had finished the sentence. “Isn’t that a little naïve?” he said. “Corporations have the biggest and best legal teams in the country. They control the media, they control the political process, and they control the courts. I can tell you for sure that the auto companies run the show in Michigan. Nobody gives a damn what happens to people in mental hospitals, and they certainly don’t want to pay more taxes to treat them. I look around this place and it seems a little unlikely— grandiose, in fact—to think that our efforts, four lawyers and a dozen students working in a crummy office, are going to balance things out.”

“Look, this is an experiment,” I said, a defensive undertone creeping into my voice. “No one says that we are going to be as effective on behalf of the Wilderness Society as Arnold & Porter is on behalf of the Tobacco Institute. Some people think the legal system is hopelessly corrupt and has to be worked around, then uprooted. Others simply work within the framework of old institutions, 90accepting the inevitability of the existing structures and doctrines. We’re trying to explore the territory between them. We won’t know for a number of years if our gamble pays off, whether a different kind of law practice can be invented that will significantly unsettle established ways of doing business. Until then, I think that it is too early to give up on the courts and the legal system.”

Kenny didn’t back down. “I don’t see it. My friends who are opposed to the war are going to jail or to Canada. My classmates are lining up like sheep for interviews with pig law firms. And I don’t see much hope.”

“Well, I don’t suppose you would have come here if you were totally hopeless. So let’s see what we can launch in the few months before you have to head back to Ann Arbor. I’m not usually the one defending the old order, and I don’t like it.”

I told the group that we saw ourselves as a part of the new thing, the extraordinary wave of creativity in response to the crises that were challenging American institutions. An impressive number of nonprofit advocacy groups began in this fruitful period—the Children’s Defense Fund, Common Cause, the Natural Resources Defense Council, the Puerto Rican Legal Defense and Education Fund, the Environmental Defense Fund.¹ All these organizations grew during this fecund period, supported by a few foundations that thought that law could be used to build a more just society.

My answer seemed to satisfy Kenny for the moment, although I knew that the issues he raised could not be resolved definitively. I wondered if we really were naïve, and foolishly optimistic, to think that our small efforts could make a difference. If I reframed his challenges and stripped them of their angry impatience, I would have to acknowledge them, live with them, and reconsider them as our experience and understanding grew deeper.

The pace and the crackling energy didn’t slow down for the next two hours. By the end of the seminar we had canvassed the limits 91and possibilities of CLASP and developed two post-Rouse ideas to explore: the treatment of mentally ill juveniles in detention facilities and the right of children with mental retardation to a public education. In the course of the next two years, we were involved in lawsuits on both issues.²

A few months after our first students arrived, in the spring of 1970, Jim Moorman received a call from David Brower, the former president of the Sierra Club, then the founder of a new group, Friends of the Earth. Jim knew Brower from his Sierra Club work. I knew of Brower—heir to John Muir and Aldo Leopold, the great pioneers of the environmental movement—from John McPhee’s book Encounters with the Archdruid.³ Brower had the presence and conviction of an Old Testament prophet. He had fought fiercely against many of the great dam-building projects, which had threatened to flood magnificent river valleys and obliterate riparian landscapes. He had won some and lost some. The Grand Canyon is still available for awestruck exploration because of one of his most hard-fought and successful campaigns.

The fact that Brower called Moorman was a success in itself. It meant that Brower acknowledged that litigation could be an important new tool in the environmental advocate’s arsenal, and that CLASP was the place to go. “I want to come see you at the earliest possible date,” Brower said. “Nixon’s Secretary of the Interior is about to issue a permit for the largest construction project since the Great Wall of China. It will be an environmental disaster of immense importance, and no one gives a damn.”

“Well, I think we can arrange a meeting,” Moorman said, looking over an appointment book that contained little besides staff meetings, seminars, and his wife’s birthday. 92

To our surprise, Brower suggested that we meet at “his club”— the Cosmos Club, a bastion of Washington’s elite, housed in a magnificent mansion on Massachusetts Avenue at the lower end of Embassy Row. None of us had ever been inside the club, which was best known at that time for its exclusionary admissions policy. President Kennedy had forced the club to break the color line; the current issue was its refusal to accept women members.

