By Jules Lobel
Movements seeking fundamental social, economic and political change have faced a recurring dilemma in the United States and other nations. During activist periods such as the 1930s and ’60s, powerful protests inspire important constitutional and legal reforms and weaken the power of entrenched elites. Yet once the social movement ebbs, the activists’ broader egalitarian economic and social demands are left unrealized, and the movement has been unable to sustain itself. Some scholars believe that this recurring pattern is inevitable, and that the most poor people’s movements can do is win reforms during periods of crisis or upheaval.
This article argues that transformational movements can outlive the momentary crisis in which they arise and play a long-term role in creating a constitutional order that enshrines social and economic equality. Moreover, legal organizations can be an important part of such movements. This article addresses the role of social movements in egalitarian constitutional transformation by focusing on a legal organization, the National Lawyers Guild. The Lawyers Guild is one of the few organizations committed to social and economic equality founded in the 1930s and 1960s that survive today still committed to radical change. That it has survived with its fundamental mission intact suggests that such institutions can outlive the insurgent period in which they are created. This article analyzes why the National Lawyers Guild has been able to sustain itself for what is now almost 80 years with its commitment to social and economic transformation undiminished, and what lessons can be gleaned from the Guild’s history for legal and other social justice organizations’ potential to sustain social movements.
In their influential book, Poor People’s Movements: Why They Succeed, How They Fail . Francis Fox Piven and Richard Cloward argue that poor people’s movements are unable to sustain themselves over time or change the basic constitutional order much, but can only seize the moment presented by societal crisis to create maximum disruption and achieve incremental reforms. 1 They analyze the mass movements of the ’30s and ’60s and argue that once the mass upsurge subsides, the progressive, mass organizations that were created inevitably either “fade away” or abandon “their oppositional politics.” 2 And indeed, that is precisely what happened to the civil rights organizations, welfare rights and unemployed groups and trade unions of those eras. Piven and Cloward therefore argue that movement leaders should not concern them – selves with building formal organizations if they want to achieve the maximum constitutional or societal change.
This article argues to the contrary. To achieve socioeconomic constitutional transformation requires not simply a constitutional moment, but a long-term constitutional movement. The reform/reaction cycle can be overcome, but only by a sustained movement for transformative change. Such a movement requires the development of radical civic, community, economic, political and legal organizations. These institutions must seek economic transformation, yet also be prefigurative of a just society in that their internal workings and practice reflect the democratic, egalitarian society they aspire to create. 3 That so few mass radical organizations have been able to survive with their mission intact raises the question of what such organizations can do to sustain themselves and play an important role in building social movements over the long haul. The National Lawyers Guild, created in 1937 has survived where many others failed or were coopted, and played a significant role in the movements for equality of the 1930s, 60s, and today. This article asks and tries to answer why the Guild has been able to do so.
That a legal organization is one of the few out of the hundreds of unions, unemployed groups and professional associations created in the 1930s to survive as a radical egalitarian group still committed to a transformative agenda suggests that perhaps the lawyers’ role lends itself to such sustainability. Indeed, cause lawyering constitutes a significant aspect of the lawyering profession, 4 and legal organizations devoted to progressive causes proliferated in the 20th century 5 and have proven to have long-term durability. But of all these organizations, only the Lawyers Guild is a mass membership organization committed to radical, egalitarian transformation of society. 6
Two characteristics of legal organizations could explain the proliferation and durability of progressive legal institutions dedicated to cause lawyering. The first is the enormous role that law, and particularly the constitution, has played in the United States movements for social change. It is no accident that in the United States, many of the sweeping political changes of the last century have come through Supreme Court pronouncements—ending racial segregation, 7 according women a right to choose whether to end a pregnancy, 8 or more recently recognizing gay couples’ right to marry. 9 While academics 195 have debated the efficacy of these judicial interventions, 10 in the United States, as Tocqueville noted almost two hundred years ago, almost every political issue becomes a legal one. 11 Therefore progressive legal organizations have what amounts to a privileged position on the American political scene, making them easier to sustain.
Second, legal organizations and progressive lawyers can provide concrete services to the community served by the organization, be it defined by race, ethnicity, gender, poverty or geography. While that may also be true of other professionals who perform a valuable community service, 12 legal organizations provide a service often directly tied to justice and therefore political change. Service tied to political change fosters the sustainability of legal organizations committed to political causes such as ending discrimination based on status. The Lawyers Guild, however, has developed a radical, egalitarian practice of service, differing drastically from the mainstream view of the lawyer/client relationship. That redefinition of legal service is of critical importance in explaining why the Guild has survived with its commitment to fundamental socio-economic change intact.
This article views the history of the National Lawyers Guild through the lens of the overall movement for economic and social justice in America. The Guild’s survival and important role in various struggles for justice provide valuable insights for the building of that movement. The Guild’s durability and continued radicalism has been a function of (a) its development of a revolutionary view of legal service, (b) the independence and autonomy it has scrupulously maintained from the government and political parties, (c) its diverse and tolerant leadership which has been open to incorporating major changes in the organization’s direction, but not its overall principles.
Part I sets forth the historical and theoretical background to the problem of how to develop a sustained movement for fundamental economic and social change. The next four parts address the National Lawyers Guild’s history—its founding period, its ability to survive the end of the reformist period and the onset of reaction, its turn to the Southern radical civil rights movements in the ’60s, and its rebirth and transformation as a part of the new left movements of the late ’60s and early ’70s. A critical thread that runs throughout the Guild’s history is its pioneering of a radical vision of the provision of legal services, which along with its tolerance for difference and independence from the state and political parties allowed it to sustain itself as an organization committed to social and economic transformation.
I. The dilemma of the reform/reaction cycle
The United States went through two periods of radical upheaval in the past century, resulting in what Yale Law Professor Bruce Ackerman has termed, transformative constitutional moments. 13 Ackerman sought to understand t he “processes that allowed Americans to transform moments of passionate sacrifice and excited mobilization into lasting legal achievements.” 14 Yet, while both transformative periods, the 1930s and 1960s, resulted in important constitutional and economic reforms, the underlying goals of many movement activists for economic equality and transformation were eventually dashed. Perhaps more importantly, the radical movements and organizations that were the real engine of those changes in the ’30s and ’60s either no longer exist, or have been bureaucratized and deradicalized. 15
While Ackerman addressed how important constitutional reforms are institutionalized, an important question he never considered is how transformational movements can be sustained beyond the constitutional moments in which they flourished. Gary Bellow, a founder of Neighborhood Legal Services and later Professor at Harvard Law School recognized the need to answer that question when he noted that legal victories could be easily circumvented, thereby requiring continuing pressure from outside governmental institutions to be maintained. Bellow argued against either a “service model” of lawyering or a law reform model, and sought instead to create “lawyer organizers” who could leave behind organized poor people to continue the struggle for economic justice. 16 The history of the ’30s and the ’60s illustrates the difficulties of sustaining such an approach over the long term.
In the 1930s, strong, radical trade unions, unemployed organizations and a host of other radical groups emerged that challenged the status quo and utilized rebellious tactics such as plant takeovers, sit-down strikes, and unemployed encampments in Washington to propel important New Deal reforms. 17 However many activists goals were not simply union recognition and a contract, or unemployment or retirement insurance, but to dramatically transform the inequality that existed between manager and worker and create a socialist society. 18 Some of those aspirations were reflected in a constitutional form by Franklin Roosevelt’s call, in his 1944 State of the Union Address, for a Second Bill of Rights providing for basic economic rights such as the rights to a job, decent wage, medical care, housing and good education. 19
Yet with the enactment of reforms, such as the National Labor Relations Act, the period of labor unrest subsided. 20 Eventually the unemployed movement died and radical unions were generally either crushed or integrated into the established order so that they no longer reflected the radical egalitarian goals of many activists who fought to create them. Today, we seem in many ways further from the goals of an equal economic order than in 1944, and the institutions or organizations of the ’30s either no longer exist or are no longer engines of radical protest.
So too, the 1960s confluence of the Civil Rights and student movements resulted in a period of intense, often radical activism that resulted in important constitutional and legal reforms such as southern Blacks achieving the right to vote, ending segregation and eventually electing thousands of Blacks to important offices, including that of President of the United States. The student movement helped change American universities and culture, the anti- war movement pressured the government to withdraw from Vietnam, and the women’s movement succeeded in gaining broad recognition for the principle of women’s equality. The period also spawned a remarkably successful gay and lesbian movement, which appears to be on the cusp of sweeping away legal discrimination based on sexual orientation.
Nonetheless, as in the 1930s, the broad aspirations for economic equality and transformation shared by Martin Luther King and many other activists were dashed once the conservative reaction set in. We now honor King as a great civil rights leader with a holiday, but ignore his plea for economic equality. King’s dream of economic equality and justice, reflected in his support for the Memphis sanitation strikers demands for economic justice and his organizing a poor people’s campaign, 21 has been quashed. Our society has ironically become more inclusive, yet grossly more unequal over the last half century. 22
The legal struggle for a more just society paralleled the broad political movement. Eventually the mass movements of the ’30s combined with President Roosevelt’s nomination of progressive justices led to the Supreme Court’s affirmance of the National Labor Relations Act, Federal minimum wage legislation and other New Deal legislation. 23 However, by the 1950s, after the militancy of the ’30s had ebbed, the Court issued a series of opinions that aided the deradicalization of the labor movement. 24
So too, the Civil Rights movement began with the momentous Brown decision, but the Court could never bring itself to declare an affirmative right to equal or integrated education, 25 and eventually the ringing pronouncements of Brown were negated. As the distinguished legal historian Paul Finkleman has noted, it is ironic that fifty years after the decision, “many scholars and some civil rights activists regard the decision as a failure.” 26 Harvard civil rights professor Charles Ogletree concludes, “that fifty years after Brown there is little left to celebrate,” 27 while the great civil rights activist and professor Derrick Bell wrote that “[b]y dismissing Plessy without dismantling it, the Court seems to predict if not underwrite eventual failure.” 28 Or as Bell went on to explain, the passage of years has transformed the Brown ruling “into a magnificent mirage, the legal equivalent of that city on a hill to which all aspire without any serious thought that it will ever be attained.” 29
In addition, the attempt to connect constitutional rights to socio-economic equality failed. The 1960s poor people’s movements inspired progressive lawyers and academics to articulate constitutional rights as a means to achieving social and economic equality—either through the equal protection or transformational movements 198 national lawyers guild review substantive due process clauses. 30 The Supreme Court, however, decisively rejected these theories. 31
A response of left academics, social movement theorists and political activists to this cyclical tension of reformist upsurge followed by conservative reaction has been to stress the need for organization. 32 Mass organizations would presumably lead struggles in times of crisis and mass protest, and would survive the period of reaction to inspire and lead future protests when a new crisis occurred. 33 Eventually, these mass organizations could, through democratic means, either achieve state power or force the elite to undertake fundamental economic and social changes.
In Europe, this organizational impulse often took the form of mass social democratic parties rooted in the labor movement pursuing social and economic equality by winning elections. 34 In contrast, United States organizing resulted in the formation of industrial and craft trade unions, other civic organizations, but never resulted in a social democratic or labor party as in England or Continental Europe. In the absence of a social democratic or labor party alternative, progressive lawyers and others on the left often attached themselves as the left wing of the Democratic Party. Ultimately, those European parties, as is the case with American trade unionism, became bureaucratized and coopted into the system so that they no longer seek social transformation. Indeed, in countries such as Greece, the main alternative to the crushing economic conditions of the past decade has arisen outside of the traditional socialist or leftist parties. 35 In the United States, the most recent dynamic upsurge challenging the existing social and economic order was the Occupy Movement of 2011, which also burst onto the political scene outside of the established unions or progressive civic organizations. 36
During the 1930s and ’60s, American activists devoted considerable attention to creating mass organizations that they hoped would become permanent fixtures for egalitarian change in the American political landscape. Yet as Piven and Cloward cogently analyze, those organizations by and large either collapsed or were coopted once the upsurge subsided. They argue that the focus on building organization is both futile and dangerous. It is dangerous because movement leaders do not escalate the momentum of popular protest since “they are preoccupied with trying to build and sustain embryonic formal organizations. . . . .” 37 “[B]y endeavoring to do what they cannot do, organizers fail to do what they can do.” 38 “Organization-building activities tended to draw people away from the streets and into the meeting rooms.” 39
Organizational building is also futile for Piven and Cloward because mass organizations are generally not sustainable as radical groups. For example, they argue that “the flaw” in the organizational model is “quite simply, that it is not possible to compel concessions from elites that can be used as resources to sustain oppositional organizations over time.” 40
Piven and Cloward’s perspective presents a bleak view of the potential for fundamental social-economic transformation. As Cloward noted in a 1998 interview, “Our view is the poor don’t win much, and they only win it episodically. You get what you can when you can get it—and then you hold onto your hat.” 41 For Piven and Cloward, “Organizers and leaders cannot prevent the ebbing of protest, nor the erosion of whatever influence protest yielded the lower class. They can only try to win whatever can be won while it can be won.” 42
Piven and Cloward are undoubtedly correct that neither organizers or leaders—nor lawyers for that matter—can prevent the ebbing of protest. But they dismiss the possibility of creating institutional forms which will outlast the temporary eruption of protest and help sustain a long term movement for social and economic transformation. The National Lawyers Guild presents one such institutional formation.
