Breyer’s practical perspective on democracy—that government is connected to the citizens it serves, and that people have a responsibility to work together to affect their communities—was repeatedly invoked by the five legal luminaries who spoke in tribute as the 2007 Annual Survey was dedicated to him.

Echoing Feder’s enthusiasm for Breyer’s writing, Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit noted how Breyer’s opinions, plainspoken and free from footnotes, are tools of democracy, enabling anyone to read and understand his judicial decisions.

But aside from Breyer’s contribution to the law from the highest court, several speakers focused on his earlier work. “You may think that the greatest job that Justice Breyer ever assumed…was as associate justice of the Supreme Court,” said Kenneth Feinberg ’70, former special master of the federal September 11th Victim Compensation Fund. “You are incorrect.” He argued that Breyer’s talent for getting political opponents to compromise when he served as special counsel to the Senate Judiciary Committee in 1974–75 was his finest contribution to the democratic process. A prime example was how Senators Edward Kennedy and Strom Thurmond compromised on judicial appointments. “‘You can have Mississippi if we can have Massachusetts.’ ‘You can have a district judge in California if we can have one in Alabama.’ It worked,” said Feinberg, whose own credentials as a mediator are superlative. “Today, when you meet senators who were around back then… they say, ‘Remember those days when the Senate was more bipartisan?’” Kate Adams, Breyer’s former clerk from the U.S. Court of Appeals for the First Circuit who is now vice president and special counsel of Honeywell Specialty Materials, later added, “Perhaps through his constitutional pragmatism, judging each case one at a time through the lens of active liberty, Justice Breyer can do the same for our Court and our Constitution.”

Kathleen Sullivan, former dean of Stanford Law School, who knows Breyer from their days as Harvard Law professors, and Richard Stewart, John Edward Sexton Professor of Law, who worked with Breyer on the casebook Administrative Law and Regulatory Policy: Problems, Text and Cases, remarked that Breyer’s contributions in the public service have been successful because he nails down what really matters. Sullivan described how Breyer approached his work with the judiciary committee with the goal of determining “what they should do that day for the country.” And Stewart recalled Breyer’s 14 years in the First Circuit where he most notably influenced sentencing guidelines, an issue that remains among the most important to the judicial system today. “[Breyer’s] initiatives have not won universal applause,” Stewart remarked, “but these innovations, warts and all, have stood the test of time.”

The same thoughtfulness Breyer demonstrates when serving the people in a legal capacity permeates his nonlegal endeavors. As chief judge of the First Circuit, he recognized that lawyers were constantly getting stuck in malfunctioning elevators in the old Boston courthouse, causing them to miss appearances. Breyer became actively involved in redesigning the new John Joseph Moakley Courthouse, which opened in 1999, from poring over blueprints to getting cost estimates from bricklayers. “He rolled up his sleeves to renovate that courthouse,” recalled Adams. And the building on the Charles River even reflects Breyer’s practical outlook. Ever mindful of the people, Sullivan said, “He built such a courthouse with great success, with great public spaces where the people would have the best views of Boston Harbor.”

My parents, immigrants from Eastern Europe, were first farmers and later shopkeepers in Monticello, New York, where I was born. I attended a one-room schoolhouse. Whatever image you may have about one-room schoolhouses, I skipped two grades when I transferred to public school. I attended Barnard College at age 15. You cannot imagine the enormity of the adjustment from Monticello to Manhattan. I remember the inkblot test they gave entering Barnard freshmen. I saw a rooster. The person next to me wrote “Dante’s Inferno.”

The single luckiest thing that happened to me at Barnard, maybe in my entire life, is that I came down with the mumps and had to miss my first exams. But for the mumps, I likely would have flunked everything and been back in Monticello for good.

Lesson Number 1: A little adversity sometimes can be a blessing.

In high school, I made the decision to be a journalist. I majored in Latin American studies at Barnard and saw myself as a journalist making and shaping world opinion in the capitals of Latin America.

After innumerable rejections, I found a job reporting weddings, church socials and women’s club meetings. Not the stuff of Pulitzer Prizes. Before long, I began to rethink my life and in desperation enrolled at the Law School at night with a day job editing copy for a feature syndicate. My sole ambition was to get off the social page, and law school seemed a sure-fire way in the 1960s for a woman to be taken seriously in the male-dominated profession of journalism.

Lesson Number 2: Every now and then it’s good to reconsider the life-course you’re on.

With a demanding daytime job, for me night law school was hardly a breeze. My assigned seat in Civil Procedure happened to be next to the class genius, a particularly brilliant engineer. When the grades came back on Delmar Karlen’s mid-year exam, my engineer friend and I were both shocked: My grade was at the top of the class, his at the bottom. He had written flawlessly about the law of contracts, which was the context of the exam hypothetical. My response was about the credibility of witnesses.

Lesson Number 3: Before you go spouting off on a subject, first be sure you know what the topic of the discussion is.

It was near-impossible to find a law-firm job. “Our quota of women is filled” was a common response—meaning, they had a woman, a quota, or both. Naturally, I aimed for one of the completely impenetrable Wall Street firms. My wonderful classmate Roberta Karmel ’62 asked me, “Judy, why are you doing this? They don’t want us!”

After scores of rejections, I was hired by the venerable firm of Sullivan & Cromwell—the only female in its litigation department. Departmental meetings began, “Gentlemen and Judy.” Why on earth Sullivan hired me is one of the great mysteries, and great joys, of my life.

Lesson Number 4—mine and Yogi Berra’s: When you reach a fork in the road, take it. It’s no time to pause for reflection, or be timid, or ask too many questions, or study the odds. Just go for it!

I have now marked 23-plus years as a judge of New York State’s highest court, 14 of those as chief judge. Let me assure you, nothing comes close to the privilege of being chief judge.

One of the most important reforms to our court system during my tenure has been jury reform. My official reason for focusing on the jury system is that it is a singular opportunity to show the public that our justice system works well. We call more than 650,000 potential jurors every year. That’s a lot of opportunity to win public trust and confidence. My unofficial reason is that years ago my NYU Law School graduate daughter Luisa ’91 called me during a break from jury service to say: “Mom, this is a great place to meet guys.” Immediately I resolved to expand the array.

We began the process with a commission of lawyers, judges and members of the public, who within six months handed me a terrific blueprint for reform. Indeed, the commission process has been a hallmark of my years as chief judge—an extraordinary route to effective reform throughout our court system.

Lesson Number 5 echoes Margaret Mead: “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

As a quick example of profound change affecting the courts, consider the drug epidemic and its impact on our criminal-court and family-court dockets. Probably threequarters or more of our criminal cases are drug-driven, many of them low-level offenders committing nonviolent crimes again and again simply to support a drug habit. Or consider the huge child-neglect and abuse dockets and record numbers of children being removed from their homes to enter foster-care limbo. There was a public outcry: “Do something.”

I’m proud to say we have done a lot. Today in New York State we have 152 Drug Courts, offering rehabilitation instead of jail; we have Family Drug Courts to speed rehabilitation and avoid the need to terminate parental rights, and Juvenile Drug Courts for vulnerable teenagers. We have Integrated Domestic Violence Courts throughout the state focused on victim safety and offender accountability; we have Mental Health Courts to reroute people in need of treatment from prison; we have Community Courts, Reentry Courts and many more specialty courts, and, best of all, we have a Center for Court Innovation—a research and development arm to help us think through these new approaches to delivering justice.

Are those without controversy? Of course not. Nothing worthwhile in life is. We are sensitive to the criticisms when they are valid. But we also have tremendous antidotes: the thanks of people who have been served by these courts and have been able to turn their lives from the downward spiral they were on; the enthusiasm of our judges who say, “This is what I became a judge to do,” and nationwide and worldwide interest in replicating our courts.

Lesson Number 6, the words of the late South African lawyer, soldier and statesman General Jan Christian Smuts: “When enlisted in a good cause, never surrender, for you can never tell what morning reinforcements… will come marching over the hilltop.”

—

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Did he encourage your interest in politics? He thought women should be schoolteachers.

So, were you a rebellious child? I wouldn’t call it rebellious, but I had a very strong personality. I still do. If there was something I wanted, I marshaled the arguments and proceeded to figure out how to get it. I never gave up—persistence!

How did you develop your international focus? My forte has always been languages. I studied Latin, French, German and Italian, and was particularly interested in the French Revolution. I didn’t know people had the power to change things like that. When I earned my law degree in the U.S., I went to France for a law degree in order to practice in both places. Most big law firms didn’t hire women, and if they did, they put us in estates and trusts. My friends Ruth Bader Ginsburg and Sandra Day O’Connor had similar experiences. I was even more peculiar because I wanted to do international work, which meant travel. I remember one senior fuddy-duddy at a major law firm telling me, “Women can’t travel alone.” I’m not talking about prehistoric times, either.

Do you think that a cross-cultural legal education is essential for law students? We have a global economy, and lawyers represent corporations that are international in nature. We conceived of the Hauser Scholars Program to be a sort of Rhodes Scholarship for lawyers. International students, already experts in their fields, receive an LL.M., while our students are exposed to people from other systems. The faculty and students in the Singapore dual-degree program come from places like India, China, Australia and Canada.

You served on the President’s Foreign Intelligence Advisory Board under Brent Scowcroft from 2001 to 2004. What do you think is a plausible outcome from our intervention in Iraq? I see no plausible end since we are in the middle of a civil war. I never supported the war and I urged that on everybody, from the president down. I subscribe to the view that we should withdraw combat troops from the major cities to just across the borders. The Sunni and Shia will have to fight it out and reach a political accommodation. I don’t see any point to further U.S. engagement. The underlying political issues are not being addressed and we will have more casualties.

In 2001, your name was in the hopper for U.S. ambassador to the U.N. Do you ever wonder how things might be different? I would have resigned over the Iraq war. We are the most powerful player in the U.N., and when something is important to our national interests, we have to get it by bringing along other nations. That means compromise. We shouldn’t just expect others to vote with us, which is what happened with the second resolution for the Iraq war. We were twisting arms and bribing nations and it didn’t work.

You and your husband are both very busy people. How do you spend your free time? We have two great loves. The first is hiking. In New York, we walk everywhere. The other is music. I am on the Lincoln Center board, and was on the N.Y. Philharmonic board for decades.

Who is harder to deal with, artists or politicians? The common denominator is that they both have very large egos. My father taught me that when successful politicians look in the mirror, they say, “Me, me, me!” If you don’t believe in “me, me, me,” then you don’t have the juice to be a politician.

What is the best lesson you taught your own children? That everybody slips on a banana peel sooner or later. How you get up, brush off your behind and get on with things is the great test in life. Also, if you have offended anyone, apologize. You may find they’ll be there when you’ve slipped.

Have you given that same advice to politicians? Yes. But politicians rarely apologize.

Speaking of strategy, your faculty recruitment has been extremely successful. What specialties are you aiming to strengthen now? We’re not focused on going area by area. If you say you’re going to have a search in this particular specialty, the best person might not be available. You’re better off being flexible. Since I started, we’ve added 19 full-time members to the faculty—two clinical, 17 academic, 11 women and eight men—and it’s a spectacular group. (Please see the timeline on page 54, which shows these faculty arrivals.) I’m really proud of each of them. I pay a lot of attention to natural turning points, like when the people we want have kids getting ready to go to college. Or, on the other side, people often want to move before their kids start kindergarten. In the lateral market (as opposed to the entry-level), almost all the hiring gets done after people have been visiting for a semester or a year—fortunately, that immersion works well for us. Since NYU Law is a terrific place to be, the more time a potential colleague spends here, the more likely he or she will want to be here permanently.

Why is there so much competition right now for legal scholars? It’s a good question. This is actually a very good time for legal scholars; very good work is being done. There are terrifically strong people coming into the market and there are a number of institutions trying to be as good as they can be, and in order to make significant strides, you have to be in the lateral market on a regular basis, even if you do some entry-level hiring as well. We’ve done extremely well in this competition.

How can you leverage the Law School’s location more aggressively— both to attract new faculty and to add to the vitality of the student experience? There are faculty members in other places who might think it’s daunting to raise kids in the city, but I’m a big fan of it. My wife, Vicki Been, is on the faculty here, we have two kids, and we live six blocks from Van Hall in the West Village. For new hires, we can help with housing, provide in-house expertise about schools, and help make connections for spouses looking for new jobs. We spend a lot of time and energy on making this work for the whole family.

In terms of campus life, being in the city is a huge substantive advantage because leaders in every field are based here, or have reason to pass through. In just one week last year, we had a major speech by Louise Arbour, the U.N. High Commissioner for Human Rights, Archbishop Desmond Tutu shared some powerful stories, and Justice Ruth Bader Ginsburg joined the the 10th anniversary celebration of the Brennan Center.

In terms of curriculum, we’re now creating transaction-based courses in a number of different areas that we will offer to at least half our students every year. A full-time faculty member will apply the theoretical construct, and then every week, the principal in an important deal being analyzed will come and present—and we’ll use new cases each year. We’ve designed an innovative business ethics curriculum in collaboration with the Stern School of Business. These courses will do for students interested in business and in corporate transactional careers what the clinics have done for those interested in litigation careers. It’s almost impossible to create these kinds of partnerships anywhere other than in New York. Weekly, I also bring in successful alumni who are doing something other than practicing law in a traditional setting for intimate conversations with groups of students. It’s eye-opening for the students to see a path to becoming a major real estate developer, or the president of a football team, or a hedge fund manager. Finally, our faculty in the international area works closely with the United Nations and the Council on Foreign Relations.

The Law School—and you—have been responsible for many financial-aid innovations. Do you plan to expand the range of assistance you provide going forward? Yes. I’m a big believer in education as an avenue for opportunity, partly because it connects with my own history of coming to the United States from Argentina. Our capital campaign will support the initiatives that will ensure that the Law School is always a place of opportunity. Students who take summer jobs that are public service-oriented are guaranteed financial assistance. Today, we’re looking at not only the need coming in, but need going out, primarily in connection with public-service jobs. When I became dean, I expanded the Loan Repayment Assistance Program so that someone who takes a public-service job and stays with it for ten years has his or her whole debt burden paid by the Law School. We’re also focused on setting up funds for postgraduate fellowships with public-service employers. We’re creating funding vehicles so people can go to leading organizations with financial support from us, getting them started in their careers.

Several of your centers, like the Center on Law and Security, are really shaping the public debate in certain areas. How do these centers contribute to the intellectual life of the Law School and its place in the larger society? I see the centers as a way of amplifying the voice of the faculty in the public discourse. We are also working to make the centers more relevant to students by involving them in the research or getting them involved with preparing and arguing cases that stem from the centers’ activities.

You’ve been busy with curriculum reform. Are you planning more changes? We’ve done four major rounds of curriculum reform since I started as dean. I see the whole Law School as a work in progress, and I think that’s actually what makes it exciting: We’re not self-satisfied. We led the way going back more than 20 years to the transformation of law school curricula, especially when it comes to the first year. Students need to understand institutions and government—not just the courts, but administrative agencies, too. So we introduced the Administrative and Regulatory State class for the spring term of the 1L year, and also introduced at least one smaller class for each first-year section. We have a set of first-year electives now, motivated by students who made it clear that they wanted to take International Law in the first year, in part to prepare for summer internships overseas, but after some discussion it became clear that there was a need to include other choices, too. So Property, Corporations, Constitutional Law, Taxation and International Law are now offered, and that started with the Class of 2009. It’s good for students to be able to start exploring areas of our enormously deep curriculum sooner, so that they can take full advantage of that richness, and it also makes it easier for them to write their law journal notes, or large papers, in their second year. We will continue to reexamine the curriculum, especially the interaction between the first-year and upper-year courses.

You mentioned that you have an overall strategic planning process under way. Will that help you consider these sorts of changes, and direct the flow of ideas? Yes. We had a terrific retreat in early December. We got together trustees and alumni, administrators, students and faculty to talk about these sets of issues. There was a consensus that we should focus on preparing lawyers for leadership careers as problem-solvers and high-level advisers in a fast-changing, global, legal and business environment. We also want to encourage them to be leaders in civic life, in part by leveraging our unique public interest culture. We discussed ways to foster cross-fertilization across disciplines and areas of law, and everyone agreed that our New York location provides enormous opportunities, both for our current students and faculty, and in terms of attracting the best people to study and teach.

Many of your newest female alumni are working at big firms, but women a few years out leave firms at a worrisome rate. Can law schools help ameliorate this? Recently, I gathered a group of alumni who are presiding partners at major law firms together with NYU graduates for a conversation around these issues. The first large law firm that does a good job fixing this problem is going to have a huge comparative advantage, because there’s enormous talent out there, so this would be a good business decision. I was on a panel a few years ago with a hiring partner at one of the major law firms here, and he was very proud that half his first-year associates were women. He was looking forward to the time when they would have the first class of partners that was half women, and I said, That’ll never happen unless you restructure the way your firm operates. I asked this partner, Could you imagine lawyers having dinner with their families and working after dinner? He said no. I predict that will change, and I’d like to help in that process. Huge talent is being left on the table. That’s one reason I’m interested in having students see all other career options: so that even if they go to a firm, and that might be a very good decision to make, they know there are ways one can make transitions.

Speaking of transitions, so far you have managed to continue your academic work while serving as dean. Do you plan to keep it up? Absolutely. I think I have a distinctive perspective on some issues that shouldn’t be put on hold for however long I do this job. For example, the world has split into people who are fans of costbenefit analysis and against serious environmental regulation, and people who just knock down cost-benefit analysis. But it’s counterproductive to just say this type of analysis is evil and that we shouldn’t be trading other goals against the environment, unless one is prepared to go to zero contaminants, which no one is. So you have to decide where you draw the line. I just finished writing a book about this called Retaking Rationality: Using Cost-Benefit Analysis To Defend the Environment and Protect Public Health, coauthored with a former student of mine, Michael Livermore ’06. My next project is an article tentatively entitled “Climate Change and Future Generations.” I also teach a four-credit environmental law course every fall; it’s important for me to be able to have some kind of normal professor-to-student relationship. So, through my academic work, I’m preserving a path to my post-deanship time on the NYU School of Law faculty.

—Kelley Holland, a former editor at Business Week and at the New York Times, now writes a management column for the Times.

Jane Spinak ’79

So let’s begin by asking what we think the role of a child advocate should be. I’m not going to start with Marty’s admonition that we shouldn’t have child advocates at least for very young children and some others, because I think he’s lost that battle. But given the system that we have, what is the job of a child advocate?

Peggy Cooper Davis, John S. R. Shad Professor of Lawyering and Ethics, NYU School of Law. Judge of the Family Court of the State of New York from 1980 to 1983:

Well, I’m reluctant to walk away from Marty’s recommendation so quickly because in many ways the great problem in child welfare is that people who influence policy in this country and to some extent the general public are in this terrible position of, of course, loving all children, including the children of the poor, but hating and blaming their parents.

