I am a lawyer and writer. I created this website to preserve, and make more easily accessible, articles, blog posts, position papers, briefs, testimonies, and the like, that I have authored or co-authored.
Most of these writings date from the early part of this century, when I transitioned from private law practice in Washington, D.C. to public interest advocacy. From 2003 to 2012, i was Director of the Federal Rights Project at the National Senior Citizens Law Center (now renamed Justice in Aging). From 2012 till I retired in 2017, I was Senior Counsel at the Constitutional Accountability Center. At both these public interest law firms, I mixed advocacy with writing for publication.
At both firms, I targeted three principal areas, which are reflected in many of the items posted here. First, I sought to spotlight and counter the formidable arsenal of doctrinal weapons deployed by conservative legal advocates, especially business advocates, to undermine regulatory and safety net statutes enacted by federal and state governments since the early 20th century. With ever more audacious disregard for the original meaning and text of affected laws, and devastating real-world consequences, conservative Supreme Court justices have embraced this stealth rollback agenda, under Chief Justice William H. Rehnquist and especially under his successor, John G. Roberts . But this campaign to gut longstanding workplace, consumer, environmental, health, financial security, and civil rights safeguards, has largely passed under the radar of the media, the electorate, progressive political leaders, and affected constituencies -- in part because its strategists successfully framed the issues in forbiddingly legalistic, technical terms.
My second focus, especially at the Constitutional Accountability Center, has been to show that the Constitution's original text and history frequently favor progressive outcomes of major specific controversies, and that the Constitution -- the whole Constitution, including its amendments -- is in large measure a progressive document. Progressives should be wrapping themselves in the Constitution -- not only in court but in policy and political arenas as well -- anchoring their appeals in how the Constitution reads, what its framers meant, and how its judicial interpreters have ruled and reasoned.
Finally, i have sought to famiiarize myself with conservative legal scholarship, in order to better understand where legal conservatives are coming from -- in particular, to appreciate the different, sometimes radically different, perspectives which distinguish major legal conservative sub-groups -- social conservatives, business conservatives, libertarians, big government (Eisenhower Republican) conservatives, traditionalist conservatives, for example. Unsurprisingly, i continue to disagree with much or most of the agendas of these conservative factions. But famiiarity has often bred respect rather than contempt, and revealed areas where collaboration and even agreement are within reach.
In my experience, serious curiosity about conservative legal ideas remains the exception among my progressive friends, even now that the conservative legal movement has gained such currency and power. When i first got into public interest advocacy and writing, i reviewed, for a leading progressive magazine, a book elaborating a prominent academic libertarian's vision of the Constitution. The first sentence of the draft review i submitted read: "Liberals rarely read conservative legal scholarship, because they think that conservatives are not only wrong, but dumb." My editor struck that sentence, presumably as too off-putting for his readers. In fact, however, the sentence was accurate then, and, and I fear it remains significantly true today.
A bit more biographical background: I graduated from law school (Yale) in 1967, then served as Legal Assistant to Federal Communications Commissioner Nicholas Johnson for one year. At the 1968 Democratic National Convention, i worked with a group that secured convention adoption of a reform package mandating state delegate selection procedures meaningfully open to public participation In 1969-70 i worked in the administration of New York City Mayor John V. Lindsay, then spent a year and a half as a Fellow at Harvard University's Institute of Politics. There i wrote a deservedly obscure book about the then-fledgling public interest law movement, entitled, "The Genteel Populists." After four years as an Associate lawyer at the Washington law firm, Arnold & Porter, I joined, in August 1976, Jimmy Carter's presidential campaign; after his election, I joined his White House Domestic Policy Staff as an Associate Director. In 1980, after the electorate facilitated Carter staffers' return to the private sector, i joined my White House boss, Stuart Eizenstat, and several other Carter refugees in forming a Washington office for Stu's Atlanta-based law firm, Powell Goldstein Frazer & Murphy. After 20 years there, I joined, as a senior counsel, the Washington office of multinational Sidley Austin LLP. From Sidley i transitioned to the public interest enterprise noted above.