The Guild is obviously not a mass organization of the poor. Lawyers are professionals and not generally poor. The Guild therefore has access to more resources than a mass organization of the poor. Nor is the Guild a national labor union. Moreover, as already mentioned, radical legal organizations might be different from organizations of workers or other radical professionals because of the legal profession’s unique role in the political life of the country. 43
Nonetheless, the Guild is a mass membership organization, although its membership has never exceeded 10,000 members. The Guild’s ability to maintain itself as a radical organization over a substantial period of time thus presents the real possibility that insurgencies might leave something to outlast the particular reforms they win. The Guild’s history suggests that radical organizations born out of crisis can survive and help sustain an ongoing movement for economic equality through its inevitable ebbs and flows, and that such organizations will be not obstacles but valuable instruments in future upsurges. Indeed, while the Guild is small, it has made outsized, significant contributions to sustaining insurgent movements not only in the 1930s but also in the 1960s and ’70s, and more recently in aiding the Occupy Movement. Moreover, it has held fast to its support for fundamental economic and societal transformation. 44
The first feature of the Guild that has fostered sustainability was its development of an egalitarian, innovative model of legal service, which challenges the traditional narrow model of lawyering. One important component of a movement organization’s ability to sustain itself over time is its ability to provide a service to some constituency. Unions provide services, more or less effectively, to their members. The Guild has rendered important services, not simply or primarily to its members, but to a broader poor, working class and activist community. It developed an egalitarian, community oriented model of legal service, where the lawyer views himself or herself as part of the community to be served and not as an aloof professional in a hierarchical relationship to that community.
The Lawyers Guild pioneered a new, non-traditional, egalitarian, community-oriented form of lawyering which has proliferated in the past few decades. In recent years, academics and activists have shown interest in non-traditional models of lawyering which some term “community lawyering” 45 or collaborative lawyering, 46 others “rebellious lawyering” 47 and others “accompaniment,” 48 all of which describe a type of legal practice which the Guild initiated as an organization in the 1930s and ’60s. The Guild’s focus, which developed slowly but which escalated dramatically in the ’60s and ’70s encouraged lawyers to participate in, serve and accompany new popular movements, allowing the Guild to sustain itself where other groups might have stagnated or withered away.
Second, the Guild fiercely preserved an independence and autonomy from government funding, the governmental apparatus and political parties. Guild lawyers in the ’50s were held in contempt by the courts and disbarred or otherwise disciplined, but nonetheless fought for the right of lawyers to vigorously represent their clients, a fight they ultimately won. The Guild also asserted its independence from the Democratic and Communist parties, both of which had aided in its formation.
Finally, along with a democratic tradition and a steadfastness to principle, the Guild has historically exhibited a tolerance and even appreciation of dissent and differing progressive positions, which sustained the organization despite bitter sectarian battles. The Guild was thus able to incorporate new leadership and reach out to young lawyers who felt the organization was able to accommodate new ideas.
II. The early Guild and the beginnings of an alternative model of legal service
“The National Lawyers Guild was born in revolt—a revolt that embraced the entire intellectual life of the times,” wrote the Guild’s President, Tom Emerson, in a 1950 overview of the first fifteen years of the Guild’s history. From its beginnings in 1937 the Guild was almost torn apart by political controversies between different groups within it and by government repression. At various points in its history, it came perilously close to dissolving. Nonetheless it survives to this day as an independent radical organization that remains true to its rebellious roots. At its outset, it developed a concept of legal service that was very different both from the established bar and from the service orientation of, for example, mainstream trade unionism. That alternative perspective on service has developed throughout the Guild’s history and is a critical factor in explaining the Guild’s survival as a radical organization.
The organization was created by an amalgam of lawyers representing different perspectives. Perhaps most prominent at the outset were well connected liberal New Deal lawyers such as Morris Ernst who wanted to organize an 201 alternative bar association to the corporate controlled, virulently anti-New Deal American Bar Association in order to support the Roosevelt Administration. The founders also included Communist and socialist lawyers who believed in the necessity of socialist transformation of society and sought a socialist oriented organization of lawyers to aid political struggles and to push the Roosevelt Administration to the left. A third group were progressive civil libertarian lawyers such as Osmond Fraenkel and Tom Emerson who, unlike Ernst and his supporters, were unwavering in their view that Communists, like everyone else, were entitled to the full protection of the Bill of Rights. These lawyers were joined by hundreds of relatively low income, mostly big city, ethnic and racial minority lawyers who wanted an alternative bar association to press for employment for lawyers and other economic security measures and who were not represented by the ABA, or, in the case of African Americans, were barred from such membership. 49
In part, the Guild was modeled after the American Newspaper Guild and the Screen Actors Guild, each organized in response to economic distress amongst professionals. 50 Ernst had helped Heywood Broun organize the Newspaper Guild in 1933, and by 1936 was urging lawyers to form a similar professional union. 51 The Screen Actors Guild and the Newspaper Guild had completely different organizational trajectories than the Lawyers Guild. Both became powerful, mainstream unions that were anti-communist and not particularly known for their support of progressive, egalitarian causes . 52
The Lawyers Guild was first organized pursuant to a conception akin to a union, with an important organizational function of providing economic services for its members. As the first National Lawyers Guild Quarterly issue pointed out, the economic situation for most lawyers in the 1930s was dire: the median income of lawyers in Manhattan was less than $3,000, and nearly half made less than the $2,500, which was the poverty line for a family of four. 53 Throughout the country, many lawyers lived at or near subsistence level. 54 Accordingly, while the Guild never became a trade union and its primary focus was undoubtedly to serve as a progressive counterweight to the conservative ABA, an important part of its early organizational success lay in its appeal to economically struggling lawyers. As the Guild’s President noted in 1939, the organization directed its attention “to the economic position of the lawyer today.” 55 Indicative of its commitment to the have-nots of the profession, the Guild’s first by-laws set a membership fee of $1 for lawyers making under $1,500, which in New York was one-third of all lawyers . 56 At the end of its first year the Guild had 5,000 members, mostly lower income professionals, a figure that dropped to 4,300 after two years . 57
The early Guild played an important role as a progressive bar alternative to the ABA. It supported the Roosevelt Administration’s court packing plan, fought efforts to weaken the National Labor Relations Act, called for a full scale Social Security program, and demanded an end to restricted suffrage. The Guild’s International Law Committee issued an important legal report against the Roosevelt Administration’s policy imposing an arms embargo on all sides of the Spanish Civil War, which was printed in the premier edition of the National Lawyers Guild Quarterly . At the second convention, a resolution was adopted condemning the arms embargo, which sparked a major debate over whether the Guild should take “political” stands, or restrict its opinions to strictly legal concerns. 58
The Guild had an imposing array of impressive New Deal figures speaking at its conventions and participating on its Executive Board. Then Assistant Attorney General Robert Jackson and Senator Alben Barkley spoke at the first Guild Convention at which John P. Devenay, Chief Justice of the Minnesota Supreme Court, was elected President. Prominent figures such as the general counsel of both the AFL and CIO, Governor Phil La Follete of Wisconsin, Senator Homer Bone of Washington and Representative Maury Maverick of Texas were among those elected to the Executive Board. Black lawyers responded with alacrity to the Guild’s appeal as the only integrated bar association, which, in contrast to the ABA, supported racial equality. Charles Hamilton Houston, dean of Howard Law School and chief litigator at the time of the NAACP joined the Executive Board.
By the late 1930s, however, the Guild was wracked with internecine, political battles. Ernst and his liberal New Deal followers sought to have the organization denounce communism and fascism, and bar communists and fascists from Guild office. 59 When the majority in the Guild, including many civil libertarians such as Fraenkel and Emerson refused to do so, Ernst and his supporters, including prominent Roosevelt Administration officials such as Assistant Secretary of State A.A. Berle and Solicitor General Robert Jackson left. 60 Membership plummeted to about 1,000 in 1940.
While the Guild’s political positions and battles dominated the organization, it also developed proposals with respect to serving its members that were very different than that of other guilds or mainstream unions. While unions primarily or exclusively serve their members, and, at times, take positions at odds with the interests of the broader community, 61 the Lawyers Guild proposed various plans for lawyers to serve the wider poor and working class community. Those proposals were in tension with the positions of the mainstream bar, and sought to transform lawyers’ relationships to poor and working people. These initiatives represented the beginnings of a radically different view of legal service than that espoused by the traditional bar.
In the 1930s, as today, most legal practices focused on well-to-do clients. The needs of working class and lower middle income people were underserved or not served at all. 62 In Philadelphia and Chicago, the Guild developed pioneer programs for the establishment of neighborhood legal offices or legal service bureaus to provide service to working class neighborhoods not served by traditional legal practice or by the legal aid offices that served the bedrock poor. The Guild’s approach was to both aid underemployed or unemployed lawyers, and serve the millions of low income Americans unable to obtain legal service from high cost traditional law firms. The Guild believed that the professional welfare of lawyers should not be divorced from the availability of legal services to low income groups and rejected solutions to the oversupply of lawyers that entailed restricting entry to the legal profession or eliminating representation by laymen before governmental administrative agencies. 63 Instead, the Guild proposed aiding lawyers by providing legal services to underserved low income individuals.
The Chicago plan was based on a report of the Chicago Chapter’s Commit – tee on Economic Welfare of the Legal Profession, authored by University of Chicago Law Professor Malcolm Sharp who was to become Guild President in the 1950s. The report, citing studies by the prominent Chicago Law Professor Karl Llewelyn and others, argued that the bar had “failed to provide for the legal needs of the masses of people,” and proposed the establishment of a centralized legal service bureau, modeled after existing legal aid organizations, but charging low fees designed to serve working class people. The report claimed that the rise of an “organized low-income group movement,” including trade-unions and agricultural and consumer cooperatives, “tends to encourage articulation of the individual legal needs of group members and to require their satisfaction.” 64
The report won praise in many legal circles, including an endorsement from Supreme Court Justice Harlan Stone, and was approved by the Guild. The proposal asserted that individualized law practice had failed to meet community needs, but, nonetheless, its model conformed to traditional professional practices with a centralized structure led by a governing board of directors and did not foresee changing the attorney-client practices of law firms, although future innovative developments were not prohibited. 65 Its recommendations did deviate strongly from traditional bar practice in urging that the work of the bureau be widely publicized and that the bureau might engage in a wider program of educating the public. 66
The Guild proposal engendered widespread discussion. Follow-up reports viewed the proposed bureau as encouraging consultation “not only from the point of view of serving the clients that come to the bureau, but also as a means of educating the public to the value of legal advice.” Its establishment would not only serve needs inadequately met by mainstream lawyers, but also serve “as a possible instrument for re-education of the bar.” 67 Nonethe – less, the proposal was apparently never implemented in Chicago due to a lack of funding to start what was envisioned as a fairly large scale office. 68 The Guild began to look for government funding, met with the Attorney General in 1941 and formally proposed the creation within the Department of Justice of a Federal “Ministry of Justice,” a main function of which would be to develop mechanisms for low cost legal service for low income groups. Throughout the late ’40s and early ’50s, the Guild reiterated the necessity of public funding for legal services for those who could not afford the fees charged by private attorneys. 69 It viewed legal services for poor and low income people not as charity but as a matter of constitutional right, 70 a right still unrecognized today outside of the criminal justice context. 71
In Philadelphia, the Guild chapter endorsed and developed a more radical plan, which envisioned the transformation of the lawyer’s relationship to the community he or she served. The Philadelphia proposal, unlike that of Chicago, did not recommend a centrally controlled and directed legal services bureau. Rather, the Philadelphia Guild chapter proposed the creation of decentralized, autonomous, neighborhood law offices, staffed by lawyers rooted in their communities. It proved to be far more successful, eventually creating over twenty offices in working class neighborhoods, serving thousands of clients and lasting more than 25 years.
The Philadelphia Neighborhood Law Offices plan, originally conceived by lawyer, Robert Abrahams, was established under Guild auspices in 1939 as an experiment. It was directed by an all-volunteer committee of the Philadelphia chapter of the Guild. While all the members of the committee were also members of the Philadelphia Bar Association, a meeting with the leaders of the Association convinced the organizers that the Bar Association would refuse to sponsor it. So they turned to the Guild, which gladly adopted it, and, as a recognized bar association in Pennsylvania, provided supervision. 72
Six neighborhood law offices opened in November 1939. All were operated on a part-time basis initially, staffed by lawyers who had some other active law practice. They generally were located in low-income Philadelphia neighbor – hoods that were neither the poorest “relief” areas nor middle class sections of the city. The offices were decentralized and largely autonomous, consisting of lawyers who became partners in their respective offices and who shared expenses and profits. Each partnership agreed to abide by certain standards of practice set by the Guild Committee and in return was permitted to state that it was a Neighborhood Law Office authorized by the National Lawyers Guild. The partnership also agreed to charge clients minimal fees set by the Guild, including a fixed charge of $1 for a half hour interview. These lawyers did not have to be Guild members or members of any bar association . 73
The Guild committee also formulated five maxims of practice for a successful Neighborhood law office:
• Preventive law is to justice what preventative medicine is to health
• It is the dignity of the client, not that of the lawyer, which counts
• The lawyer should not be remote from his client either in geography or in understanding
• The lawyer who makes a mystery of his fees makes a critic of his client
• The lawyer who gives a service earns a fee. 74
The committee, therefore, urged the lawyers in these offices to live and actively participate in the neighborhood where the office was located. As Abrahams noted in the Lawyers Guild Review , “the neighborhood lawyer, in order to establish his practice, must be more than a man who merely sits in his office wishing he were downtown,” but must “participate in the life of his neighborhood.” 75 To Abrahams, all the maxims could be boiled down to one: “Be a part of the neighborhood you aim to serve.” 76 The offices were located on convenient streets, and some became known as five and dime offices, because they often were situated on busy blocks which had a five and dime store or a movie theatre, attracting a lively walk-in clientele.