As we arrived at the Cosmos Club, we laughed about the incongruity of meeting the archdruid to plot a radical environmental challenge in the neoclassical embodiment of establishment Washington. We were stopped at the entrance by a liveried black doorman who told us that we would have to enter through the side door. We were surprised but polite. “Why?” I asked. He pointed to Barbara Williams, a black law student from UCLA, who was participating in the meeting.

“It’s her,” he said. We were astonished. Were we being sent to the “colored” entrance? “Women aren’t allowed in the front door,” he explained.

Barbara stepped forward, and with her face a few inches from his, said, “I’ve been treated like a nigger too many times. I’m going to come in the front door.” The doorman stepped out of the way.

When we entered the inner sanctum and joined Brower and some of his senior lieutenants, we recounted the story of our confrontation at the front door and suggested that future meetings should be at our office. He agreed, but it was clear that he was less distressed by this incident than we were. He was anxious to turn the conversation to the Alaskan wilderness. He had no time for small talk, and the policies of his club regarding women and blacks apparently fell in that category. Sitting in the cozy bar of this exclusive club, Brower looked too big for his chair, as if his energy might explode and break the delicate glasses lined up behind the bar. I thought that he would be more comfortable pacing across the tundra 93 of central Alaska in a snowstorm with a heavy pack on his back, discussing this environmental disaster over a chewy piece of dried seal blubber.

“A consortium of oil companies—Mobil, Exxon, Shell—calling itself Alyeska wants to build a pipeline across Alaska,” he said, “from the shores of the Arctic Ocean south to the Port of Valdez on the Gulf of Alaska—eight hundred miles in all, parallel to a new road which in itself would open the last American wilderness to reckless development. They are about to start. The pipe sections are stacked along the route, and they are awaiting only a permit to begin construction. There has never been the slightest public discussion.”

We knew nothing of the project. It had been negotiated between the oil companies and the Interior Department, without public participation or information. The negotiation had been particularly smooth and cordial because the Secretary of Interior, Wally Hickel, had been the governor of Alaska, where he had earned a reputation as a friend of developers with little concern for protecting the unique natural resources of Alaska. It was a big state, he believed, and one more pipeline wouldn’t do much damage.

Brower wanted to make sure that we understood the enormity of the issues. “An impenetrable barrier cutting across the migration routes of the largest caribou herds in the Arctic. Hundreds of thousands of animals in jeopardy, unable to move from winter to summer pastures. The pipeline route crosses the third most active earthquake zone on earth. The permafrost tundra is so fragile that a single footprint can leave a scar that will take decades to cover over. The southern terminal in Valdez sits squarely on the earthquake fault, and the oil will be loaded into tankers to be hauled across the treacherous Gulf of Alaska, pocked by immense floating islands of ice. Oil spills along the pipeline route and in the Gulf are inevitable. An oil spill spreading and oozing across the tundra could blight the landscape for centuries.”

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Brower painted an impressive picture of environmental apocalypse, but I had no way of knowing how reliable his information was or how serious the risks were. It seemed amazing to me that the oil companies would proceed so recklessly in undertaking this massive project without carefully assessing the risks and taking all prudent safeguards against major environmental harms. Surely they didn’t want to have starving caribou banging their antlers against the sides of the impassable pipeline.

We thanked Brower for bringing this matter to us, and told him we would get back to him. We left by the front door of the club and went back to CLASP, sitting down together in my office without turning on the lights, our faces deeply shadowed by the harsh fluorescent streetlights outside. The students waited expectantly, the tension palpable.

“I’m ready to sign up and start drafting the complaint tomorrow,” Jim said.

