Star Pagination of Legal Materials

Detail-obsessive lawyers like to cite to specific pages in legal materials that support their factual or legal assertions. Sometimes court rules require them to do so.

When the legal material appears in multiple versions, there is a similar desire to cite to the pages in the original version. As a result, publishers of the subsequent versions developed a practice of including the page numbers in the original version in addition to the page numbers of the subsequent versions. This practice became known as “star pagination.”

Blackstone's Commentaries

This practice is believed first to have been used for the later editions of Sir. William Blackstone’s treatise, Commentaries on the Laws of England. It was first published in four volumes in 1765-1769, was long regarded as the leading work on the development of English law and played an important role in the development of the American legal system.[1]

West's National Reporter System

In the U.S.’s pre-computer days, our court decisions were printed in books, the most popular of which for lawyers were published by West Publishing Company (West) of St. Paul, Minnesota.[2]  These books were known as the National Reporter System, and the published court opinions also included editorial enhancements by West that summarized and classified key points on law in those opinions. Over time, these reporters became the de facto (and sometimes de jure) official sources for U.S. judicial opinions.[3]

As a result, when computerized legal databases and services became available, there was a desire, if not a market need, for the providers of those services to have star pagination of judicial opinions in their databases to the previous reports of those decisions in the National Reporter System.

One of the first computerized legal research services was LEXIS in 1973 from Mead Data Central, Inc. (MDC) of Dayton, Ohio. At first it only had materials of two states (Ohio and New York) online, but by 1980 it had materials from all the states and federal government.[4]

In June 1985 MDC announced that it was adding star pagination to the LEXIS service. This new feature would consist of “the addition of the official page cites to the full text of online case law material.” This would eliminate the physical necessity of referring to the volumes of the National Reporter System publication in which the reports appeared.[5]

In response, West sued MDC for copyright infringement in Minnesota’s federal court.[6] MDC retained Faegre & Benson to defend the case with the assistance of MDC’s Wall Street lawyers (Sullivan & Cromwell), and I was a member of the Faegre team for the case.

The initial skirmish of this war between the two major competitors in the then new field of computerized legal research was West’s application for a preliminary injunction to ban LEXIS’ star pagination to West publications while the litigation proceeded to trial. I argued this motion for MDC. Unfortunately the court granted the preliminary injunction. The court by Judge James Rosenbaum held that the page numbers and arrangement of cases were within the scope of protection of West’s copyrights, that the proposed star pagination by MDC infringed those copyrights and went beyond fair use and that a preliminary injunction was warranted based upon likelihood of success on the merits, irreparable harm, balance of harms and the public interest.[7]

MDC exercised its right to an immediate appeal of the granting of the preliminary injunction to the U.S. Court of Appeals for the Eighth Circuit. This time, a Sullivan & Cromwell partner argued the case for MDC. Unfortunately the result was the same. The Eighth Circuit, 2 to 1, affirmed the preliminary injunction.[8] The U.S. Supreme Court thereafter denied permission to bring the issues before that Court.[9]

Later, without Faegre’s participation and according to press reports, MDC and West entered into a settlement agreement that ended the litigation and that granted MDC a license to include star pagination in LEXIS along with West’s corrections to judicial opinions for an annual licensing fee of $50,000.[10]


[1] Wikipedia, William Blackstone, http://en.wikipedia.org/wiki/William_Blackstone; Wikipedia, Commentaries on the Laws of England, http://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England.

[2]  In 1996 West was acquired by The Thomson Corporation (n/k/a Thomson Reuters). (Thompson Reuters, Company History, http://west.thomson.com/about/history/default.aspx.)

[3]  Id.

[4]  Wikipedia, LEXISNEXIS, http://en.wikipedia.org/wiki/LexisNexis. West’s competitive computerized legal research service, WESTLAW, was introduced in 1975. (Thompson Reuters, Company History, http://west.thomson.com/about/history/default.aspx.

[5]  West Publishing Co.v. Mead Data Central, Inc., 616 F. Supp. 1571, 1575 (D. Minn. 1985).

