From April 1970 through June 2001, I practiced law with the Minneapolis office of the eminent Faegre & Benson law firm, first as an associate and then as a partner and of counsel. I was in its business litigation group and handled many kinds of cases, including dealer/distributor terminations, securities fraud, antitrust, copyright, trade secrets and contract. I also assisted in drafting dispute resolution provisions for contracts prepared by others in the firm.
When I joined Faegre in 1970, the firm, as I recall, had approximately 50 lawyers in its only office in Minneapolis. Today it has nearly 500 lawyers in Minneapolis and five additional offices (Des Moines, Denver, Boulder, London and Shanghai). This year it celebrates its 125th anniversary. (www.faegre.com.)
I particularly liked being in a large law firm. Large firms tended to get the more challenging and remunerative cases. I could easily obtain assistance from other lawyers who specialized in different aspects of the law or who could discuss difficult tactical and strategic problems. Faegre also encouraged its lawyers to provide pro bono legal services. Moreover, I did not have to participate in managing all of the firm’s many business details. Practicing law itself took a large hunk of my time, and I did not want to pile on the additional time necessary for management. I, however, did participate in the work of some of the firm’s committees–Alternative Dispute Resolution and Legal Assistants.
Over 31 years there are too many fellow lawyers at the firm with whom I had excellent professional relations to mention them all. Instead I will just call out a few of my seniors from my group in the firm: John French, who had been President of the Harvard Law Review, a U.S. Supreme Court clerk for Justice Frankfurter and a leader of Minnesota’s Democratic Farmer Labor Party; Larry Brown; Gordon Busdicker; Norman Carpenter; and James B. Loken, who had clerked for U.S. Supreme Court Justice Byron White and been an assistant to President Richard Nixon and is now a Judge of the U.S. Court of Appeals for the Eighth Circuit.
On Thanksgiving Day of 1982 Minneapolis had the largest fire in its history. It started in the demolition site of a former downtown department store and soon engulfed most of the adjacent Northwestern National Bank Building that housed the Faegre offices. That bitterly cold night my wife and I went to watch the fire and saw flames shooting out the windows of my office on the 13th floor. (The next week we in hard hats were escorted to my floor where I found my completely destroyed office and here and there a few fragments of papers from my files. For several weeks thereafter I had nightmares of being caught in the fire.) Amazingly the firm opened for business the following Monday in new offices in the nearby IDS Center. The other attorneys and I immediately set out to recreate the files in our active cases and files by requesting copies from clients, other attorneys and the courts. Luckily by then the firm used computers to record and manage the firm’s billable hours, i.e., its inventory of unbilled time, and stored a duplicate set of the computer records in another building. Previously the firm’s records of unbilled time had been manually recorded on heavy-stock paper and maintained in three-ring binders all over the office; they probably would have been destroyed in the fire. Such unbilled time is a major asset of a law firm, and the loss of such an asset probably would have doomed the firm.
Some of my cases over these 31 years cases are memorable and important and will be discussed in future posts. They include cases involving issues of constitutional law and contract, auditor’s liability, international arbitration, securities fraud, copyright, patents and trade secrets. In addition, in the mid-1980’s I became a pro bono (no fee) lawyer for foreigners seeking asylum in the U.S.; as will be seen in a subsequent post, this has had, and continues to have, an enormous impact on my professional, political and religious life.
From June 1966 through April 1970, I was a Wall Street lawyer. I was an associate attorney with the law firm of Cravath, Swaine & Moore. Its offices then were on the 56th through 58th floors of the Chase Manhattan Bank Building one block from the New York Stock Exchange on Wall Street. From my office window I could see the New York Harbor and the Statue of Liberty.
Cravath then was considered a large law firm with approximately 100 lawyers, as I recall. Its system was to hire top graduates of the top law schools and to put them in a “class” of their contemporaries to compete for one of the very few partnership slots after seven or so years.