As the first maxim suggested, the offices focused on preventive law, with most of the clients seeking advice on contractual or other matters in the hopes of avoiding litigation. Fewer than 5 percent of the clients sought advice on litigation. In addition, the overwhelming majority of clients were first-time users of lawyers: over 80 percent of the clients seen by the offices had never before entered a law office. 77
The Philadelphia Neighborhood Law Office plan was successful beyond the expectations of its founders. To the committee’s surprise, almost 150 lawyers expressed an interest in participating before the offices even opened. While the committee contemplated starting with four offices, they were initially able to operate six and two more opened shortly thereafter. By 1941 the committee was able to staff 10 offices. Despite some vigorous opposition from elements in the bar who felt threatened by the plan, the offices did well. When the experimental eighteen-month period was over, the program was made permanent. While the founding committee anticipated that some subsidies would have to be paid to allow the offices to sustain themselves at the outset, the offices quickly became self-sustaining, and the Guild committee spent less than $100 total in the first few years to establish the program.
A decade later the offices were providing a reasonable income for the lawyers, serving over 4,000 clients annually, and still charging $1 for an initial half-hour consultation. The whole plan evidently served an important, unmet public need, and received enormous favorable publicity, being touted in local newspapers and major national magazines such as the Saturday Evening Post and the Atlantic Monthly . 78 Within the first few years of the Neighborhood Law Offices operation, over 30 lawyers’ committees from other cities visited Philadelphia to observe the neighborhood offices, including a delegation from the California Bar Association, the ABA and the Pennsylvania Bar Association, each of which issued reports. 79
By 1964, 25 years later, the Neighborhood Law Office program in Philadelphia was still going strong. It had expanded to 24 offices, having served 100,000 clients. Inflation had resulted in the half hour consultation fee rising to $3. In 1956, with the National Lawyers Guild under attack by the government, the Philadelphia plan came under the sponsorship of the Philadelphia Bar Association.
The success of the Philadelphia experiment undoubtedly owes a great deal to a dedicated committee of founders, most of whom stayed with the organization for many years. Abrahams also attributed the vitality of the Neighborhood plan to its reliance on “individual initiative” and the absence of a “government subsidy.” “Such government subsidy may destroy the essential simplicity of the scheme and load it with a bureaucracy. . . much of the success of the Plan in Philadelphia is due to the absence of any sort of bureaucratic domination or governmental tie-in.” 80
Curiously, the Philadelphia Neighborhood Law Office plan was not emulated in other cities, despite its evident success, the same needs in many other urban centers, and the enormous interest the plan sparked. Perhaps one reason was that the Guild and other critics of the established bar began to have an effect on the ABA and traditional bar associations, putting pressure on these traditional organizations to develop programs such as bar referral plans in Chicago, Philadelphia, Los Angeles and other cities in an attempt to make lawyers’ services more accessible to lower income groups. 81 Those efforts may have undercut the need to emulate the Guild program.
The Guild’s attempt to establish voluntary neighborhood legal services offices was only a small part of the organization’s life in the ’30s and ’40s, and is often overlooked or briefly mentioned in studies of the Guild. The plan had only a modest impact on the provision of legal services for poor and working people. However, this little known experiment was, in the view of historian Gerald Auerbach, a critical part of the Guild’s legacy, which lies in “its diffusion of professional participation, its sensitivity to contemporary social and legal problems, and its commitment to innovative means toward fulfilling obligations traditionally ignored.” 82 As Auerbach points out, the “neighborhood law office was part of a more ambitious guild proposal to shift the professional ethos from traditional individualism that best served corporations and corporate lawyers to cooperative planning that met the needs of the bar’s middle stratum and their potential clients.” 83 Guild publications suggested the “development of coopera – tives” to provide for low cost legal services as well as a “drastic revision of our methods of practice . . . encouraging the development of group practice.” 84
Even more importantly, the neighborhood law office experiment represents the Guild’s ongoing commitment to bring law to the people and allow lawyers to experience and accompany people in their day-to-day struggles. Wisconsin 207 Law School Dean Lloyd K. Garrison, a prominent early Guild member, told the Second NLG Convention in 1938 that “we ought to lend more of a hand to each other and to the people, to get down closer to the life of the people and the life of our forgotten brethren of the bar,” and “to do this we must give thought to creating new kinds of organization, and new centers of cooperative activity.” He criticized the detachment of most successful lawyers of the day from “the living sources of the law, and from the day to day ills and aspirations of the multitude,” arguing that creating such new forms of organization could occasion “such a release of creative energy and such a humanizing of the bar as would mark a new era in the history of our profession.” 85 The Neighborhood Law Offices program and the Chicago chapter’s proposal for a legal services bureau represented a broad challenge to the traditional view of the lawyer and his or her relationship to the population and could be viewed as a precursor of the modern legal services program. 86
III. The Cold war, anti-communism and the fight to survive
The 1950s anti-communist hysteria, McCarthyism and conservative reaction led to the demise or co-optation of virtually all the left wing unions and political organizations that had remained from the progressive wave of the 1930s. Even most civil liberties and civil rights organizations such as the ACLU and NAACP Legal Defense Fund cooperated in the Government’s anticommunist crusade against free speech and civil liberties. 87 While the Guild was sorely tested, severely decimated and almost destroyed by the government’s attacks on it, the organization survived as a radical organization which maintained its support of civil liberties for all, including Communists. The Guild was weakened but unbowed. Its survival was due primarily to two critical factors. The first was its staunch independence both from the government and from political parties, Democratic, Republican and Communist. The second was its diversity of leadership with somewhat differing views and perspectives, but united in their opposition to the government’s crusade to destroy the Guild and refusal to abandon the organization.
The Guild emerged from the war years of the 1940s in fairly strong shape. In recognition of the Guild’s role in the American war effort, the State Department appointed the organization as an official consultant to the American delegation at the founding convention of the United Nations. 88 While the Guild had suffered a serious loss in membership during the political fights over bar – ring communists and other political issues in the late ’30s, by 1947 it had over 2,500 lawyer members and more than 500 non-voting affiliated students, and was actively engaged on a multitude of social, economic and political issues. 89
The Cold War and anti-communist hysteria in the United States was looming and soon posed a new threat to destroy the Guild. In September 1950, the House Un-American Activities Committee (HUAC) issued a report titled “The National Lawyers Guild: Legal Bulwark of the Communist Party.” 90 The report was engineered and written substantially by the FBI and J. Edgar Hoover to counter the Guild’s investigation and special report on unconstitutional Bureau practices 91 The HUAC report accused the Guild of being a subversive organization and the “foremost legal bulwark of the Communist Party.” 92
The Guild, led by its President, Yale Law Professor Thomas Emerson, vigorously refuted HUAC’s charges in a lengthy response entitled, “The National Lawyers Guild: The Legal Bulwark of Democracy.” 93 It argued that the defense of the rights of communists or other disfavored groups is essential to democracy and liberty, and that the Guild had always opposed loyalty oaths which have been associated with authoritarianism and repression. It would “not abandon its defense of civil liberties because it subjects us to illogical and irresponsible charges from the Committee on Un-American Activities.” Moreover, the Guild took the offensive, arguing that “the report of the Committee is an indictment, not of the Guild, but of the Committee itself.” 94
The Guild response also demonstrated the falsity of the committee’s assertion that “the National Lawyers Guild has faithfully followed the Communist Party line throughout its existence” and was thus dominated and controlled by the Party. Of course, the Guild had many positions in support of trade unions, civil rights, civil liberties that the Communist Party also supported. But the Guild had also adopted a number of important positions that conflicted with the Communist Party position, such as: (1) strongly condemning the Soviet invasion of Finland in 1939 during the period of the Nazi-Soviet Pact, (2) not adopting the Communist Party position of “keeping the United States out of Imperialist War” during the period when the Soviet Union and Nazi Germany had agreed to the pact, (3) disapproving of the expulsion of Yugoslavia from the International Association of Democratic Lawyers following Yugoslavia’s break with the Soviet Union and eventually in 1951 voting to disaffiliate with that organization because of its action against Yugoslavia, (4) supporting the United Nations in “opposing the aggression of North Korea against South Korea, and (5) submitting an amicus brief in a case on behalf of an individual accused of disloyalty because of his membership in the Socialist Workers Party, a Trotskyist group that the Communist Party hated. 95
The HUAC report, however, seriously weakened the organization. Within days after the HUAC report appeared, many Guild members resigned. Even more important, the Guild found it virtually impossible to recruit new members, as young lawyers were afraid that their careers would be destroyed by association with an organization that the government designated a communist front. 96 Several years later, in an atmosphere in which State bars had initiated disbarment and suspension proceedings against a number of Guild members, Attorney General Brownell took action which he and Hoover believed would finally destroy the Guild. Speaking at the 1953 ABA national convention in Boston, Brownell announced his intention to place the National Lawyers Guild on the Attorney General’s list of Subversive Organizations.
Brownell and Hoover almost succeeded. Almost immediately after Brownell’s announcement more than 700 Guild members resigned. By 1955, the Guild’s membership had declined by 80 percent from its 1947 level, to 500 members. The Guild fought back, successfully waging a five-year legal battle to prevent the Attorney General from listing the organization. In 1958, following extensive litigation, the Justice Department dropped its effort, officially stating that key government witnesses were no longer available to testify. Yet the real reason was that the government recognized that it could not win on the merits, as various internal Justice Department memos concluded. As one memo written by Oran Waterman, head of the Justice Department’s Internal Security Division explained:
We now have no credible evidence tending to prove that the National Lawyers Guild was formed by the Communist Party . . . it has deviated [from the Party line] in . . . significant respects . . . and as yet the bureau has not furnished the explanation therefor, if any. 97
The Guild survived, but at a terrible cost. Virtually the entire energy of the organization in the ’50s had been devoted to its own defense. With an aging membership, isolated by the government and the mainstream bar from other legal organizations and any governmental influence, the long-term survival of the Guild looked bleak.
That the Guild survived the splits in the late ’30s and repression of the ’50s is primarily a testament to the loyalty, bravery and commitment to principle of two allied but disparate groups. 98 One was made up of communist and socialist activists—but they probably could not have maintained the Guild on their own. The other was a group of dedicated civil libertarians who were unwilling to compromise their principles to curry favor with either the Roosevelt Administration or the Truman and Eisenhower Administrations. Nor would they refuse to work with Communists. But these lawyers were not communists, and steered the Guild in an independent, radical direction. Robert W Kenny, a California State Senator who became President of the Guild in 1940 at a moment of grave internal crisis, disregarding the risks to his political future, and remaining President for eight important years, was an key member of this group. So too were Tom Emerson, a civil libertarian lawyer and Yale law professor, who courageously accepted the Presidency of the Guild in 1950 during a period where the organization was under serious attack, and Osmond Fraenkel, an ACLU stalwart, who played a critical role in defending the organization from Brownell’s attack . 99 That these two allied but ideological disparate groups stayed with the Guild is a testament to their ability to work together and compromise to maintain an independent Guild. As Emerson pointed out when he left the Guild’s presidency, while the Guild was on the defensive, “we have maintained our independence and preserved the integrity of our position over the years. 100
By 1960, the survival of the Guild was again in doubt, but this time because many members doubted the organization’s reason to continue. Ironically, once the battle against Brownwell’s attack was won, many Guild members asked themselves, “What else did we [the Guild] have to live for? We had established our legitimacy, but now what? 101 As aging members died and almost no one joined, it was hard to see any light at the end of the tunnel. The treasury was depleted, only four active chapters remained, and the once highly regarded professional journal, The Lawyers Guild Review , was forced to cease publication due to lack of funds and interest. 102 The low point was reached at the 1960 Guild Convention, where serious consideration was given to dissolving the organization, a suggestion which was quickly rejected. 103 The Guild needed a miraculous transformation and infusion of new energy and members to survive.
Iv . The Guild and the southern civil rights movement— the deepening of egalitarian lawyering
The Guild’s revival in the ’60s was spurred by a dramatic turn to doing what it had done so well in the ’30s and ’40s—providing legal aid and support to those who were not served by the mainstream bar. In its early days, that sup – port was evidenced by Guild lawyers’ work with trade unions or other groups engaged in struggle, as well as the innovative legal services experiment of the Neighborhood Law Offices. In the ’60s the Guild turned South, to provide legal services to civil rights workers in Mississippi and other Southern states where traditional lawyers would provide none. The Guild’s southern work during the ’60s is widely credited with reviving the organization.
The renewed energy that went into the southern civil rights work also deepened the radical service concept that the Guild had developed in the ’30s. The Guild was serving a poor, oppressed underserved community. But perhaps even more importantly, the Guild developed a different conception of the lawyer- client relationship, one that was democratic, non-hierarchical and more egalitarian than either the Kennedy Administration’s professional, neutral and elitist relationship to the civil rights activists, or the NAACP’s attempt to direct and manage the civil rights activists in conformity with its overall legal strategy. 104 Rather, the Guild lawyers were there to serve the civil rights activists, to follow their lead, not direct them, to assist southern black lawyers in presenting their cases, and to provide witness for and protection to the grass roots activist movement as opposed to leading or directing it. They provided their skills and insights in service of that movement. The lawyers were to be the secondary, not main actors. It was not to be the typical lawyer/client relationship.
The Guild became involved in southern civil rights work because of the paucity of lawyers in the South available to represent movement activists. For 211 example, in Mississippi, out of 2,100 lawyers only four—three blacks and one white—were willing to represent civil rights activists. 105 The situation in other southern states was little better.