[6]  See Post: Minnesota’s Federal Court (June 28, 2011).

[7]  616 F. Supp. 1571.

[8]  West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986).

[9]  Mead Data Central, Inc. v. West Publishing Co., 479 U.S. 1070 (1987).

The IBM Antitrust Litigation

In 1964 International Business Machines Corporation (IBM) introduced its System/360 mainframe computer system family, the first to cover the complete range of applications, from large to small, both commercial and scientific.[1]

One of the models in the family, System 360/91 (92?), was announced as being as fast as the then fastest machine on the market, Model 6600 from Control Data Corporation (CDC). IBM, however, was slow in producing its 360/91, but its mere announcement allegedly had adverse effects on CDC’s sales of Model 6600. As a result, in December 1968, CDC filed an antitrust lawsuit against IBM. The complaint alleged that IBM had monopolized the market for computers in violation of section 2 of the Sherman Act and that this conduct had damaged CDC’s business, entitling CDC to treble damages plus attorneys’ fees under section 4 of the Clayton Act.[2] The case was filed in Minnesota’s federal court.[3]

 

Thomas D. Barr

IBM immediately engaged its outside general counsel, Cravath, Swaine & Moore (CS&M), to defend the case. Partner Tom Barr was in charge of the CS&M team, and drafted several young associates, including Jay Gerber, David Boies and me, for the team. (As previously noted, I was an associate attorney at CS&M, 1966-1970.[4])

All of the CS&M team members soon started to learn about computers at a special school for the IBM lawyers at one of its locations in Westchester County, New York. (I do not recall what we were taught or what we learned, but this was long before the advent of personal computers and long before I had become familiar with their operation.)

Other private antitrust complaints were filed against IBM, and all of these cases were transferred to the Minnesota federal court for pretrial discovery regardless of where they initially had been filed in other federal trial courts. Minnesota’s U.S. District Judge Philip Neville was put in charge of managing all of these complicated cases. As a result, the other members of the team and I had frequent trips to Minnesota for pretrial conferences in the cases with the assistance of IBM’s local counsel, Faegre & Benson. All of the plaintiffs in these cases then embarked on a lengthy process of requesting and obtaining production of millions of IBM documents relevant to the cases.[5]

One of the companies suing IBM, however, had a different strategy. Greyhound Computer Corporation, a leasing company, filed a case under Illinois’ state antitrust law in Illinois state court (Peoria, as I recall) in order to avoid the complications of the consolidated pretrial proceedings in the Minnesota federal court. In addition, Greyhound wanted to take depositions (oral questioning of witnesses under oath) of top IBM officials as soon as possible before spending years in collecting and analyzing millions of IBM documents.

Thomas J. Watson, Jr.
Nicholas Katzenbach

One of the IBM officials to be deposed in the Greyhound case was its President, Thomas J. Watson, Jr.,[6] and I was put in charge of assisting Tom Barr in preparing Mr. Watson for his deposition. This was a daunting challenge. It meant collecting and analyzing as many IBM and public documents as possible that were potentially relevant to the Greyhound and other cases, figuring out the possible questions that might be asked of Mr. Watson by opposing counsel and then meeting with him and IBM’s General Counsel, Nicholas Katzenbach,[7]  to go over these documents and questions, all in a relatively short time period.

At the time my wife and I lived in Brooklyn Heights, across the East River from Wall Street and CS&M’s office. But Cravath had established a special office in White Plains, Westchester County, New York for the IBM litigation; this is where all the documents were stored and where the team members, including IBM employees assigned to help the lawyers, did their work. Thus, every morning I had to drive through Brooklyn and Queens, over the Throgs Neck Bridge and then through the Bronx and Westchester County to White Plains, and every evening I had to reverse this commute to my home. Traffic was heavy both ways, adding to the stress of the job. (Like many New Yorkers at the time, I did not own a car, but IBM supplied a rental car for me.)

