19 minute read
Law School: Finding My Vocation
(June 1, 2015)
Before graduatIng from BrandeIs, I took max lerner’s advIce on faith and applied to law school. I applied to several, but Harvard was not one of them. Too elitist for me, I then thought; also, I wanted to get away from Boston and Cambridge. I had never been “west,” and the University of Chicago Law School offered me a three-year full tuition scholarship (tuition then was $900 a year28), which “sewed it up.”
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My law school class consisted of approximately 150 students, of whom just 4 were women and 4 were Black (including 1 Black woman). The rest were white males. That’s the way it was in 1957— and always had been (and worse) at American law schools, with a
28. According to the University of Chicago Law School, “Tuition for the 20212022 academic year is $70,710. A reasonable budget for a single student, including tuition and living expenses, for the 2021-2022 academic year is approximately $94,000. The living expenses budget includes $4,566 for the University required health insurance, which students can waive if they can provide comparable coverage with their own health insurance.”
few exceptions.29 At Chicago, out of a faculty of about 30, there then was only 1 woman instructor, Soia Mentschikoff, who had married her teacher, Karl Llewellyn,30 at Columbia Law School. Apparently because of an anti-nepotism rule at Columbia, they had moved on to Chicago.31 There was just one Black faculty member, William Robert Ming Jr., who was involved in NAACP civil rights litigation. In 1960, he tried and won a case involving an alleged perjury charge against Dr. Martin Luther King Jr. before an allwhite jury in Montgomery, Alabama. Earlier he had been involved in Brown v. Board of Education.
The University of Chicago Law School was and remains today a small and elite law school. But its student racial and gender mix has changed significantly for the better over the last sixty years, as is the case in law schools and in the legal profession generally. Nevertheless, in my view, the profession and law schools are still far from where they should be in terms of faculty and student diversity. The legal profession, the law itself, and law school, for most of American history, have been bastions of white male supremacy. The struggles of women, Blacks, Hispanics, Asian Americans, and Native Americans to enter the “Inns” of court continue. For most of American history, they have been legal “outs.”
Nevertheless, I recall my first law school days as having been remarkable, highlighted by the opening address by Dean Edward Levi.32 As the entire entering class sat in one of the amphitheater-like
29. A female friend from Brandeis who went to Harvard Law School in 1956 told me that she was asked by Dean Erwin Griswold to promise that she would not have children if she was admitted to Harvard. She must have said yes, since she attended.
30. See Llewellyn, The Cheyenne Way and The Bramble Bush.
31. Indeed, Susan Brandeis, Louis’s daughter, was unable to attend Harvard Law School (her father’s school) as a woman and went to Chicago.
32. Edward Hirsch Levi, the son and grandson of Reform rabbis, was an American lawyer, legal educator, and public official. Born in Chicago, he graduated from the University of Chicago and Yale Law School. Long associated with the University
classrooms, he began by declaring that we should look to our left and right. “One of the two will be gone by the first snowfall.” It snows early in Chicago, and Ed Levi was right. Whether it was the amount of work, the pressure, a distaste for the law, or personal reasons, we would soon number about 110. I’ve come to learn that this speech traditionally was given at other law schools, such as Harvard, as well. The movie The Paper Chase provides a fictitious but accurate example of law schools then. This has changed in the interim, with law schools working hard to retain students by being more student-friendly. The addition of female faculty and students has contributed greatly to this change and to the law as well.
My grades in law school were middle of the class. Real property, bills and notes, contracts, trusts, taxation, corporations, and other standard law school courses left me cold, although at least I was learning about the organic infrastructure of the capitalist status quo from what I youthfully saw as “the inside.” What I learned later was that to be a competent lawyer, one must at least have some familiarity with it all.
Much more to my liking were courses in constitutional law, civil liberties, labor law, and antitrust (called “competition and monopoly” at Chicago and taught by Ed Levi and Aaron Director). I took as many of these classes as I could from an extraordinarily talented group of teachers, which included Philip Kurland, Karl Llewellyn, Edward Levi, and Harry Kalven.33
of Chicago, he was a professor of law there from 1945 to 1975, was dean of the law school from 1950 to 1962, provost of the university from 1962 to 1968, and president from 1968 to 1975. He served as President Gerald Ford’s attorney general from 1975 to 1977 and did much to restore credibility to the position after the Watergate scandals of the Nixon years. He then returned to the University of Chicago as the Glen A. Lloyd Distinguished Service Professor. Among his writings are An Introduction to Legal Reasoning (1949), Four Talks on Legal Education (1952), and Point of View: Talks on Education (1969). He died in 2000.