In early 1962, Len Holt, an African American lawyer from Virginia spoke at the Guild Convention about the civil rights movement’s desperate need for legal assistance. Holt gave a stirring, emotional and eloquent speech highlighting the inspiring resistance by the black movement to segregation and the pressing need to protect demonstrators from the unconstitutional attacks by local governments and the Klan. The ABA was unwilling to act, Thurgood Marshall and the NAACP Legal Defense Fund were overwhelmed with desegregation cases, and the Kennedy Administration was unreliable. Holt recounted numerous instances where the Justice Department or the FBI undertook investigations of cases where the “violations of Negro rights were absolutely clear,” but had “done nothing.” 106 Holt’s speech, according to Ernie Goodman, a longtime Guild lawyer and leader of the Detroit chapter that hosted the convention, “changed the whole complexion of the convention, and as it turned out, of the Guild itself.” He “dramaticized . . . the need for more lawyers to go [South] to participate in the movement directly. . . . Nobody who attended that convention will ever forget . . . his impassioned appeal for help.” 107
Goodman argued that the Guild remake itself by filling the void that the ABA’s inaction created. The Detroit Guild chapter, with over 150 members, including 60 that had joined since 1960, and a strong group of African American members and leaders such as future Congressmen George Crockett and John Conyers, and future Federal District Court Judge Anna Diggs, was “the most active—and certainly the most optimistic—chapter in the Guild.” 108 The Detroit chapter strongly supported the Guild’s throwing itself into legal support for the southern civil rights movements. Despite the Detroit chapter’s enthusiasm, New York City Chapter President Victor Rabinowitz had reservations about the project, worrying that it might turn the Guild into a one-issue organization. 109
The 1962 Convention, inspired by Holt’s appeal, voted to create a Committee to Assist Southern Lawyers (CASL) with the mandate to meet the need for legal representation for those engaged in the active struggle for civil rights caused by the failure of the bar in the southern states to do so. “The Bar has generally defaulted,” read the resolution, on “the responsibility to make effective in practice the fundamental right of all persons, regardless of color or economic status, to competent, fearless legal representation.” 110 In addition to mobilizing Guild members and other lawyers to assist southern lawyers representing civil rights protestors, CASL also launched a public campaign urging other bar associations to take similar action. 111
Three weeks later, Goodman and two young Guild lawyers appeared at Holt’s invitation at a rally in Petersburg, Virginia, defending non-violent pro testors 212 national lawyers guild review from state repression. Martin Luther King was the main speaker on the podium that day, but Goodman had ten minutes to announce CASL’s new program. Goodman promised the two thousand people crowding into Petersburg’s First Baptist Church that the Guild would help provide lawyers that were sorely needed. “Every Guild member from New York to Hawaii—from Florida to Texas,” Goodman proclaimed, “is being canvassed and asked to commit himself to give voluntary, unpaid assistance to any lawyer in the South who requests such assistance in any case involving the system of segregation.” Already, more than 40 lawyers had agreed to do so, and more commitments were coming in each day. 112 When Goodman and the two other Guild lawyers showed up at court the next day to assist Holt in a hearing involving a leader of the Petersburg movement, Holt was moved to write Reverend King that “Seldom have I seen or heard of a white lawyer serving as a defense counsel for a Negro in a racially controversial case who gave the appearance of being [an] assistant to the Negro lawyer.” 113 Holt added that the Guild lawyers had “only got travel expenses.”
The Guild thus became the first, and for many months the only, bar association in the nation to provide legal support to southern civil rights protestors. While numerous Guild lawyers volunteered, the response to the Guild effort was mixed even amongst the few southern civil rights lawyers, with some wary of association with an organization still tainted as communist. Holt proposed that the CASL directly represent “victims of southern injustice,” but CASL’s mandate ruled out such direct representation, and practical considerations led Goodman and Crockett to defend the assistance to southern lawyers approach. The Guild did assist Holt in arguing two “omnibus” challenges to segregation in the Virginia cities of Lynchburg and Danville, suits which the NAACP opposed as too complex and impossible to win. By the fall of 1963, Guild volunteers had assisted in 23 cases.
A breakthrough for the Guild’s southern work occurred with the organization of a two-day seminar in Atlanta in 1962 on Civil Rights and Negligence law, with the primary aim of educating southern lawyers about how to litigate civil rights and tort cases. The conference, attracting 60 lawyers from across the country, was notable for its unprecedented interaction between black and white attorneys in a public gathering. 114 Martin Luther King Jr. was the banquet speaker and the conference generated an enormous reservoir of good will amongst southern black lawyers toward the Guild.
The next year, a follow-up, second workshop on Civil Rights and Negligence Law was planned for New Orleans in October. In the midst of the conferees’ discussion of legal tools to cope with the enormous power of the state, the conference was invaded by Louisiana police officers who arrested local Guild attorneys Ben Smith and Bruce Waltzer. Simultaneously, over 100 policemen raided the offices of the Southern Conference Educational Fund, carted away all 213 of its records and arrested Dr. James Dombrowski, the organization’s director. Guild President Benjamin Dreyfus, who was at the conference, immediately sent a telegram to Attorney General Robert Kennedy urging federal intervention. Ten days later, Assistant Attorney General Burke Marshall responded to Dreyfus that “Neither the information contained in your communication nor that which I have received from other sources discloses any basis for action by this Department.” 115
While the Justice Department believed that there was no basis for federal intervention, Guild attorneys Arthur Kinoy, Bill Kunstler and Ben Smith filed an innovative federal action seeking immediate injunctive relief preventing the enforcement of Louisiana’s subversive control laws and ordering the return of all the seized papers and documents. This lawsuit represented an important step in the Guild’s development of an alternative perspective on legal service. Instead of Guild lawyers basing their decision to bring the case on a traditional analysis of whether the doctrinal law and past precedent supported the claim and offered a good chance of legal success, the key question was whether the lawsuit would aid the developing civil rights movement. 116 Remarkably, two years later, the Supreme Court in the landmark opinion Dombrowski v. Pfister held that the federal court did indeed have the power to enjoin a state’s enforcement of laws that had a “chilling effect” on the plaintiffs’ exercise of their first amendment rights. While Dombrowski has been significantly undercut by later opinions, it was an important victory for the civil rights movement.
Guild lawyers continued to provide support for the movement throughout 1963. In Danville, Virginia, police had badly beaten nonviolent marchers, and over the summer seven hundred people were arrested for violating overbroad and vague ordinances prohibiting demonstrators from “shouting, clapping or singing.” Len Holt and his small band of black attorneys were overwhelmed and the SCLC turned to the NAACP Legal Defense Fund and the Federal Government for help. Attorney General Robert Kennedy called the SCLC leaders in mid-June, but simply urged them to cancel the demonstrations, which the SCLC local leaders refused to do. The Legal Defense Fund was only marginally more helpful, agreeing to take over the defense but only if they had complete “control” over the cases, and if Len Holt were removed from the litigation.
The SCLC local leaders rejected the Legal Defense Fund’s conditions, and Holt turned to the Guild. Arthur Kinoy, Bill Kunstler and the CASL’s lawyers responded by coming to Danville without charge, and Crockett was on the phone to Holt every day. Kinoy and Kunstler pioneered the use of a little known and never utilized reconstruction statute providing for the immediate removal of civil rights cases from state to federal court. As in Dombrowski , the question the lawyers grappled with was not primarily whether this legal tactic had a strong chance of success in the courts, but whether it could aid the Danville civil rights movement. 117 While LDF Director Jack Greenberg (who had replaced Thurgood Marshall when he was nominated for a federal appeals court judgeship) disapproved of the removal tactic, and even other Guild lawyers were dubious about its chance of success, the lack of any other alternative made the lawyers agree to file the removal petition. The District Court judge, not unexpectedly, denied the petition, but Chief Judge Sobeloff of the Fourth Circuit Court of Appeals granted the plaintiffs an injunction preventing state prosecution until a hearing could be held, which the lawyers considered a victory since it allowed the movement needed space to continue. 118 Eventually, the full Circuit Court of Appeals denied the removal petition by a 3-2 vote, but the Guild’s tactic had given a significant boost to the movement organizing.
The escalation of the civil rights movement’s use of direct action and the Guild’s legal support put pressure on the Kennedy Administration and the ABA to do something. In 1963, in response to the violence in Birmingham Alabama, President Kennedy called a White House meeting of an “elite corps” of lawyers to enlist them in providing leadership in quelling racial unrest and supporting the Administration’s civil rights legislation. Detroit Guild leaders George Crockett and John Conyers were invited to the White House meeting, where Kennedy called for biracial committees of lawyers who would volunteer their services in support of civil rights. The White House meeting resulted in the formation of the Lawyers Committee for Civil Rights Under Law, in part motivated by a desire to head off Guild representation in the South. The Com – mittee began to encourage lawyers around the country to live up to their profes – sional duties and represent individuals arrested during civil rights protests. 119
While Crockett and Conyers were encouraged by Kennedy’s convocation of the meeting, they were disappointed with its results. They criticized Kennedy for being more concerned with the reduction of tensions and the cessation of mass protests than with the elimination of their causes. 120 The President’s Committee did start sending lawyers to the south who eventually did directly represent some clients. But the contrast between the President’s Committee’s legal help and the Guild’s was stark. The Committee’s lawyers required that their minister clients agree not to violate Mississippi Court injunctions in return for representation, did not think of themselves as civil rights lawyers but rather as professionals upholding the rule of law, and attempted to deradicalize the movement’s actions and provide “objective” legal assistance without succumbing to the “emotionally charged atmosphere” of the demonstrations. Indeed the co-chairmen of the committee criticized Martin Luther King’s “Letter from Birmingham Jail,” arguing that the solution to the “civil rights problem” was not to be found in civil disobedience, but “by reliance upon the administration of the law through due process.” 121 In contrast, the Guild lawyers saw them – selves as collaborators rather than directors of the civil rights movement, as taking direction from the grassroots activists, as being a part of the movement for change, and as using the law in service of that movement. 122
In late 1963, a simmering disagreement among Guild members about the Southern work threatened to split the Guild. Detroit members, led by Goodman proposed to change the New York emphasis of the Guild, to drastically cut or even eliminate the national office budget, and to focus the Guild’s energies exclusively, or at least primarily, on the civil rights movement in the South. For Goodman and his supporters, the revitalization of the Guild was dependent on its throwing its members and resources into the revolution taking place in the south, and not continuing to turn out a mélange of resolutions and reports on a multitude of issues. New York City Chapter President Victor Rabinowitz, and some New York Board members such as Bella Abzug, felt that “Ernie had eyes only for the civil rights movement and its needs” and “feared that the Guild was forgetting other critical issues, such as the Smith Act, social legislation, violations of the First and Fourth Amendments, racial discrimination in the North, our foreign policy with respect to Cuba, and the overwhelming fear of nuclear war. . . .” After hours of sometimes vituperative debate, Goodman’s motion to make supporting the civil rights struggle the “primary” emphasis of the Guild was adopted by a vote of 8-6, with a number of New York members abstaining. The meeting also agreed to schedule a special convention for February 1964 to be held in Detroit, not New York. 123
The discussion of Guild work in the south dominated the February 1964 Convention. Rabinowitz, a civil rights activist himself who was a strong SNCC supporter and was defending his daughter Joni on charges related to her involvement in civil rights protest in Georgia, argued against Detroit’s plan to focus Guild work very heavily in the South. But the debate was not close, many New York members disagreed with Rabinowitz, and even he with characteristic humility and honesty later recognized that Goodman “was probably right.”
At the behest of R. Hunter Morey, the legal coordinator for the Council of Federated Organizations (COFO), a coalition of civil rights groups in Mississippi, who described an “urgent need” for legal assistance for the Mississippi 1964 summer freedom project, the Convention voted to send Guild lawyers to participate in that project. 124 The Convention also agreed to move the Guild’s National Office to Detroit and elect Goodman President of the Guild. What had prevented a split was Goodman’s and Crockett’s diplomacy and commitment to the Guild, as well as the New York members’ willingness to compromise and accept Goodman’s views and leadership. After the Convention, Rabinowitz and other New York City chapter members participated fully and enthusiastically in the Southern project.
The Guild opened a southern regional office in Jackson, Mississippi, run by George Crockett. Courageous and diplomatic, Crockett had a personal demeanor that was “measured and cautious,” belying his radical credentials. Rabinowitz noted that George “kept his cool throughout,” and managed to stabilize the situation as much as possible. 125 The operations of the Jackson field office were to make lawyers immediately available where needed, or as Crockett described it, “to put a client in touch with a lawyer.” 126 In addition to the Jackson office, Guild lawyers operated primarily from three field bases at Greenwood, Hattiesburg and Meridian, serving as a sort of “house counsel” to the COFO workers.
Eventually close to 70 Guild lawyers went to Mississippi to participate for one week stints as volunteer lawyers with another 60 or so volunteering to help draft briefs and pleadings from their home offices. Goodman wrote that the lawyers who came to Mississippi, “went, learned, experienced the terror that existed there, the difficulties of obtaining the most elementary justice, and came back as converts.” 127 Or as Crockett put it, the lawyer who went South not only provided a service, but “almost invariably expressed profound changes in his own outlook and understanding.” 128 The letters from many of the lawyers who went South that summer, either with the Guild or another organization, illustrate that these lawyers went with the belief that they were representing individuals in a traditional way and returned home with the recognition that they were defenders of a movement. 129 The lawyers were not simply providing a service to their clients, they were learning from them and becoming transformed in the process.