Soon after our second son was born in December 1969, there was a bad winter storm in Westchester County, and I did not want to drive back home that night in order to get up early the next morning to return to White Plains. I, however, could not find a hotel room anywhere in the White Plains area. As a result, I had a very slow and dangerous drive home that night, and after a night of little sleep with a crying baby, I had to return to White Plains the next morning in another slow drive. I think that was the night that pushed me over the edge in deciding to leave CS&M and New York City.

Sometime in the process of preparing for this important deposition, I vividly remember Tom Barr and I flew from New York City to San Francisco one day for the sole purpose of flying back to New York City early the next morning on the IBM corporate jet with Mr. Watson because he had time on that flight to talk with us.

Soon the Watson deposition actually took place, probably in January 1970. Tom Barr and I thought it went well for IBM.[8] I then told Mr. Barr that I would be leaving CS&M in April to join Faegre & Benson in Minneapolis.

It is difficult in 2011 to understand how powerful IBM was in the late 1960’s. It did have a large percentage of the market for computers in that earlier period, and one of the major issues in those earlier antitrust cases was defining the market, geographical and product. The plaintiffs argued for definitions that produced large market shares for IBM while IBM argued for different definitions and lower market shares.

Now, however, IBM no longer is the dominant force in the U.S. and world markets for the manufacture of computers. In 2005, IBM sold its personal computer manufacturing operations to a Chinese company, Lenovo Group Limited. Now IBM is a large, multinational computer technology and IT consulting business with some computer manufacturing business.[9] IBM’s loss of a dominant position in the computer industry is another instance of what economist Joseph Schumpeter calls “creative destruction,” capitalism’s evolutionary process of revolutionizing itself from within.[10]

IBM thus survived after the scary early 1990’s when it nearly ran out of money. In June 2011 it celebrated its centennial as a company with strong profits, a robust portfolio of products and services and stock market valuation exceeding new-start Google. The central lesson of its survival and renewed success, experts believe, was an ability to identify and build upon its past success. For IBM, its key assets were strong, long-term customer relationships; deep scientific and research capabilities; and broad technical skills in computer hardware, software and services. The company was able to take these assets and recast itself as the one that can best manage and bring together diverse technologies in modern data centers.[11]


[1] Wikipedia, IBM System/360, http://en.wikipedia.org/wiki/IBM_System/360.

[2]  Id.; Wikipedia, Control Data Corporation, http://en.wikipedia.org/wiki/Control_Data_Corporation; Computers: Tackling IBM, Time, Dec. 20, 1968. Section 2 of the Sherman Act of 1890 provides that it is a felony for any “person . . . [to] monopolize or attempt to monopolize, or combine or conspire . . . to monopolize any part of the trade or commerce among the several States.” (15 U.S.C. § 2.) This crime requires proof of (a) the possession of monopoly power in the relevant market and (b) the willful acquisition or maintenance of that power (rather than the growth or development as a result of superior product, business acumen or historic accident). (U.S. v. Grinnell Corp., 384 U.S. 563 (1966).) Under section 4 of the Clayton Act of 1914, any person injured in his business or property by reason of a violation of the Sherman Act may sue for treble damages plus attorneys’ fees. (15 U.S.C. § 15(a).

[3] See Post: Minnesota’s Federal Court (June 28, 2011).

[4] See Post: Lawyering on Wall Street (April 14, 2011); Post: The Adam Clayton Powell, Jr. Litigation (May 31, 2011).

[5] In January 1969 the U.S. Department of Justice filed a civil lawsuit against IBM alleging that it had monopolized the market for general purpose computers. In 1982 the Department concluded that the case was without merit and dropped the suit. (Wikipedia, History of IBM, http://en.wikipedia.org/wiki/History_of_IBM.) I had no direct involvement in this case.

[6] Wikipedia, Thomas J. Watson, Jr., http://en.wikipedia.org/wiki/Thomas_Watson_Jr. In 1952 Watson succeeded his father, Thomas J. Watson, Sr., as IBM’s president and held that office until 1971. In 1964 President Lyndon Johnson awarded him the Presidential Medal of Freedom, and in the Carter Administration, Watson was the U.S. Ambassador to the Soviet Union (1979-81). (Id.)