33. A 2005 book by George W. Liebmann, entitled The Common Law Tradition: A Collective Portrait of Five Legal Scholars, describes the work of these four.
I enrolled in an additional course in constitutional law taught by William W. Crosskey,34 a former Wall Street lawyer who traded the law practice for academia after researching a significant constitutional law issue. His two-volume Politics and the Constitution is a great illustration of the intersection of scholarship and legal research. One of Crosskey’s significant insights was that the Constitution of the United States had to be read on a word-for-word basis in relation to the use of language during the period prior to the Constitutional Convention. Like a linguistic anthropologist, he looked at books, newspapers, and other documents of the period to determine what the words used actually meant to the drafters of the Constitution. Needless to say, this was a formidable but highly productive enterprise. The close textual analysis that Crosskey employed and demonstrated would prove extremely useful to me in my own research, writing, and thinking. But do not assume that Crosskey was like the modern-day “originalists.” His conclusions were in many respects the opposite of the current (2021) originalists on the Supreme Court. In a lecture I recently watched online by Herbert Marcuse, he said that his teacher in Germany, Martin Heidegger, had a similar perspective regarding the work of German philosophers. An important German philosopher himself (and a lover of his student, Hannah Arendt), Heidegger became a member of the Nazi Party in 1933.
It was in writing that I excelled at law school, and it is in writing, at least of legal briefs and a few law review articles, where I believe my talents as a lawyer have been demonstrated. In my first year at law school, I took a tutorial in legal writing with a British assistant professor who critiqued my assigned research papers endlessly over two quarters and helped me to improve both my style and substantive formulations.
34. Crosskey had sold pots and pans to be able to attend. See Abe Krash, “William Winslow Crosskey,” University of Chicago Law Review 35, issue 2, article 3 (1968); Charles O. Gregory, “William Winslow Crosskey: As I Remember Him,” University of Chicago Law Review 35, issue 2, article 5 (1968).
The briefs and papers I wrote were researched the old-fashioned way, with the aid of Shepard’s Citations and without Westlaw or Lexis, which didn’t come into practical use until about thirty years ago. The latter two have increased the effectiveness and productivity of legal scholarship and practice significantly, including mine. They have reduced the time involved in legal research dramatically and have improved its quality as well.
Fiduciary Complexities
My first days at law school were quite interesting. Not only was I entering a new stage of my life, but it just so happened that on registration day, there was a conference being held in the large University of Chicago law library entitled “Fiduciary Obligations of Union Officers.” I had never heard the word fiduciary before, so I looked it up, to wit: “A position of trust or a person occupying such a position.” The term fiduciary was one that I would later come to know, ponder, and apply both to myself as a lawyer vis-à-vis my clients, the courts, and beyond, and to union officials vis-à-vis the union’s members and assets.
The principal speaker at the conference was Bernard Meltzer, a distinguished legal scholar who would also become my evidence and labor law professor, and later an arbitrator before whom I would be required to put in an economic case on behalf of postal unions. Meltzer earlier had been a prosecutor at Nuremberg and a drafter of the United Nations Charter.
The concept that Meltzer advanced that day was that union officers occupied positions of trust in relation to the union’s members and property, including its treasury, and that such officers should be held personally accountable in the civil courts for breaches of their fiduciary obligations. This concept seemed fair enough in the abstract. However, later, as a labor lawyer who practiced almost exclusively as a union in-house counsel for twenty years, I
discovered that the concept contained the seeds of a very destructive anti-union principle. The reason for this is, as Justice Benjamin Cardozo is often quoted as having said:
Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.35
The ability to act as a fiduciary involves strict adherence to the interests of those represented, but this becomes difficult when those interests diverge. A union official is also a political leader who must fulfill his or her obligations by becoming involved in the give-andtake of political and economic life. For example, the United Auto Workers (UAW) represents unskilled, semiskilled, and highly skilled workers employed in the same company or industry. It is up to the UAW to decide how to advance the sometimes-conflicting needs and demands of these groups. Should raises be sought “across the board” for cents per hour or as percentage increases? Usually, the latter would favor the higher-paid workers while the former would favor the lower-paid. Are fiduciary principles involved in such decisions? Are they decided on the basis of majority vote? Will the minority be coerced or discriminated against by the majority?
Consider this hypothetical yet realistic scenario: Suppose the largest group of UAW members come from the unskilled or semiskilled ranks, and they elect members from their ranks as the union’s president and top officers. What if members of the highly skilled group subsequently brought a lawsuit charging that union leaders unfairly supported the less-skilled workers at their expense? How
35. Meinhard v. Salmon, 249 N.Y. 458, 465 (1928).
would a court decide this case? What evidence and principles would be relevant and brought to bear?