While the Guild lawyers undoubtedly did valuable legal work, that probably was not their most important contribution. As Goodman noted, “their presence in key centers around the state has been a big morale booster for the COFO workers and the local people, as well as a deterrent for the authorities.” 130 Or as one student who worked with the Guild project said, “our mere presence is a real deterrent.” 131 Other observers also recognized that “regardless of organization, lawyers seemed to see their value not in terms of legal victories won or representation provided. Rather, lawyers saw their presence as the value . . . in deterring white Southerners, and particularly state actors, from meting out greater violence and lawlessness against the movement.” 132 These lawyers were essentially acting as witnesses to violence in order to deter it, 133 or as others have put it, accompanying the movement workers in their campaign. 134
Moreover, a key aspect of the Guild’s work in the South was the recognition that lawyers should act as collaborators rather than directors of the movement. 135 As Crockett succinctly put it, “In the war against injustice in Mississippi, lawyers are not the front line troops.” 136 The Guild orientation thus broke with the lawyer driven, elitist views of the Legal Defense Fund and the President’s Committee which wanted the lawyers to be in charge and direct both the legal and political strategy. The Guild, in contrast, was operating in accordance with the radical democratic approach of SNCC to help ordinary people find their own individual and collective power to determine their lives and shape the direction of history. 217
The Guild’s Southern project also played an important role in pressuring other organizations to send lawyers and provide representation to civil rights workers. The Guild consistently pressured the ABA and more established legal organizations to provide legal assistance to civil rights workers in numbers and funding that would eclipse what the Guild could provide. In November 1963, Goodman and other Guild attorneys met at the ACLU offices in New York to explore creating a new organization to provide lawyers for the civil rights movement. The ACLU lawyers seemed interested, but said they needed to consult with the Legal Defense Fund and the President’s Committee regarding the advisability of the idea. 137
That winter, however, Mel Wulf of the ACLU joined with Jack Greenberg of LDF and other organizations including CORE and to form the alternative organization, the Lawyers Constitutional Defense Committee (LCDC), with the aim of sending volunteer lawyers South. The Guild was excluded from that organization. Wulf acted in part from a sense of professional competition that the Guild’s program in the South was making the ACLU appear less committed to the civil rights cause. 138 As an FBI document later turned over to the Guild as part of its lawsuit against the FBI noted, counsel for CORE, the American Jewish Congress and the ACLU had met with an FBI agent and said that they “were perturbed by plans of the National Lawyers Guild to supply attorneys for civil rights demonstrators this summer.” CORE General Counsel Carl Rachlin “expressed considerable concern over the possibility that [the NLG] attorneys would try to encroach on the role of CORE lawyers in defending rights demonstrators.” 139 Despite the origins of the LCDC, Guild lawyers generally worked well with and together with the LCDC lawyers on the ground in Mississippi.
Similarly, in early 1965 when the President’s Committee decided to send a large number of volunteers to Mississippi and open an office in Jackson, the Guild’s influence was again obvious. The Executive Director of the President’s Committee publicly declared that if “responsible” Americans did not support the southern civil rights struggle, then “somebody else will, and their motives won’t be as good.” As the New York Times recognized, the endorsement of the President’s Committee’s initiative by the Mississippi Bar Association, “seemed to reflect an effort to undermine the legal monopoly that the left-wing Lawyers Guild has had so far in the Mississippi civil rights movement.” 140
The FBI, the Justice Department and their liberal allies attempted on numerous occasions to use red-baiting to dissuade SNCC from continuing to associate and rely on Guild lawyers. For example, John Lewis, chairman of SNCC, recalls how when they were first making plans for Mississippi summer and knew that they would need legal representation, they requested help from the LDF. When it turned SNCC down, saying that they did not approve of the campaign, SNCC asked the Guild. SNCC’s association with the Guild upset some of its Northern liberal supporters, including Allard Lowenstein who had helped SNCC formulate its plans. According to Lewis, “Lowenstein warned us that by allowing the Guild—with its “radical” lawyers like Arthur Kinoy, Bill Kunstler, Victor Rabinowitz and Ben Smith—to represent us, we were making ourselves suspect, putting our patriotism in question.” 141 Other important backers of SNCC and the Freedom Summer also expressed their disapproval of SNCC’s association with the Guild, although Martin Luther King refused to condemn it, 142 and SNCC never hesitated or deviated from its principled position that it would accept help from any source.
Indeed, SNCC was also tested by the Kennedy Administration over its association with the Guild. James Forman describes a meeting between SNCC and COFO activists and Justice Department and other Administration officials in which the ostensible topic was the responses to the violence in Mississippi. Forman recounts that at one point Arthur Schlesinger Jr., who clearly spoke with the consent of the government officials present said out of the blue, that
There are many of us who have spent years fighting the communists. We worked hard during the thirties and forties fighting forces such as the National Lawyers Guild. We find it unpardonable that you could work with them.
The civil rights activists repeated their position on freedom of association and engaged in a heated exchange about the “unwillingness of the Justice Department and the NAACP Legal Defense Fund to take aggressive legal action in Mississippi.” 143
In September 1964, at a meeting called by the National Council of Churches and attended by representatives of the national organizations that had participated in the Mississippi summer project, the objective of eliminating the Guild from any role or influence in the Mississippi movement was placed on the agenda. Joe Rauh, the United Auto Workers Legal Counsel, said at the meeting that he “would like to drive out the Lawyers Guild,” because it was “immoral to take help from Communists.” 144
The mere presence of the Guild in the Mississippi movement thus ironically pressured the government and legal organizations to move more aggressively to provide legal aid to the civil rights activists. In the ’50s the government and its allies tried to destroy the Guild. In the ’60s the government sought to isolate it from the civil rights movement. When that failed in Mississippi, the government developed a new strategy, send lawyers to make the Guild law yers unnecessary. The Guild welcomed that latter effort. Thus, while Piven and Cloward point out that the organizations developed out of mass upsurge generally do not influence the elite to institute reforms, 145 in Mississippi, the very presence of a radical legal organization operating to aid the political movement put significant pressure on the elite to take the reform measure of providing lawyers.
The Guild continued its presence in Mississippi throughout much of the fall and winter of 1964 and in 1965 initiated another summer project in Mississippi, this time with the aim of taking affirmative steps to implement the mandates of the 1964 Civil Rights Act. A team of Guild attorneys was to visit each county, confer with the county chairman of the Mississippi Freedom Democratic Party (MFDP), and help negotiate voluntary desegregation or, if necessary, initiate litigation with the assistance of local counsel. 146
Unfortunately, the results of this ambitious effort were disappointing. While the MFDP had formally requested the Guild assistance in launching omnibus desegregation suits across the state, its primary focus that summer was its continuing challenge to the Mississippi delegation in the U.S. House of Representatives. As Crockett reported, it appeared that the MFDP “is not interested in and lacks the local leadership essential to working up the factual basis and arousing local support for desegregation suits.” 147 Moreover, the costs of the litigation were often prohibitive. Eventually, only three suits were filed.
In any event, the influx of other legal groups, such as the President’s Committee and the LCDC setting up offices in Jackson with more lawyers and significantly more funding eclipsed the Guild program. Moreover, the movement in Mississippi was beginning to wane, as attention focused on other civil rights struggles such as that in Selma, Alabama. After the summer of 1965, with the organization’s debts mounting, the Guild closed up shop in Jackson, declaring, in the words of Ben Smith, that the whole effort “is a high professional achievement for our bar association.”
The Guild’s work in the South had clearly revitalized the organization. It had returned the Guild to its roots of providing critical legal services for political and economic movements and people who couldn’t obtain lawyers. Moreover, it had done so in a manner consistent with a democratic, grass roots vision of a lawyer who took direction from a political movement.
Guild membership, nonetheless, did not immediately dramatically grow. While national membership had grown steadily to 950, local chapters languished. Membership growth was steady but slow, and many law students and young lawyers stayed out of the Guild to avoid being labeled communists. For example, while San Francisco sent dozens of lawyers south, very few went under the Guild aegis. 148 As Victor Rabinowitz recalled, while the work the Guild had done was inspiring and had generated a good deal of publicity, the organization in the mid-60s, while no longer moribund, was still on shaky footing. 149 Nonetheless, the Guild had developed and put into practice an egalitarian, movement-oriented conception of legal services, which had inspired and involved numerous lawyers and law students, and was to serve as a basis of the Guild’s work in the future.
v. The Guild and the student movements of the ’60s
The escalating United States military intervention in Vietnam resulted in a new wave of Guild activism and a dramatic increase in new members. By 1967, the Guild was deeply immersed in draft counseling, training hundreds of draft counselors, counseling thousands of registrants and distributing 20,000 copies of Guild pamphlets on draft and military law. In the late 1960s the Guild opened offices in the Far East modeled after the Guild’s experience in Jackson, Mississippi to provide civilian counsel to servicemen facing military discipline for antiwar activity. The Guild’s Military Law Offices in the Philippines, Japan and Okinawa, offered free legal counsel to hundreds of anti-war G.I.’s. Moreover, as the anti-war movement grew more militant in the late 1960s, mass defense work became a primary aspect of the Guild’s work. Guild mass defense offices advised and represented thousands of arrested demonstrators. In all of this work, the Guild was following the spirit and lessons of its work in the South.
This influx of activity and the hiring of a number of young, talented organizers such as Ken Cloke and Bernadine Dohrn by the Guild’s National Office led to hundreds of new, young members joining the organization, and the creation of dozens of new chapters. Victor Rabinowitz later recalled Bernadine as a particularly “brilliant organizer with inexhaustible energy and dedication.” To him, it seemed that in her travels around the country, “she spent half her time organizing antiwar demonstrations and the other half organizing Guild chapters to defend the demonstrators.” 150
The changing membership of the Guild was not only a sign of the organization’s vitality, but it also led to a period of crisis in which the Guild almost dis – solved. At the 1967 Convention, Victor Rabinowitz was elected President and the National Office was brought back to New York. During the next four years as Rabinowitz put it, the “Guild was completely transformed in its leadership, its organizational structure, its membership, and almost every other characteristic except its long-term radically oriented, antiestablishment ideology.” 151
The role of law students, women, legal workers and jailhouse lawyers in the Guild was hotly debated at national Guild meetings in the late 1960s and early ’70s. In 1970, law students were admitted to full membership over the opposition of the incoming President Dobby Walker and many of the older generation of leftist lawyers in the Guild, who saw the admission of law students as a threat to the Guild’s status as a bar association. For the first time, the Guild elected a woman President and the role of women in the Guild dominated the convention discussions. By the 1971 Boulder Convention, the turbulence in the Guild grew to earthquake proportions, as the younger members, now in full control, pushed for and won admittance into the Guild for legal workers and jailhouse lawyers. The admittance of both groups was bitterly opposed by the old Guild leadership, and some thought of creating a new progressive bar association, believing that the Guild was no longer a bar association but a motley collection of radicals loosely connected with the practice of law. The admission of law students, legal workers and jailhouse lawyers to the Guild reflected the democratic and egalitarian impulses of the new left, and the Guild to its credit was able to adapt and grow with those radical perspectives.
Rabinowitz, as President of the Guild for much of these turbulent years, was critical, along with several other key leaders, to the survival of the organization. He was opposed to the inclusion of legal workers and “had difficulty getting any clear expression of the outer limits of that category,” and thought that the inclusion of “jail-house lawyers was ‘nonsense.’” 152 He had doubts whether the newer members knew or cared much about the law and they certainly didn’t act the way that he or the other older members expected lawyers to act. He believed that nothing could be accomplished without “some sort of hierarchical structure” and as the younger generation changed the Guild’s structure to become more and more decentralized, he could not understand it.
Yet throughout all those years of disputes and disagreements, Rabinowitz and a core of long-time members supported the younger generation of lawyers in their right to govern the Guild and determine its future, even where they disagreed with some of their politics. 153 Moreover, Rabinowitz realized that the future of the Guild rested with them, and that the rebellious spirit they brought to the organization was in the long run good for the Guild. For example, in the late ’60s many of the Old Left members wanted Rabinowitz to fire Bernadine Dohrn. They felt she was irresponsible and ultraleftist. But he didn’t agree and kept her on the payroll throughout the time he was President. For him, “she was recruiting lawyers and students into the Guild, and that was enough for me.” 154 Rabinowitz viewed the new younger Guild members as “undisciplined, unlawyerlike and disorderly, but that was very much better than the frustration, apathy and hopelessness of the 1950s.” 155
Rabinowitz also had the humility and intellectual honesty to realize that he could be wrong about these new things that he could not understand or agree with. As he later concluded, the Guild did the right thing when it admitted jailhouse lawyers, even though at the time he thought it was nonsense. 156 He could in some broad sense identify with these “kids,” for they were for the “revolution,” and they saw him as friendly, even if not one of them. Moreover, Victor had an essential egalitarian spirit in which he treated everyone with re – spect and dignity, whether his legal secretary, a law student or another lawyer. 157
Underneath a good deal of the dispute in the Guild lay different views of the relationship of the lawyer to the political movement he or she represented and worked with. At the 1968 Convention, the Guild adopted a resolution proclaiming its role as “the legal arm of the movement.” To Old Left lawyers like Rabinowitz and Goodman, this whole notion was muddled and confusing. As Rabinowitz recalled, “some of us, reacting like lawyers, would have liked a definition of the ‘Movement,’ but it turned out to be one of those indefinable concepts (like obscenity or poetry) that we were all supposed to recognize when we met it.” 158 Or as Joan Andersson, a national organizer for the Guild later observed, the older members “distrusted the commitment of the raggedy young people who seemed more interested in being part of the movement than building the necessary legal skills to defend it.” 159 David Rein, a longtime Guild member and very successful litigator expressed the view at an important panel at the 1968 Convention, that he had for many years handled exclusively civil liberties cases but never thought of himself as a “movement” lawyer. For him, one reason his firm was able to win cases was because they “consistently confined (themselves) to being lawyers and handling legal questions.” 160
The younger Guild lawyers saw the need to more directly identify and define themselves as a part of, and not separate from, the political movements that they grew up with. They viewed the role of a lawyer as not merely presenting good legal arguments in court, but of politically aiding the movements they were representing. 161 Victory did not simply mean winning in court, but often involved using the courtroom to promote the goals of the demonstrators. Perhaps Rabinowitz’s story about Bernadine Dohrn organizing both anti-war demonstrations and the demonstrators’ defense in court illustrates the more politicized role of the lawyer reflected in the term “movement lawyer.”
Some of the new Guild members did not believe in or engage in good legal research or honing their legal skills. As these new movement lawyers evolved in the ’70s and ’80s however, most recognized the need to develop top-notch legal expertise. But the notion of Guild lawyers as movement lawyers has, however murky the concept may be, remained with the Guild and has proven to be one source of its ability to connect to popular movements and adapt to new movements. Moreover, the concept of the “movement lawyer” in the Guild can be traced to the work of the Guild in the south, which initiated a radical break with the traditional notion of lawyering.