[7] Mr. Katzenbach was General Counsel of IBM from 1969 through 1986. From 1961 through 1966 he was an attorney in the U.S. Department of Justice, serving as the U.S. Attorney General, 1965-66. From 1966 through 1969 Katzenbach was Under Secretary of State. (Wikipedia, Nicholas Katzenbach, http://en.wikipedia.org/wiki/Nicholas_Katzenbach.

[8] In 1972 the Greyhound case went to trial in federal court in Arizona with a directed verdict for IBM on the antitrust claims. However, in 1977 the court of appeals reversed this decision, holding there was sufficient evidence for a verdict for Greyhound, and remanded the case for retrial. (Greyhound Computer Corp. v. IBM, 559 F.2d 488 (9th Cir. 1977), cert. denied, 434 U.S. 1040 (1978).) Just before the retrial was to start in January 1981, IBM and Greyhound settled the case for $17.7 million. (IBM Antitrust Suit Records,  http://www.hagley.lib.de.us/library/collections/.) Earlier, in 1973 IBM settled the CDC case for about $80 million in cash and assets (transfer of an IBM computer service company at less than market value). (Computers: A Settlement for IBM, Time (Jan. 29, 1973).) (I had no involvement in any of these subsequent proceedings.)

[9] Wikipedia, History of IBM, http://en.wikipedia.org/wiki/History_of_IBM.

[10]  Schumpeter, Capitalism , Socialism and Democracy (1942); Wikipedia, Joseph Schumpeter, http://en.wikipedia.org/wiki/Joseph_Schumpeter.

[11] Lohr, Lessons in Longevity, From I.B.M., N.Y. Times (June 19, 2011).

Practitioner in Residence

University of Iowa College of Law

For three days in February 1986 I was the practitioner in residence at the University of Iowa College of Law. I helped teach a class, made a presentation to a faculty seminar, gave a speech to an assembly of students and faculty and talked to a student group and a legal clinic seminar.[1]

Professor Patrick Bauer, a friend and former colleague at the Faegre & Benson law firm in Minneapolis, taught a first-year civil procedure class that I joined. The topic was Rule 11 of the Federal Rules of Civil Procedure that requires an attorney who submits a pleading, written motion or other paper to a federal district court to make an implicit representation that it was not presented for an “improper purpose,” that is was “warranted by existing law or by a nonfrivolous argument” for changing the law and that its factual contentions had or were likely to have “evidentiary support.” [2]

The problem for the class that day was posed by a recent case in which the court had denied a defense motion to dismiss a complaint and had directed defense counsel to submit a brief as to why they should not be subject to Rule 11 sanctions for their dismissal motion. The court thereafter decided that such sanctions were appropriate and imposed a fine on the defense counsel (in an amount to be determined).  The violation of Rule 11, according to the court, occurred because the dismissal motion was not warranted by existing law and because the lawyers had not made a reasonable inquiry to determine if the motion was warranted by existing law.[3]

In the civil procedure class, I played the role of a law firm partner soliciting input and advice from his associate lawyers (played by the students) on preparing a complaint for a new civil lawsuit. Professor Bauer at the blackboard wrote down Rule 11 issues that were created by the ideas put forward by the associates.

“Sue the Bastard! Ruminations on American Litigiousness” was the title of my presentation to a faculty seminar. I had prepared this paper while on my sabbatical leave at Grinnell College. I discussed what I saw as the causes and effects of such litigiousness and suggested changes in our legal system and national psyche.[4]

An assembly of faculty and students was the forum for my speech, “The Pilgrimage of a Hired Gun–The First Twenty Years.” Accepting the challenge of Judge Frank M. Coffin for lawyers and judges to make “interiorly revealing” comments about their professional lives,[5] I discussed my first 20 years of practicing law and my search for meaning and spiritual values in a litigator’s life.