“Jim,” I responded, with lawyerly caution, “we only have enough money to run for six months. This case could go on for years. And we don’t have the information or the expertise to assess the environmental risks. Brower is a great man, but he isn’t exactly an objective expert or a neutral observer. He is a persuasive salesman and a true believer. If you will excuse the expression, he could sell a refrigerator to an Eskimo.” In my mind I ran through the nightmare scenarios— our case dismissed with a stinging rebuke from the judge, our apologetic efforts to explain our failure to the foundations, our vain efforts to persuade new funders to invest in an appeal, losing our law school connections when deans were called on the carpet by angry alumni.

Jim’s face darkened. “If we don’t take this case on, there is no point in starting CLASP. We may as well close our doors.”

“If we do take this case,” I said, “we are betting the store on this one roll of the dice. And we don’t know yet if the legal arguments are plausible.”

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For the next few hours, sitting in the semidarkness, we worked through legal and practical arguments. Would we sue the oil companies or the Secretary of the Interior? Should we invite other environmental groups to join? What about the interests of the native tribes in the area? We shared our strong, conflicting emotions— anger with the Interior Department, despair about the recklessness of the oil companies, elation about Brower’s coming to us, and fear about our ability to deliver.

Finally, we agreed that we would have to look at the case more closely, research the law, solicit the opinions of people familiar with the factual and legal issues, and consult with Justice Goldberg. And we would do it quickly. A few days later, we called Brower and offered our services to file suit against the Secretary of the Interior. “Let’s go for it,” Brower said, as if we were about to scale another Rocky Mountain peak from an angle that had never been tried before. And with that we were counsel to Friends of the Earth, looking for other environmental groups to join a consortium of plaintiffs. If we were going to take on the largest oil companies in the world and the Nixon administration, we were going to need all the allies we could find.

Clearly, this was not merely a lawsuit, legal arguments to be presented in a courtroom. We could see ahead: before the end of our lawsuit we would be enmeshed in a political battle and a struggle for public opinion with global ramifications. In addition to law, we would need solid science, media savvy, and political muscle.

Our first move was to seek a temporary restraining order and preliminary injunction against the Secretary of the Interior, prohibiting him from issuing the final permits that would allow Alyeska, the consortium of pipeline companies, to begin laying the pipeline. The initial hearing focused on the likelihood that we would prevail on the merits after the case was fully argued. There would only be legal arguments and sworn affidavits, no live witnesses and cross-examination. It was the kind of case that courts like to avoid. The 96bulldozers were in place and ready to start scraping aside the surface of the tundra. The pipeline sections, fabricated especially for this project, were stacked by the right-of-way, beginning to rust. Alyeska had intervened in the lawsuit on the side of the secretary, and their lawyers would participate in the argument. We prepared our court papers, stressing the high stakes involved and the irreparable injury that would be done to the Alaskan wilderness if the court did not take immediate action.

On the day of the hearing, Jim and I arrived at the federal courthouse half an hour before the scheduled argument.⁴ Working our way through the crowd of lawyers milling around in the corridor, we entered the courtroom with a combination of dread and excitement. Neither Jim nor I had had experience in high-stakes litigation. I hadn’t been in a district court since the Rouse case. The courtroom galleries were packed with corporate lawyers and oil company lobbyists in dark pin-striped suits. “We are the two lowest-paid lawyers in this courtroom, except for the judge’s clerks,” I whispered to Jim. “Maybe we can get all these lawyers to contribute 10 percent of their billings on this case to CLASP. By filing this lawsuit, we are buying a lot of lawyers second homes.”

“Let’s focus on our argument,” Jim said.

Our clients and students stood out in the crowd, people who were not acculturated to the buttoned-up look of lawyers, whose necks were chafed by tight collars and neckties, showing excitement on their faces rather than a look of studied nonchalance. They carried their papers in backpacks, not shiny leather briefcases. We greeted our clients and wished each other good luck. I shook hands with a couple of Arnold & Porter partners, many years my senior, and then Jim and I moved through a low gate to the counsel table.