Take another, not uncommon scenario: When two unionized companies are merged or consolidated, should the seniority status of the acquired company’s employees be “sandwiched in,” or should they go to the bottom of the seniority list of the acquiring company? And who should decide?
Indeed, the simplistic notion of applying time-honored, common-law fiduciary principles appropriate for lawyers, accountants, banks, and trustees of estates, to union officials—who then might be sued personally by disgruntled members (possibly supported by anti-union employers) and have to defend themselves at their own expense—seemed to me to be quite threatening to unions. Why be a union official at all in the face of this kind of exposure? Better to take a higher-paying and less vulnerable job with management, or for that matter, to continue to work at the trade or craft. I have seen union officers choose both of these options.
Two years after this 1957 conference, Congress imposed fiduciary obligations on union officials in the so-called Labor-Management Reporting and Disclosure Act of 1959 (LMRDA—also known as the Landrum-Griffin Act), although it adjusted the fiduciary provision of LMRDA 501(a) “to take into account the special problems of labor organizations.” How judges (generally appointed from the ranks of corporate and business attorneys, while union lawyers are considered too one-sided to serve on the judiciary) are to determine and apply this open-ended law to such fiduciary responsibilities remained to be seen after 1959. Not surprisingly, these fiduciary provisions have been a hotbed of litigation over the last sixty years.
But I digress.
Despite the fact that the Chicago faculty was outstanding, law school for me was mostly drudgery. After my exciting four years of intellectual exposure at Brandeis, slogging through endless cases and legal doctrines left me frustrated and confused about where it
was leading. I saw no light at the end of the proverbial tunnel, perhaps because law in the abstract did not inspire me in any way and its practical application seemed quite helter-skelter. For the most part, it was (and still is) an instrument for enforcing the status quo (or worse), rather than being a force for needed social, political, and economic change.36 What I did not see then was that the point of it all was to equip me to cope with what lawyers do in terms of applying the substance of the law to the realities of life, in the hope of achieving fairness and equity for those subject to, and dependent upon, the rule of law. Trying to do this during the sixty years that I have practiced labor law has engaged me continuously in seeking to make the law work for working people as well as the unions that have represented them on the job. It has been a continuously challenging process of problem solving of seemingly insoluble disputes that the parties have created and that require resolution. A description of the substance of my efforts would require another volume, which may yet see the printed page, but for now, all I can say is that choosing law as my vocation, although somewhat fortuitous, was the best career decision I might have made.
NYU Law School
My decision to attend the New York University Law School for the 1960/1961 school year to obtain an LLM in labor law was not motivated solely by academic and career interests. My alternative would have required me to enter the military for two years, which I saw as an unnecessary choice as compared with being deferred because I was pursuing my education. And when the school year ended, I would be exempt from the military entirely, since I would have by
36. In fact, the political and judicial philosophies of the members of the United States Supreme Court and the United States Courts of Appeals have influenced significantly the direction of the national path, both forward and backward.
then celebrated my twenty-sixth birthday. Thus for me this was an easy choice, especially because our nation was not then at war. The Korean “Conflict” (technically not a “war”) had informally ended on July 27, 1953, with the signing of an armistice between North Korea, China, and the United States (South Korea refused to sign), and the entry of the United States into the conflict in Vietnam may be said to have begun in May 1961, when President John F. Kennedy secretly sent four hundred Green Berets into South Vietnam to help it fight the Viet Cong, the armed communist insurgency supported by North Vietnam.
My curriculum at the NYU Law School, which is located at Washington Square in Greenwich Village, involved classes four nights each week for the school year, taught mostly by lawyers who were active practitioners during the day for labor or management or who were neutral arbitrators. My teachers were all white males, as were my classmates. Women and non-whites were not in attendance, as far as I can remember.
In addition to attending classes, I was required to complete a master’s thesis under the supervision of an individual faculty member. As to the selection of a thesis topic, I chose “The Right to Join a Union: A Post-Landrum-Griffin Appraisal.” The focus of my subject arose from the fact that, historically, as private voluntary associations protected by the First Amendment’s right of free association, unions had long been free (like private clubs) to decide for themselves whom they would admit to membership, and they correspondingly were entitled to exclude individuals based upon race, sex, or other discriminatory grounds. Indeed, many unions in the South, and elsewhere, excluded groups from membership, or they maintained separate locals based on race.