  • The first five years were my apprenticeship period when I was learning how to be a litigator and how to function in two large law firms in two new cities while also becoming a father to two sons. The self-sufficient, inner-directed person I thought I was had found a home in the well-paid, high-powered, eminently secular law firm.
  • The next five years I saw as my yuppie period. I was becoming more proficient as a lawyer. I advanced to partner at Faegre & Benson. We bought an upper-middle-class home. Still no room for a spiritual, religious life.
  •  The next four or five years or so, in retrospect, was a time of mid-life crisis. I was increasingly skeptical of the significance of what I was doing for a living while facing personal challenges.
  • I started to sort out these problems over the next five years and started to integrate the various aspects of my life. In 1981 I joined Minneapolis’ Westminster Presbyterian Church and started to re-discover a spiritual life.[6] In 1982 I took a sabbatical leave from my law firm to teach at Grinnell College.[7] In 1984, I organized a liberal arts seminar for lawyers at the College.[8] I started to do research about two lawyers whom I admired: Joseph Welch and Edward Burling.[9] Being a practitioner in residence also gave me the opportunity to reflect on these issues and to share these thoughts with others.

I concluded my “Pilgrimage” speech by saying, “I embrace the tools of the trade [and] the craftsman’s pride in a job well done and let go of the omni-competent, omnipotent attitude of the successful lawyer.”

Little did I know at the time of this speech that my then just-starting involvement in the Sanctuary Movement case[10] would be an integrative experience that would lead to my becoming a pro bono asylum attorney,[11] my making a life-changing pilgrimage to El Salvador[12] and my becoming an adjunct professor of international human rights law at the University of Minnesota Law School.[13]

While a practitioner in residence at the Iowa College of Law in February 1986, I also spoke to a meeting of the Christian Legal Society on “Legal Issues Arising Out of the Sanctuary Movement and Government Infiltration of the Churches.” This was an account of the federal criminal case against leaders of the Sanctuary Movement and the Government’s disclosure that it had sent under-cover agents into worship services and Bible-study meetings at Arizona churches involved in the Movement. I also discussed the just-filed civil case against the U.S. Government over “the spies in the churches” by the American Lutheran Church and the Presbyterian Church (U.S.A.).[14]

Another activity at the Iowa College of Law was attending a legal clinic seminar. I talked about the American Bar Association’s Model Rules of Professional Conduct for lawyers and legal malpractice.[15] I shared my opinion that legislatures and courts were in the process of altering the balance between a lawyer’s role as advocate and the role as officer of the court to give greater importance to the latter. One example was the previously mentioned court’s imposing sanctions on lawyers for arguments that were not deemed in accordance with established law. I attributed this shift to increasing legal fees and the costs of litigation, the public perception that litigation processes had been abused and the knowledge that some lawyers are dishonest. This rebalancing carried with it a risk of diminishing a lawyer’s responsibilities to a client and hence an increased risk of malpractice. I concluded with this quotation: “Clients are entitled to much. They are entitled to dedication, diligent preparation, undivided loyalty, superb research, the most zealous advocacy and even sleepless nights; but they are not entitled to the corruption of our souls . . . . We do not lie, we do not cheat, we do not suborn,  and we do not fabricate. We do not lie to clients. We do not lie for clients.”[16]


[1] Duane Krohnke Is First Daum Practitioner in Residence, Iowa Advocate, Fall/Winter 1985-86, at 15. The widow of F. Arnold Daum, a 1934 graduate of the Iowa College of Law and a senior partner in a Wall Street law firm, established the F. Arnold Daum Visiting Practitioner’s Program in the Law College to support bringing leading practitioners to the law school to appear in classes and exchange ideas with faculty and students. I was the first such practitioner to participate in this program.

[2] Fed. R. Civ. Pro. 11.

[3] Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124 (N.D. Cal. 1984).

[4]  Post: A Sabbatical Leave from Lawyering (May 26, 2011).

[5]  Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[6]  Post: Minneapolis’ Westminster Presbyterian Church (April 6, 2011).

[7]  Post: A Sabbatical Leave from Lawyering (May 326, 2011).

[8]  Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[9]  Post: Adventures of a History Detective (April 5, 2011).

[10]  Post: The Sanctuary Movement Case (May 22, 2011).

[11] Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).