I decided to join Cravath after a summer clerkship in 1965 that I had enjoyed. The firm was regarded as the crème de la crème of law firms. Its starting salary of $9,000 ($62,235 in current Dollars) was the best. Living in New York City sounded exciting. The practice of some Wall Street lawyers becoming high government officials was an alluring dream that I hoped to fulfill. For example, John Foster Dulles was such a lawyer with another firm who became Secretary of State in the Eisenhower Administration, and Roswell Gilpatric was a Cravath partner when I was there who had been Deputy Secretary of Defense in the Kennedy Administration.
While I was at Cravath, it jumped the starting pay of its lawyers to $15,000 ($95,550 in current Dollars). This was such startling news that it was covered by the Wall Street Journal. Those of us who already were associates received a similar bump in pay. My wife and I thought we were rich and moved from our Brooklyn Heights apartment to the first two floors of a row home several blocks away.
I was in Cravath’s litigation department or group. I initially was assigned to Partner John R. Hupper, who was an excellent, careful, kind man and an excellent teacher and mentor for young lawyers. I also worked for other equally capable partners, including Thomas D. Barr, Frederick A. O. “Fritz” Schwarz, Jr. of the toy store family and Albert R. Connelly. The senior partner of the group, Bruce Bromley, who was called “Judge” Bromley because of his service in the New York courts, was another capable lawyer for whom I worked. Much to my subsequent regret I did not know at the time that Bromley was instrumental in the Eisenhower Administration’s selection of Joseph Welch to be the Army’s lawyer in the 1954 McCarthy hearings. Given my personal interest in Welch, which will be discussed in a subsequent post, I would have loved to have talked with Bromley about this important piece of U.S. history.
The more senior associates really did a lot of the supervision of the newer lawyers. I fondly remember some of them: Eugene P. Souther, who later became a partner in another Wall Street law firm; Victor M. Earle, III, who became the first general counsel of one of the big accounting firms (Peat Marwick); Robert E. Bouma, who became a partner in a Chicago law firm; Dorsey D. “Dan” Ellis, Jr., who became a law professor at the University of Iowa and then Dean of the Law School at the University of Washington at St. Louis; George J. Wade, who became a partner in another Wall Street law firm; and Alan J. Hruska, who became a Cravath partner.
I got along with the other young associates in the litigation group even though we all knew we were in competition with one another. Since I was there only four years, however, the real competition started after I left. My best friends and contemporaries were Jay Gerber and Arnold Messing, who later were successful lawyers with other firms in New York City and Boston respectively, along with Howard J. Kristol, who became a partner in a Wilmington, Delaware law firm, and David S. Cupps, a subsequent partner in a Columbus, Ohio law firm.
Another contemporary in the litigation group was David Boies, who later became a famous Cravath partner who defended CBS in a libel case by General Westmoreland regarding the Vietnam War. Some of his other famous cases were as the U.S. Government lawyer who destroyed the credibility of Bill Gates in cross-examination in the Microsoft antitrust case and as the lead lawyer for Al Gore in the litigation against George W. Bush over the 2000 election in Florida. The New York Times Sunday Magazine in June 1986 put David’s photo on its cover for its lead article about him, “The Litigator.” My wife and I were guests of David and his wife in their Washington Square apartment on the night in 1969 that Neil Armstrong walked on the moon. I was always amazed that David was able to combine the stressful life of the young associate with teaching antitrust law at N.Y.U. Law School and having season’s tickets to the Metropolitan Opera. On a trip to Minneapolis for a pretrial conference in the IBM antitrust cases, David, several other associates and I gathered in one of our hotel rooms for cards and room-service dinner. To my surprise, David ordered two dinners; he was never overweight or heavy, and I assumed that his metabolism rate was so high that he needed super quantities of food. David is still going strong. As the lead partner now in his own law firm, he recently was in St. Paul, Minnesota as the lead lawyer for the NFL in litigation over the football teams owners’ work stoppage.
Under the Cravath system, it took a long time for a new lawyer to be able to do anything by himself. My first court argument was on a motion in a small case in the state trial court in Manhattan (New York Supreme Court). I do not remember the case or what my motion was. But I do remember the huge courtroom with hundreds of lawyers milling around and waiting for their cases to be called. While I was waiting, I heard an argument on a defendant’s motion for more definite statement in the complaint that starts a lawsuit. The pro se plaintiff (one without a lawyer) was a rabbi, and the judge said, “Rabbi, please hire a lawyer. You have written a novel, not a complaint.”