And the impossibility of helping children outside of families creates a situation such that I hope we’ll talk seriously about this idea of family representation as opposed to child representation.

Karen Freedman ’80, Founder and Executive Director, Lawyers For Children, New York. LFC provides free legal and social-work advocacy to children in foster care and addresses systemic changes in child welfare policy: I would be thrown out of my office if I didn’t at least attempt to answer Jane’s question. If I can’t answer it perfectly, it’s only because I have spent a lot of time reading Marty’s work and he does an excellent job of revealing the complexity inherent in the role of a child advocate. But for me and for the people in my office, the most important thing about being a child advocate is keeping ourselves honest about what our role is. First and foremost, every attorney in our office is a lawyer and their job is to represent their clients’ legal interests. The presumption is that we’re going to be able to relate to our clients the same way any attorney relates to their clients. We’re going to counsel them, explain what the law is that affects their lives, and gain their participation in the case. We don’t see ourselves as adversaries of the parent or the system that’s placing children in care. We see ourselves as lawyers for our clients.

Now it gets more complicated because we represent children from newborns up through age 21. So the hard question is, when is the presumption overcome that you can treat your client the same way any attorney treats their client? It is overcome in the most obvious instance when you’re representing a nonverbal client. At that point, however, the attorney for the child cannot default to their personal instincts about what feels good or right for a client. When an attorney for a child is unable to ascertain that child’s position, the attorney must substitute judgment in a carefully considered, well-investigated, evidentiary-based way and present that client’s legal position to the court. It’s critical that there be an independent expert working with the lawyer, someone trained in child development, who can help the attorney determine what the client’s legal interests are in the context of the case. There is no question that lawyers are not trained to make some of the judgments that they’re asked to make on behalf of very young children. That’s why there’s a social worker and an attorney on every single case in our office.

Craig Levine ’91, Senior Counsel and Policy Director, New Jersey Institute for Social Justice, a research and advocacy organization that, among other work, seeks improvement of the state’s juvenile-justice and child-welfare systems: I was particularly taken by Marty’s notion that counsel for children ought not to attach unless and until there’s a finding of parental unfitness. His idea that the presence of three attorneys as opposed to two from the very outset of these cases goes a long way toward undermining the presumption of fitness with which all parents should enter the courtroom is thought-provoking. It left me wondering how this idea might inform the mode of lawyering for children, even if the political reality is that Marty’s recommendation is not going to be adopted anytime soon.

Spinak: Kevin—you’ve been on both sides—do you see the role of the child advocate as Marty’s described it?

Kevin Ryan (LL .M. ’00), Commissioner, New Jersey Department of Children and Families. Formerly the state’s first child advocate and a legal advocate for homeless youth at Covenant House: It’s striking that we have focused so quickly on the Child Protection System. What is most resonant for me in Marty’s writing is how often the modern child-welfare system in the United States masquerades for political will with respect to the type of investments and supports that we would need in order to achieve the outcomes that we hope to secure for children.

In too many places, system reform has been mobilized by tragic anecdote, not by our ambition for strong families. If we were serious about the latter, we’d be talking about across-the-country universal healthcare, expansions in the Earned Income Tax Credit, childcare accessibility, work supports. We would fundamentally rethink the public welfare system. I don’t want to succumb to talking about child advocacy as only being about working within the four walls of the modern child protection system. Can I challenge us to think about whether the status quo is sufficient? Marty’s rallying cry— that it’s not—is right. When it comes to building stronger families and preventing abuse and neglect, modern child welfare is the opiate of the people and can lead us to think that we’re achieving some great due process for children.

Abigail Trillin ’95, Managing Attorney, Legal Services for Children, San Francisco, representing children and youth in dependency, guardianship, school discipline, immigration and other juvenile law issues: I found myself feeling in complete agreement with Marty with the principles and what we need to do in terms of the greater investment in children. But I also found myself thinking about my clients. I wish I was working with a family that was working actively to reunite or to not have their children removed.

But my clients are mostly teenagers. Many have not had biological parents in their life for longer than I’ve had the case in the 10 years that I’ve been there. So I’m struggling with what my role is for those individual clients and I think that it is being their lawyer, treating them respectfully as I would any client, and making sure that they have some voice and some ability to control the situation. As much as I agree with Marty in terms of the overall political implications of having attorneys for children, I also know that my clients need somebody to represent them, and to make them feel like they have an independent and individual interest in what happens to them that is being respected and fought for.

I also consider one of my primary roles as protecting my children and my clients from the state, from the foster-care system, and holding that system accountable to them to provide them with the few things that it can.

Martin Guggenheim ’71, Fiorello LaGuardia Professor of Clinical Law, NYU School of Law. Founded and teaches the Family Defense Clinic, which represents parents and other adult relatives of children in foster care in New York City: I’m very comfortable, Abigail, insisting upon lawyers for children when they are in the state’s care because I am largely anti-state. Your clients deserve lawyers, to be sure. But that’s because they have already lost their birthright to have their parents choose their representative.

Spinak: By doing individual advocacy and being deep into the child-welfare, special-education or juvenile-justice systems, do we lose sight of the broader societal questions that Kevin raises? Does our individual advocacy have an impact on our ability to look more broadly at the way our society works and diminish our capacity to be child advocates in a broader sense? Child advocates of children who are parts of families who are not getting what they deserve, what they should have, but also, who are parts of families of color and poor families?

Gail Smith ’85, Founder and Executive Director, Chicago Legal Advocacy for Incarcerated Mothers, providing legal and educational services to maintain the bond between imprisoned mothers and their children: Where were the lawyers for Abigail’s clients when they were losing their parents? In Illinois, 85 percent of the foster care cases, more or less, are neglect and pretty much mild neglect. The return of children to families is at about 28 percent. In the cases that we see, I would argue that really good advocacy for individual children wouldn’t mean that 72 percent of all children in foster care lose their parents. It seems to me that many child advocates have lost sight of the long-term results for their clients when we have the phenomenon of so many children aging out of foster care.

I had a client a few years ago who entered prison while in her teens, who was there because she had developed a drug problem while in foster care. She was about 21 and she was losing her three-year- old. She and her three siblings had been removed from her mother when she was 13. But there was arguably no risk at all to her and her siblings at the point when they were removed. I was talking to her about services that she got as a teen when she developed a drug problem and how could those services be improved. And I said to her stupidly, “What did you need?” And she looked at me and said, “I needed my mother.”

So as we’re seeing children whose adoptions have failed, children whose adoptive parents have died because they were so elderly, children who have aged out of the system who are searching for their parents, children who go home when they’re not legally supposed to, what we need is a movement, we need a change in political will.

Levine: It’s impossible to consider our roles as children’s advocates without considering the political and reputational, almost cultural, incentives and disincentives at work here. We talk about the need for a movement or a different narrative. The violence of family dissolution is a much quieter violence and does not make the front page of the New York Post.

It strikes me that all the actors in these systems share the blame here. I’ve never seen a child-welfare system issue a press release saying, ‘We preserved or reunified X families last year.’ Every year, there’s a spate of stories like that regarding adoption, as well there should be. But half the story gets omitted from the public discussion.

And because of the political risks, I hypothesize that many judges are part of this, that there’s a powerful, unconscious fear of finding themselves in Rupert Murdoch’s crosshairs.

Spinak: Both Marty and I have used Peggy’s early work about judges being risk averse and not feeling the urgency of what’s happening to these children and families but rather taking the “safer course” [see below] in their decisions to remove children from their parents rather than recognize the trauma of removal itself. The New York Court of Appeals has recently rejected the “safer course” doctrine in Nicholson. Karen said her job is to represent the legal interests of her clients in court. How does Nicholson’s rejection of the “safer course” doctrine affect how lawyers for children represent their client’s legal interests?

Freedman: How it matters is borne out by the statistics. If you look at what happened following the Nixzmary Brown case, the numbers of reported incidents of abuse went way up; the courts were flooded with cases, and yet the numbers of children in foster care did not rise over the past year the way they have in response to many other similar situations. Children and families in crisis were offered supervision and services and children in care continued to be returned home. That’s a unique situation in the history of New York child welfare. When the courts, ACS, and family and child advocates adhere to the law and the evidence, we can keep the numbers of children in care down, without risking their safety.

One of the things that Marty’s babies-in-the-stream parable makes us think about as child advocates is that we can’t just be the ones pulling the kids out of the stream. Yet somebody still needs to stand there and try to keep them from drowning. I don’t feel any shame in doing that as long as I am mindful of the fact that I have to go up to the top of the stream as well. That is why I think that the most effective impact litigation comes from a collaboration between child advocates who are working on a daily basis representing individual clients and policy directed organizations like Children’s Rights, or the Juvenile Rights Division’s Special Litigation Unit, with whom we have worked on class-action cases like Nicholson.

Now, under Marty’s theory, we had no business in the Nicholson case. Yet the fact that child advocates were also arguing the injustice of taking children from a mother who was a victim of domestic violence made a difference in that case. The children, after all, are the ones who are being taken into state custody. In the same way that Marty feels they need an advocate if they’re being incarcerated by the state, I am absolutely convinced they need an advocate if they’re being taken into what’s called protective custody by the state.

So I have a hard time when the bottom line is that it’s the child advocates who are aiding the state in a process that all of us who try to be honest about our work find offensive.

Guggenheim: It’s nice to say that children’s lawyers need also to go upstream. But they can’t. They are mired in the muck. That’s not a criticism of the lawyers. It’s the reality of where they are obliged to turn their attention—to the courtroom and the details of their clients’ individual cases. But this virtually exclusive focus on individual cases comes at a huge cost—the loss of an entire generation of caring professionals who get trapped into doing work into which the state wants to trap them.

Moreover, Karen, the real picture of children’s lawyers’ performance in regards to Nicholson is considerably less rosy than you suggest. Children’s lawyers were silent through the 40 years of the pre-Nicholson behavior. I’ve never said that children’s lawyers had no business in Nicholson. It remains the case, however, that they defended and supported the removal of children from parents on a routine basis. There never was an appeal prosecuted by a child’s lawyer for a wrongful removal. When the Nicholson case got to federal court, for the first time, the children’s bar was freed to take a position outside of the constraints of what happens in Family Court, where if you don’t support the agency, your reputation and ability to be a forceful advocate is adversely affected.

Freedman: I have to take issue with that, because the fact that someone else originated an action in federal court does not mean that in Family Court there weren’t hundreds of cases where law guardians were arguing against the agency in favor of individual children going back to a mother or a father who was a victim of domestic violence and posed no risk of harm to the child. That was going on all the time. And there most certainly were appeals prosecuted on behalf of children wrongfully removed.

Ryan: To Karen’s point that in the stream parable, we need to pick the babies out of the water and still retain the capacity to work upstream to prevent child abuse or neglect. The federal government has made this very hard. The country invests disproportionately to subsidize two types of activities in the modern child-welfare system: the removal of very poor children from their families, and, through a bonus system, achievement of permanence through adoption—not in family preservation, not in family reunification and family support work, but through adoption. Each year, our law schools and social-work schools are graduating thousands of committed, genuine people who want to make a difference in the world. And where are they going? They’re going downstream because that’s where the money, processes and infrastructure live.

The challenge is to build an infrastructure, a scaffolding if you will, that gives people meaningful opportunities to fight the causes of child abuse and neglect upstream. For the most part, we don’t have that today.

Guggenheim: This diversion of resources is the most pernicious feature of our child-rescue focus that law schools in particular have taken very seriously. Not only do most law schools that have a clinical program in child welfare choose to represent the children, but schools have celebrated programs for graduating children’s lawyers. These lawyers, almost to a person, care deeply about the inequalities in American society. But we’ve lost them to the work that they’re now obliged to do, as Kevin just explained.

Davis: I want to start by just saying how much I admire Lawyers for Children and Karen’s work. That should not go without saying.

Freedman: Now my defenses should be up.

Davis: No, they shouldn’t. Just a few things: First, there are very strong cognitive biases against doing what we all agree is the right thing in Family Court. We respond more strongly to risks associated with leaving children in their homes than we do to risks associated with separating children from their families. So on that account, I worry that it’s not enough for the Court of Appeals to say that “safer course” is not the answer.

I worry about it in another respect. One of the things that was so uncomfortable for me as a Family Court judge was how lawless the place is. Part of it is that so much is resolved in conferences among the lawyers and the judge. So much is settled. So much is about, as I recall hearing in the midst of a very difficult case, making everybody comfortable. But even when things are litigated, the dominant ethos in that court was that social workers, lawyers, judges felt that what they really needed to do was what they thought was right for this child, and if the law got in the way to fudge it. I can’t think of a context in which law mattered less in my career.

The third thing is resources. Parents are pathetically represented. People barely conscious were standing before me representing parents. So at minimum, we need to find a way to put some resources behind the representation of families.

Freedman: The question of lawlessness in the Family Court is a critical issue. In Marty’s article, he suggested that the outcome In the Matter of Jennifer G. might have been different if the law guardian’s position had simply been articulated differently. He suggested that the law guardian should have said that there was insufficient risk of any danger to the children to warrant their removal. I would argue that’s not the right formulation because there’s a critical lawyering element missing.

What the attorney should have said was that there was insufficient evidence of risk to warrant removal. And if the lawyers in Family Court can keep to the law and talk about the weight of the evidence in support of keeping a child in their home or having them removed, we’re going to have a much better system than we have now. But we have to keep reminding ourselves, whether we are attorneys for the parents or for the children, that this is an evidence- based system. This is a legal system.

Trillin: I’m wondering if there isn’t a role for individual children’s lawyers in exactly the type of change that we’re all advocating. My voice as the children’s advocate talking about family preservation and family reunification is different. It’s seen differently by the court than the parents’ attorney. And I don’t think we necessarily would have the same result, even if my not being there would give the parents’ attorney a few extra dollars an hour.

It’s different for me to bring forward the individual right of the child to be in their family, and if they can’t be with their parents, then to be with relatives and to be in a situation that’s more likely to return them to their family. To be able to talk about that either from the perspective of my client’s stated interest—as with my older clients—or with very young clients trying not to substitute judgment but to base their legal interest on basic objective principles, such as their right to be with their family, individual attorneys for children can play a forceful role in individual cases in keeping families together.

Ryan: Marty’s idea of having fitness hearings early in the course of a case to determine whether or not parents can continue to speak on behalf of their children is a good one. Frankly, it would reflect what’s normative in modern child welfare, which is that the majority of children in out-of-home placement return home to their families and many are in out-of-home placement for reasons other than serious abuse.

Spinak: Family Court has been given greater responsibility for monitoring the child-welfare system. And one of the end results is we don’t get to fitness hearings quickly because the court is overwhelmed with its monitoring responsibilities. It takes five and a half months on average in Brooklyn right now to reach fact-finding in a child protection case, when it should be no more than 30 days.

So what does it mean that we are all kind of complicit in thinking this is okay? I mean the lack of urgency, the sense that this is the way it works, accepting both on a federal and state level that the resources are going to go for placement and adoption and not for family preservation.

Levine: On grounds of both principle and pragmatism, lawyering should be improved across the board. You get better, more just results if all parties have excellent representation. As a lawyer for children or the state, this might be a bit of a pain. But your client is better served. As we all know, children’s lawyers have the juice, politically and culturally. I wonder if there might be a project we could come together around—the bar, the bench, academia, and all who can claim the societal mantle of child advocate— toward the end of equalizing the resources available to counsel for all parties.

The current disparities here are staggering. As Marty has reported, a couple of years ago New York City spent about $24 million on lawyers for children, and about $11 million for lawyers for parents, including experts’ fees. That’s not a fair fight in individual cases. And parents’ lawyers cannot solve this. They’re the only people on earth with less political juice than criminal defense lawyers. And they’re in a much more vulnerable position. Winning their cases can put parents’ lawyers at risk reputationally.

Stacey Platt ’91, Clinical Professor of Law and Associate Director, Loyola University Chicago School of Law’s Child and Family Law Clinic. Former staff attorney at the Legal Assistance Foundation of Chicago: In addition to equalizing representation, which is critically important, we also need to reclaim some of the rhetoric around children and families. In Chicago, there is a dedicated office that represents parents in child-protection disputes. They’re not blamed when they win their cases, but they aren’t considered the noble civil rights workers they are. Parent representation is not the glamorous job that law students and young lawyers pursue.

If we can help young lawyers understand that termination of parental rights is, as other advocates have said, a death penalty for families, and that children in the system are suffering, that will help in the struggle for family defense. Having a dedicated office in and of itself is not enough.

Spinak: Let’s expand beyond law school to the role of the socialwork schools, too, because we’re turning out generations not only of lawyers, but of social workers. How does the social-work profession embrace this idea that children are part of families and that we should be worried about families?

Alma Carten, Associate Professor of Social Work, NYU School of Social Work. Teaches Social Welfare Policy. Former director of the Office of Adolescent Services for the NYC Human Resources Administration and interim commissioner of the Child Welfare Administration: Marty outlines very well that from the very earliest years in our history of child-welfare services, we’ve focused on rescuing children and punishing families. We are moving away from this now. For example, policy reforms like the Adoptions Asistance and Child Welfare Reform Act of 1980, and the 1996 Adoptions and Safe Families Act recognize that children need stable permanent attachments to families. These laws encourage the use of family-support services to preserve biological families, prevent out-of-home placement of children in the first instance, support early reunification of children for whom placement was necessary, and speedy adoption of those for whom return to their own homes is not an option.

Ryan: There’s an interesting disconnect emerging in the United States between the operations of the best-functioning childwelfare systems and the legal processes that monitor families when children are placed in foster care. The positive outcomes for children and families that have been achieved in places like Alabama and Utah have increasingly occurred through the work of family teams, where from the outset of the engagement the public agencies are working with families collaboratively. It is almost always safe and appropriate to do so.

If this becomes more common, as I hope it will in the next few years, public systems will be embracing and implementing a socialwork process of engagement, collaboration and teamwork with families and their natural supports. But we will have a legal process of adversity. That disconnect is bound to cause some problems for the social work, which is the heart of the exercise. And we will have to rethink aspects of the legal process in short order.

Carten: Social work has a long tradition of interdisciplinary collaboration. We often practice in host settings, working in partnership with teachers, physicians and attorneys. And we have had a strong tradition of advocacy for clients, social justice, and improving the operations of systems that serve as barriers to client access to services. We at the schools of social work may need to reinforce this tradition; since about 1980 there has been a growing preference in the profession for clinical social work which has diminished our presence in those areas of practice that focus on client advocacy, system change and reforms.