[12]  Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

[13] Post: My First Ten Years of Retirement (April 23, 2011).

[14]  Post: The Sanctuary Movement Case (May 22, 2011)(account of the churches’ completed case against the Government).

[15] Krohnke, A Litigator’s Comments on the ABA Model Rules of Professional Conduct and Attorney Malpractice (Feb. 1986).

[16]  Miller, A Report on the Morals and Manners of Advocates, 29 Cath. Law. 103, 108 (1984).

A Sabbatical Leave from Lawyering

In February 1982 I took a three-month sabbatical leave from my law firm, Faegre & Benson, and became a Visiting Instructor in Political Science at my alma mater, Grinnell College.[1]

I taught one course that I created, The American Civil Law System. It had units on the structure of the legal system, legal reasoning, adjective law (civil procedure, conflicts of law and evidence) and substantive law (torts, corporations and contracts).

In addition to readings, lectures and class discussion, I employed some unusual pedagogical devices. I put on the “witness stand” a sociology professor and questioned her about her personal experience as a juror. We saw part of a civil jury trial. We visited the Iowa Supreme Court and observed oral arguments. Afterwards we talked about the work of the court with two Grinnell alums who were justices on the court and another Grinnellian who was a law clerk for another justice. We obtained the briefs in one of the cases we heard, and with some explanatory memos from me the students were asked to write an opinion deciding the case in lieu of a final exam.

Another unusual technique was a moot court in the hypothetical case of Smith v. Oxbridge College. Denied tenure, Smith sued for breach of contract. The dispute concerned whether the plaintiff could obtain copies of the college’s tenure committee records. Two students acted as opposing lawyers and argued the motion to compel discovery relying upon two recent federal cases on point. I played the part of the judge. (I should note that the facts of the hypothetical case were very close to a then current case of a Grinnell faculty member who had been denied tenure.)

During my semester at the College I gave two public lectures. One with an economics professor concerned antitrust policy. The other, American litigiousness.

In the latter talk, I discussed what I saw as the causes and effects of Americans’ inclination to sue one another. While concluding that one could not applaud or deplore litigation and litigiousness in the abstract, I suggested changes in our legal system and national psyche.

J. B. Grinnell

I also discovered that the mid-19th century founder of the town of Grinnell (J. B. Grinnell) had similar thoughts. In his memoirs he said, “To the honor of the first settlers [of the town], I can recall no suit where they were personally litigants. How much time and money was saved! What an exemption from bitterness, cold-blooded social strategies, and flippant perjuries in mockery of oaths! This did not come by chance, for there was a verbal compact that we would not promote a lawsuit.”

J. B. Grinnell had even harsher words for lawyers who encouraged litigation. “There may be honor, which I doubt, among thieves, but little when robust clients are to be plucked . . . . [A] class of idle pettifoggers in legal business stir up litigation more degrading than any brute warfare, and then laugh at their dupes, traducing the judge as the author of defeat, or a jury which they irreverently send to another and warmer realm . . . . Filth to them is like nutritious food; they are crazy on constitutions, and in spasms of assumed virtue on a human suggestion not written in law. They have no God, nor one fit to be written with a small g. Human gad-flies.”

While on sabbatical leave, I had to return to Minneapolis to appear at a hearing in federal court. This made me realize how much I enjoyed the challenge of the adversary system–preparing for, and doing, battle on relatively short notice puts an attorney’s abilities to a difficult test. But I did not miss the annoying difficulties of scheduling and re-scheduling appointments and having one’s personal life whipsawed by others’ demands plus the increasing incivility of lawyers to one another, even in a city like Minneapolis.