There were two notable cases that claimed my attention in New York that will be discussed in subsequent posts. One was Adam Clayton Powell, Jr.’s lawsuit over his 1967 exclusion from the U.S. House of Representatives. The other was the set of antitrust cases against IBM over its System/360 computers.
Being a Wall Street lawyer for four years was challenging and exciting. So too was living in New York City with a wife and two young sons. I value those years, but am still glad that I decided against staying for the competition for partnership at Cravath and instead chose to move to Minneapolis to practice law with Faegre & Benson.
Mary Robinson, the former U.N. High Commissioner for Human Rights (1997-2002), this week expressed her support of the recent U.N. Security Council’s actions on Libya.
On February 26, 2011, the Council unanimously adopted Resolution 1970, which among other things, referred the Libyan situation since February 15, 2011, to the International Criminal Court’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. This action, Robinson said, was unusual, but demonstrated the usefulness of having a permanent international criminal court that could be called upon in ongoing situations involving the most serious crimes of international concern and that could help to stop those crimes before they become worse. She also recognized, on the other hand, that the referral might complicate efforts to get Colonel Gadhafi and others to abdicate power by fleeing to another country because of the possibility of criminal charges by the ICC.
Less than three weeks later, the Council, 10 to 0 (with 5 abstentions), approved Resolution 1973, which authorized U.N. members to take all necessary measures to protect civilians under threat of attack in Libya by establishing a no-fly zone, but excluding a foreign occupation force. Robinson asserted that this action was a proper exercise of the emerging international principle of the duty or right to protect or humanitarian intervention because of the imminent threat by the Gadhafi regime to kill many of its own people, especially in Benghazi. She also cautioned against expanding these military measures into intervention on the ground.
In addition, Robinson applauded this year’s “Arab Spring.” The uprisings in the Middle East included many women and demonstrate, she said, that men and women all over the world want human dignity, freedom and human rights as well as a decent living. The desire for human rights is indeed universal. It is not some Western set of values that is imposed on other societies.
Mary Robinson is also the former President of Ireland (1990-97). In 2002 she founded Realizing Rights: The Ethical Globalization Initiative that aimed “to put human rights standards at the heart of global governance and policy-making and to ensure that the needs of the poorest and most vulnerable are addressed on the global stage.” After that organization finished its work in 2010, Robinson founded The Mary Robinson Foundation–Climate Justice for “thought, leadership, education and advocacy on the struggle to secure global justice for those many victims of climate change who are usually forgotten – the poor, the disempowered and the marginalised across the world.”
After six years of pre-legal education, three years of law school, 35 years of practicing law and eight years of teaching in a law school, I have developed many thoughts about preparing for law school and a legal career.
First, there is no one best way to prepare for law school and a legal career. There are all kinds of legal practice and careers, and some types of pre-law might be useful for one type of career, but not for another. For example, in recent years intellectual property law (copyrights, patents and trademarks) has been a “hot” area of practice, and a background in chemistry, biology, physics, engineering or computer science often is very helpful to lawyers in that area. But such background would not be especially useful to other lawyers. Gaining a competence in a foreign language (especially Spanish or Chinese or Japanese or Arabic) will be very useful for a U.S. lawyer specializing in legal work for foreign clients or for U.S. clients doing business abroad. Selection of an undergraduate major and courses depends, in part, on what excites the student and the student’s abilities.
Second, it is tempting for an undergraduate to take law courses (e.g., constitutional law) in the hope that it would give the student a “leg up” in law school. But I believe this temptation should be resisted.
Third, one of the most important type of undergraduate courses for someone who wants to be a lawyer is a course that focuses on careful reading and interpretation of original texts, rather than pre-digested text books about a subject, e.g., literature courses and original historical research. Why? Because a lawyer is always reading and interpreting the original text of statutes, regulations and cases. While there are particular methods of interpreting such legal texts, the challenge of doing the same with other types of texts is very useful for the budding lawyer.