I’m doing a program now with immigrant families. I’ve been very cautious that the status of immigration does not pathologize parental behavior. We in schools of social work may need to work harder in educating the new generation of professionals about the important role of activism in working with families in need of child-welfare services.

Davis: I can’t resist tying a couple of things together around the idea of rhetoric because you’ve made such a profound point: You talk about immigration as a pathologizing label. You talk about the absence of a story that resonates with respect for families. And Karen made the beautiful point that the very rhetoric in theFamily Court needs to reflect that it’s a court of law. So if you yourself not talking about evidence but talking about feeling, then you need to change your behavior and pay attention to the story of why we have constitutional protection of family independence and integrity. It’s a deep story. For me, it’s a story that goes back to Reconstruction and reflection on why the absence of family was what made slavery possible, and why that was connected to civil death and connected to the idea of socialization by the state—and so a very authoritarian vision of the state.

The message that at the heart of our democracy is the idea that children will be socialized by families rather than by the state is a message that’s very hard to communicate. But to tap some of the richness of that message may offset some of the juice imbalance that we’ve been talking about.

Spinak: What is the difference between the role of the child protective system in engaging families in a way that may allow them to remain whole and get what they need to remain whole, and the steps that take them into court? We should not be less adversarial in court for purposes of determining whether the state should intervene. How do we distinguish between problemsolving methods before cases come to court and those methods once the court intervenes?

Platt: One concern about the influx of nonadversarial processes into child-welfare cases is the way in which lawyers coopt those processes, particularly lawyers who are not trained to conduct or manage them in a way that genuinely respects families.

Cross-training is wonderful. But we should not be blurring roles to the extent that the entire process becomes nonadversarial, where everyone has a nice discussion and due process concerns take a back seat. Because then we have lawyers performing functions that we are not trained to perform and families not being empowered in the ways those processes were intended to empower them.

Ryan: I question how empowering these processes are for families. There are real questions about the need for and the efficacy of independent attorneys for children when their families are deemed fit enough to meaningfully participate in a service plan designed to achieve safe and sustained reunification and are working to achieve that plan. But then when the forum is the court, the parent is in most systems deemed not fit to speak on behalf of their child. The dissonance there is a puzzle.

Guggenheim: Jane started us off this morning trying to take us away from too-high theory to being on the ground. But the answers about how to be a good lawyer on the ground are themselves theoretical because Karen’s answer is one that I love and would be thrilled to see invoked. But heads would roll if children’s lawyers aggressively argued for dismissal of cases when the evidence wasn’t sufficient. If they wouldn’t roll, children’s lawyers would rather quickly feel their loss of influence on the court process. But it would be a truly wonderful change to contemplate. I might even start smiling.

So one answer to the question, “What should children’s lawyers be doing?” is, as Karen says, basing arguments on the evidence presented instead of assuming that there likely are worse facts than have been thus far gathered.

It remains the sad truth that the children’s bar has been complicit with the two great trends in child welfare over the past generation: the ease with which children enter foster care and the vast increase in the permanent destruction of parent-child relationships. The children’s bar’s complicity has been revealed by its silence. There is no lobby of children’s lawyers criticizing these trends. Not within the legal arena. Not in the legislative process. Not even in public discussion on these issues.

Freedman: There really isn’t all that much disagreement around this table. But a lot depends on how we frame the issues. When Kevin was talking about parental fitness to speak for a child, it brings me back to something that Marty taught me in his class that has stayed with me throughout the years. The worst things happen to children when people sit around a table just talking about what’s best for them. Whenever lawyers lose sight of legal parameters and bring that generalized best interests rhetoric into the courtroom, we’re courting disaster.

It’s wonderful that we’re using more of a collaborative model and more family-based supports outside of the courthouse. That’s where it should be. That’s why it’s a good thing that now, for the first time, there are more families and children receiving preventive services in New York City than there are children in foster care.

But to say that a child’s attorney, articulating the child’s position, somehow denigrates the parent’s right to speak for that child is a false premise. Everyone who walks into the Family Court is invoking the child and what’s best for the child to advance their own position. For the judicial system to work, once you’re in the courthouse, you’ve got to invoke due process. The child’s position needs to be out there and it can be represented most effectively by an attorney for the child.

Smith: This brings me to two thoughts. One is that even when our public-guardian system in Chicago is properly critical of foster-care agencies, they’re so deeply anti-parent coming into the courtroom that it creates an imbalance. And some judges are almost rubber stamps for some of those guardian ad litem positions. I’m thinking also about the expansion of the use of guardians ad litem outside the childwelfare system into the Probate Court and domestic-relations courts.

I’ve never seen a probate judge not take a recommendation by a child’s lawyer. A lot of attorneys appointed to represent children in Chicago’s Probate Division are volunteer lawyers. If you look at the Chicago Volunteer Legal Services Web site’s training for those lawyers, one of the things that it says is follow your instincts. Use common sense. It’s as fuzzy as it can get. I don’t see a lot of cultural-competency training coming out of that office.

It’s very hard for those of us who are trying to follow the law, and certainly for those of us who are trying to overcome some pretty strong biases against our clients on the front end, to protect not only our clients’ rights but also the rights that their children should have to continue their relationship with them.

Spinak: One of the things that we haven’t talked about is child participation. A lot of the system would have worked differently had children been participating much more. Judges could not have gotten away with some of what they got away with if the child were actually sitting there listening to this dysfunctional system going on. How do you think that might help to improve the way in which this court works?

Platt: I’ve noticed that our child clients are often greeted with distance, at times even hostility, when they show up at the courthouse. Nobody really wants them there, in particular when they take positions that are unpopular, or that other people believe are not in their best interests. At times, we have had to push ourselves into the courtroom with our clients. But when we get them in there, they make a big difference. I’m very much in favor, if they want to be there, of young people participating more fully in their cases, holding the court system and the advocacy system more accountable to their wishes and their conceptions of their own best interests.

Trillin: Having the young people and also the parents in the courtroom does raise the level of practice. It reduces that informality in people who work together every day talking about these cases as if they’re not about real people.

I wouldn’t say that the young people are unwelcome. One time that they’re very welcome and everyone is really nice to them is at their emancipation hearing. One of our judges actually gives them gift cards to one of the music stores. After all these years of them being unheard in the system, when they show up to leave the system, they get a gift card.

So we need to do a lot better than that in terms of involving them and making it actually meaningful for them. Many times my clients choose not to come to court after talking to me because for many of them so little is happening in their cases in court that it is deeply disappointing to them because it doesn’t change what’s happening in their lives.

Guggenheim: Children should be in court, not at the fitness hearing, but at almost all proceedings afterwards. One of the sad truths about child representation, sad particularly for the lawyers representing the children, is the frequency with which foster children say, I never even knew I had a lawyer.

Freedman: I totally agree. Young people need to be in the courtroom. That’s part of what makes it a real judicial process. And that’s why many people are afraid of having young people in court—because when the child has the same right to be present in court as any other party, it reinforces the premise that the family court is first and foremost a court of law.

The New York State Bar is currently rewriting the standards for representation of children. One revision proposes that we get rid of the title “law guardian,” which does a disservice to the practice and also perpetuates the idea that if you’re representing a child, you’re something less than a real attorney. This can only help move us toward the goal of creating a legal system for families and children that allows us to function the way we were trained to function in law school—as lawyers. The outcomes will be better for children and for families.

Carten: If we want to empower parents, it’s a good thing for children and parents to be present. There are some parents and children who are very articulate and able to negotiate well in this system. On the other hand, the larger universe of parents coming before the system may not be well informed about court procedure or familiar with legal language. Most of the principals bear little resemblance to them. So it may be a good thought that they’re there in court, but it can be intimidating to them.

Guggenheim: Well, if we invite them in, we have to make it friendly. But a reason they need to be there is to correct the countless inaccurate facts which are routinely reported in cases. It is astonishing how commonly reports about children get even the most basic facts wrong: They’re in a home for six months. No, they’ve been there for three. They like the school they’re in. No, they haven’t registered. They’ve just been to the dentist. No, they haven’t. At a minimum, children’s presence at hearings will make it more likely that we will get the facts straight.

Carten: Perhaps this means that we should strive to have closer communication with staff or social workers who may have that information. The push for me is to have more collaboration with lawyers because social workers are in a much better position of assessing risk. They’re looking at a broader picture. They’re looking at environments and systems within which families operate. There needs to be a closer relationship—the court atmosphere is so rushed that there’s not enough time for social workers and lawyers to collaborate.

Freedman: I would like to throw out one more possibility for how we could raise the standard of practice in family courts, at least in New York City. One of the things that’s always been shocking to me is the idea that a Family Court judge should be appointed for a 10-year term. Ten years is an unbelievable amount of time, especially in the life of a child. It has a lot to do with why judges—many, not all—become very complacent in their role, why they see time frames differently. There is really no reason why, if a judge had a five-year term of appointment, they couldn’t then be reappointed if they were doing their job properly. But the fact of the matter is, it would give us an opportunity to be mindful that we have a court of law where everyone is accountable, the judges, too. When a judge is on the bench for 10 years, if their courtroom happens to be the courtroom where the rule of law doesn’t apply, there is virtually nothing that is done about that.

Davis: My anxiety is that the judges who are operating on a due process model are those who will not be reappointed. Judicial independence is a necessary counterweight to the sense of vulnerability that you have and the sense of danger that attaches to the idea of returning children to their families.

Spinak: If we think about the way in which our system finances what we’re willing to pay for and what we’re not willing to pay for in addition to what we think about families, particularly poor families and families of color—what do we do up at the beginning where the babies are going in?

Davis: I’m drawn to this idea of going even further upstream. My daughter and I have done some work with the Baby College in the Harlem Children’s Zone, which works primarily with families that are not yet involved in the child-welfare system. There’s an interesting role for lawyers there because they are families very much at risk of being investigated. The idea of giving them support in caring for their children before there ever is a problem is a wonderful one. The idea of giving them some tools for fending off intervention is a promising one and another place where people might work to relieve some of this imbalance of resources.

Ryan: For lawyers, perhaps the way into the problem is to think about how the Constitution approaches these questions. Peggy’s book [Neglected Stories (Hill and Wang, 1997)] demonstrates the centrality of family integrity to the Fourteenth Amendment. For social workers, the way in might be to think about how positive family outcomes are achieved for and with those families. And it’s almost always by working together in a family-centered fashion.

Could we take the resources that exist now in individual representation for children and families and augment them with an equal commitment to tackle the public-policy questions about family preservation, reunification, and public investments for families? And then maybe, over time, we’ll create some equilibrium between the downstream and the upstream investments. As long as we insist that suspected child abuse and neglect be a prerequisite to aid hundreds of thousands of children and their families, we’ll keep living downstream and the babies will keep drowning.

Real system change is probably going to take a [political scientist Frances Fox] Piven and [sociologist Richard] Cloward poor people’s movement. To change the way we make these investments— in health care, income security, childcare—we will need to see a mobilization and an uprising among poor and politically disenfranchised families that today is so elusive.

Spinak: But we’ll also need to use good social science to support this movement. It is really striking to read David Fanshel [child welfare expert and author of, among many works, Children in Foster Care: A Longitudinal Investigation (1978), and coauthor of How They Fared in Adoption (1971)] from 35 years ago when he says the one thing we know is the more visiting that children have with their parents, the more likely it is they’re going to go home. And yet we still don’t create social-welfare systems that support the relationships of children and parents.

Levine: We need a subtler and more nuanced political narrative. American issues tend to be framed in such Manichean fashion: You’re on the side of the angels or you’re the devil. This manifests in this “Who speaks for the child?” question with which we started. But it strikes me that we need a vigorous acknowledgment that deeply imperfect and messy families are worthy of celebration and support—and that in the majority of cases, they’re the best possible option available to the children. But we’re in this box that politics and the allocation of resources has put us in, in which parents’ lawyers are forced, in reality if not doctrinally, to meet an impossible standard—that a family needs to be perfect— to warrant reunification. We need to acknowledge that although many families are troubled and complicated, they remain, in most cases, deserving of our respect and support.

Carten: I feel optimistic about the way the system is moving. It’s focused on outcomes. It’s focused on accountability. It’s focused on prevention. It’s focused on permanency. The child-welfare system has been an American tragedy for so many years. But we’re moving in a positive direction.

Guggenheim: I’m an optimist only in the sense that I am, as a student of history, aware of cycles. We are near the end of the darkest period in the last 40 years in child welfare and my only optimism is that we will rebound from it. We will someday look back on this time as a very sorry experiment. We live in a country that leads the world in the forcible breakup of families by court order. It is a thing we still celebrate. Yet it is to our shame.

At the same time, I do see in the children’s bar today a vigor and an excitement for speaking beyond individual cases and talking about social justice. So I’m happy to end on that optimistic note.
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Notes:

In re Jennifer G.: In 1984 and 1985, an appellate court twice reversed a trial judge for granting a mother’s requests for the return of her children. The children had been placed into foster care after a school principal notified authorities that they appeared to have been abused. On the first appeal, the appellate court declared that the “safer course” was to keep the children in foster care until a clear determination of abuse or neglect could be made. On the second appeal, the court removed the trial judge and the children’s lawyer, both of whom supported the return of the children, and specifically rebuked the children’s lawyer for the position he took.

Babies in the Stream: A Parable

A man visiting a small town notices a lot of activity on the street. He goes over to the stream that runs through town to find scores of people working furiously. Babies are floating downstream and the townspeople are pulling them out of the water. The stranger learns that the townspeople have been at this process day and night. He is asked to join them but refuses, and the townspeople become indignant. “How can you not help us in this crisis?” they ask. “Don’t you have any compassion? Don’t you care?”

The stranger answers quietly, but emphatically. “You can continue to pick up these babies all you like. But it strikes me that your efforts are ultimately inadequate. Obviously, somebody keeps putting these babies in the stream. I’m going to go upstream, find the source, and put an end to it once and for all.”

The “Safer Course” doctrine is a justification used to place a child in foster care pending the full fact-finding hearing on alleged abuse or neglect whenever there is reason to doubt that the child would be safe if permitted to remain at home.

Nicholson: Parents whose children had been removed from their homes by the NYC Administration for Children’s Services (ACS) filed suit charging that the ACS as a matter of policy removed children from mothers who were victims of domestic violence solely because they “allowed” their children to witness the abuse. In 2004, the New York Court of Appeals ruled that these removals violated New York law and also criticized and rejected the “safer course” doctrine that lower courts had been applying to remove a child in the absence of evidence of imminent danger to the children.

Seven-year-old Nixzmary Brown was brutally beaten to death in January 2006. Her stepfather and mother were charged with murder. ACS had been called twice to investigate the family, beginning in May 2005. At the time of Nixzmary’s death, ACS had an open investigation on her case.

Stevenson, in sum, feels no reason to rejoice. He stays on message with an impressive discipline. He wants to talk about Anthony Ray Hinton, a condemned man he currently represents on appeal in Alabama, where Stevenson runs a nonprofit law firm called the Equal Justice Initiative, or EJI. Hinton has served 20 years on death row, convicted of a pair of robbery-murders at fast food restaurants near Birmingham. Stevenson says Hinton is innocent and received a capital sentence only because he is black and poor and couldn’t afford a decent trial attorney.

In full advocate mode now, Stevenson cites statistics from Alabama and the nation as a whole, showing that a murder defendant is more likely to get the death penalty if he’s black and the deceased is white. Stevenson speaks calmly, in carefully crafted sentences. “The real question,” he says, “isn’t whether some people deserve to die for crimes they may have committed. The real question is whether a state such as Alabama, with its racist legacy and errorplagued system of justice, deserves to kill.” He thinks not.

Since his days as a law student at Harvard, Stevenson, who is 47 years old, has inspired breathless awe for his commitment and idealism. Randy Hertz, the director of clinical programs at NYU and one of Stevenson’s best friends, acknowledges that the adulation at times seems implausible. But, Hertz says, “when you work closely with Bryan and spend a lot of time with him, what you discover is that the stories about him that seem like they must be apocryphal—the brilliance, the round-the-clock schedule, the selfless devotion to others—are absolutely true, and if anything, probably too understated.” Cathleen Price, a senior attorney who works for Stevenson at EJI in Montgomery, says he stands out even within the tiny fraternity of die-hard death-penalty lawyers. The labor is draining; the pay, poor. “You decide in each year whether you can go on for another year—how much sacrifice you can give versus the great need for the work,” explains Price, who’s been with EJI since 1997. “But Bryan doesn’t seem to think that way. His life is the work and the sacrifice. It’s what he wants. He is unique.”

Stevenson has mixed feelings about all the wonderment. Single and famously ascetic, he admits that apart from family, everyone close to him comes from his professional circles. He doesn’t know any of his neighbors in Montgomery, where he has lived for nearly 20 years. Outside of the EJI office, a spacious downtown building next door to the Hank Williams Museum, Stevenson says he feels wary and unwelcome. The Confederate flags flown by some businesses and homeowners rankle him, as does a popular bumper sticker: “If I had known it would turn out like this, I wouldn’t have surrendered,” attributed to Confederate General Robert E. Lee.

On the topic of sacrifice, he can get a little defensive. “To me it was completely fortuitous that I found something that I was so energized and jazzed by,” he insists. “I think it became a lifestyle because it seemed like it was that way for the people I initially met” doing death-penalty work. “But it didn’t seem like a lifestyle that was out of balance…. Nothing felt sacrificial.”

It becomes clear during a series of conversations over several months that the roots of Stevenson’s singular dedication—a term he might prefer to sacrifice—trace back to a childhood influenced by the African Methodist Episcopal church. The gospel of lost souls seeking redemption echoes in his memory. “I believe each person in our society is more than the worst thing they’ve ever done,” he sermonizes in nearly every appearance, his voice intense yet controlled, his cadence that of a preacher in full command of a congregation. “I believe if you tell a lie, you’re not just a liar. If you take something that doesn’t belong to you, you’re not just a thief. And I believe even if you kill someone, you are not just a killer. There is a basic human dignity that deserves to be protected.”

Identifying that shard of dignity became Stevenson’s own form of redemption, his means of achieving a personal state of grace, though in his unusual life, the liturgy of litigation has replaced communal worship: He rarely finds time anymore to attend church. His exertions produce results in the secular realm. EJI has helped reverse the death sentences of no fewer than 75 Alabama inmates over the past two decades. He has argued twice before the Supreme Court of the United States and received practically every award a liberal civil rights attorney could receive.