This issue came up dramatically at the 1959 convention of the American Federation of Labor–Congress of Industrial Organizations (AFL-CIO), when A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters, a union of Black railroad
workers, challenged AFL-CIO President George Meany over its failure to end discrimination against Blacks in certain unions. At that time, the Plumbers and Pipefitters Union, for example, from which Meany emerged, had “a ‘keep out’ tradition.”37
The feisty Meany responded harshly to Randolph on the convention floor, asking Randolph, “Who the hell appointed you the guardian of all the Negro members in America?”
For many years, Randolph, a leading socialist dating back to before World War I, when he urged Blacks not to register for the draft, had fought against racial discrimination in employment and had threatened both presidents Franklin D. Roosevelt and Harry Truman with protest marches against discrimination in defense plants and the military. Randolph succeeded in his objective of getting FDR to issue an executive order immediately before the Second World War, prohibiting discrimination in defense plants. And after the war Randolph succeeded in “persuading” President Truman to integrate the armed services beginning in 1948. They had been segregated going back to the Revolutionary War.
The enactment by Congress in 1959 of the Labor-Management Disclosure Act of 1959 (Landrum-Griffin) imposed substantial regulations upon internal union operations, such as the conduct of elections, increases in dues, and protection of members’ rights. Thus, as my thesis I was prepared to argue that those controls, and the bargaining authority granted to unions under federal law, took away their ability to limit membership based upon race. When I submitted my thesis proposal to my faculty advisor, a distinguished New York City management lawyer, I was surprised to hear him discourage me from choosing this topic. His reasoning was that it was too controversial and might adversely affect my career. He explained that he himself had paid a price for his political views
37. See A. H. Raskin, “New Jobs Opening to Negro in North,” The New York Times, April 26, 1956, p. 26.
and independence earlier, and he was trying to help me avoid experiencing similar adverse consequences. I thanked him for his concern but told him I was going forward and would let the chips fall where they may. In fact, the enactment of comprehensive federal anti-discrimination laws a few years later helped to decrease discrimination by unions.
My favorite professor at the law school was Stephen Charney Vladeck. He had just begun teaching as an adjunct there, but he had long been engaged in representing many unions in New York City. In addition, he was involved in civil liberties and civil rights representation as well as other progressive enterprises.
What also distinguished Steve was that he was the son of Baruch Charney Vladeck, who had been a socialist member of the New York City Council, and the manager of the socialist Jewish Daily Forverts for many years,38 a spokesperson for numerous liberal, labor, and radical causes, and a former Russian revolutionary member of the Jewish Labor Bund during the early part of the twentieth century. He had been imprisoned in Russia for his political beliefs and activities, and he immigrated to the United States in 1908, at age twenty-two, to escape further persecution. His name “Vladeck” was a pseudonym adopted in Russia as his nom de guerre. It is said that when “B.C.” died at age fifty-two in 1938, there were half a million mourners at the Forverts building on the Lower East Side of Manhattan.
As for Steve, he was an outstanding and innovative teacher. His class had about eight students in it, and each week he would assign us a set of facts in a labor case about which we were required to submit a brief on behalf of the union or the employer. At the weekly class sessions, the students were called upon to argue their cases, and Steve would critique our briefs and arguments. Of course, I
38. An “ear” on page 1 of the Forverts declared in Yiddish, “Arbeter fun alle lender, fareynik zich,” or “Workers of the World, Unite.”
always chose to argue each case on behalf of the union involved, but I learned much from Steve and my classmates during the year, regardless of which side they were taking. Candidly, I remember it as having been the most useful and creative law class I had ever taken.
To my surprise, when the school year was over, Steve proposed to me that I join his firm in New York, but by then I had been asked to return to Washington, D.C., and join the Teamsters legal department, which I had agreed to do.
In later years I maintained contact with Steve’s firm and some members of the Vladeck family, including his wife, Judith, who became a trailblazing advocate for working women’s rights. Both their son David and daughter Anne have had outstanding careers in the law, as well as have Steve and Judy’s grandson, Stephen I. Vladeck, who now teaches at the University of Texas Law School. Whenever I’ve read about the Vladecks’ many accomplishments, I remember Steve and the fictitious nom de guerre they bear.39
A final fond NYU remembrance: I had no intention of attending the NYU graduation ceremonies at what was then the NYU University Heights Campus (now the Bronx Community College). However, my mother insisted we be present, and so she and I found our way there. As we located our seats, we realized we were seated next to my hero, Jackie Robinson, and his wife, Rachel, who were there attending someone’s graduation. Thus, before the program started, we chatted amiably with them on a hot Sunday afternoon in the Bronx.
39. See John Herling, “Baruch Charney Vladeck,” American Jewish Yearbook 5700 [1939–1940], pp. 79–93.