Fourth, also extremely important are courses that require a lot of expository and argumentative writing that is analyzed by someone who is skilled in evaluating and teaching such writing. On the other hand, there is less utility in writing poetry, short stories or novels.
Fifth, the following other undergraduate courses would be useful to most lawyers:
basic accounting that is the foundation for understanding financial statements;
speech or debate or courses that develop oral presentation skills;
computer usage; and
Sixth, I spent the first semester of my junior year at American University on the Washington Semester Program. It was very informative about U.S. government. I highly recommend it or similar programs.
Seventh, outside undergraduate courses, an individual has many other ways to learn more about legal careers in an effort to decide whether he or she wants to go to law school and pursue a legal career. Introduce yourself to one or more attorneys in the town and ask them what they like and dislike about their work and their suggestions on preparing for law school and a legal career.. You might even get a part-time job offer. Attend trials in the community. Go to larger cities and observe arguments in the appellate courts. Scan general periodicals about the U.S. legal profession. The American Lawyer is a monthly publication that comments on major trends in the law and large firm developments. The National Law Journal is a weekly publication about the law and legal profession. The American Bar Association Journal is the monthly publication of the American Bar Association. Obviously at some point an individual would visit a law school and attend some classes.
The U.S. Senate by virtue of the “great compromise” of 1787 is inherently undemocratic with every state having two Senators regardless of population. Given the addition of more states into the Union and the changes of population since then, the Senate is even more undemocratic today.
Piled on top of this institution is an arcane and even more undemocratic set of Senate rules which are not required by the Constitution and which we are hearing more about these days: cloture, reconciliation, the Byrd rule, etc. One of the spectacles in the last Congress was Senator Coburn’s “requiring” that Senator Sanders’ proposed amendment for a single payer system for health care be read aloud and thereby delaying real work by the Senate. Another in the last Congress was Senator Shelby’s “hold” on 90 or so nominees.
In short, the U.S. Senate rules are a major source of Americans’ frustration with our national government. I think they are unconstitutional in that they impose a de facto super majority requirement on nearly everything, far beyond the constitutional imposition of such a requirement. The Senate needs to wake up from its pompous meanderings! Change your rules that make the Senate an abomination!
At the start of this Congress there were modest changes to these Rules. But they were not enough. The Senate should operate by majority rule. The only exceptions should be when the Constitution requires a supermajority (two-thirds) vote for overriding a presidential veto or consenting to the ratification of treaties or for proposing constitutional amendments or for expelling a member.
Ever since my high school days in the 1950’s, U.S. politics, law and history have fascinated me. From the start, I was passionate about civil liberties, especially freedom of speech.
This interest was sparked by watching the Army-McCarthy hearings on my parents’ new TV set in the spring of 1954. The hearings were high drama, and the lawyer for the Army, Joe Welch, was a charming Bostonian, so I thought. I was appalled by Senator Joseph McCarthy’s attacks on civil liberties and free speech and thrilled by Welch’s courageous defense against McCarthyism.
Three years later, in the fall of 1957, my freshman year at Grinnell College, I discovered that Welch in fact was from an even smaller Iowa town (Primghar) than mine (Perry) and that he was a Grinnell graduate, Class of 1914. I learned this when I heard Welch speak at the College’s Convocation “American Culture at Mid-Century.” But I was too timid as a first-semester freshman to speak to Welch directly.
In 1959, the College’s new library was being built and was named “the Burling Library.” A substantial amount of the funds for the building was donated by another Grinnell graduate and lawyer from another small Iowa town (Eldora), Edward Burling (Class of 1890). While attending American University that Fall on the Washington Semester Program, I met Mr. Burling at his office to thank him for the new library. After an interesting conversation, he invited me to a Sunday afternoon at his cabin on the Potomac River. Little did I know at the time that such a Sunday afternoon had become a famous Washington institution. I do not recall our conversation that day, but I do remember how Burling, then 89 years old in a wool plaid shirt, vigorously chopped wood on a beautiful fall afternoon.
As I continued my education and started my own career as a lawyer, I had no time to do anything about my interest in these two men. But in the spring of 1982 I took a sabbatical leave from my law firm to teach a course about law at the College. In my spare time I examined materials about Welch and Burling in the College Archives. (See Post: A Sabbatical Leave from Lawyering (May 26, 2011).)