For all that, though, Stevenson is not a man free of doubt. Sometimes, when he’s not standing in front of an appellate court or an audience of law students, he quietly admits to a measure of uncertainty over how to map the second half of an extraordinary career. He is looking beyond capital punishment, determined to broaden his focus. He has begun to seek redress for inmates condemned to life in prison for crimes committed when they were 13 or 14 years old. This and other new forays have him redoubling his fundraising, expanding his 19-person organization, and feeling more than typically stretched as he juggles teaching in New York, litigating in Alabama, and speaking across the country. “It’s harder and harder to assess what you can do and what you want to do,” he concedes. “My vision of the needs of the world gets bigger and bigger.”

Born in 1959, Stevenson grew up in rural Milton, Delaware, a border area more a part of the South than the North. Brown v. Board of Education, the 1954 Supreme Court case that condemned segregation in public education, was slow to reach southern Delaware, and Bryan spent his first classroom days at the “colored” elementary school. By the time he entered the second grade, the town’s schools were formally desegregated, but certain old rules still applied. Black kids couldn’t climb on the playground monkey bars at the same time as their white classmates. At the doctor’s and dentist’s office, black children and their parents continued to enter through the back door, while whites went in the front. White teenagers drove past black homes, the Confederate flag flying from one car window, and a bare behind sticking out another one. “Niggers, kiss my ass!” they shouted.

Bryan’s father, Howard Stevenson, Sr., worked at the General Foods processing plant. Mr. Stevenson had grown up in the area—his female relatives worked as domestics for white families— and he took the ingrained racism in stride. “He’d pray for people and say God would deal with the bad ones,” recalls Bryan’s older brother, Howard, Jr. Their mother, Alice Stevenson, was a different story. A clerk at Dover Air Force Base, she had grown up in Philadelphia, where the constraints on African Americans were less oppressive. She bristled at the routine bigotry she encountered in southern Delaware. When Bryan was automatically placed, along with the other black children, in the slowest of three groups in second grade, his mother wrote letters and objected in person until he was moved up to the previously all-white accelerated group. When white supermarket clerks placed her change on the counter instead of directly into her hand—a gesture she interpreted as a racial slight—she demanded, “You give me my money!”

Alice Stevenson’s “message was, ‘Don’t let people mistreat you because you’re black,’” says Howard Jr. “She was very direct: ‘If someone speaks the wrong way, you speak back. If someone hits, you hit back.’” This wasn’t theoretical advice. In elementary school, the Stevenson brothers, often allied with an Hispanic classmate, did fight with white boys who came at them swinging. Bryan translated their mother’s eye-for-an-eye philosophy into a career of legal combat. Howard, a noted Ph.D. psychologist and associate professor at the University of Pennsylvania’s Graduate School of Education, researches the socialization of African American boys, although with the goal of steering them away from violence.

Alice Stevenson inherited her fierce dignity from her mother, Victoria Golden, the daughter of slaves from Virginia and family matriarch. Bryan, Howard, and their younger sister, Christy, visited their grandmother regularly at her home in Philadelphia. Victoria’s word was law that no one questioned. When she took young Bryan aside one day and asked him never to touch alcohol, he promised he wouldn’t. Four decades later, he still hasn’t.

But not all of the extended family served as a source of pride. Bryan and his siblings had an uncle who died in prison, and the children rarely saw Victoria Golden’s husband, their grandfather Clarence. In contrast to his abstinent wife, Clarence had been a bootlegger during the Prohibition era and also did time behind bars. Known for his sharp wit and wiliness, Golden drifted away from his family and as an old man lived alone and poverty-stricken in a public housing project in south Philadelphia. One day some teenagers broke in to steal his television. When he resisted, they stabbed him to death. He was 86; his grandson Bryan, 16.

The murder intruded on the remarkable bubble of achievement in which Bryan thrived. His parents, steadily employed, provided a more comfortable life than that of most of the family’s rural black neighbors. Bryan excelled at Cape Henlopen High School, bringing home straight A’s and starring on the soccer and baseball teams. He performed the lead role in “Raisin in the Sun,” the play about a striving working-class black family. He served as president of the student body and won American Legion public-speaking contests. His grandfather’s brutal death reminded Bryan how different his family was from those of the middle-class white kids he mingled with at school. Until adulthood, he never spoke of the killing in public. “I didn’t want anyone to know about some of these realities that were unique to people living at the margins,” he says.

Church was the place where a young Bryan made sense of how the fulfillment he derived from early success could coexist with the racism and poverty he observed around him. The family attended the Prospect African Methodist Episcopal Church where Bryan’s father played a prominent role. At special testimonial services, members of the congregation stood one by one and competed to confess the lowest sin. “God delivered me from alcohol,” one would say to light applause. “God delivered me from drugs,” said the next, as excitement built. “If you said you had been in prison, you got even bigger applause,” Stevenson recalls. “The more you had fallen, the more you were celebrated for standing up.” Here were the beginnings of his belief that people are defined by more than their worst act.

Worship had another dimension for Bryan. His mother played piano and encouraged her children to listen to music, especially gospel and jazz. Bryan, it turned out, could pick up songs by ear and taught himself to play the beat-up old piano his mother kept in their home. His family appears to have taken this in stride, along with his other talents. By the age of ten, he was accompanying the gospel choir at Prospect AME. “Playing piano gave him confidence in front of an audience,” his brother, Howard, says. “He became a performer.” When the choir toured the state, Bryan went along.

His repertoire expanded to include blues, Motown, and R&B. “Stevie Wonder and Sly and the Family Stone were favorites,” Howard recalls, “in part because of the way they combined their music with themes having to do with right and wrong in society, and injustice.” Kimberle Crenshaw recalls Bryan’s piano playing drawing a crowd of black teenagers during breaks in a 1976 conference for student leaders in Washington, D.C. Crenshaw, like Stevenson, was 17 then, and has been a friend ever since. “His music—he was playing gospel and spiritual—created a space for other African Americans who came from a church background,” she says, “and that led to discussions of social and racial issues. He was not loud, not boisterous. He was as firm and resolved as a 17-year-old could be.”

A year later, Stevenson followed his older brother to Eastern University, a Christian school in Pennsylvania with a vibrant music program and a strong soccer team. He majored in political science and philosophy and directed the campus gospel choir. For a time, he dreamed of a career playing piano or professional sports. But as the years went by, he realized that a life on the road might be less than glamorous. He says he chose law school without much thought. “I didn’t understand fully what lawyers did,” he admits.

His brother sees a natural progression from precocious musical performer to high school debater to professional advocate. Howard even takes some credit for helping hone Bryan’s rhetorical skills: “We argued the way brothers argue, but these were serious arguments, inspired I guess by our mother and the circumstances of our family growing up.” Bryan headed for Harvard Law School.

He arrived in Cambridge in the fall of 1981, he says, “incredibly naïve and uninformed.” His only prior visit to the Boston area was with his college baseball team. The local fans had shouted slurs and thrown bottles at the black players from Eastern University, forcing the game to end early. While his classmates at Harvard Law School were friendly, he never felt comfortable among students who for the most part were from more privileged backgrounds. “I stopped almost immediately trying to fit in,” he says. “I thought about it more like a cultural anthropologist,” trying to figure out the customs of a tribe in whose midst he found himself. Subjects like property, torts, and civil procedure seemed abstract and distant. “I just found the whole experience very esoteric,” Stevenson says.

The arcane suddenly became relevant, even urgent, when he traveled to Atlanta for a month-long internship in January 1983— part of a Harvard course on race and poverty. He worked for an organization now known as the Southern Center for Human Rights. “For me, that was the absolute turning point,” he says—of both his time at Harvard and his nascent legal career. The center, led by a dynamic young attorney named Stephen Bright, engaged in a caseby- case war against the death penalty. Bright threw his inexperienced Harvard intern into pending appeals on behalf of death-row clients whose trial lawyers, out of either ignorance or negligence, hadn’t put on much of a defense. “He is brilliant, quick, and speaks with eloquence and power,” says Bright. “That was apparent from when he was a student here. It was obvious that his natural skills gave him an advantage over many practicing lawyers.”

Stevenson read transcripts that revealed trial attorneys failing to offer either witnesses or closing arguments. He reviewed briefs devoid of legal analysis. “I could do better,” he thought. “It really did change the way I thought about law,” he explains. “All of a sudden, the more you knew about procedure, the more you could problem-solve for someone who had a good claim that had been procedurally barred. The more you knew about the substantive law, the more likely you would be to come up with ten other options for this person to get a new trial.” In both of the cases he worked on that January, the clients eventually had their death sentences set aside and received prison terms instead. “It did seem to me you could actually do something,” he says. From that point forward, he thought of himself as a death-penalty lawyer.

Kimberle Crenshaw ended up being a classmate at Harvard Law. She and other black students focused on such campus issues as integrating the faculty. Stevenson sympathized but kept his distance, she says. “He was kind of ahead of the curve, looking beyond the law school, focusing on the disenfranchised and how to use the system to fight for them.” Crenshaw now teaches civil rights law at Columbia University and UCLA.

Returning to Bright’s center after graduating from Harvard, Stevenson relished everything about the role of being a staff attorney at a public-interest organization: the life-and-death stakes, the long hours, the sense of mission, even the low pay. “The lawyers,” he says, “seemed passionate and engaged and completely focused on the problems of people on death row, who were literally dying for legal assistance.” For about a year, he slept on Bright’s couch, which Stevenson recalls as lumpy. (“It couldn’t have been too lumpy,” Bright responds, “because he slept on it a long time!”)

Joking aside, Stevenson stresses how important near-poverty became to him. “Nobody got paid any money, or at least very little,” he says, “and that struck me as the ultimate measure of something genuine.” In contrast to the fancy corporate law firms that charmed so many of his Harvard classmates, he says, “it became clear to me that these death-penalty folks were real. They were serious.”

Stevenson had discovered a cause in correcting injustice. He also found an inner path to authenticity by denying himself the material trappings of the professional class. “If monks were social activists, that is what he would be,” observes Crenshaw. “There are people who do what he does when they’re 20 or 30, but by the time they’re 40 or older, they’re usually looking for at least some creature comforts…. There is a spiritual element to it for Bryan, something otherworldly about it. I can’t quite put my finger on it.”

In an interview published last year by the Christian magazine PRISM, Stevenson elaborated on this theme. Noting that after Harvard he could have had any legal job he wanted, the publication asked why he chose a death-row practice. “For me, faith had to be connected to works,” Stevenson answered. “Faith is connected to struggle; that is, while we are in this condition we are called to build the kingdom of God. We can’t celebrate it and talk about it and then protect our own comfort environment. I definitely wanted to be involved in something that felt redemptive.”

By the time Stevenson moved from Cambridge to Atlanta in 1985, the campaign against the death penalty had seen its greatest breakthrough in Furman v. Georgia (1972), the culmination of a series of challenges charted by Anthony Amsterdam, now University Professor at NYU School of Law. (See “A Man Against the Machine.”) The Supreme Court had reinstated capital punishment in 1976. The tiny corps of lawyer-activists appealing death sentences thereafter sought narrow victories based on specific facts. They crafted arguments that a defendant’s childhood deprivation, physical mistreatment or limited mental capacity, for example, hadn’t received sufficient attention at trial.

As Stevenson familiarized himself with such obscure subspecialties as obtaining an emergency stay of execution, the issue of race surfaced in case after case. Black defendants were overrepresented among the condemned, and murders of white victims seemed to lead prosecutors to seek death sentences.

Outside the courtroom, Stevenson was frequently reminded of his own race. One weekend, he glanced out the window of the supermarket where he shopped and noticed a rally in the parking lot. Members of the local Klavern of the Ku Klux Klan had gathered to promote white prerogatives.

On another occasion, he was sitting in his parked car at night, listening to Sly and the Family Stone on the radio before going inside to his apartment. A passing police cruiser stopped, and an officer ordered him out of his car. When Stevenson, who was wearing a suit and tie, stepped out, the nervous white policeman pointed his gun at the 28-year-old black lawyer and shouted, “Move, and I’ll blow your head off!” Another officer threw Stevenson across the hood of his car and conducted a fruitless search. Neighbors came out to watch. Frightened and enraged, Stevenson clung to long-ago advice from his mother: don’t challenge angry white cops. The police eventually let him go without so much as a parking ticket. Months later the Atlanta Police Department officially apologized, but only after Stevenson had filed an administrative complaint and implied he might follow up with a misconduct suit.

During this period, Amsterdam and other anti-death-penalty strategists decided to try another frontal constitutional assault. They selected a case from Georgia and asked the Supreme Court to declare the death penalty unconstitutional once and for all because it systematically discriminated on the basis of race.

McCleskey v. Kemp, decided in April 1987, involved a black man, Warren McCleskey, sentenced to die for killing a white police officer during the course of a furniture-store robbery. Stevenson, a junior lawyer on the McCleskey team, helped with legal research. The McCleskey lawyers based their appeal on a study of more than 2,400 homicide cases in Georgia in the 1970s. The research indicated that Georgia juries were 4.3 times more likely to impose the death penalty if the victim is white—and that the odds only got better if the victim is white and the killer is black.

The Supreme Court rejected the argument, 5-4. Writing for the majority, Justice Lewis Powell didn’t dispute the statistical showing but said that McCleskey’s lawyers had failed to offer evidence specific to his case that showed racial discrimination. “Apparent disparities in sentencing are an inevitable part of our criminaljustice system,” Powell observed. “McCleskey’s claim, taken to its logical conclusion throws into serious question the principles that underlie our entire criminal-justice system.” Justice William Brennan Jr. responded in dissent that “taken on its face, such a statement seems to suggest a fear of too much justice.”

When he heard the result, Stevenson wasn’t surprised that the high court refrained from striking down the death penalty across the board. But he had hoped for a ruling that would at least require Georgia and other states with records of racial misdeeds to apply capital punishment more cautiously. “What was shocking,” he says, “was the majority’s comfort level in justifying these racial findings, which they didn’t question; they accepted them.” Georgia executed Warren McCleskey in 1991, and most death-penalty litigation then returned to parsing alleged procedural defects in trials.

Two years after the decision in McCleskey, Stevenson accepted another death-penalty case suffused in race, but one unencumbered by lofty debate about statistics. The raw injustice at the core of Walter McMillian’s case catapulted Stevenson into the national consciousness as a gifted and passionate capital defender.

At Bright’s request, Stevenson was spending an increasing amount of time in Alabama in the late 1980s, helping with litigation concerning the abysmal conditions of the state’s prison system. Stevenson also agreed to represent a batch of Alabama death-row inmates. McMillian, a 45-year-old pulpwood worker with only a misdemeanor bar fight on his record, had been convicted in 1988 of the murder two years earlier of an 18-year-old dry-cleaning store clerk. He was black; she was white. The case played out in Monroeville, best known as the home town of Harper Lee, author of “To Kill a Mockingbird,” the best-selling novel published in 1960 about racial injustice in a Southern small town dominated by Jim Crow.

Stevenson says he didn’t take the case because he thought Mc- Millian was innocent. Most death-row inmates, including most of his clients, he says, are guilty of something, if not necessarily the precise charges that led to their sentences. But the taint of racism in the McMillian case piqued the lawyer’s interest. First there was the sentimentalized reverence that Monroeville’s citizens had for “To Kill a Mockingbird.” They wore their association with the book as a badge of honor, when in fact the work was meant as an indictment. “It was clear to me when I got there that very little of the book had sunk in,” Stevenson deadpans.

The sociology of the place was highly relevant because of McMillian’s local reputation. Though married to a black woman, he had crossed a sacrosanct line by openly having an affair with a white woman. Making matters worse, one of McMillian’s grown sons was married to a white woman. “The only reason I’m here is because I had been messing around with a white lady and my son married a white lady,” McMillian told the New York Times.

The evocatively named Judge Robert E. Lee Key had moved the trial from Monroe County, which was 40 percent black, to Baldwin County, which was only 13 percent black. The jury of 11 whites and one black heard testimony from three prosecution witnesses implicating McMillian. Foreshadowing the outcome, the authorities had held McMillian for months before trial on Alabama’s death row. The two-day trial ended in conviction, and the jury imposed a sentence of life imprisonment. Judge Key overrode the sentence, as Alabama’s law permits, and sentenced McMillian to death. Key described the crime as the “vicious and brutal killing of a young lady in the first full flower of adulthood.”

As he began to investigate the case, Stevenson found McMillian’s friends and neighbors suffering from what he interpreted as a form of group depression. The verdict, he says, “was incredibly debilitating to people of color and to poor people in that community,” because so many of them knew that the defendant’s alibi was true. Defense witnesses at trial had placed him at a fish fry 11 miles from the killing. “I think it felt like an indictment and a prosecution of an entire community,” Stevenson says.

Then he came across the defense lawyer’s dream: police files improperly concealed at trial. Within those files was an audiotape, and on that recording were the voices of officers coercing the main prosecution witness to testify falsely that he saw the killing. All three witnesses for the state eventually recanted. But shockingly, Judge Key refused to throw out the conviction.

Stevenson “was sure that McMillian was innocent,” recalls Bright, “but the setting in which he had to investigate the case and present his arguments could not have been worse.” Stevenson received telephone death threats at his home and office in Montgomery. Meanwhile, Alabama’s appellate courts refused to act.

Stevenson decided to try another sort of appeal. Working with Richard Dieter of the Death Penalty Information Center, a clearinghouse in Washington, D.C., the attorney arranged to meet a producer from the CBS newsmagazine show “60 Minutes.” Dieter recalls the session at an outdoor restaurant: “Bryan was warm and affable as always, but he got right to the point. He told the story of his client’s innocence and the prosecution’s manipulation of the case through inaccuracies and racial taint. With Bryan weaving the story, it was spellbinding. After he finished, the producer said, ‘If even half of what you are telling me turns out to be true, we’ll be down in Alabama in a few days.’” The newsmagazine aired a devastating piece. “Just the presence of this show in Monroeville caused the legal wheels to start turning,” Dieter says.

The Alabama Court of Criminal Appeals, which had earlier brushed off a series of appeals on McMillian’s behalf, now unanimously threw out his conviction. In March 1993, Walter McMillian left his cell, a free man. “We told the court when we were here a year ago that truth crushed to earth shall rise again,” Stevenson told the Times. “It doesn’t necessarily mean we believe in the judicial system.” Dieter today identifies Stevenson’s victory in the McMillian case as “the start of a long series of innocence cases that has led to the present rethinking of the death penalty.”

Stevenson never gained faith in Alabama’s judicial system, and even as he fought the McMillian case, he suffered one of his most poignant defeats. Soon after moving to Montgomery in 1989 to open the predecessor agency to the EJI, he received a collect call from Holman State Prison. A death-row inmate there had heard about the young lawyer and decided to plead directly for help. His story was a grisly one. The inmate, an emotionally disturbed Vietnam veteran named Herbert Richardson, had left a homemade bomb on the porch of a woman he was stalking. The bomb exploded and killed not the woman, but a little girl from the neighborhood.