Learned Hand

Nor did I miss the nagging doubts about the significance of a lawyer’s life. As Learned Hand, one of our greatest judges, said in a 1931 commencement address at the Yale Law School, “Most of a lawyer’s time . . . consists of activity which seems to have small value and small bearing on the greater issues of the community in which he lives. True, it concerns the individuals whom he touches oftentimes in their deepest interests, but it is hard to believe that the results are important more largely.” [2]

Despair, however, was not Hand’s conclusion. “When our lights burn low, when we [lawyers] seem to stand futile and without meaning, used up in the senseless strife of interest and passion, concerned with nothing better than to get for others what perhaps they should not have, let us look up to the great edifice which our forebears have built, of which we are now the guardians and the craftsmen. Though severally we may perhaps be paltry and inconsequent, for the present it is we who are charged with its maintenance and its growth. Descended to us, in some sort moulded by our hands, passed on to the future with reverence and with pride, we at once its servants and its masters, renew our fealty to the Law.”[3]

Despair at the lawyer’s life was not my conclusion either. My sabbatical leave enabled me to step back and look more broadly at the edifice of the law and our legal institutions and to draw sustenance to return to practicing law.

In June of 1982 the College granted me an Alumni Award in recognition of this teaching and other service to Grinnell.


[1] An earlier version of this essay appeared as An attorney finds an “accommodating bench,” Grinnell Magazine, June-July-August 1982, at 17.

[2]  Learned Hand, The Spirit of Liberty at 84-89 (3d ed. Chicago: Univ. Chicago Press 1960). Several years after my sabbatical leave, I discovered that Learned Hand was a Harvard Law School contemporary and then life-long friend of Edward B. Burling, a famous Washington, D.C. lawyer who came from a small Iowa town and Grinnell College. (See Post: Adventures of a History Detective (April 5, 2011).

[3]  Id.

The Sanctuary Movement Case

After 19 years of practicing corporate litigation with prominent law firms in New York City and Minneapolis, I was a tabula rasa in what turned out to be important topics for me. I had no knowledge of, or interest in, international human rights law in general or refugee and asylum law in particular. Nor did I have any knowledge of, or interest in, Latin America in general or El Salvador in particular. At the same time I was struggling with the question of how to integrate my newly re-acquired Christian faith with my professional life.

In 1985 all of this started to change.

My senior partner at Faegre & Benson asked me to provide legal counsel to the firm’s client, the American Lutheran Church. The problem: how should the ALC respond to the news that the U.S. Immigration and Naturalization Service had sent undercover agents into worship services and Bible study meetings at Lutheran and Presbyterian churches in Arizona that were involved in the Sanctuary Movement?

As I soon discovered, that Movement was a loose association of Christian congregations that declared themselves sanctuaries or safe spaces for Salvadorans and Guatemalans fleeing their civil wars in the 1980s. The news about the “spies in the churches” was revealed by the U.S. Government in its prosecution of some of the Movement’s leaders for harboring and transporting illegal aliens, some of whom were later convicted of these charges.[1]

In the meantime, the ALC and my own church, the Presbyterian Church (U.S.A.), decided to join together to sue the U.S. Government over the “spies in the churches.” Eventually the U.S. District Court in Phoenix agreed with the churches that the First Amendment’s “freedom of religion” clause[2] provided protection against certain government investigations.

The court said that the churches “in the free exercise of their constitutionally protected religious activities, are protected against governmental intrusion in the absence of a good faith purpose for the subject investigation. The government is constitutionally precluded from unbridled and inappropriate covert activity which has as its purpose or objective the abridgment of the first amendment freedoms of those involved. Additionally, the participants involved in such investigations must adhere scrupulously to the scope and extent of the invitation to participate that may have been extended or offered to them.”[3]

I should add that the courtroom work in this case was done by two lawyers at the Phoenix firm of Lewis and Roca–Peter Baird[4] and Janet Napolitano.[5]

This case marked a turning point in my legal career as will be evident in subsequent posts.


[1]  One of the founders of the Sanctuary Movement was Rev. John Fife of Tucson’s Southside Presbyterian Church. He was one of those convicted in 1986 in the criminal case.  Six years later he was elected the national leader (Moderator) of the Presbyterian Church (U.S.A.)..(Wikipedia, John Fife, http://en.wikipedia.org/wiki/John_Fife.)

[2]  “Congress shall make no law . . . prohibiting the free exercise [of religion].” (U.S. Const., Amend. I.)