Despite all the sectarian, bitter and long-winded debates during the late 1960s and early ’70s, the Guild continued to grow. On several occasions it nar – rowly avoided what would have been disastrous splits, which were so common to the organizations that developed out of the ’60s. By the early ’70s, a newer and younger leadership took over the Guild, bringing with it a more collective style. With all the inefficiencies and lack of discipline of the organization, the new leadership proved competent and the organization continued to grow until it reached an estimated10,000 members in 1987, the height of its membership.
Why did the Guild survive where so many other left organizations of the ’60s split, folded or faded away? Two reasons seem likely. First, the Guild was 223 tied to political movements and had skills to bring to those movements and actively saw itself as an arm of those movements. The Guild thus had much ready-made political/legal work to do, and that activity, closely connected to political activists, kept the Guild growing. The Guild did not have to organize or lead new political movements, but Guild lawyers had skills with which to serve these movements and had developed a radical conception of service which made them both useful and politically aligned to the activists they were working with.
Second, and equally importantly, the Guild had developed through the ’50s and ’60s a core of leadership that was tolerant and open to differing ideas, even if they had strong opinions. Former Guild President Rabinowitz pointed out that the debates in the Guild during the ’60s and ’70s, as divisive and sometimes sectarian as they were, did not have the degree of personal acrimony and mean-spiritedness that characterized the breakup of so many other segments of the left. Doris (Dobby) Walker, the President of the Guild from 1970–71, a member of the Communist Party and one who resisted many of the changes in the Guild during that era may have put her finger on it when she wrote in 1987 that “the struggle over sexism [within the Guild] increased the sensitivity of all who were involved, most definitely including myself. From all of those struggles, New Left, Old Left, sexism, racism and more, there emerged in time a degree of synthesis of politics and of organizational practices— and the kind of mutual tolerance for principled differences that has kept the Guild strong and effective for 50 years, and will for many years to come.” 162
Historian Jerold Auerbach’s 1976 book, Unequal Justice: Lawyers and Social Change in Modern America , concluded that the “Guild never over – came its political vulnerability: the child of liberal euphoria, it was the victim of conservative reaction and liberal retreat.” 163 To Auerbach, the Guild was a failure, wracked by internal discord during 1939 and 1940 and “virtually destroyed as an effective organization,” by the repression of the ’50s. 164 Au – erbach ignored the resurgence of the Guild in the ’60s and ’70s, seeing the organization’s main legacy as its innovative approach to legal services for the poor in its early history.
In one sense, Auerbach is right: the Guild never did fulfill the goals of its liberal founders to become a serious rival to the ABA and attain influence and prominence within government and bar circles. From that perspective it never overcame its political vulnerability within the halls of power. But had it done so, it would never have become the organization it is today, and would not be a home for those lawyers and law students who seek to organize for a different world. It is precisely the Guild’s “political vulnerability” and weakness that has kept it a radical organization and independent of both the government and the Democratic Party. Had the Guild turned toward political respectability in the ’30s and ’40s, it undoubtedly would have either followed the path of its cousins, the Newspaper Guild and Screen Actors Guild, and become a mainline bar organization only marginally different from the ABA, or it would have vanished from the scene. That it did neither illustrates that another alternative is possible.
Since the late 1930s the Guild has never striven for political power in the halls of government or made a priority of seeking government influence. While individual Guild lawyers have been elected to Congress and local offices, or have become Federal or State judges with Guild support, the Guild as an organization has never made obtaining such influence a priority. It takes positions on political issues, but rarely on political candidates. It does not moderate or tone down its political positions in order to achieve respectability or power.
Related to its independence is the Guild’s turn to the grassroots, in a manner which changed the hierarchical attorney client relationship and made the attorney a learner from his or her client as well as a provider of needed technical expertise. This democratic, egalitarian spirit allowed the Guild at critical moments in its history to do what liberation theologians would later term “accompaniment.” Throughout its history, whether in the creation of neighborhood law offices to serve working people in the ’30s, to the Southern Civil rights support or the opening of military law offices, the Guild has developed innovative programs designed to bring needed legal services to people without any, and has done so in a manner that respects their dignity and both gives to and learns from the people it serves.
The Guild throughout its history has also been a very democratic organization, a factor that has allowed new groups and political tendencies to change the group’s direction, as the Detroit chapter did in the early ’60s and the new left did in the early ’70s, bringing new blood and spirit into the organization. Yet its democratic tendencies are also the source of its inefficiencies and weaknesses. Guild conventions have often been plagued by sectarian and interminable debate, as in the ’70s when various new left factions with colorful names often dominated. Even when sectarianism has not held sway, debate on convention resolutions tends to be a dreary, dull and longwinded affair or, if limited, leaves people unsatisfied.
The Guild has also been blessed with a bevy of talented, democratic leaders. From Robert Kenny, Thomas Emerson, Earl Dickerson in the 1940s and ’50s to Ernie Goodman, Victor Rabinowitz and Dobby Walker in the ’60s, to the younger generation of new left leaders of the ’80s and ’90s, what stands out is the Guild’s eschewing of the dynamic, charismatic leader who stays in power for many years directing the organization, in favor of a wide group of leaders who tolerate differences, are generally respected by the various factions and 225 groups in the organization, and who are not striving for power or control of the organization. Most of the presidents of the Guild had to be convinced to take the job, it is an unpaid position which affords virtually no opportunity to build a power base within the organization and has not been utilized for that purpose.
That the Guild is a voluntary association of those who agree with its principles has been critical to its maintaining its radical perspective. Had the Guild turned to representing lawyers as a union, for example representing government lawyers, or becoming a legal aid or legal services union, its radical thrust would undoubtedly have been muted.
Over the past decades, the Guild has also spawned a number of other legal organizations or projects that work closely with it and have similar philosophies. The most prominent of these is the Center for Constitutional Rights, an organization that developed out of the Guild’s organizing work in the South in the ’60s, but which has itself now lasted almost fifty years and has played a leading role in a diverse array of issues, such as representing the Guantanamo detainees, 165 litigating the denial of abortion rights for poor women, 166 enjoining New York Police Department’s stop and frisk policies, 167 and challenging prolonged solitary confinement. 168 The Center founded in 1966 by several prominent attorneys associated with the Guild to aid their civil rights work is an important outgrowth of the Guild’s southern work. 169 It, too, maintains the same movement-oriented, egalitarian perspective of legal service developed from the Guild, and engages in much of the affirmative, activist litigation pioneered by Guild lawyers such as Arthur Kinoy in the South. So too, the Immigration Project of the Guild has now become a related, but semi-independent project, which provides an important organizational base for attorneys and law students engaged in more political, movement-oriented immigration work than that of the traditional bar. 170
The Guild has, unfortunately been stagnating for the last few decades. Membership has declined since its height of about 10,000 in the late 1980s. The Guild’s relevance is more often questioned now than in the ’60s and ’70s. Indeed, one study of Guild attorneys by a political scientist in Seattle in the mid-1990s questioned whether Seattle’s left-legal activism represented by the Guild had the capacity to reproduce itself and survive for a new generation of lawyers. 171
The causes of the Guild’s stagnation or decline over the past decades lie fundamentally in the decline of leftist, radical movements in the United States and globally, and the increasing dominance of the right in the courts. Opportunities for a public interest practice representing poor or working people are far and few between and only the most dedicated law student or lawyer can pursue such a career. In addition to the difficult economic and political situation, the Guild’s success in spawning other professional and legal organizations has resulted in their attracting lawyers who otherwise might have been more active in the Guild.
Nonetheless, despite all these difficulties, the Guild remains an important organization and its survival is not in doubt. Hundreds of people still attend the annual Guild Convention, and it has a considerable amount of important, ongoing legal work and activity. When the Occupy Movement thrust social and economic inequality into the forefront of American politics for the first time in decades, and sought fundamental change, the Guild and Guild lawyers were there to provide aid, legal advice and in many places legal representation. 172 The Guild was viewed as an important contributor to the Occupy Movement. Occupy organizers implored “protestors to take down the toll-free number of the National Lawyers Guild,” because Guild lawyers would be there to defend them if they were arrested. 173 As one commentator noted in conjunction with the Guild’s work in support of the Occupy movement, “where the National Lawyers Guild differs from other legal organizations is in its close collabo – ration with protest movements to document arrests and defend arrestees.” 174 As in the 1930s, the Southern Civil Rights movement, and the antiwar movements in the ’60s and ’70s, the Guild as an organization provided a service to movement organizations, and did so in an egalitarian manner as an adjunct to the protests. That the organization has continued to exist and contribute almost eight decades after its founding provides support for the possibilities of developing a sustained movement for fundamental social and economic transformation.
Professor Jules Lobel is the Bessie McKee Walthour Endowed Chair Professor of Law, University of Pittsburgh Law School and President of the Center for Constitutional Rights. I want to thank my research assistant, Kyle Watson, who is the Derrick A. Bell Research Fellow of Law and provided excellent legal research for this article. I also want to acknowledge and thank the Derrick A. Bell Fund for Excellence for its support for this project. In addition, I was aided by the generous support provided by the University of Pittsburgh Law School Dean’s Summer Scholarship and benefited from discussions with Marc Van Der Hout, Michael Krinsky, and David Rudovsky about the Lawyers Guild and its history. I thank the Document Technology Center and Patty Blake at the University of Pittsburg for their help. Finally, thanks to the NLGR Editorial Board for their help in preparing this article for publication.