Somehow I learned that the Boston Public Library had a collection of Welch papers, and while on a business trip to Boston in 1985 I had spare time to examine those papers. This was my first digging into original historical documents, and I was thrilled to be touching and reading such documents and attempting to make sense of them. (This was more fun, I thought, than my more common project of reviewing documents produced by an adversary in a civil lawsuit by “A” against “B” to recover a substantial sum of money.) Among the interesting documents in the Welch collection were letters between Welch and Burling after the conclusion of the Army-McCarthy hearings that were discussed in my paper about Burling, which was excerpted in The Grinnell Magazine (Edward Burnham Burling: Grinnell’s Quiet Benefactor (Summer 2009)).
I returned to Boston in the summer of 1986 to attend the Harvard Law School’s Summer Program for Lawyers. While there, I visited the Boston offices of Hale and Dorr, Welch’s former law firm, and interviewed Fred Fisher, the lawyer who had been attacked by Senator McCarthy, and James St. Clair, the lawyer who assisted Welch in the Army-McCarthy hearings and who later represented President Nixon in the litigation over the White House tapes. I also searched the Harvard Law School Library and found references to Welch in some of its collections of papers regarding the Sacco-Vanzetti case, which was discussed in my paper about Welch, which also was excerpted in The Grinnell Magazine (Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch (Summer 2006)).
I also discovered in Harvard’s collection of the papers of Learned Hand, an eminent federal judge and one of my legal heroes, that he and Burling had been law school contemporaries and life-long friends. This spurred my interest in Burling as I read the extensive correspondence between them, another topic of my paper about Burling.
While in the Boston-area that summer I also visited the Kennedy Presidential Library, but failed to find any documents about Welch in the papers of Robert Kennedy, who had been a lawyer for the McCarthy committee in 1954. The time at the Library, however, was not wasted when I found oral history interview transcripts of two men that I knew.
Donald “Duke” Norberg had been the Chairman of Iowa’s Democratic Central Committee, for whom I had worked in the summer of 1960 on a Grinnell Program in Practical Politics grant. I fondly recall seeing then Senators John F. Kennedy and Lyndon Johnson in Des Moines to woo the Iowa delegates before the Los Angeles Democratic Party’s presidential nominating convention.
Frank Coffin had been a Democratic Congressman from Maine who was defeated in his run for Governor of Maine in 1960 because of the anti-Catholic vote prompted by JFK’s being the presidential candidate. Coffin recalled President Kennedy’s introducing him to Jackie Kennedy at an inaugural ball as the man whom Kennedy had pulled down to defeat. In the Kennedy Administration Coffin was in charge of the U.S. Agency for International Development and later was appointed as a judge on the U.S. Court of Appeals for the First Circuit. (I had met Coffin in the early 1980’s when we both were on the University of Chicago Law School’s Visiting Committee, and in 1984 Judge Coffin participated in a liberal arts seminar for lawyers that I organized at the College.)
When I returned those transcripts to the library desk, I noticed a transcript of an interview of Princess Grace of Monaco (Grace Kelly), and a brief glance revealed an account of her fatalistic view of history.
This research prompted a request to a law school classmate and friend at Covington & Burling, the Washington, D.C. law firm started by Mr. Burling, for additional information about him, and my friend sent me a copy of the firm’s history. I also have been assisted in my research by another Grinnellian, James Burling (Class of 1972), who is not related to “my” Burling, but who is a partner in Welch’s law firm, Hale and Dorr.When I retired from the active practice of law in the summer of 2001, one of my future projects was to review all of the information that I had gathered and write articles about the two gentlemen, and I mentioned this project in an essay about retirement that was posted on the Internet by another law school friend as part of materials for a lawyers’ seminar.