[3]  Presbyterian Church (U.S.A.) v. U.S., 752 F. Supp. 1505, 1516 (D. Ariz. 1990), on remand from, 870 F.2d 518 (9th Cir. 1989).

[4]  Peter Baird, http://www.lrlaw.com/files/Uploads/Documents/Baird%20Bio.pdf; Phoenix veteran attorney Peter Baird dies, Phoenix Bus. J.(Aug. 31, 2009), http://www.bizjournals.com/phoenix/stories/2009/08/31/daily19.html.

[5]  Napolitano now, of course, is the Secretary of the Department of Homeland Security. (Wikipedia, Janet Napolitano, http://en.wikipedia.org/wiki/Janet_Napolitano.)

The Roads Not Taken


“Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.”[1]

 

In earlier posts, I described two roads not taken–becoming a Protestant minister or a professional historian.[2] Another was not going to graduate school in economics after reading PPE (Philosophy, Politics and Economics) at Oxford. That was primarily because I had had hardly any of the necessary mathematics in college and did not want to embark on a lengthy pursuit of a Ph.D.

After four years of being a Wall Street lawyer, I already have talked about my choosing not to remain at Cravath, Swaine & Moore to compete for one of its partnerships.[3] At the same time I declined an offer to teach at the University of Iowa College of Law. That was because I had enjoyed practicing law, because practice was more lucrative than teaching, and because I did not have some brilliant legal scholarship waiting to be unleashed.

Instead I chose to continue practicing law. But instead of fully exploring various cities, including San Diego, that were on my list of possibilities for such practice, I chose Minneapolis without an exhaustive analysis of the pros and cons of one city versus another. I did so because I already had developed good  working relationships with Minneapolis attorneys at Faegre & Benson on the IBM antitrust cases, because Minneapolis was closer to my wife and my original homes in Nebraska and Iowa and because Minneapolis sounded like an interesting place to live. (This last February after spending four pleasant weeks in Carlsbad, California just north of San Diego and avoiding a very cold and snowy Minneapolis, I wondered: Did I make a mistake in not going to San Diego?)

Other paths not taken were because I was not chosen. I already mentioned not winning a White House Fellowship in the last semester of law school.[4] At the same time my applications for U.S. Supreme Court clerkships with Chief Justice Earl Warren and Justices Potter Stewart and Byron White were rejected. Such clerkships, of course, are pursued by many top law graduates because they are fascinating, challenging and prestigious jobs that open many doors for subsequent legal careers.

After registering for the military draft at age 18, I had college student deferments (Class 2-S) that covered my nine years at Grinnell, Oxford and Chicago. But in my last semester of law school, I received a notice from my draft board to report for an Armed Services physical examination and thus potential military service. As it turned out, my wife was pregnant with our first child, and I thus was entitled to a new deferment (Class 3-A) because of dependant’s hardship. As a result, I never had to serve in the military, and I did not volunteer to do so. I missed the Vietnam War, much to my relief then and now.

While I was at the Faegre & Benson law firm, I was unsuccessful in my efforts to be appointed to vacancies on the Minneapolis School Board and the U.S. District Court in Minnesota as a judge and then later as a magistrate judge.  I also was unsuccessful in seeking the Deanship of the Hamline University School of Law. These jobs all sounded interesting, challenging and rewarding. The last three also would have allowed me to escape the pressures of practicing law.

I also have mentioned my not being offered a teaching position in Ecuador after I retired.[5]

I have no regrets about these roads not taken although I will never know what would have happened had I chosen or been chosen for one of them.  But clearly the road I did take “has made all the difference” in my life. Indeed, the road you take and the many decisions you made at various forks in the road along the way constitute your life.


[1] Robert Frost, The Road Not Taken in Mountain Interval (1915).

[2] Post: Adventures of a History Detective (4/5/11); Post: Minneapolis’ Westminster Presbyterian Church (4/6/11).

[3] Post: Lawyering on Wall Street (4/14/11).

[4] Post: Questioning President Lyndon Johnson (4/17/11).

[5] Post: My First 10 Years of Retirement (4/23/11).

Lawyering in Minneapolis

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.