Richardson’s execution was only 30 days away. Stevenson recalls telling him there was nothing he could do: “I’m sorry, but we don’t have staff, we don’t have books.” Richardson called back the next day, begging. The lawyer finally agreed to do what he could. He gathered some documents on the case and filed for an emergency stay of execution. “But,” he says, “it was too late.”

On Richardson’s execution day, Stevenson drove to Holman so he could keep his client company during the final hours. An innocent child had died, the lawyer acknowledges. But Stevenson’s thoughts focused on the inmate, whom he believed had been in the grip of mental illness. Richardson made an observation that has haunted Stevenson ever since. All day long, people had asked the condemned man what they could do to help. Prison officials gave him special meals, all the coffee he wanted, and stamps for farewell letters. “More people have said ‘What can I do to help you?’ in the last 14 hours of my life, than they ever did in the first 19 years of my life,’ ” Richardson said to his attorney.

Stevenson tells this story in many of his speeches. He asks rhetorically where those attentive Alabama officials had been when Richardson was being physically and sexually abused as a child, when he became a teenage crack addict, and when he was homeless on the streets of Birmingham. “With those kinds of questions resonating in my mind,” Stevenson says, “this man was pulled away from me, strapped in Alabama’s electric chair, and executed.”

Even fellow death-penalty activists marveled at Stevenson’s decision to leave Atlanta for Montgomery. “Many law school graduates go to a place like Montgomery for a couple of years— maybe four or five—which is wonderful,” says Bright. “But Bryan has gone way beyond that.”

Stevenson thought little of it. “What might have intrigued people was that there was no clear ‘get’ if you were going to spend all your time helping really hated people in the deep South,” he says. “What you’re going to get is a lot of contempt and hostility, maybe disrespect and a lack of appreciation from your immediate environment.” His life was already so Spartan—a barely furnished apartment; 14-hour work days, seven days a week; only occasional socializing—that the Montgomery move didn’t seem like much of an additional deprivation. Many types of law practice, not just at a fancy corporate firm, would have fattened his bank account. Almost any other kind of job would have left more time for a personal life. He wanted none of it. When the board of directors of the nonprofit Capital Representation Center in Montgomery offered him $50,000 as a starting salary, he insisted on taking only $18,000.

His parents for a long time had difficulty comprehending his commitment. “They were a little mystified by what I was doing and why,” Stevenson admits. Being a lawyer was fine, but why did he have to represent people accused of such horrible crimes? Why did he have to work so many hours? Aware of this consternation, Stevenson years ago gave his parents a videotape of a speech in which he explained to an AME church convention why he represented men on death row. He quoted the Bible, Matthew 25:34-40, in which it is predicted that in Heaven, Jesus will say to the righteous:

Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.

The righteous, perplexed, will ask Jesus when they had fed Him, clothed Him, or visited Him in prison. And Jesus will reply: “I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.”

Hearing their son put his work in a Christian context allowed Alice and Howard Stevenson to understand why Bryan had decided to spend his life in the service of men on death row. Around the family, “he never talked about himself,” Alice Stevenson told the Washington Post before her death in 1999 at the age of 70. “Me, I’ve been a money-grubber all my life,” Mrs. Stevenson continued. “But now that I’ve been sick, I see that Bryan is right. Really, what are we here for? We’re here to help one another. That’s it.”

Media coverage of the McMillian case brought Stevenson a measure of fame. Accolades began to accumulate, including, in 1995, a $300,000 “genius” grant from the John D. and Catherine T. MacArthur Foundation. Stevenson says he passed all the money along to his nonprofit legal center in Montgomery, which at the time had an annual budget of $500,000.

Law schools, including NYU, invited the now-prominent Stevenson to lecture and teach. He enjoyed interacting with students and saw hands-on legal education as an effective way to train public-interest lawyers. John Sexton, then dean of the NYU School of Law, made an extraordinary offer: Stevenson could teach alongside the legendary Amsterdam and continue to run the EJI, shuttling back and forth from Montgomery to New York. The Law School would provide generous funding to support students and recent graduates to work for Stevenson in Alabama. In other words: lots of free labor.

Stevenson asked Amsterdam for advice. Amsterdam answered with a question: Will it advance the interests of your clients? Concluding it would, Stevenson became an assistant professor of clinical law in 1998 and five years later, full professor. He teaches three classes: Race, Poverty and Criminal Justice; Capital Punishment Law and Litigation, and the Capital Defender Clinic, which includes three months at the EJI in Montgomery. Amsterdam coteaches the New York portion of the clinic. Stevenson gives part of his NYU salary to EJI and lives on the rest. He takes no pay from the EJI.

What began as an unconventional experiment has paid off for all concerned. “The Law School has been a really great partner,” Stevenson says. He has benefited from the work of dozens of students like Aaryn Urell ’01. A native of southern California, Urell encountered Stevenson soon after she arrived at NYU. “People in the public-interest community all said, ‘Oh, you have to go hear Bryan speak. You won’t believe how inspiring this guy is.’” Urell had a master’s degree in international peace and conflict resolution and had done human rights work in Africa. She had heard rousing speeches, but the Stevenson talk was different: “He spoke about serving the despised, the poor, the abused, people without resources and all alone and abandoned in a system set up to work against them….I resolved on the spot to work for him.”

During the summer after her first year, she worked at EJI in a public-interest internship funded by proceeds from a student-organized annual auction. She returned for spring break her second year. “They couldn’t get rid of me,” Urell says. She took Stevenson’s two classroom courses in New York and then spent much of the fall semester of her third year in the clinic in Montgomery. Eight students at a time work in the clinic, an intensive experience which includes reinvestigating the cases of death-row clients and drafting appeals. After receiving her J.D. in 2001, Urell returned to Montgomery as one of two NYU-sponsored postgraduate fellows at EJI. When that two-year program ended, she signed on as a staff attorney and continues in that capacity. “It’s a privilege to work on these cases and to serve these clients and their families,” she says.

Stevenson teaches students an array of formal and informal legal lessons. They draft appellate briefs and learn the Southern etiquette needed to negotiate with Alabama court clerks. He instructs them never to call any adult—especially clients and their family—by their first names, always “Mr.” or “Mrs.” He also teaches them that remaining silent is sometimes the best way to get a reluctant witness to revisit a long-ago murder case. “Generally people do want to tell you their stories. You need to let them,” says Matthew Scott ’07, who worked at EJI in the spring of 2007 and plans to become a public defender.

In her first summer at EJI, Urell investigated a series of robberyshootings at fast food restaurants from Birmingham to Atlanta. “We spent a lot of time in the car, I’ll tell you that,” she recalls. Her goal was to demonstrate that the distinctive crimes—during which the robber forced restaurant managers into walk-in freezers and then shot them—continued even after an EJI client accused of two of the crimes had been arrested and taken off the street.

That client is one of Stevenson’s top priorities at the moment because the lawyer believes he can prove the man innocent. Anthony Ray Hinton was arrested in 1985 and charged with two of the fastfood murders. No eyewitnesses or fingerprints placed him at either crime scene, but he was identified by a victim who survived a third restaurant shooting. Strangely, prosecutors never charged Hinton with the third attack. In addition to the victim identification, the state offered expert testimony that slugs from all three crimes were fired from a .38 caliber revolver recovered from Hinton’s mother.

At the time of the trial in 1986, Alabama capped compensation for court-appointed criminal trial lawyers at $1,000. Hinton’s trial attorney received only an additional $500 to hire a ballistics expert and ended up with one who was both inexperienced and blind in one eye. The prosecutor tore the unqualified “expert” to shreds, and Hinton was convicted and given two death sentences, which Alabama appellate courts affirmed.

Stevenson stepped into the case in 1999, 14 years after Hinton’s arrest. The lawyer has presented testimony from a trio of well established ballistics experts who say the bullets can’t be definitively matched to one another or to the .38 caliber handgun. (The defense contention that similar crimes continued to occur after Hinton’s arrest—the issue that Urell investigated—has been eclipsed by the ballistics conflict.) Stevenson is now trying to persuade Alabama courts to reopen the case, even though his client has exhausted his direct appeals. Prosecutors are unmoved, arguing in a recent brief: “Hinton was guilty in 1986, and he is still guilty today. Simply wrapping an old defense in a new cover does not prove innocence.”

In April 2006, the Alabama Court of Criminal Appeals upheld Hinton’s conviction, 3-2. Stevenson has appealed to the state’s Supreme Court. He points to the cases of Walter McMillian and six other Alabama men freed from death row after they were found not guilty of the crimes that put them there. “With 34 executions and seven exonerations since 1975, one innocent person has been identified on Alabama’s death row for every five executions,” he argues. “It’s an astonishing rate of error.” Nationally, more than 120 death-row inmates have been exonerated since 1973.

Hinton, a former warehouse worker, believes in Stevenson. In a letter from death row, he writes: “I felt that this man went to law school for all the right reason. And that reason was to fight for the poor. Here was a lawyer who knew his purpose as a man!” Hinton adds, “If God create a better man, He keep him for His Self.”

Amazing as it might seem to those with ordinary jobs and ordinary lives, Stevenson wonders about the adequacy of his accomplishments and the reach of his responsibilities. He believes he needs to do more, take new risks.

But is that physically possible? Will he cloud the clarity of his mission and risk confusing those who help fund it? “It’s much simpler if you say, ‘We’re the death-penalty people. We do the death penalty in Alabama,’” he concedes. “But it’s never felt descriptive and accurate. I’ve always considered myself a lawyer concerned more broadly about human rights.”

He’s angry not just about the cloud of injustice he sees hanging over death row, but the wrongs that he contends permeate the entire American criminal-justice system. The country’s prison population has soared from fewer than 200,000 in 1970 to more than 1.3 million. Another 700,000 inmates reside in jail. All told, the United States locks up more than two million people, resulting in the highest per capita rate of incarceration in the world. Nearly one in three black men between the ages of 20 and 29 is in prison or jail or on probation or parole, according to the Sentencing Project, a research and advocacy group in Washington, D.C.

Stevenson is broadening EJI’s mandate to address what he considers to be other egregious aspects of an excessively punitive system. His organization represents inmates in Alabama and elsewhere sentenced to life terms without the possibility of parole under repeat-offender statutes, also known as three-strikes laws. One wall in the EJI offices displays photos of clients such as Jerald Sanders, who was sentenced to life without parole after being convicted of stealing a bike, his third strike. He spent 12 years in prison until EJI won his release in 2006. “Somebody who has three prior rapes and rapes again is not the same as someone with three prior bad checks who writes another one,” Stevenson argues.

He has taken on the cases of some of the dozens of youths serving life terms without parole for crimes committed when they were 13 or 14. “The short lives of these kids will be followed by long deaths as a result of America’s other death penalty: life imprisonment without parole,” he contends. The list of ambitions continues: He wants to challenge laws that ban people convicted of drug crimes from receiving food stamps or living in public housing. He plans to step up civil litigation to combat exclusion of blacks from jury pools. His small nonprofit is already straining. “I’ve had a huge problem keeping folks in Alabama,” Stevenson admits. Of his 18 lawyers and staff members, four now live out of state. He has no office manager or anyone to handle media inquiries. “It’s just a little overwhelming for me right now, trying to do it all myself.”

He has briefed his foundation backers on his expansion plans. His main supporters are the Public Welfare Foundation in Washington and the Open Society Institute in New York. They have been “respectful and concerned,” he says. More specifically, officials at the foundations have asked: “You’ve already got an impossible task. Why are you trying to make it harder?”

Stevenson understands the concern. “You can get kind of overwhelmed by it,” he says, “and you realize you can pick up more than what you can hold.” He also sees how some might conclude that he is trying to diversify as the death penalty appears to recede. But capital punishment isn’t going away anytime soon and certainly not in Alabama, which houses more than 190 people on its death row. In any event, he says, the vicissitudes of capital punishment aren’t driving his decision to branch out.

The impulse to right a broader array of wrongs comes from within. It is an instinct that he can do more, and therefore must. “Things that are the most rewarding and engaging involve struggle, involve commitment, involve dedication,” he says. “I think those are the key ingredients to that sense of fulfillment.”

Stevenson seems greedy for just one thing: the opportunity to pursue righteous struggles, as he defines them. Unlike most people who understand the personal cost incurred by such a life, he seems eager to pay it.

—New York journalist Paul Barrett is the author of American Islam: The Struggle for the Soul of a Religion (Farrar, Straus and Giroux, 2007) and The Good Black: A True Story of Race in America (Dutton, 1999). He has a J.D. from Harvard Law School.

“Standing there talking with that kid, it struck me so deeply that we were it for him,” says Derwyn Bunton ’98, associate director of the New Orleans-based Juvenile Justice Project of Louisiana, who met Paul a month after his harrowing ordeal. “This child was 500 miles from home, wondering if his family members were alive or dead. If we didn’t step in to help him, no one would.” The Juvenile Justice Project (JJP) got to work. Bunton worked with the Louisiana Office of Youth Development to find the boy’s parents, who had fled to Dallas, and went to New Orleans Parish Juvenile Court to obtain a release order that closed Paul’s case. He arranged for a youth advocate to travel with Paul to Dallas where Paul finally rejoined his family. And in May 2006, the JJP published a scathing report coauthored by Bunton: Treated like Trash: Juvenile Detention in New Orleans Before, During and After Hurricane Katrina. The report, which found that the storm had merely exacerbated and made blatant the huge problems of a juvenile-justice system that was dysfunctional long before the storm hit, garnered international media attention from publications such as the United Kingdom’s Guardian, the Los Angeles Times and the New York Times.

For Bunton, tracking down family members and arranging transportation is as much a part of his job as writing policy reports. He credits the Juvenile Defender Clinic taught by Professors Randy Hertz and Kim Taylor-Thompson and former Adjunct Professor Jacqueline Deane ’85 for teaching him how to help clients who are often as much in need of food and shelter as legal representation. “Everything we did in the NYU clinics, we do here,” says Bunton. “We work for the clients any way we can—through litigation, policy work, outreach, mobilization and organizing. The clinic taught me to think about clients and find ways to address their needs through legal and policy changes. Those lessons continue to pay dividends today.”

As Bunton’s story demonstrates, even one person can make a huge impact on the life of an individual and a community. For nearly 40 years, NYU School of Law’s Clinical and Advocacy Programs have been offering committed, bright and talented students an unparalleled introduction to the challenges and rewards of hands-on legal practice. In turn, these lawyers have fought poverty, injustice and political repression in New York City, across the nation and around the world. “I am struck by the passion and commitment of NYU’s clinical faculty, the commitment of graduates to pursue careers in the public interest, and the wide range of scholarship that influences understanding of clinical education for students, lawyers, judges and scholars,” says Charles Ogletree, the former vice dean of the Harvard Law School Clinical Program who is the Jesse Climenko Professor of Law at Harvard and director of the Charles Hamilton Houston Institute for Race and Justice.

More than just a means through which students learn to practice, however, the clinical program influences the character of the Law School. “NYU has a vibrant commitment to public-interest law and advocacy,” says Kevin Ryan (LL.M. ’00), the first-ever commissioner of the New Jersey Department of Children and Families. “Public-interest advocacy is intentionally nurtured as part of the law school experience. The faculty create real oxygen for students to discover how law can become a tool for social change.”

A Revolution in Legal Education

Clinical education at the NYU School of Law began in the late 1960s, as an outgrowth of those turbulent times. “The call in education was for ‘relevancy,’ and that call affected law schools perhaps more than any other educational institution,” says Martin Guggenheim ’71, Fiorello LaGuardia Professor of Clinical Law. Students agitated for legal education that was better connected to the real world.

Such an education would make a significant change from the status quo of that day. “Law schools had been around for a century, and had mostly shunned anything to do with practice,” notes Harry Subin, professor of law emeritus. “They didn’t hire people with experience in practice, and they were more concerned with scholarship than with training lawyers.”

These 1960s students wanted experiential learning that was framed against the concerns of the day: Vietnam, civil rights, and the 1963 U.S. Supreme Court case Gideon v. Wainwright, which institutionalized every defendant’s right to counsel. “Students really believed they knew better than their teachers what they should be learning and what the curriculum should include,” says Guggenheim. “We demanded—that’s how we spoke then—that our education give us opportunities to provide service to underrepresented groups and to learn to be practicing lawyers.”

The students championed the writings of Jerome Frank, the late federal judge and former Yale professor, who had published a series of articles back in the 1930s maintaining that law schools taught nothing but theory because no one on the faculty knew what it was like to actually practice law. “Sometimes ideas need to be articulated when the time is right. His ideas fit perfectly with the times,” recalls Guggenheim.

Meanwhile, Gideon had also created a need for lawyers who knew how to handle themselves in a courtroom. Justice William Brennan Jr. and others argued that one good way to provide lawyers for defendants was through clinical legal education. In response, the Ford Foundation, through its grantee, the Council on Legal Education for Professional Responsibility (CLEPR), offered generous grants to law schools that were willing to provide clinical legal education. “The confluence of factors—the students’ demand for relevance, the legal establishment’s support for clinical education, and the resources made available by the Ford Foundation— gave clinical education its foothold,” says Guggenheim.

Beginnings at NYU

The availability of funds played a major role in convincing the Law School faculty and administration to initiate clinics at NYU. “Most faculty treated the offer as a freebie,” says Guggenheim. “They weren’t against the idea philosophically, and since it didn’t come at the expense of other courses, they thought, ‘Why not?’”

The Law School recruited Subin, a Yale Law School graduate, to teach its first clinic, Criminal Law, in 1969. Subin had held positions with the Department of Justice and the Vera Institute of Justice, which works with governments and organizations throughout the world to improve criminal justice and public safety programs. Subin had no special interest in clinical education, but the Ford Foundation funding covered an eight-month clinical teaching position at NYU and the job sounded interesting.

[SIDEBAR: Beyond Law & Order]

It was. The eight students in the first Criminal Law Clinic represented indigent defendants in the New York City Criminal Court, and called themselves the CLEPR 8, to honor the grant that funded the clinic. The label suited the times. “It was in vogue to be a member of some underground movement,” says Subin. “They really wanted to fight the good fight.” He was struck by the passions of the clinical students, especially compared to his own 1950s peers. “Law students in my day were 50 years old before they were 25. These NYU students were a different story. They were politically involved. They weren’t rioting on the fringes, but interested in the causes: feminism, race problems and treatment of the poor.”

Subin became the first chair of the Clinical Programs Committee at NYU and was centrally involved in the expansion of the clinical curriculum in the 1970s and early ’80s. Faculty who joined the clinical program during this time included Claudia Angelos, who had been a lawyer for Prisoners’ Legal Services of New York; Paula Galowitz and Lynn Martell, both civil attorneys for the New York Legal Aid Society; Guggenheim; Chester Mirsky, who was a senior trial attorney at the Criminal Defense Division of MFY Legal Services, and Laura Sager, who enrolled in law school after participating in the Selma civil rights marches of 1963 and 1964.