In 2005 I was inspired to finish these papers when I received a totally unexpected call from Professor Roger Newman, the biographer of Hugo Black and a member of the faculty of Columbia University. Newman said that he was the editor of the forthcoming Yale Biographic Dictionary of American Law and asked if I would be interested in writing short biographies of Welch and Burling for that book. Newman said he had discovered my interest in these men from the just mentioned essay on the Internet. I said that I would be glad to do so and retrieved my materials, did additional research and wrote the two 500-word biographies. (This Biographic Dictionary, which was published in 2009 by Yale University Press, was the first single-volume containing concise biographies of the most eminent men and women in the history of American law who have devised, replenished, expounded, and explained law. See Yale University Press, The Yale Biographical Dictionary of American Law (ISBN 978-0-300-11300-6), http://yalepress.yale.edu/yupbooks/book.asp?isbn=9780300113006.)
These sketches, however, barely scratched the surface of what I wanted to say about Welch and Burling. As a result, I did additional research, including examination of several collections of original papers at the Library of Congress. While I was spooling through microfilm of the papers of Felix Frankfurter, I came across his file of correspondence with Albert Einstein. I paused and saw Einstein letters auf Deutsch in small, precise handwriting.
Two other subjects of my history detective adventures are more personal. My maternal great-great grandfather, Charles Edwin Brown, was a Baptist missionary to the Iowa Territory and then the State of Iowa from 1842 until the late 1800’s. One of his sons and my great-uncle, William Carlos or “W.C.” Brown, started working on the railroad as a section hand at age 16 and worked his way up the corporate ladders to become president of the New York Central Railroad in the early 20th century. I have done some research on their lives and written essays about them.
I have not been in a position to even attempt to research all the original and secondary sources and to write complete biographies of these men, but my work on much shorter articles made me realize and appreciate the work that has to be done to produce a major biography of a historical figure such as the one of Andrew Carnegie by my Grinnell History Professor, Joe Wall.
Although I was a history major at the College, I did not do any independent historical research or paper and instead obtained a good background in European and American history. Because I did not do any independent paper, I did not learn historical research methodology at the College, a lacuna I now regret.
Instead, I learned such techniques from being a litigation lawyer. Defining the problem or issue was the first task. You then develop an ever evolving plan to gather relevant evidence or original sources. You start with the documents and interviews of your client. They suggest other possible sources. Library (and now Internet) research provides more information and leads. They are pursued with other research and interviews using publicly available information plus information available through the formal discovery process under the rules of civil procedure. The lawyer also has the right and opportunity to compel witnesses to be examined under oath for further information. (Historians do not have this advantage.) All of the resulting information has to be evaluated for admissibility into evidence and to be synthesized into a hopefully persuasive story as to why your client should win the case.
I enjoy this investigative process, whether as a lawyer or as a history detective. There is the thrill of the hunt for original papers about my subjects and being so easily diverted by coming across things like the Frankfurter-Einstein correspondence and the Grace Kelly oral history interview. I also enjoy the challenge of putting all of the pieces of research into a good story and writing it all down on paper. Through all of this lies an interest in finding out what happened.
My work as a lawyer and as a history detective has made me somewhat nostalgic for one “road not taken:” continuing my work as a history major into graduate school and becoming a historian.
In my 70-plus years I have developed strong interests in U.S. and international law, politics, economics and history.
This is due to an excellent education at Grinnell College and the Universities of Oxford and Chicago, 35 years of practicing law in New York City and Minneapolis, being a pro bono lawyer for asylum seekers, teaching international human rights law, international travel and wide reading. These activities by themselves provide additional subjects for commentaries.
These interests also have been furthered by a renewed Christian faith and an active membership in Minneapolis’ Westminster Presbyterian Church. This faith and learning about other religious traditions are other major interests of mine.
As will become apparent in subsequent postings, I have particular interests in certain legal topics–refugee and asylum law; litigation in U.S. federal courts under the Alien Tort Statute that covers lawsuits by foreigners for human rights abuses; U.S. constitutional law; and alternative dispute resolution– and in certain countries–Great Britain, El Salvador, Ecuador, Cuba, Brazil and Cameroon.
I already have written a lot on these subjects and have decided to share these writings on this blog. I also will comment on other issues as they arise. Many of these writings will be longer than a typical blog. In subsequent postings I will describe my political philosophy and Christian faith that I hope is evident in my writings.