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As we spread out our papers, I reflected on the fiercely combative process that lay below the civil surface of the courtroom. Jim was an uncompromising advocate, and I was confident that he would present our case with force and conviction. Still, I nervously reviewed the magnitude of the challenge and my doubts about taking this case when Dave Brower described it. I had been carried along by Jim’s enthusiasm. But we were challenging some of the most powerful corporations in the world, and they had not undertaken this project without a green light from their high-priced lawyers. As Jim stood to present our case, I thought, if we blow it, our promising experiment is likely to be prematurely terminated. Then, I refocused my attention on the argument.

Jim argued that the Interior Department had failed to follow NEPA, which required that any federal action having major environmental impact must be preceded by a careful analysis of environmental consequences.⁵ Yet the Environmental Impact Statement for the massive pipeline project was cursory and superficial. Since the law was so new, no one knew whether the courts would insist on a serious, substantive review process with public participation, or whether a pro forma nod to the environmental issues would be held to be enough. We were also aware that a district judge would be reluctant to go too far out on a limb in reliance on a new law when such huge economic interests were at stake.

Jim set out our second legal theory, less dramatic and eye-catching, yet more reassuring to a conventional judge. A little-known statute, the Mineral Leasing Act of 1926, limited the width of pipeline rights-of-way across public lands to twenty-five feet plus the width of the pipeline. The Secretary of the Interior was about to issue a permit for a much wider right-of-way. This was an easy way for the judge to rule in our favor without having to break new legal ground.

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As Jim began his argument, with all those lawyers staring at his back and wishing him ill, the judge was obviously troubled by the right-of-way issue, by Interior’s seeming disregard for a clear congressional instruction. When the Alyeska lawyer’s turn to argue arrived, the judge focused his questions on the width limitations in the statute, and emphasized the clarity of the statutory language.

We held our breath for the next several days, listening with one ear for a telephone call from the judge’s clerk telling us that the order had been entered and that we could come down to the courthouse to pick up a copy. When the call came, we learned that the judge had ruled in our favor because of the width limitation in the Mineral Leasing Act. We had done it! While we didn’t get the broad interpretation of NEPA and the resounding endorsement of environmental values that we had hoped for, we had won a signal environmental victory, saving America’s last great wilderness from likely destruction. We had protected the rare ecosystem, the animals and plants, the way of life of the Native American inhabitants, and stopped irresponsible corporate exploitation.

Moreover, the Alyeska decision helped lay the foundation for a new stage in the environmental movement. Our success in the courtroom gave advocacy groups a seat at the table in a broad range of environmental decisions. The Interior Department and the oil companies could no longer treat environmentalists as a bunch of impotent do-gooders. Environmental issues had to be taken seriously. We had done it through the legal process, by the force of our arguments, in the face of a phalanx of the highest-powered corporate lawyers in Washington and the immense political and financial power of the big oil companies. I reveled in the pure joy of our achievement.

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We had also put the Center for Law and Social Policy on the map. The novel idea of a public interest law firm, which had seemed theoretical and ungrounded, became understandable and important. Aided by the element of surprise, we had made it impossible for the oil companies and their friends at Interior to do business in the same old way, with private deals disposing of public assets behind closed doors.

We had taken a big risk in bringing this suit, and it had paid off. I felt gratitude that I had followed Jim’s lead in accepting the challenge. I could see a pattern of lawyerly caution in my responses, conditioned by my father and reinforced by my legal education. Identifying the pattern was the first step in overcoming it. My anxieties about the viability of our program dissipated, and I looked forward to continuing to build CLASP. I felt that I could relax a little, since I did not have to explain our project with theoretical arguments. I had dramatic results that I could to point to. We never made an official determination that the experimental phase was over and that the merit of the program had been established, but we began to think and act as if we thought so.