Meanwhile, across the country Anthony Amsterdam was serving as Montgomery Professor of Clinical Legal Education at Stanford University School of Law. Amsterdam had earned the first endowed clinical chair in American legal education in part by amassing a nearly unparalleled record of civil rights and capital defender victories, including Furman v. Georgia, the 1972 Supreme Court case that resulted in a divided court ruling the death penalty unconstitutional. (See “A Man Against the Machine” on page 10.)

By 1981, Amsterdam had been teaching at Stanford for 12 years and longed to move back East—he is from Philadelphia—and settle in a big city. NYU’s clinics—which were among the top three programs in the nation and had the faculty support to aim even higher—piqued his interest. “I thought NYU was in a position to help create a new era in clinical education,” says Amsterdam, who took over the program that year and ran it until 1988.

Amsterdam’s arrival brought high-octane star power to the clinical education program. “When Tony joined the NYU faculty as the first faculty director of Clinical and Advocacy Programs, he was considered among the elite in three separate spheres: legal scholarship, education and practice,” recalls Guggenheim. “His rare status as a triple threat made him uniquely qualified to reshape and reconceptualize clinical education at NYU.” Perhaps more important, Amsterdam brought innovation, scholarship and a passion for clinical teaching that didn’t exist among law schools at the time—and is still rare today, even at top institutions.

From Clinics to a Clinical Program

Amsterdam held the opinion that 20th-century legal education was too narrow. Most law schools focused exclusively on teaching students to think analytically within a specific body of law—mainly the traditional first-year areas of contracts, torts, property, civil procedure and criminal law. “I thought legal education should include an examination of lawyer’s thinking, planning, decision-making and performance in practice,” he says. “I believed that examination should engage the same exacting critical analysis that law schools had traditionally applied to substantive legal doctrine.”

To that end, he designed the first integrated clinical curriculum, which reorganized the clinics into a three-year series of related learning experiences. The new curriculum included a seminal first-year lawyering course taught in seminar-sized classes that was devised by Amsterdam (originally as an experimental course at Stanford) using simulations, or role-playing, to develop critical ways of thinking about a lawyer’s basic practice skills such as interviewing, negotiation, witness preparation and drafting. “Teaching the course was like sky-diving off the edge of the known law school universe, and hoping that a conceptual parachute would open before we hit bottom,” says Amsterdam.

[SIDEBAR: Where it All Begins]

Open it did. Lawyering, which became a mandatory full-year course in 1986, has grown into its own program with a 16-member lawyering faculty led since 1999 by Peggy Cooper Davis, the John S. R. Shad Professor of Lawyering and Ethics and a former Family Court judge. (See “Where It All Begins,” below.) In March, the Carnegie Foundation for the Advancement of Teaching released a two-year study that held up Lawyering at NYU as a model for “induct[ing] students into an understanding of how this complex system of society’s self-regulation works—or should work—to uphold and extend socially vital ends and values, and to put students on the path toward developing expertise as practitioners of the legal art.”

Amsterdam’s curriculum continued in the second year with more simulations, typically following a case or fact pattern for the entire semester. Cases such as the trial of a teenager accused of robbing a convenience store, with a victim who didn’t get a good look at the alleged perpetrator and a witness with credibility problems, would allow the instructor to control the progress of a case to create learning opportunities. Students can shift roles in order to develop multiple perspectives on a single situation. For example, acting as a witness motivated to lie or a prosecutor who asks a question and gets an answer that damages his or her case. Students can review themselves and critique their classmates’ performance by watching footage of their role-playing. They can also review a trial in its entirety, an experience that gives them an opportunity to reflect on alternative approaches to various circumstances. State-of-the-art simulation rooms in Furman Hall are equipped with microphones suspended from the ceiling and separate video rooms where the action is filmed from behind a glass wall.

Finally, third-year students could elect to take fieldwork clinics where they represent actual clients. Over the years, fieldwork clinics have become an option for second-year students as well. “Tony’s approach was groundbreaking because it created a sequenced set of lessons that all built on the foundation of lawyering,” says Randy Hertz, the current director of Clinical and Advocacy Programs. “That sequence still sets the program apart: an overarching conceptual structure that defines what students can learn through clinical teaching and then finds the best way to provide that learning experience over a three-year cycle.”

The clinical program’s new structure drew more students into the program, and Amsterdam recruited professors, including Hertz, who came from the Public Defender Service of the District of Columbia; Holly Maguigan, a former criminal defense attorney from Philadelphia, and Nancy Morawetz ’81, who came from the Civil Appeals Unit of the Legal Aid Society of New York. The faculty also drew closer together under Amsterdam, meeting together regularly to talk about their goals for students.

In reflecting on the clinical program’s growth during the 1980s, Hertz, Guggenheim and others fondly remember the positive and creative contributions of Chester Mirsky, who passed away in 2006. Mirsky developed the Federal Defender Clinic, which evolved from the Criminal Law Clinic he cotaught with Harry Subin, and innovated another course with Subin called Criminal Procedure and Practice, which taught doctrine such as the law of bail and search and seizure, and used simulations to teach skills such as motions to suppress and how to do direct and cross examinations and make closing arguments. “The students loved it,” Subin says. “In terms of really understanding doctrinal law, it just brought it to life.”

In 1985, the clinical program achieved another milestone when Guggenheim became NYU’s first full professor of clinical law, beginning a tenure track for clinical professors that was in the vanguard for American law schools.

Recruiting a Diverse Faculty

In 1971, NYU became the home of the Juvenile Justice Standards Project, which lasted 10 years and produced 23 volumes developed by national juvenile-justice experts across a range of disciplines. The chairman of the project, the late Chief Judge Irving R. Kaufman of the U.S. Court of Appeals for the Second Circuit, suggested that NYU create a juvenile-justice clinic. Robert McKay, then dean of the Law School, went looking for someone to direct the clinic.

Martin Guggenheim got the job in 1973. He thought he’d stay for a year or two, but he found that he loved teaching in a clinical setting. It wasn’t long before Guggenheim realized he was learning a great deal about his profession through the craft of teaching it to his students. “I now was obliged to reflect analytically on the things I did as a lawyer,” he recalls. “I realized that there was a blueprint, which I was learning myself by teaching it to my students. I became a much better lawyer by teaching them to be lawyers— and the same thing is true of every clinical teacher I know.”

[SIDEBAR: Clinics Across Borders]

Guggenheim succeeded Amsterdam as director of Clinical and Advocacy Programs in 1988. He is particularly proud of his faculty recruiting and the expansion of clinic course offerings during his 14-year tenure. He inherited a distinguished group of mostly New York-based faculty, and created a more diverse faculty with a national reputation. The leading lights of this generation included Gerald López, who founded his own community-based law office in Los Angeles and subsequently taught public-interest law at the law schools of Stanford and UCLA; Anthony Thompson, a deputy public defender in California; Kim Taylor-Thompson, a former director of the Public Defender Service for the District of Columbia and Stanford professor, and Bryan Stevenson, who gained national prominence by appealing death-penalty convictions in the South.

The line-up of clinics also became more diverse. Professor of Clinical Law Sarah Burns, former legal director of the NOW Legal Defense and Education Fund, started the first nonlitigationfocused clinic, the Public Advocacy Clinic. It is cotaught with Brennan Center lawyers and has become the Brennan Center Public Policy Advocacy Clinic, designed to teach public policy reform strategies. López, a professor of clinical law, began the Community Outreach, Education and Organizing Clinic, in which students learn how to supplement traditional practice with a three-pronged problem-solving approach to helping the poor and educating the public about legal issues of the poor. Professor of Clinical Law Nancy Morawetz (with Michael Wishnie, who is now a professor at Yale Law School) began the Immigrant Rights Clinic (see “Come In and Get Out” on page 30), initially focusing on the rights of low-wage immigrant workers and protecting long-term lawful permanent residents from detention and deportation due to a criminal offense. Taylor-Thompson, a professor of clinical law, began the Community Defender Clinic, which teaches students to explore ways for defender offices to reinvent themselves and assume a broader role in the criminal-justice community by engaging in community outreach, building coalitions and participating in community action, and employing a wide variety of litigative and nonlitigative strategies, including legislative advocacy, community education, and media campaigns. Thompson, a professor of clinical law, launched the Offender Reentry Clinic (see “Beyond Law & Order” on page 23), which teaches students to be advocates for ex-offenders as they encounter legal and societal issues upon their return to free society, and Stevenson, a professor of clinical law, launched NYU’s nationally known Capital Defender– Alabama Clinic, which appeals death-penalty convictions in a state with no state public-defender system and 190 death-row inmates, 95 percent of whom can’t afford representation. When New York State reinstated the death penalty in 1995, NYU created the Capital Defender–New York Clinic, tapping Amsterdam (with, originally, Randy Hertz) and Deborah Fins, an attorney with the NAACP Legal Defense and Educational Fund, to teach it.

A 21st-Century Legal Education

Randy Hertz, who became director of the Clinical and Advocacy Programs in 2002, traces his interest in public-interest law and clinical education to his early life experience. As a high school student, he spent a summer as an intern for Queens Legal Services, standing on welfare lines with legal services clients. During college, he took a class with the late Democratic senator and social-justice champion Paul Wellstone, and worked with him in a community-based welfare rights organization. “The injustices that I saw and learned about made me feel like I had to devote my career and my life to trying to help those in need. It seemed to me that the best way to make a difference in the world would be to get a law degree and to devote my career to public-interest law.”

After Stanford Law School, where he had taken a criminal-law clinic taught by Anthony Amsterdam, Hertz joined the D.C. Public Defender Service, and then the NYU clinical faculty, teaching the Juvenile Defender Clinic. “All along the way, I had role models— people such as Amsterdam, Wellstone, and a Legal Aid lawyer named Neil Mickenberg,” he recalls. “They helped me to understand the critical importance of empathizing with clients, collaborating with clients, and seeking to empower clients. These are some of the lessons that I seek to pass on to my students.”

[SIDEBAR: Respecting the Family Order]

Indeed, Hertz serves as a mentor to many current and former students. In 2006, Juvenile Defender Clinic veterans Susan Lee ’06 and Vanita Gupta ’01 worked on a trial together in Louisiana in which they unexpectedly needed to cite a case in support of their argument that a defendant should be allowed to use statements that defense attorneys had previously succeeded in suppressing. They tried to access Westlaw from an Internet cafe during recess, but having no luck, they called Hertz, who gave them three cases in five minutes. “Maybe he doesn’t want this to get out, but students use him as a resource long after they leave the Law School,” says Lee.

The rewards of assuming that mentoring role are great. “Some of the best moments in clinical teaching are when students connect to their juvenile clients and bridge the divides that sometimes result from differences in race or class or by the lawyer’s professional status,” he says. “The student’s act of transcending that gap can make a crucial difference in helping a client overcome adversity in his or her life or in winning a case in court for the client.”

Hertz recounts the case of a 15-year-old client who was charged with robbery, but who claimed that he had acted under duress by other youths. “The case seemed unwinnable,” he says. “But clinic student Marisa Demeo ’93 won the bench trial by using witness examinations and closing arguments to help the judge see the world through the client’s eyes—to appreciate how peer pressure and fear could cause a young person to act in ways that would seem unreasonable to an adult.” Demeo was recently appointed a magistrate judge in the Superior Court of the District of Columbia.

Hertz lectures regularly to the local bench and bar about developments in criminal and juvenile law, and does pro bono work on briefs in criminal appeals, including capital appeals and habeas corpus proceedings. He is coauthor (with Amsterdam and Guggenheim) of the standard trial manual on juvenile court practice, and cowrote Federal Habeas Corpus Practice and Procedure.

All told, the Law School has 15 full-time clinical faculty, including 12 tenured or tenure-track faculty—the largest among top-five law schools. About half of all students take at least one fieldwork clinic before graduating—in 2006-07 about 325 upperclass students participated in 25 fieldwork clinics. The clinics have evolved, but the basic structure of the program has remained the same over the last two decades. Through lawyering classes, simulations and fieldwork clinics, students learn how to navigate the client-counsel relationship and test legal strategies. They see firsthand how the legal system works, and gain the tools, experience and insight to discover in themselves how to advocate for their clients. “Clinic was my biggest learning experience in law school,” says Bunton, the New Orleans juvenile defender. “There was, all of a sudden, this space where theory got applied to reality. Everything I had learned about how to practice came together. And then I understood why people call it the practice of law. No one really gets it right every time. It’s constant practice and constant learning.”

Hertz has expanded the clinical program in directions that serve the global community and redefine the nature of public-interest law. Both domestic and international clinics increasingly welcome collaboration with other fields, ranging from social work to medicine. “These changes all reflect trends in the world of practice,” says Hertz. “The clinical program adjusts to new developments by offering students a chance to learn about cutting-edge issues and interesting new approaches.”

One of the newest clinics, the innovative Medical-Legal Advocacy Clinic taught by Clinical Professor of Law Paula Galowitz, is a case-in-point. Students in the clinic, the first of its kind in the New York area, work with social pediatric medical residents at Montefiore Comprehensive Health Care Center, a federally funded community health center in the South Bronx, to develop and practice more holistic approaches to client treatment. Students handle legal issues that affect the health of the center’s patients, most from indigent African-American and Latino communities. The clients’ ailments include asthma triggered by mold from leaky roofs or rodent infestation and lead poisoning from paint.

Clinics continue to stretch beyond the role of teaching students how to litigate. The Mediation Clinic, taught by Burns and Ray Kramer, an administrative law judge with the Office of Administrative Hearings and Trials, begins by teaching students to resolve residence disputes in NYU dormitories and advances to mediating employment disputes arising at New York-area agencies. Galowitz will coteach the new Neighborhood Institutions Clinic with David Colodny, an attorney at the Urban Justice Center (UJC). The clinic will provide legal services to grassroots organizations that are clients of the Community Development Project of the UJC. The transactional needs of such organizations may include assistance with forming and governing a nonprofit, applying for tax-exempt status and negotiating leases.

The Comparative Clinical Justice Clinic crosses both geographic and theoretical borders. It’s taught by Professor of Clinical Law Holly Maguigan, an expert on legal issues affecting battered women who have killed or harmed their abusers, or who were coerced by their partners into committing crimes, and social worker and psychologist Shamita Das Dasgupta, the cofounder of Manavi, an organization committed to ending domestic violence against South Asian women living in the United States. Students examine how different nations combat domestic violence through criminal law; they also help develop new criminal-justice initiatives with U.N. agencies, advocacy groups and nonprofit organizations.

The clinical faculty has taken on an even deeper international flavor with the 2003 hires of Assistant Professors of Clinical Law Smita Narula and Margaret Satterthwaite ’99, whose credentials include advocacy and activism with Human Rights Watch and Amnesty International. (See “Clinics Beyond Borders” on page 26.) Coteaching the International Human Rights Clinic, Narula and Satterthwaite work together with their students to influence worldwide human rights policies through reports to Congress and the United Nations, and public-awareness campaigns on topics such as torture and racial profiling of Muslims, caste discrimination in South Asia, and lack of sustainable living conditions in Haiti.

Meanwhile, the long-standing clinics have evolved to adapt to changes in practice and new pedagogy. For example, the Civil Rights Clinic, taught for many years by Clinical Professors of Law Claudia Angelos and Laura Sager, has developed into two clinics that focus on cutting-edge civil rights issues. Sager teaches the Employment and Housing Discrimination Clinic, where students represent plaintiffs in discrimination cases in state and federal court. Angelos works with New York Civil Liberties Union attorneys Christopher Dunn and Corey Stoughton in a reconfigured Civil Rights Clinic on a wide range of civil liberties issues, including free speech, religious freedom and racial and economic justice. The Urban Law Clinic, taught for years by former Clinical Professor of Law Lynn Martell and Galowitz, evolved into the Civil Legal Services Clinic, focusing on housing and government benefits, and thereafter added a substantial component on representing clients applying for asylum.

A clinic that will be offered for the first time is the Supreme Court Litigation Clinic, taught by Dwight D. Opperman Professor of Law Samuel Estreicher with two adjunct professors who are partners at Jones, Day: Donald Ayer, a former U.S. deputy attorney general, and Meir Feder. The clinic will supervise students as they draft briefs and petitions for certiorari and oppositions. The clients will be prisoners appealing their convictions or seeking affirmative relief through civil actions. Students will take part in discussions with counsel and in moot courts and attend oral arguments.

Changing Views on Legal Education

Randy Hertz was a consultant to the task force that produced the 1992 MacCrate Report on legal education for the American Bar Association. The two-year study recognized the valuable contribution that clinics can make to a law school education, leading to a national discussion on legal education and pedagogy that continues today. In fact, Hertz recently lectured on his work on the report to students and faculty at three law schools in Japan. The country’s Justice System Reform Council is focusing on the role that clinical legal education should play in Japan’s law schools.

[SIDEBAR: Come In and Get Out]

The invitation to give those lectures is one more sign that, as in the 1960s, different forces—including 9/11 and its aftermath, the growing need for lawyers to represent those who have fallen through the widening holes in our social net, and increasing interest in clinical education here and abroad—are giving rise to a new era in clinical education. Hertz cites the 2007 Carnegie Foundation report, as well as the Clinical Legal Education Association’s recent Best Practices for Legal Education, as strong signs that clinical education is once again attracting the interest of the legal establishment and the broader legal community. Both advocate that law schools direct more resources to clinical programs in the education of law students, so that graduates are more adequately prepared for reallife practice early in their careers. The American Bar Association’s Section of Legal Education and Admissions to the Bar hosted a national conclave in May that brought together judges, lawyers and legal educators to discuss possible legal education reforms. “This is a very exciting time to be a clinical teacher,” says Hertz, who became chairelect of the ABA section in August. “We’re on the brink of developing and integrating important new ideas into clinical pedagogy to fulfill law schools’ responsibility to—as it’s phrased in the ABA Accreditation Standards for Law Schools—prepare students for ‘effective and responsible participation in the legal profession.’”

Hertz currently is the editor-in-chief of the Clinical Law Review, the only peer-edited journal of lawyering and clinical legal education, established in 1994. NYU cosponsors the journal with the Clinical Legal Education Association and the Association of American Law Schools. A recent issue featured an article by students, in collaboration with professors Amsterdam and Hertz, which examined the first Rodney King assault trial. Among other things, the piece explains how lawyers used narrative in litigation, describing the facts of the case, the procedural posture at the outset of the trial, and the “cultural surround” on which the lawyers were able to draw in crafting narratives that would likely resonate with the jurors. In 2006, Hertz helped organize the first-ever Clinical Law Review workshop, held at the Law School, which gave 60 clinical law teachers from across the nation a chance to focus on academic writing skills that can help them earn tenure—an increasingly important goal as clinical education gains a higher profile.