- F ra Nces F ox P ive N & r ichard a. c loward , P oor P eo Ple ’ s M ove MeNts : w hy t hey s ucceed , h ow t hey F ail (1977). 2. Id. at xxi 3. On the concept of prefigurative politics, see Wini Breines, Community and Organization: The New Left and Michels’ “Iron Law ,” 27 s oc . P roble Ms 419 ( 1980); w iNi b rei Nes , c oMM uNity aNd o rGaNizatio N iN the N ew l eFt , 1962-1968: t he G reat r eFusal (1989). 4. See Austin Sarat & Stuart Scheingold, What Cause Lawyers Do For , and To , Social Move- ments: An Introduction , in c ause l awyers aNd s ocial M ove MeNts 1, 1-12 (Austin Sarat & Stuart Scheingold eds., 2006); see also s tuart a. s chei NG old & a usti N s arat , s oMethi NG to b elieve iN : P olitics , P ro Fessio Nalis M , aNd c ause l awyeri NG 23-50 (2004). 5. This includes the Legal Defense Fund (LDF), American Civil Liberties Union (ACLU), Legal Momentum (formerly known as NOW Legal Defense and Education Fund), Mexican American Legal Defense and Educational Fund (MALDEF), Center for Constitutional Rights (CCR), Lambda Legal, and a number of organizations focused on disability rights including the Disability Rights Center, the National Center for Law and Economic Justice, and Americans Disabled for Accessible Public Transit (ADAPT). See Louise G. Trubek, Public Interest Law: Facing the Problems of Maturity , 33 u. a rk . l ittle r ock l. r ev . 417, 417-20 (2011) (examining the history of public interest law in the 1970s to the present). 6. For example, the Guild’s Constitution states that it is “dedicated to the need for basic change in the structure of our political and economic system,” and seeks “to unite the lawyers, law students, legal workers, and jailhouse lawyers of America in an organization which shall function as an effective political and social force in the service of the people, to the end that human rights shall be regarded as more sacred than property interests.” N at ’ l l aw . G uild c oNst . pmbl., (amended 2012), available at https://www.nlg.org/sites/default/files/ NLG%20Constitution%20December%202012.pdf . 7. See Brown v. Bd. of Educ., 347 U.S. 483 (1954). 8. See Roe v. Wade, 410 U.S. 113 (1973). 9. See United States v. Windsor, 133 S. Ct. 2675 (2013); Oberfegell v. Hodges, 135 S. Ct. 1039 (2015) (granting certiorari to decide whether a state may refuse to allow homosexual couples to marry). 10. See G erald N. r ose Nber G , t he h ollow h oPe : c aN c ourts b ri NG a bout s ocial c ha NG e ? 338 (1991); J oel F. h aNdler , s ocial M ove MeNts aNd the l eGal s yste M 210 (1978); M ichael M c c aNN , r iGhts at w ork : P ay e quity r eFor M aNd the P olitics oF l eGal M obilizatio N 10 (1994); s tuart a. s chei NG old , t he P olitics oF r iGhts : l awyers , P ub – lic P olicy , aNd P olitical c ha NG e 96 (1974); s usa N G luck M ezey , P iti Ful P lai Nti FF s : c hild w el Fare l iti Gatio N aNd the F ederal c ourts 5-6 (2000). 11. See a lexis de t ocqueville , d eMocracy iN a Merica 280 (Henry Reeve trans., Oxford Univ. Press 1959) (1835-1840). 12 For example, there have been the development in recent years of physician groups dedicated to serving human needs and rights such as Doctors Without Borders and Physicians for Human Rights, but these organizations are not as numerous or well developed as United States legal organizations. d octors w ithout b orders , http://www.doctorswithoutborders. org (last visited Feb. 18, 2015); P hysicia Ns For h uMaN r iGhts , http://www.physicians – forhumanrights.org (last visited Feb. 18, 2015). 13. See b ruce a. a cker MaN , w e the P eo Ple : t ra NsFor Matio Ns (1998); see also b ruce a. a cker MaN , w e the P eo Ple : t he c ivil r iGhts r evolutio N (2014). 14. b ruce a. a cker MaN , w e the P eo Ple : t ra NsFor Matio Ns 12 (1998); Based on this perspec – tive, Ackerman’s task is “to define the basic functions that should be discharged by higher lawmaking institutions in a credible dualist democracy.” Id. at 267. 15. See c laybor Ne c arso N , i N s tru GG le : sNcc aNd the b lack a wake NiNG oF t he 1960 s 287 (1995); F ra Ncesca P olletta , i t w as l ike a F ever : s torytelli NG iN P rotest aNd P olitics 57 (2006); J oh N M c M illia N & P aul b uhle , N ew l eFt r evisited 49-50 (2003). 16. Gary Bellow, Lawyers for a Political Movement: California Rural Legal Assistance , in t he s ocial r es PoNsibilities oF l awyers 22, 23-26 (1988). 17. Michael Goldfield, Worker Insurgency, Radical Organization, and New Deal Labor Legisla- tion , 83 a M . P ol . s ci . r ev . 1257, 1272 (1989) (discussing the increase in union membership and labor strikes in 1934 and their effect on the passage of the NLRA). 18. Murray Seidler, The Socialist Party and American Unionism , 5 M idwest J. oF P ol . s ci . 207 (1961). 19. President Franklin D. Roosevelt, State of the Union Message to Congress (Jan. 11, 1944), available at http://www.fdrlibrary.marist.edu/archives/address_text.html . 20. Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941 , 62 M iNN . l. r ev . 265 (1978). 21. t ho Mas F. J ackso N , P olitics aNd c ulture iN M oder N a Merica : F ro M c ivil r iGhts to h uMaN r iGhts : M arti N l uther k iNG , J r ., aNd the s tru GG le For e co NoMic J ustice 22- 23 (2009); see also G ordo N k. M aNtler , P ower to the P oor : b lack -b row N c oalitio N aNd the F iGht For e co NoMic J ustice , 1960-1974 116-17 (2013). 22. See Alexander Stille, The Paradox of the New Elite , N. y. t iMes , Oct. 23, 2011, at SR1. 23. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942). 24. See Klare, supra note 20, at 268-70. 25. See Brown v. Bd. of Educ. ( Brown I ), 347 U.S. 483 (1954) (declaring separate but equal unconstitutional but provided no remedy); See also Brown v. Bd. of Educ. ( Brown II ) , 349 U.S. 294 (1955) (remanding the cases to local courts and authorities to implement principles transformational movements set forth in Brown I “with all deliberate speed”); Cooper v. Aaron 358 U.S. 1 (1958) (ordering desegregation to proceed in Little Rock despite hostility); Green v. Co. School Bd., 391 U.S. 430 (1968) (invalidating the “freedom of choice” plan as ineffective to achieve a unitary school system); Swann v. Charlotte-Meckleburg Bd. of Ed., 402 U.S. 1 (1971) (holding that only purposeful manipulation of a school’s racial composition violated equal opportunity); Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) (holding that showing of intentional state action to segregate schools in substantial portion of district imposed duty to desegregate entire school district); Milliken v. Bradley, 418 U.S. 717 (1974) (holding that courts cannot impose interdistrict desegregation absent a finding of intentional segregation); Milliken v. Bradley, 433 U.S. 267 (1977) (affirming the District Court ruling that remedial educational programs were appropriate remedy for students subjected to unconstitutional segregation). 26. Paul Finkelman, Civil Rights in Historical Context: In Defense of Brown, 118 h arv . l. r ev . 973, 974 (2005). 27. c harles J. o Gletree , J r ., a ll d eliberate s Peed : r eFlectio Ns oN the F irst h al F c eN – tury oF B rown v . B oard of E ducation xv (2004). 28. d errick a. b ell J r . , w hat B rown v . B oard of E ducation s hould h ave s aid : t he N a – tio N ’ s t oP l eGal e xPerts r ewrite a Merica ’ s l aNdMark c ivil r iGhts d ecisio N 185, 199 (Jack M. Balkin ed., 2001). 29. See d errick b ell , s ile Nt c ove NaNts : B rown v . B oard of E ducation aNd the u NF illed h oPes For r acial r eFor M 4 (2004); see also id. at 6 (“Brown brought about transforma – tion without real change.”). 30. See Frank I. Michelman, Forward: On Protecting the Poor Though the Fourteenth Amend- ment , 83 h arv . l. r ev . 7 (1969); see also Frank I. Michelman, Welfare Rights in a Con- stitutional Democracy , 1979 w ash . u. l.q. 659 (1979). 31. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). 32. See E.J. Hobsbawm, Should the Poor Organize? , N. y. r eview oF b ooks (Mar. 23, 1978), http://www.nybooks.com/articles/archives/1978/mar/23/should-the-poor-organize/?page=2. 33. As Social Movement theorist Anthony Oberschall argues, “For sustained resistance or protest, an organizational base and continuity of leadership are . . . necessary.” a Ntho Ny o berschall , s ocial c oNF lict aNd s ocial M ove MeNts 119 (1973); see also William A. Gamson & Emilie Schmeidler, Organizing the Poor , 13 t heory & s ociety 567 (1984). 34. See Hobsbawm, supra note 32. 35. See Rachel Donadio, Leftist Party’s Rise Upends Greek Political Order , N. y. t iMes (May 11, 2012), http://www.nytimes.com/2012/05/12/world/europe/in-greece-leftist-party-syriza- upends-politics.html?pagewanted=all. 36. See Jules Lobel, The Future of the Occupy Movement , J urist (Dec. 6, 2011), http://jurist. org/forum/2011/12/jules-lobel-occupy-movement.php . 37. P ive N & c loward , supra note 1, at xxi-xxii. 38. Id . 39. Id. 40. Id. at xxi. One difference for legal organizations is the potential of receiving an award of legal fees if the organization prevails in court. 41. Jason DeParle, What Welfare-to-Work Really Means , N. y. t iMes M aGazi Ne , Dec. 20,1998, at 50-59. See also Stanford F. Schram, The Praxis of Poor People’s Movements: Strategy and Theory in Dissensus Politics , 1 aPsa J. 715 (2003). 42. P ive N & c loward , supra note 1, at 37. 43. One other difference between legal organizations and other civic organizations, is the pos – sibility that legal groups have of sustaining themselves financially by winning attorneys’ fees awards in successful civil rights actions. 44. See N at ’ l l aw . G uild c oNst . , supra note 6. 45. Jennifer Gordon, We Make the Road by Walking: Immigrant Workers, The Workplace Project, and the Struggle for Social Change , 30 h arv . c.r-c.l. l. r ev . 407 (1995); Brenda Brat – 229 ton Blom, Conversations on Community Lawyering: The Newest (Oldest) Wave in Clinical Legal Education , 28 J. l. & P ol ’ y 359 (2008); Anthony V. Alfieri, Fidelity to Community: A Defense of Community Lawyering , 90 t ex . l. r ev . 635 (2012); Jules Lobel & Matthew Chapman, Bridging the Gap Between Unmet Legal Needs and an Oversupply of Lawyers: Creating Neighborhood Law Offices—The Philadelphia Experiment , 22 v a . J. s oc . P ol ’ y & l. 72, 85, 101 (2015); Michael Diamond, Community Lawyering: Revisiting the Old Neighborhood , 32 c olu M . h uM . r ts . l. r ev . 67, 75 (2000). See generally a la N k. c he N & s cott l. c uMM iNG s , P ublic i Nterest l awyeri NG : a c oNte MP orary P ers Pective (2013). 46. Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak , 16 N. y.u. r ev . l. & s oc . c ha NG e 535 (1987). 47. See Gerald P. López, Reconceiving Civil Rights Practice : Seven Weeks in the Life of a Rebellious Collaboration , 77 G eo . l.J. 1603, 1608 (1989); see also G erald P. l óPez , r ebellious l awyeri NG : o Ne c hica No ’ s v isio N oF P ro Gressive l aw P ractice (1992). 48. s tau Ghto N l yNd , a cco MP aNyi NG : P athways to s ocial c ha NG e (2012); Meena Jagannath et al., A Right-Based Approach to Lawyering: Legal Empowerment as an Alternative to Legal Aid in Post-Disaster Haiti , 10 N w . J. i Nt ’ l h uM . r ts . 7, 16 (2011). See also Paul Farmer, “Accompaniment” as Policy , h arvard M aGazi Ne , http://harvardmagazine.com/2001/05/ paul-farmer-accompaniment-as-policy (last visited Feb. 18, 2015). 49. For example, approximately 350 New York Guild members were either on relief or working for the Federal Government’s Works Projects Administration (WPA). Ann Fagan Ginger, Organizing Lawyers to, Inter Alia , Pack the Supreme Court , 18 G uild P rac . 83 (1981). 50. See J erold s. a uerbach , u Nequal J ustice : l awyers aNd s ocial c ha NG e iN M oder N a Merica 198-99 (Oxford 1976). 51. a NN F aGaN G iNG er , c arol w eiss k iNG : h uMaN r iGhts l awyer , 1895-1952 219 (1993); a uerbach , supra note 50, at 198-99. 52. d avid F. P ri Ndle , t he P olitics oF G la Mour : i deolo Gy aNd d eMocracy iN the s cree N a ctors G uild 14 (1988); d aNiel J. l eab , a u Nio N oF i Ndividuals , t he F or Matio N oF the a Merica N N ews PaPer G uild , 1933-1936 (1970). For example, the Screen Actors Guild has focused heavily on more jobs and working conditions for all actors, a direction that the larger conservative faction in the organization has strongly supported. P ri Ndle , supra note 52, at 197. 53. Isidore Lazarus, The Economic Crisis in the Legal Profession , 1 N at ’ l l aw . G uild q uar – terly 17, 19 (1937); t he N atio Nal l awyers G uild : F ro M r oosevelt t hrou Gh r ea GaN 3 (Ann Fagan Ginger & Eugene M. Tobin eds., 1988). [hereinafter F ro M r oosevelt t hrou Gh r ea GaN ]. 54. For example, in Missouri, nearly half the country lawyers did not make more than a sub – sistence living. See a uerbach , supra note 50, at 158-59. 55. John Gutknecht, Liberalism and the National Lawyers Guild Today , 2 N at ’ l l aw . G uild q uarterly 1, 3 (1939). See also N at ’ l l aw . G uild c oNst . , supra note 6 (listing as an object of the organization to “advance the economic well-being of the members of the legal profession. 1 N at ’ l l aw . G uild q uarterly 83.). 56. 1 N at ’ l l aw . G uild q uarterly 86. 57. F ro M r oosevelt t hrou Gh r ea GaN , supra note 53, at 11; v ictor r abi Nowitz & t iM l edwith , a h istory oF the N atio Nal l awyers G uild : 1937-1987 10 (1987). 58. d oro N w ei Nber G & M arty F assler , a h istorical s ketch oF the N atio Nal l awyers G uild iN a Merica N P olitics , 1936-1968 (1968). 59. Percival Roberts Bailey, Progressive Lawyers: A History of the National Lawyers Guild, 1936-1958 (1979) (unpublished Ph.D. dissertation, Rutgers University) (on file with Uni – versity Microfilms International). 60. By comparison, both the Newspaper Guild and Screen Actors Guild barred communists from position of authority in those organizations. 61. See Andrew Restuccia, Labor Union Quits Alliance With Greens Over Keystone Pipeline , t he h ill (Jan. 20, 2012), http://thehill.com/policy/energy-environment/205441-labor-union-leaves-bluegreen-alliance-over-keystone-disagreement; see also Brian Mayer, Cross Movement Coalition Formation: Bridging the Labor-Environment Divide , 79 s oc . i Nquiry 219, 221 (2009) (discussing the tendency of labor unions to side with capital when faced with regulatory reform). 62. Jules Lobel & Matthew Chapman, Bridging the Gap Between Unmet Legal Needs and an Oversupply of Lawyers: Creating Neighborhood Law Offices—The Philadelphia Experi – ment , 22 v a . J. s oc . P ol ’ y & l. 72 (2015). 63. Stanley Morris, Legal Service , 1 l aw . G uild r ev . 35 (1941). 64. Proposal for a Legal Service Bureau for the Metropolitan Area of Chicago , 1 N at ’ l l aw . G uild q uarterly 149, 149 (1938). 65. Id. at 152-53; see a uerbach , supra note 50, at 207-08. 66. Proposal for a Legal Service Bureau for the Metropolitan Area of Chicago , 1 N at ’ l l aw . G uild q uarterly 149, 154 (1938). 