The next weekend we threw a party to celebrate. We cleared the tables and chairs out of our library, brought in a stereo system, and invited environmental activists and public interest lawyers from the Washington community to join us. There was an overwhelming spirit of new beginnings in the room. This was solid evidence that the Nixon regime was not stopping all progress, that corporate power could not despoil the last wilderness, that some victories would be possible. In the low light, the Grateful Dead and Bob Dylan reverberated through our law library. The CLASP students and staff, excellent dancers, let loose that night. At close to 100midnight, Ralph Nader came across Q Street from his office where he had been drafting his next week’s congressional testimony. “Congratulations on the pipeline case,” he said, and then added with dry disapproval, “I see you’re having a party”

“Yes,” I said, a little embarrassed, as if I had been caught slacking my duty on a battlefield by a superior officer. “It’s Saturday night, and I think we should celebrate victories when we have them, since they don’t come along so often. Come in and have a beer.” Ralph seemed lonely as he stood at the edge of the party. I felt fortunate that I had more balance in my life and that I had the impulse to celebrate success when it came along. “No, thanks,” he said. “I have to get back to work.” He buttoned his shapeless tan raincoat and headed back to his office.

We enjoyed a striking series of victories in the early years of the seventies.

After the district court decision, we successfully defended our victory in the court of appeals,⁶ then participated in the long administrative proceedings in the Interior Department while the oil companies did what they should have done in the first place— candidly assess the enormous impact that the pipeline would have and carefully design it so as to minimize damage to the ecological system. They designed crossings for migratory caribou to get past the pipeline. They adapted construction techniques to minimize the damage to the permafrost, the permanently frozen groundwa-ter in the tundra. Most important, they added frequent cutoff valves, so the damage would be minimized if the pipeline ruptured. We engaged in the dialogue with the Interior Department and the oil companies, critiquing their proposals and pushing for maximum environmental protection. In the course of the process, they 101designed a much more responsible project, a pipeline that didn’t have environmental disaster built into its design.

In parallel with the pipeline case, we took on another high-risk case. We successfully represented the Environmental Defense Fund in a suit to require the ban of DDT, translating the work of Rachel Carson into legal argument. For the first time a citizen group obtained a federal court order to compel the government to take action against a major environmental pollutant. The Court of Appeals for the District of Columbia Circuit required the federal government to institute a proceeding on DDT that ultimately led to the ban of all domestic uses of DDT, a ban that saved a number of species that had been on the edge of extinction.⁷

We also established the Project on Corporate Responsibility to develop nonjudicial strategies for challenging corporate indifference to the environment, to the interests of consumers, and to the interests of minorities. Under the name Campaign GM, we ran a slate of candidates for the board of directors of General Motors, to highlight the shortcomings of GM’s performance in these three areas.⁸ We nominated René Dubos, the environmentalist, to dramatize the company’s poor environmental performance; Channing Phillips, a civil rights leader in Washington, to highlight their failures to address racial issues effectively; and Betty Furness, the consumer advocate, to focus on their opposition to product designs that would protect consumers from injury. We invited universities, churches, foundations, and other socially engaged investors to support our candidates in order to demonstrate to GM their concern about the performance of the company in these critical areas.

After months of highly visible debate, in which GM’s clumsy efforts to exclude our candidates from the ballot gave them greater exposure, one of our students engaged the CEO of GM at the annual meeting in debate about GM’s failure, over the lifetime of the corporation, to place even one person of color or woman on its 102board. Our candidates made a respectable showing, and because of our efforts, the next year GM elected Leon Sullivan, the first African American to join its board of directors. Sullivan used his position to assume leadership on corporate responsibility, including the promulgation of the Sullivan Principles, influential guidelines for American corporations doing business in apartheid South Africa.⁹

Our technique of mobilizing the voting power of socially responsible investors became the foundation of shareholder activism for social causes, from the antiapartheid struggle to opposition to environmental irresponsibility.

We took the Rouse theory and participated in a class action in Alabama, Wyatt v. Stickney, challenging the adequacy of treatment of mentally ill and retarded people in all of the state’s residential facilities. We succeeded in establishing a constitutional right to treatment and obtained a detailed order from the court stating what would have to be done to bring the state’s oppressive facilities up to constitutionally acceptable standards.¹⁰ The Wyatt litigation had a massive impact on facilities in that state over the course of three decades, and also led to major reforms in other states.