All of the attention to the training of clinicians and to the clinical curriculum, and serving communities in need, bear fruit in experiences like Rachel Meeropol’s. Meeropol ’02 is an alumna of Bryan Stevenson’s Capital Defender Clinic who now practices with the Center for Constitutional Rights in New York. She has acted as lead counsel on numerous prisoner rights cases, including Turkmen v. Ashcroft, a class-action suit on behalf of Arab and Muslim men rounded up in immigration sweeps after 9/11; Doe v. Bush, seeking representation for the unnamed detainees at Guantánamo, and other Guantánamo-related litigation. The American Lawyer recently ranked her among the 50 Top Lawyers Under 45. “We face some incredibly difficult battles in the field of immigrant rights,” she says. “Because of my clinic work, I’m less inclined to fear that battle, or view it as impossible to win.”

—Clint Willis has published more than 40 books, including award-winning anthologies on adventure, politics, religion and war. His writing has appeared in Money, Outside and the New York Times. Suzanne Barlyn has contributed to the Wall Street Journal and Fortune and is a non-practicing attorney who received her J.D. from American University Washington College of Law.

—Editor’s note: Since this article was published in September 2007, Alina Das ’05 has joined the NYU Law faculty; she co-directs the Immigrant Rights Clinic.

The lawyer, who was actually 32, would become the leading strategist of a hard-fought campaign to end the death penalty that continues to this day. He would encounter the newly-promoted Justice Blackmun, and that irascibility, in his subsequent and repeated trips to the Supreme Court. To identify the attorney as Anthony G. Amsterdam, and to write about his relentless, and inspired, work of more than half a century is to risk hagiography.

Lawyers who have worked with Anthony Amsterdam cast about for the perfect superlative when they talk about him: His is “the most extraordinary legal mind of anyone I know”; he has a “visionary, imaginative sense of the edges of the possible”; his use of language is “so perfect and so powerful and so utterly logical”; he could “take a pile of coal dust and make a diamond out of it”; indeed, “God broke the mold when he created Tony.”

And yet, these acolytes of Amsterdam’s are among the most respected members of a profession inclined to contrarianism, not reverence; in order, they include George Kendall, a senior counsel at Holland & Knight who headed the capital defense section of the N.A.A.C.P. Legal and Educational Defense Fund (LDF); Sylvia Law, the Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry at the New York University School of Law; Tim Ford, a respected civil rights attorney; David Kendall, a lawyer who is no relation to George, though he also headed the capital defense section, and is best known for representing President Bill Clinton during the Monica Lewinsky debacle; and Seth Waxman, a former solicitor general who continues to argue regularly before the Supreme Court.

Even the Supreme Court justices, who would prove Amsterdam’s toughest audience, did not know quite what to make of the lawyer whose intellect was matched only by the intensity of his opposition to the death penalty. In 1976, after a particularly combative session in which Amsterdam tried, and failed, to persuade the Court to maintain its effective ban on the death penalty, one justice reportedly grumbled, “Now I know what it’s like to hear Jesus Christ.”

Amsterdam still walked among mortals in 1966. When Orval Faubus was wrapping up his tenure as governor of Arkansas, he signed six death warrants and rushed off to California to attend a conference. One bore the name of William Maxwell, a young black man convicted four years earlier of raping a 35-year-old white woman and sentenced to death. Maxwell had appealed to the Arkansas Supreme Court, arguing that jurors in the state had applied the death penalty in a discriminatory manner. He lost. He had submitted a petition for a writ of habeas corpus, a request that the judge free him because his conviction was unconstitutional, in federal court. It was denied. He had appealed to the Supreme Court. It refused to hear his case. Maxwell was running out of options.

While Faubus was flying west, Amsterdam, then a professor at the University of Pennsylvania Law School, was called out of an LDF workshop in New York City. Within hours—as Michael Meltsner, Amsterdam’s colleague at LDF, recounts in his compelling 1973 book, Cruel and Unusual: The Supreme Court and Capital Punishment— Amsterdam was dictating a second petition for habeas relief by phone to the secretary of one of Maxwell’s lawyers.

Filed in court the next day, Maxwell’s petition marshaled some of Amsterdam’s most persuasive arguments against the death penalty. The death penalty, the petition contended, was unconstitutional on a number of procedural grounds: Jurors were given no guidance about how to reach a decision, leading to arbitrary results; the single-verdict trial, in which the jurors had decided Maxwell’s guilt and sentence simultaneously, denied them the opportunity to weigh mitigating factors; and lastly, and most controversially, the petition raised Maxwell’s claim of bias once more, grounding it in a new study that LDF had commissioned by a respected criminologist, Marvin Wolfgang. In the period from 1945 to 1965, black defendants who raped white women in Arkansas stood a 50 percent chance of being sentenced to death if they were convicted, compared to a 14 percent chance for white offenders.

The petition was denied, but Amsterdam and LDF continued to exploit every possible legal remedy, appealing to the Eighth Circuit without success and then seeking a stay of execution from the Supreme Court. This time, the Court granted the relief, sending the case back to the appellate court, which didn’t exactly welcome it.

Blackmun, who had received a math degree from Harvard, was not persuaded by Wolfgang’s research. He found the survey sample too small to offer convincing proof of discrimination. And even if the study could prove past discrimination in Arkansas, it did not include data from the county where Maxwell was convicted or interviews with the specific jurors in his case. As Blackmun wrote for the three-judge panel, “We are not yet ready to condemn and upset the result reached in every case of a negro rape defendant in the State of Arkansas on the basis of broad theories of social and statistical injustice.”

Blackmun’s opinion suggested annoyance with Amsterdam. In the course of argument, Amsterdam had been asked whether his analysis meant that a black man could not be put to death under the Constitution for raping a white woman. Amsterdam replied in the affirmative, according to Blackmun. The judge wanted to know if the same logic would hold true for a white man convicted of rape—a fair question on its face but one that ignored the reality that nearly all the defendants executed for rape in the South were black. Amsterdam conceded that his argument did not apply to a white defendant. “When counsel was asked whether this would not be discriminatory,” Blackmun wrote, “the reply was that once the negro situation was remedied, the white situation ‘would take care of itself.’” Blackmun didn’t appreciate the sally.

Amsterdam refused to whitewash what he saw as the discriminatory application of the death penalty. Sitting in his fifth-floor office at Furman Hall recently, he explained why he got involved in death cases. “It wasn’t some sort of ideological opposition to the death penalty,” he said. “It was all about race initially.” In Maxwell’s time, Amsterdam said, local white lawyers could not represent blacks charged with high-visibility crimes against whites without fear of retaliation. LDF, and its roster of “carpetbagger” lawyers, as Amsterdam put it, stepped forward.

But Maxwell’s case brought home to Amsterdam and his colleagues at LDF that they could no longer ignore the pressing needs of all death-penalty clients—whatever their race and whether they had lawyers or not. Amsterdam was Maxwell’s lawyer, but there were four other men without lawyers whom the governor of Arkansas had consigned to death as well. “We said, ‘What the hell! Are we going to let these guys die?’” Amsterdam said. “It was like somebody was bleeding in the gutter when you’ve got a tourniquet. Then, we were in the execution-stopping business.”

It takes some doing to imagine a suave 32-year-old hidden in the layers of Amsterdam’s past. When we met the first time, he wore a red-and-green flannel shirt, olive-green corduroys, and a thin knit tie that approximated the color of his pants. The shirt hung from his frame, so lean that the only matters of substance about him seemed to be a bushy moustache and sunken gray eyes that stared out of the kind of oversized glasses only a septuagenarian would risk. Amsterdam’s hearing has been poor since birth; he wears a hearing aid in his right ear, which picks up sound from a black box that he positions on the table in front of him.

But it is his eyes that draw attention—eyes that look, as one colleague of Amsterdam’s put it, like they’ve never slept. All-nighters became routine for Amsterdam in the mid-1960s, around the time when he and a band of lawyers at LDF began marshalling the tools they had in hand to save lives. Chugging down bottles of diet soda and chain-smoking thin cigars, Amsterdam forged the legal infrastructure that helped LDF to challenge just about every death penalty case across the country. He and the LDF lawyers created the “Last Aid Kit,” which included sample petitions for habeas corpus, applications for stays of executions, and legal briefs setting forth constitutional arguments against the death penalty; they distributed the kit to capital defense lawyers across the country. With a boldness that is hard to grasp today, Amsterdam set out to change minds about the death penalty by creating a sense of emergency.

In some ways, LDF’s campaign against the death penalty tapped into the country’s mood. In the 1930s, an average of 167 executions was carried out yearly; by the early 1960s, the annual average had dropped to 48. Amsterdam and LDF resolved to bring those numbers to zero. “The legal acceptance and historical force of the death penalty were considered a given,” said Jack Himmelstein, who headed the capital defense section at LDF during that time. “It was the power of Tony’s mind and heart that said, ‘That doesn’t have to be the case.’” By the early ’70s, that refusal to accept the death penalty as a given had translated into the continued survival of about 700 individuals on death row. An effective, if not official, moratorium was in place; the last legal execution had taken place on June 2, 1967, and few judges wanted to be the first to begin clearing the row. Amsterdam’s legal arguments against the death penalty made their way up to the Supreme Court, which did its utmost to bat away the increasingly unavoidable question—was the death penalty still constitutional in the United States?

By the end of 1971, the Court seemed well on its way to answering “yes.” In 1971, with the freshly appointed Justice Blackmun on the bench, the Court rejected two of Amsterdam’s most powerful arguments against the death penalty—that the absence of standards guiding a jury’s decision to sentence a defendant to death was unconstitutional, and that a defendant was denied his right to a fair trial if his guilt and sentence were decided by a jury at the same proceeding. Amsterdam had only one argument left in his quiver, and it was his longest shot: that the death penalty was cruel and unusual punishment.

How could Amsterdam convince the Court that a punishment which a decade ago had been “a given” had suddenly become cruel and unusual? As was his custom, he delivered his oral arguments in two of the four death-penalty cases before the Court without notes, setting out in Furman v. Georgia to neutralize what was likely to be the fallback position of the justices—that it was up to legislatures, not judges, to decide whether the death penalty should exist. The legislature could find a legitimate basis for boiling a criminal in oil, for example, but the Court might well find the punishment “unnecessarily cruel.” Forty-one states had death penalty statutes on their books, Amsterdam conceded, but the key question was: “What do they do with it?”

The penalty was “almost never” inflicted. One in a dozen juries at the most returned a sentence of death, according to statistics that LDF had compiled, and only a third to half of those defendants were actually executed. (Amsterdam was treading on dangerous ground here, because it was his own strategy at LDF that had contributed to declines in the number of defendants executed.) Then he built to his next point, that the rare sentence of death fell only on the “predominantly poor, black, personally ugly, and socially unacceptable”— those for whom “there simply is no pressure on the legislature” to take the penalty off the books. Amsterdam seemed to be having an effect on Justice Byron White, whom the LDF had anticipated would be squarely in favor of upholding the death penalty. Justice White rocked back and forth in his chair, and his face was ashen, according to Meltsner’s account in Cruel and Unusual. In The Brethren: Inside the Supreme Court, Bob Woodward and Scott Armstrong report that White later told his clerks that Amsterdam’s oral argument in Furman was possibly the best he’d ever heard.

In the summer of 1972, the Court announced its verdict in Furman, a decision that, at nearly 80,000 words including footnotes, remains among its longest. By a margin of 5-4, it found that the death penalty was “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments. The justices could agree on little else, however. Each one of the nine justices penned his own opinion. Justices Potter Stewart and White offered the narrowest grounds, finding that the arbitrary application of the death penalty was unconstitutional. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Stewart wrote. While emphasizing that he did not find the death penalty “unconstitutional per se,” Justice White sided with the majority, finding that “the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.”

Justice Blackmun, for his part, offered a dramatic dissent. “Cases such as these provide for me an excruciating agony of the spirit,” he wrote. “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence for the death penalty,… and of moral judgment exercised by finite minds.” He went on to conclude, however, that he was not a legislator and therefore could not allow his personal preference to guide his judicial decision.

Amsterdam was driving along a highway south of San Francisco when he heard the news on the radio. He pulled over, sat, and looked around him. “You represent people under sentence of death, you’re always walking around with a dozen, 50 lives on your shoulders,” he said. “The feeling of weight being lifted, knowing that these guys…you worry about each and every one separately.” For the first time in longer than he could remember, Amsterdam stopped, and didn’t feel guilty about standing still. Recalling the moment with his hands clasped behind his head and his eyes closed, he said, “I felt free for the first time in years. I thought, ‘That job is done. Those guys are gonna live.’”

Ask Amsterdam about himself, and he seems uncomfortable and slightly bored by the topic. He answers some questions out of a deep sense of courtesy, but in the universe of potential conversation—about art, basketball, law, anything, please!, but himself—he’d rather not pursue this line of questioning. If Amsterdam had his way, his biography would contain a single line: In his youth, the lawyer occasionally played pick-up basketball with the legendary Wilt Chamberlain.

Amsterdam grew up in a middle-class neighborhood in West Philadelphia. His father, descended from a line of rabbis, served as a military lawyer in Luxembourg during World War II; after returning home, he became a corporate executive. His mother did a range of volunteer work.

Judaism provided the backdrop of his childhood, but it never entered the foreground. His parents weren’t observant, which may explain why they gave their son a name—“Tony”—that seemed to align him with the Italian-Americans who, along with Jews and African-Americans, comprised the community. After attending a predominantly Jewish grade school, Amsterdam enrolled in a junior high school that reflected its location at the intersection of the three ethnic communities. “I tended to run with a crowd that had all three groups in it,” Amsterdam recalled. “Like most kids of that age, we had our games.” Box ball, played in a square laid out in the school’s courtyard, was a favorite of his but there were also basketball, football and tennis.

The fun came to an abrupt halt, however, when Amsterdam turned 12 and was hit with bulbar polio. Though spared the paralysis of the limbs that can accompany the often fatal disease, he spent days in an iron lung and was quarantined for a longer period of time that remains a blur for him now. Amsterdam’s highly retentive memory fails him when he trains it on his youth, a quirk that is either a convenience or a symptom of his lack of self-interest. But Amsterdam does remember the upside of being bed-ridden: He was elected to become box ball captain in absentia and returned in time for the end of the season “mightily inspired to play better.”

At college—Haverford—French literature became the new box ball. Amsterdam majored in comparative literature, and consumed 17th-century French poetry with an appetite he would later bring to Supreme Court opinions. Schoolwork for its own sake didn’t excite Amsterdam, but college offered new ways of thinking that were exhilarating. “College opened doors to a lot of things I hadn’t thought about,” Amsterdam said. “I pushed myself very hard, but not to study in the sense of folks who are trying to accomplish something.” If he didn’t like a course, he didn’t spend much time on it. He read the assigned pages, and “got done what needed to be done.” For Amsterdam, that translated into summa cum laude at both Haverford and the University of Pennsylvania Law School.

Amsterdam fell into law school without any firm intent. While at college, he had participated in some early civil rights sit-ins in Delaware, and the law seemed to be connected to that. Still, Amsterdam spent much of his time in law school auditing lectures on art history at Bryn Mawr College. His enthusiasm for art stemmed from a period in high school when he had worked at a private museum. Between and sometimes during classes, he took long nature walks, painted water colors, read French poems and wrote some of his own, though mostly in English. Amsterdam also managed to keep up his duties as editor-in-chief of the law review, but two months before graduation, he hadn’t even begun the mandatory paper. He dashed it off: The result, the influential “Void-for-Vagueness Doctrine in the Supreme Court,” helped reshape First Amendment law. His later work, “Perspectives on the Fourth Amendment,” is ranked among the most-cited law review articles of all time.

Still, in 1960, the law’s hold on Amsterdam seemed weak, too weak to repel the pull of those art galleries. Fortunately for the bar, one of his law professors recommended him to Justice Felix Frankfurter, and the new graduate ended up clerking for the justice. It was during that year, when Amsterdam worked mainly on criminal cases, that he began to see the law’s potential. Those early sit-ins in Delaware took on new meaning as he witnessed the interplay of civil rights and criminal law. Mass demonstration had become an integral tool of the civil rights movement, and Amsterdam resented that the criminal process was being used to try to repress Dr. Martin Luther King—and hundreds of other activists.

Long after his official obligations as a clerk ended, Amsterdam continued working for the ailing justice, helping Frankfurter with his speeches and memoirs, which were never published. Frankfurter put him in touch with the U.S. Attorney of the District of Columbia; Amsterdam joined the office, and set to deepening his understanding of criminal law.

The results of his study were impressive. Anecdotes about Amsterdam’s powerful memory and unique intellect abound, but one incident in 1961 has captured the imagination of those who know him best. During his time as a government prosecutor, Amsterdam was handling an appeal that raised the question whether a defense psychiatrist could testify that the defendant had a mental disease within the meaning of the insanity defense. Arguing before a three-judge panel, Amsterdam drew an analogy to life insurance, arguing that a medical expert witness would not be permitted to testify that an insurance claimant had a “total and permanent disability” within the meaning of his insurance contract. Shaking his head, the judge pressed Amsterdam, who cited an old Supreme Court case by volume and page in support of his point. The judge called over an assistant and asked him to fetch the volume. After flipping to the page number Amsterdam had offered, the judge hastened to report that the case wasn’t there. Amsterdam replied that the volume must be mis-bound. Not willing to give up so easily, the judge probed further, and discovered that 210 U.S. was bound in the cover of 211 U.S. When the correct volume was located, he found the case on the cited page.

The government would inevitably lose Amsterdam, who is more comfortable upending, rather than upholding, the establishment. After a year and a half as a prosecutor, Amsterdam joined the faculty at the University of Pennsylvania Law School, and began splitting his time between teaching and consulting on civil rights cases across the country. Time took on an altered quality; there was no longer enough of it and something—a lecture to prepare, a brief to edit, a student to mentor—was always pulling at him. Even today, he can’t quite control his time, though he tries by breaking it into blocks and dispensing those blocks with extreme generosity. When Seth Waxman, for example, was asked to argue Roper v. Simmons, which persuaded the Court to abolish the juvenile death penalty two years ago, he immediately turned to Amsterdam. He received an email from the professor within minutes, saying: “‘I have to teach a course in seven minutes until 6:30, and then I’m editing a brief, but I could be available from 11:10-11:30 p.m. or from 4:30-4:50 a.m.’” Waxman recalled thinking, “I’m unworthy. There I was asking for help on short notice and there he was, almost apologetic in freely offering time at the very edges of the night.”