67. Plan for a Legal Service Bureau , 2 N at ’ l l aw . G uild q uarterly 206, 216 (1939). 68. Morris, supra note 63, at 35. 69. a uerbach , supra note 50, at 236; Resolutions , 10 l aw . G uild r ev . 38 (1950); Alex Elson, Extending Legal Service to the Low and Moderate Income Groups , 8 l aw . G uild r ev . 295 (1948). 70. For example, in 1950 the Guild Committee on Professional Problems drafted a scholarly and detailed report, which was reprinted in the Lawyers Guild Review arguing that every American is entitled to legal assistance as a matter of right and as a “categorical constitu – tional imperative.” The Availability of Legal Services and Judicial Processes to the Low and Moderate Income Groups and Proposals to Remedy Present Deficiencies , 10 l aw . G uild r ev . 8, 9 (1950). 71. Gene R. Nichol, Jr., Judicial Abdication and Equal Access to the Civil Justice System , 60 c ase w. r es . l. r ev . 325, 328-29 (2010). See also Hon. Earl Johnson, Jr., Will Gideon’s Trumpet Sound a New Melody? The Globalization of Constitutional Values and Its Implica- tions for a Right to Equal Justice in Civil Cases , 2 s eattle J. s oc . J ust . 201 (2003). 72. Robert D. Abrahams, The Neighborhood Law Office Plan , 1949 w is . l. r ev . 634 (1949) [hereinafter Abrahams, Wisconsin Law Review ]; Robert D. Abrahams, The Neighborhood Law Office Experiment , 9 u. c hi . l. r ev . 406, 407-08 (1942) [hereinafter Abrahams, Chicago Law Review ]. 73. Abrahams, Chicago Law Review , supra note 72, at 410. 74. Robert D. Abrahams, Neighborhood Law Offices , 1 l aw . G uild r ev . 1, 3-4 (1940). 75. Id. at 3. 76. Robert D. Abrahams, Neighborhood Law Offices , 50 a.b.a. J. 727, 729 (1964). 77. Abrahams, Wisconsin Law Review , supra note 72, at 638. 78. Abrahams, supra note 76, at 729; Abrahams, Chicago Law Review , supra note 72, at 420. 79. 65 r eP . a.b.a. 255, 451 (1940); 15 c al . s tate b ar J. no. 8 pt. 2, at 104-56 (1940); 46 a NN . r eP . P a . b ar a ss ’ N 253, 257 (1940); Abrahams, Chicago Law Review , supra note 72, at 421. 80. Abrahams, Wisconsin Law Review , supra note 72, at 646-47. 81. See, e.g. , Abrahams, Chicago Law Review , supra note 72, at 425-26 (discussing Chicago and Los Angeles Bar Association plans set up in the 1940s). See also Morris, supra note 63, at 35 (due in large measure to the “writings and efforts of national and local commit – tees of the Lawyers Guild . . . a surprisingly large number of bar committees [were] set up to investigate the problem of professional welfare and the extension of legal services to low-income groups, establishment of experimental agencies such as legal reference plans to meet the problem. . . .”). See also a uerbach , supra note 50, at 346-47 n.45 (on the Guild’s influence on the organized bar). 82. a uerbach , supra note 50, at 209. 83. Id. at 207. 231 84. See, e.g. , Elson, supra note 69, at 298. 85. Lloyd K. Garrison, The Legal Profession and the Public , 1 N at ’ l l aw . G uild q uarterly 127, 131 (1938). Garrison was the great-grandson of the abolitionist, William Lloyd Gar – rison. 86. b rya N G arth , N ei Ghborhood l aw F ir Ms For the P oor : a c oMP arative s tudy 19 (1980). 87. Allen Rostron, Inside the ACLU: Activism and Anti-Communism in the Late 1960s , 33 N ew e NG . l. r ev . 425, 429-34 (1998-1999); see also Manfred Berg, Black Civil Rights and Liberal Anticommunism: The NAACP in the Early Cold War , 94 J. a M . h ist . 75, 89 (2007); The Strangest of Bedfellows , N ewsweek (Sept. 13, 1998), http://www.newsweek. com/strangest-bedfellows-169718 (suggesting collusion between Marshall and Hoover to manage communists in NAACP ranks). See also J ack G ree Nber G , c rusaders iN the c ourts : h ow a d edicated b aNd oF l awyers F ou Ght For the c ivil r iGhts r evolutio N 102-06 (1994). 88. r abi Nowitz & l edwith , supra note 57 at 20. 89. Id. at 25. 90. h. c oMM . oN u N -a Merica N a ctivities , t he N atio Nal l awyers G uild : l eGal b ulwark oF the c oMM uNist P arty , h.r. r eP . N o . 81-3123 (1950) [hereinafter h. c oMM . oN u N – a Merica N a ctivities ] . 91. r abi Nowitz & l edwith , , supra note 57, at 28; See National Lawyers Guild v. Att’y Gen. of the United States, 1980 U.S. Dist. Lexis 13188, 1 (S.D.N.Y. Aug. 14, 1980) . Documents that were obtained by the Guild due to this lawsuit demonstrated that the HUAC report was engineered by Hoover and the FBI in retaliation to the Guild’s report on the FBI’s practices. 92. h. c oMM . oN u N -a Merica N a ctivities , supra note 90, at 1 . 93. Thomas Emerson, The National Lawyers Guild: Legal Bulwark of Democracy , 10 l aw . G uild r ev . 93 (1950). For an excellent discussion of Emerson’s role in challenging the HUAC report, see Nathan Goetting, Thomas I. Emerson: Brave During the Scare, 69 N at ’ l l aw . G uild r ev . 146, 149-53 (2012). 94. Emerson, supra note 93 at 95. See Goetting, supra note 93, at 150 (discussing the point that Emerson and the Guild response did not simply defend the Guild but prosecuted HUAC). 95. 95 Emerson, supra note 93, at 96-97, 98, 105-06. 96. Thomas Emerson, The National Lawyers Guild in 1950-1951 , reprinted in F ro M r oosevelt t hrou Gh r ea GaN , supra note 53, at 113. 97. F ro M r oosevelt t hrou Gh r ea GaN , supra note 53, at 30. 98. r abi Nowitz & l edwith , supra note 57, at 11. 99. Victor Rabinowitz, The National Lawyers Guild: Thomas Emerson and the Struggle for Survival , 38 c ase w. r es . l. r ev . 608 (1987-88). 100. Id. at 614. 101. v ictor r abi Nowitz , u Nre PeNta Nt l eFtist : a l awyer ’ s M eMoir 174 (1996). 102. r abi Nowitz & l edwith , supra note 57, at 35. 103. Id. ; r abi Nowitz , supra note 101, at 174 104. Thomas Hilbink, The Profession, the Grassroots and the Elite: Cause Lawyering for Civil Rights and Freedom in the Direct Action Era , in c ause l awyeri NG aNd s ocial M ove – MeNts , supra note 4, at 60, 66. 105. r abi Nowitz & l edwith , supra note 57, at 36. 106. s teve b abso N , d ave r iddle & d avid e lsila , t he c olor oF l aw , e rNie G ood MaN , d e – troit , aNd the s tru GG le For l abor aNd c ivil r iGhts (W2010). See also r abi Nowitz , supra note 101, at 175 (providing a description of Holt’s dramatic speech). 107. F ro M r oosevelt t hrou Gh r ea GaN , supra note 53, at 187. 108. r abi Nowitz , supra note 101, at 175; b abso N , r iddle & e lsila , supra note 106, at 292-93. 109. Id. at 176. transformational movements 232 national lawyers guild review 110. Quoted in b abso N , r iddle & e lsila , supra note 106, at 297. 111. Ernie Goodman, a remarkable man who, as Rabinowitz observed, “never seemed to lose his vigor,” was appointed CASL co-chairman, along with his law partner and long-time Guild member, George Crockett. The appointment of two Southern lawyers as co-secretaries, an African American, Len Holt from Virginia, and a white lawyer, Ben Smith from New Or – leans, underscored the critical importance of southern leadership to the effort. r abi Nowitz , supra note 101. 112. b abso N , r iddle & e lsila , supra note 106, at 287. 113. Id. at 288 (emphasis added). 114. Guild attorneys, Dean Robb, Ann Ginger, Victor Rabinowitz, and George Crockett, among others, spoke on a variety of subjects ranging from personal injury suits, the innovative concept of “omnibus lawsuits,” to defenses to injunctions and enforcing federal civil rights laws. 115. r abi Nowitz & l edwith , supra note 57, at 38. 116. a rthur k iNoy , r iGhts oN t rial : t he o dyssey oF a P eo Ple ’ s l awyer 190 (1983). 117. Id. at 207. 118. Id. 119. b abso N , r iddle & e lsila , supra note 106, at 335. 120. Id. at 307. 121. Hilbink, supra note 104, at 66-68. 122. Id. at 72-74. 123. r abi Nowitz , supra note 101, at 177-78; F ro M r oosevelt t hrou Gh r ea GaN , supra note 53. b abso N , r iddle & e lsila , supra note 106, at 328-30; r abi Nowitz & l edwith , supra note 57, at 38. 124. See, An Account of the National Lawyers Guild Program of Legal Assistance to Civil Rights Workers in Mississippi, Summer, 1964 , 24 G uild P rac . 32, 34 (1965). 125. r abi Nowitz , supra note 101, at 179-80. 126. An Account of the National Lawyers Guild Program, supra note 124, at 35. 127. b abso N , r iddle & e lsila , supra note 106, at 340. 128. Hilbink, supra note 104, at 76. 129. Id. at 76. 130. b abso N , r iddle & e lsila , supra note 106, at 348. 131. 32 G uild P rac . 41. 132. Hilbink, supra note 104, at 77. 133. Other organizations, legal and non-legal have performed similar “witness” functions. See w it Ness For P eace , http://www.witnessforpeace.org (last visited Feb. 18, 2015). 134. l yNd , supra note 48. 135. l eN h olt , t he s uMM er t hat d id N ’ t e Nd 89 (1992). 136. Hilbink, supra note 104, at 73. 137. b abso N , r iddle & e lsila , supra note 106, at 327. 138. Id. at 72. 139. Quoted in National Lawyers Guild v. FBI , Plaintiff’s Principal Factual Papers in Opposition to the Motion of the United States of America for Partial Summary Judgment at 306-07 (thanks to Michael Krinsky for supplying the author with this document), also partially reprinted in F ro M r oosevelt t hrou Gh r ea GaN supra note 53 at 206. 140. b abso N , r iddle & e lsila , supra note 106, at 357; Leading Lawyers Join Rights Drive , N. y. t iMes , Feb. 8, 1965, at 1. 141. J oh N l ewis with M ichael d’o rso , w alki NG with the w iNd : a M eMoir oF the M ove – MeNt 278 (1998). 142. Taylor Branch claims that “every one of SNCC’s allies vehemently objected” to SNCC’s pronouncement that they would accept aid from the Lawyers Guild, including Andrew Young, speaking on King’s behalf, although Lewis claims that King was ultimately fine with the Guild. t aylor b ra Nch , P illars oF F ire : a Merica iN the k iNG y ears 1963-65 273-74 (1998). 143. J aMes F or MaN , t he M aki NG oF b lack r evolutio Naries 381-82 (Macmillan Company 1972). 144. k iNoy , supra note 116, at 263. 145. P ive N & c loward , supra note 1. 146. Letter to Guild Members from Ernie Goodman , 24 G uild P rac . 28, 57 (1965). 147. b abso N , r iddle & e lsila , supra note 106, at 361. 148. See w ei Nbur G & F assler , supra note 58, at 20. 149. r abi Nowitz , supra note 101, at 182. 150. Id. at 185. 151. Id. at 183. 152. Id. at 194. 153. Interview with Victor Rabinowitz, in New York, N.Y. (Sept. 2004) 154. r abi Nowitz , supra note 101, at 185. 155. Id. at 186. 156. Id. at 194. 157. Interview with Michael Krinsky, Rabinowitz’s law partner, in New York, N.Y. (July 2008). Also based upon personal experience working with Victor Rabinowitz. 158. r abi Nowitz , supra note 101 , at 816. 159. David Rein, The Movement and the Lawyer , 28 G uild P rac . 1 (1969). 160. Id. 161. J ules l obel , s uccess w ithout v ictory : l ost l eGal b attles aNd the l oNG r oad to J ustice iN a Merica (2003); see also Jules Lobel, Courts as Forums for Protest, 52 ucla l. r ev . 477 (2004-2005). 162. Doris Brin Walker, How I Happened to Become the Guild’s First Woman President , 64 G uild P rac . 65, 66 (2007) (emphasis added). 163. a uerbach , supra note 50, at 203. 164. Id. at 237. 165. See Rasul v. Bush, 542 U.S. 466 (2004). 166. See Harris v. McRae, 448 U.S. 297 (1980). 167. See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013). 168. See Ashker v. Brown, 2013 U.S. Dist. LEXIS 56738 (N.D. Cal. Apr. 18, 2013). 169. l obel , supra note 161 (discussing the legal philosophy of the Center for Constitutional Rights work). 170. Interview with Marc Van der Hout, past president of the National Lawyers Guild and a long-time member of the Immigration project, in San Francisco, CA. (Feb. 13, 2015). 171. Stuart Scheingold, The Struggle to Politicize Legal Practice , in c ause l awyers aNd s ocial M ove MeNts 118, 144. (Austin Sarat & Stuart Scheingold eds., 2006). 172. See Janos D. Marton, Representing an Idea: How Occupy Wall Street’s Attorneys Overcame the Challenges of Representing Non-hierarchical Movements , 39 F ordha M u rb . l.J. 1107 (2012); Christina Boyle, Occupy Wall St. Protestors Rights in Good Hands as Legal Minds Step Up to Offer Their Support , N. y. d aily N ews (Oct. 20, 2011, 3:56 PM), http://www. nydailynews.com/new-york/occupy-wall-st-protesters-rights-good-hands-legal-minds-step- offer-support-article-1.965060 (NLG lawyers from the New York City chapter of the Guild involved in defending Occupy Wall St. in court, and the Guild has dispatched lawyers to help transformational movements 234 national lawyers guild review the movement in over 50 cities); Allison Kilkenny, National Lawyers Guild Fights for the Rights to Occupy , i N t hese t iMes (Mar. 21, 2012), http://inthesetimes.com/article/12853/ national_lawyers_guild_fights_for_the_right_to_occupy (Guild lawyers involved in defense of Occupy Movements in Oakland, Chicago, New York and other cities). For example in Maine, a National Lawyers Guild leader took on the defense of the Occupy Maine move – ment on behalf of the Guild. Interview with Lynne Williams, [title, institutional affiliation (if any), location of the interview] (Apr. 2012). In Oakland, California, the Guild filed and eventually settled for over 1 million dollars a lawsuit on behalf of protestors injured by the Oakland police during the 2011 Occupy protests. See Lee Romney, Oakland Crafts a 1.1 Million Settlement for Injured Occupy Protestors , l.a. t iMes (July 3, 2013), http://articles. latimes.com/2013/jul/03/local/la-me-ln-occupy-oakland-settlement-20130703. 173. Johnathon Mahler, Oakland, The Last Refuge of Radical America , N. y. t iMes M aGazi Ne , Aug. 1, 2012, available at http://www.nytimes.com/2012/08/05/magazine/oakland-occupy- movement.html?_r=0 . 174. Kilkenny, supra note 172