In the course of the Wyatt case, we uncovered a number of important issues that highlighted the tension between medical autonomy and the rights of patients. For example, we obtained an order to stop scientific experiments on mentally retarded patients who were subjected to procedures that put them at risk with no hope of therapeutic benefit, and to prohibit the practice of involuntary sterilization. The Wyatt decision reverberated throughout the country, leading us to establish an affiliated public interest law firm, the Mental Health Law Project, to follow up on these important issues, including situations when scientists and doctors pursued their own agendas at the expense of mentally impaired patients.

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In the early seventies, it seemed that we were on the edge of a new era, with fresh energy flowing through the legal process, with adequate representation for people who had not previously had an opportunity to participate in government decisions. Public interest law was at the heart of these developments. Lawyers would have a real choice—to join a corporate law firm and make a big salary or to join a public interest law firm and earn a lower salary with less security, but do work that they believed in.

As CLASP registered some important victories, Victor Kramer, the man who had hired me at Arnold & Porter, called me for lunch at the Palm—decorated with affectionate caricatures of elite inside-the-Beltway lawyers, a kind of Lobbyist Hall of Fame. It was a wonderfully incongruous place to hold a subversive conversation.

“I am almost sixty, a good deal older than your group’s median age,” he said. “I wonder if you might consider me for the Center’s legal staff.” He clenched his pipe in his teeth and squinted his eyes in a grimace. I was familiar with this expression. It signified intellectual or moral strain. “I need work with soul. I am not even sure what I mean by that, but I know the work I’m doing doesn’t have it. I think that you people are onto something. Your success in Alyeska has been remarkable.”

I was amazed. Vic was a senior partner at Arnold & Porter and a legendary figure in the antitrust bar, known for his brilliance and crankiness. “It will take some adjustment on your part. We don’t run things the way they do at the firm. It’s all rather shaggy and diffuse. The Center isn’t as orderly as you like things to be. Short on deference and respect.”

“I am prepared to take my chances. The public interest bar is a bunch of people who resent authority and can’t get along in any institution. I think I can be comfortable with that.”

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We invited him to join us, and his contributions to the early life of the Center were invaluable. He was a resourceful and imaginative lawyer, and provided a reality check on some of our far-out legal theories. “Remember that you are going to have to sell that to a judge,” he would say. To the legal profession he was a guarantor of our seriousness and substantiality. For me, more than anything that was written about us, Vic’s decision to join us was the most important affirmation of what we were doing.

In the heady days following our early successes, we thought about public interest law in a more ambitious framework.¹¹ We had begun CLASP as an experiment, hoping to survive for a few years. Our early successes and the newspaper analyses we read about ourselves led us to think that CLASP could become the model for the new law practices. We sent copies of our charter, bylaws, and basic policies to lawyers in Los Angeles and San Francisco who were establishing their own public interest law firms. We consulted with lawyers in South Africa and Latin America about adapting the American model for foreign settings. We offered advice on finding foundation support, and we discussed the possibility of developing other funding strategies.

The press began to give CLASP serious attention. CBS did a segment on CLASP for the evening news. Their people spent a full day at our office with cameras whirring. I realized, for the first time, how little control we had over how we would be presented—as uninformed, immature upstarts, or as a significant new phenomenon. Their story was quite respectful but, depending on how the videotape was edited, it could have gone either way.

I became modestly well-known. An enthusiastic early article on the Washington Post editorial page made me sound substantially more articulate and wittier than I am, and the line drawing that accompanied the piece gave me a formidable Jewish Afro and black 105beard.¹²I learned how much of one’s success is in the hands of journalists, and not to take my press notices too seriously.

I received some positive notice in books on the Washington bar and the new generation of leadership emerging in Washington.¹³ Because of our success in public interest litigation, I was invited to two coveted summer seminars, an Aspen Institute leadership program and the monthlong Salzburg Seminar in American Studies, where I taught European lawyers about public interest law in America. As I described the pipeline case and the DDT ban in the Baroque conference room at the Schloss Leopoldskron, I soared into optimistic predictions about the future of the public interest law movement. While we had accomplished a great deal, I see in retrospect, after the Reagan and Bush decades, that a wiser assessment would have been more modest and tentative.