Amsterdam worked 20-hour days in the ’60s. David Kendall’s theory was that there were two Amsterdams. The “Tony” he worked with—the one who chain-smoked cigars and was sometimes accompanied by his two dogs, Brandeis and Holmes—would switch roles every 12 hours with a clone who caught up on sleep. (The personalities of the dogs reflected their judicial namesakes, Amsterdam said: “Holmes was a real patrician, a large dog who condescended to spend time with us. Brandeis had a concerned, thoughtful quality.” The dogs, who died of old age, were succeeded by Mandy and Pru, short for Mandamus and Prohibition, two kinds of judicial prerogative writs.)

In 1965, Amsterdam helped oversee LDF’s project to collect data on racial bias in about a dozen Southern states for the Wolfgang study he referred to in Maxwell. That same year, he cowrote an ACLU amicus brief for Miranda v. Arizona that described police procedures during interrogations; the brief cited police manuals at length that exhorted the interrogator to “dominate his subject and overwhelm him with his inexorable will to obtain the truth.” Chief Justice Earl Warren lifted that passage, and many others, wholesale from the ACLU brief in his decision revolutionizing police practice. In 1967, Amsterdam cowrote an amicus brief for LDF, this one on the police’s stop-and-frisk tactics. In 1969, he helped in the appeals of the Black Panther Bobby Seale and the civil rights demonstrators known as the Chicago Seven. Around the same time, he began working on a landmark case of journalistic privilege, defending Earl Caldwell of the New York Times from prosecution when he refused to turn his notes on the Black Panthers over to the F.B.I.By 1972, when Amsterdam argued Furman, he had filed dozens of briefs with the Court, once conducting oral arguments in three unrelated cases in the space of a week. Meanwhile, he was receiving letters from death-penalty prisoners seeking help.

Something had to give, and Amsterdam had too much integrity to short-change his clients. “Once you assume the responsibilities of attorney to client, you do what has to be done. You leave no stone unturned,” he said. “No French poem in the world demands that of anybody.” If Amsterdam has a weakness, it may be that he is unable to resist the needs of others. Norman Redlich, the former dean of NYU School of Law who succeeded in hiring Amsterdam from Stanford in 1981, recalled when he was hospitalized for surgery on an optic nerve a decade later and received a flurry of notes from faculty members offering to help if they could. Amsterdam’s note was different. “He said, ‘These are the things I can do: I can go to the cheese store, walk the dog,’” Redlich said. There were at least 10 items on the list, and Amsterdam asked the dean to check the ones he’d like, which he did.

What Amsterdam gives to his clients and everyone else is easy to chart; his losses are harder to trace. When a novel went unread or a painting didn’t materialize or a poem went unwritten, did Amsterdam feel regret? He won’t say, except to insist that his work isn’t a sacrifice.

As generous as Amsterdam is of himself, when faced with pesky questions from this reporter, he zealously defended a private space for himself and his loved ones. He would say nothing about his family except that his wife of nearly 40 years, Lois Sheinfeld, shares his commitment to causes. Hers was poverty law when they met; it is now the environment; she writes and lectures on organic gardening and other environment-saving measures.

Earl Caldwell caught a rare glimpse of Amsterdam’s private side in 1969. He recalled catching the recently married Amsterdam and his wife at their home in Los Altos, California, after midnight. Caldwell, desperately in need of a lawyer, had driven there with a coalition of black journalists. “Frankly, we didn’t have anyone else,” Caldwell said. “We were reluctant, wondering: ‘How do we know we can trust him? Who is this white guy?’” Sheinfeld made coffee and chatted with the journalists to put them at ease. Amsterdam didn’t waste time: He dove right in, telling Caldwell that he didn’t have to turn his notes on the Black Panthers over to the FBI. “I’ve been studying the case and mind you, they can’t make you do it. You have a legal right to refuse,” Amsterdam said. From then on, Caldwell knew he had his lawyer. “He was a person I always felt looked at you and all he saw was a human being,” he said.

In Furman, Justices Stewart and White made clear that they weren’t abolishing the death penalty outright. States could respond with new legislation crafted to meet the Court’s insistence on rational, uniform standards in applying the death penalty. With a speed that surprised even Amsterdam, who knew better than to celebrate for long, 35 state legislatures across the country raced to comply.

Four years after Furman, in 1976, Amsterdam was back before the Court to argue that the newly enacted statutes did not meet the constitutional bar. The Court had chosen to hear five capital cases that represented a sampling of the new laws, and Amsterdam argued three of them over two days. He began by giving an overview of all 35 statutes, organizing them into four categories, and adding that the states had come up with “elaborate winnowing processes” and “an array of outlets” to avoid the use of the death penalty. Amsterdam argued that the reforms that had been made in response to Furman were largely cosmetic, leading to the same arbitrary outcomes that had troubled Justices Stewart and White so deeply. Justice Stewart questioned whether Amsterdam’s focus on the exercise of discretion throughout the judicial system “prove[d] too much.” Amsterdam did not budge from his stance, insisting, “Our argument is essentially that death is different. If you don’t accept the view that for constitutional purposes death is different, we lose this case.”

In July of 1976, in the cases that are known collectively as Gregg v. Georgia, the Court found that death wasn’t so different after all. It struck down mandatory death-penalty laws like one in North Carolina, but upheld statutes like one in Georgia, which compelled juries to weigh aggravating and mitigating factors. Judge Thurgood Marshall read a pained dissent in Court, and suffered a mild heart attack later that evening.

In The Supreme Court and Legal Change, Lee Epstein and Joseph Koblyka fault Amsterdam for his absolutist position, accusing the lawyer and LDF of misreading the doctrinal glue that held the Furman majority together. Justices Stewart and White were concerned with process, and not substantive arguments based on the particularity of the death penalty. If Amsterdam had pursued a multilayered strategy, rather than boxing himself into an allor- nothing approach, the outcome of the case might have been different. Edward Lazarus, a former clerk to Justice Blackmun, echoes that criticism in Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court, reporting that Amsterdam’s “total immersion in the abolitionist cause” had “rendered him tone deaf to the changing tune of the country and the Court.” It is hard to imagine, however, what Amsterdam could have said to convince the justices to maintain their ban on capital punishment, after the country had roundly rejected that position. As Meltsner argues persuasively in The Making of a Civil Rights Attorney, Amsterdam chose the “deathis- different” approach because he had to find a way to attack the post-Furman statutes without indicting the discretionary decisionmaking that lies at the heart of the criminal justice system.

Amsterdam was surprised by the Court’s decision, not so much because it had reinstated the death penalty, but because it had backed away so readily from the concerns it had raised in Furman. “We really thought the Court would be more resistant than it was to evasions of the rules it laid down in Furman,” he said. “We were disappointed in precisely the proportion to our naïvete. Some days, you let yourself hope more than you should.”

When I visited Amsterdam in January, a giant framed collage was packed away in his office. Presented at a 1990 LDF tribute to Amsterdam, it includes 52 photos and about 350 signatures of death-row prisoners through the decades and from across the nation. In one picture, a handsome dark-haired man with a streak of white hair running along the top of his head smiles at the camera. His name is John Spenkellink.

In 1979, Spenkellink became the first person executed against his will since the moratorium began in 1967. In the wake of Gregg, the newly elected Florida governor, Bob Graham, was determined to prove that, though he was a Democrat, he had the guts to carry out an execution. Spenkellink was not an obvious candidate for death. A convicted armed robber who had escaped from a prison in California, Spenkellink picked up a hitchhiker, a career felon 20 years his senior, in the Midwest. As Spenkellink told it, he was forced to perform sexual acts on the older man. He said he planned to abandon the man at a Tallahassee motel, but returned to the room and a fight ensued. While not denying he shot the man twice, Spenkellink maintained that he’d done so in self-defense.

“Our thought was that Florida chose him because he looked like such an ideal candidate from the state’s viewpoint. He wasn’t from Florida, was white, an escapee, and it was a relatively simple case,” David Kendall, Spenkellink’s primary attorney, said. “Otherwise, we couldn’t explain the decision.” Spenkellink had been offered a plea of second-degree murder, and turned it down. “The killing—if murder can ever be mitigated—was mitigated,” Kendall added. Kendall felt cautiously optimistic going into the clemency hearing; nearly everyone who knew Spenkellink then, including the prison warden, thought Spenkellink was a reformed man. Unfortunately, Kendall didn’t factor into the equation that Governor Graham couldn’t stand the sight of blood. After seeing photos of the crime at the hearing, according to David von Drehle in Among the Lowest of the Dead: The Culture of Capital Punishment, the governor left the room to throw up.

Spenkellink was the first of 17—17, and counting—men Amsterdam got to know well, and care about, who ended up dead. “After John’s death, I became much more vividly aware of the fact that this was a feature of our existence,” Amsterdam said. “You can’t be a capital defense lawyer without this.”

The realization changed Amsterdam. “In my heart of hearts, I couldn’t face the reality that things could go as wrong as they went and there was no correction, no remedy, no court would listen,” he said. That things can go so wrong is a constant reminder—not to hope, not to take anything for granted, not to stop. “You feel guilty about every one, simply because there has never been enough time in the day, you have never had enough skill,” Amsterdam said. “Hard as you try, you’ve got to admit that, life being what it is, maybe you could have tried harder.”

In 1981, eager to move to New York City and impressed by then-Dean Redlich’s commitment to clinical practice, Amsterdam arrived at NYU from Stanford Law School, where he had been teaching since 1969. In his first lecture, entitled “Saving the Law from [then-Attorney General] William French Smith…,” he laid out a new strategy for civil rights activists: In light of the Reagan-era conservative judiciary, they should downplay the significance of a case or create a factually messy record to discourage the Supreme Court from granting cert. In this manner, the Warren Court precedents might survive until a more liberal court was constituted.

“The present Supreme Court lineup is one which we superannuated football fans like to think of as two horsemen and seven mules,” the professor said, praising Justices William Brennan and Thurgood Marshall for “dissenting in virtually isolated splendor.” If public-interest lawyers were unfortunate enough to find themselves before the Court, however, they should make progressive arguments. “If you don’t raise these issues, you will not get the atrocious opinions which Justice [William] Rehnquist is capable of writing—and which, I firmly believe, we will one day have a judiciary fit to disavow.”

Amsterdam’s lecture wasn’t revolutionary, and no doubt he had communicated similar ideas at Stanford, but there was a key difference: It was delivered in Greenberg Lounge, which, it turns out, had a direct line to the New York Times in the reporter David Margolick, Amsterdam’s former student at Stanford. It was an indication of Amsterdam’s legendary status that the Times ran a sidebar with his comments, as if, Margolick recalled, they were “quotations from Chairman Mao.”

The lecture reflected the straight-shooting style of Amsterdam the professor, but it was a rare misstep for Amsterdam the lawyer, who continued to appear before those same seven mules on a regular basis. Asked if he regretted his comment, Amsterdam replied, “I regret almost everything I’ve ever said that was not absolutely necessary to say, and even some of the few things that were necessary. The seven mules is high on a very long list.”

In 1983, two years after his lecture at NYU, Amsterdam stopped arguing cases before theSupreme Court. The reasons for his unorthodox decision were complex. First, and of least importance, was his poor hearing. To compensate for it, Amsterdam uses a hearing aid and zooms that intense focus of his on a speaker to read lips. Still, in 1972, the problem was exacerbated by Chief Justice Warren Burger’s decision to shift from a straight to a curved bench. “Nine justices in a curved amphitheater does present a complicated problem,” Amsterdam said. “You don’t want to be blindsided.” On a number of occasions, even as early as Gregg, Amsterdam asked a justice to repeat a question. Lawyers with perfect hearing do the same, either because they miss a question or because they’re stalling for time. But in his final argument in 1983, Amsterdam unintentionally talked over a justice, who he hadn’t realized was posing a question over to the side. The vulnerability was slight, and few observers noticed it, but Amsterdam did.

Amsterdam had bigger problems on his hands, however. In 1976, after turning back from Furman, many of the justices wanted to put the debate over capital punishment behind them. But there was Amsterdam, year after year, scrupulously challenging each aspect of the system that put a man to death. The Court, and especially Justice Blackmun, didn’t need the constant reminder of what a procedural mess the death penalty was fast becoming. Amsterdam’s high-profile opposition to most of the judges now sitting in front of him, along with that unfortunate mule comment, didn’t help his popularity. “Having been a visible opponent of the confirmation of more than a majority of the Court and having written some very critical stuff about the Court’s opinions,” Amsterdam told me, explaining his continued refusal to argue orally, “I had a concern that some of that might rub off on a client.”

Staying off the podium also allows Amsterdam to have a broader influence. To play first chair in any one case takes a singularity of focus and time that Amsterdam can otherwise devote to teaching— in the most catholic sense of the word. Amsterdam is committed to helping everyone in his midst, whether they are officially his students or not, to become better lawyers. In 1967, he cowrote a trial manual about litigation that offered lawyers a systemic treatise on the nuts and bolts of how to try a case. In the ’80s, he brought that pragmatic, real-world sensibility to the NYU School of Law and reshaped legal teaching as the director of clinical education. Amsterdam initially taught a consumer protection clinic, but he had bigger ambitions. He wanted to create at NYU a full-fledged three-year-long program in which fieldwork clinics would represent the capstone of a progression of learning. “My image of a clinical program included pieces of varying sizes—clinics that were one semester and one year long, heavier and lighter—to enable students to have a smorgasbord set of choices,” Amsterdam explained. “Students could have as much or as little clinical education as they wanted.” To achieve his goal, Amsterdam developed a comprehensive course on “lawyering” that is now required of all first-year students and has been widely acclaimed. With those tools, students can graduate to simulation courses that follow a single case from start to finish and to full-blown clinics that involve fieldwork in actual cases.

Amsterdam no longer teaches the lawyering course, but he now coteaches the Lawyering Theory Colloquium, a course for 2Ls and 3Ls that brings an interdisciplinary approach to analyzing the law. The insights he gained from that class led to Minding the Law, which he co-wrote with the psychologist Jerome Bruner in 2000. In addition to the Colloquium, Amsterdam coteaches the two Capital Defender Clinics—the year-long New York clinic, which includes simulation and work on appellate cases, and the New York class sessions of the Alabama clinic, which sends students to the Southern state for fieldwork. (See “Bryan Stevenson’s Death- Defying Acts”.) The New York clinic grew out of a clinic that Amsterdam cofounded in 1996, a year after New York State reinstated the death penalty. When the district attorneys in New York City did not pursue death-penalty cases aggressively, Amsterdam regrouped, focusing the attention of his students on post-conviction work around the country.

When I visited the New York clinic last January, the students were acting as defense attorneys in a simulated case. Their client, based on a real defendant in California, was on trial for two homicides; he pleaded self-defense for the first murder and denied committing the second. Amsterdam welcomed the students back from winter recess, pausing when his aide delivered bottles of soda and bags of candy. “Bravo,” he said. “We’ll start over, properly equipped.”

As Hershey’s Kisses and Twix bars made their way around the table, Amsterdam sat back, crossed his arms behind his head, and began discussing strategies for managing the interplay between the guilt and penalty phases of a capital case. He asked, “What do you think is the price we pay if we take the position that our client didn’t do it at all?” A third-year student suggested that if the defense failed, the attorney would lose credibility with the jurors, which might harm the client’s chance at a sentence less than death. “Can we zero in on what it is the jury would be holding against us?” Amsterdam pressed. “What accounts for the demise or diminution of credibility?”

Amsterdam’s version of the Socratic method, not surprisingly, values humaneness over humiliation. He challenges his students, but is firmly on their side. When a question was met by silence, as the nine students looked awkwardly at one another, the professor responded, “Come on. If somebody goes over the hill, the others will follow.” Deborah Fins, who coteaches the class, chimed in: “Step in a toe. One toe and we’ll get you the rest of the way.”

The rest of the way can carry students to the Supreme Court. Over the years, Amsterdam’s students have worked on a host of high-profile appellate cases, including two of the most important “death-row cleaning cases,” as Amsterdam put it, that the Supreme Court has heard: Atkins v. Virginia, which abolished capital punishment for mentally retarded defendants in 2002, and Roper v. Simmons, the case Waxman argued that ended the penalty for juveniles in 2005. Amsterdam tries to involve his students in all aspects of cases: The students collaborate with Amsterdam and cocounsel on developing a litigation strategy; they conduct research and help to frame the issues to be argued, and draft pleadings, motions, petitions for review, and briefs.

The students also participate in the moot courts that Amsterdam hosts at the Law School for lawyers arguing death-penalty cases around the country. Last January, for example, five lawyers flew from Texas and Massachusetts to the sixth-floor conference room of Furman Hall to moot three cases about the Lone Star State’s mitigation practices. Two clinic students who had prepared questions for Amsterdam sat in on the session. “Some of the questions that he throws out at the moot are questions that we came up with together,” one of the students, Sungso Lee ’07, said. “Being in this clinic, I have to think more freely about the law and how it should be applied.” During the moot, the lawyers seemed to listen most attentively to Amsterdam, who acted as one of the six “judges” and expressed optimism that the current conservative Court would find in the capital defendants’ favor. (His instincts were proven right last April.) During a break, one of the lead lawyers came up to Amsterdam and asked, “Do you mind if I send you what will be my three-minute intro?” The professor responded, “Yeah, sure.”

Those requests come along frequently, and Amsterdam’s answer is always the same. His “edits” have become a source of gratitude, and some amusement, among his colleagues. In the days before computers, he used a bright red magic marker and his edits resembled a strange calligraphy, with carets marking new passages complete with full citations. James Liebman, a professor at Columbia Law School, sent his Supreme Court brief for a Florida deathpenalty case to Amsterdam, and received an edit that contained, among other things, an awkward line, which he then changed. When he sent it back to Amsterdam, the line was changed back. After a couple of back and forths, Amsterdam finally said: “I guess you’ve never written poetry. I’m making it awkward because I want the justices to stumble on that point in the brief. I want them to stop right there and think about it.” Liebman kept it, and Justice White adopted that very bit of analysis in his opinion giving relief to the defendant.

Amsterdam is described by one of his colleagues as a “special resource.” It’s tempting to begrudge that “resource” the time he devotes to teaching. Should Amsterdam be spending intensive, one-on-one time with Capital Defender clinic students when he could be consulting on even more civil rights cases? Arguably, though it’s hard to imagine how much more any one person could accomplish. More importantly, however, teaching is a rare unalloyed pleasure for Amsterdam. “He likes doing litigation with students. It’s a fresh eye and a fresh perspective,” Fins said. “For a lot of lawyers, especially as they grow older, their perspective on the world freezes. Tony gets really invigorated by his students.”

In 1994, in a routine denial of certiorari, Justice Blackmun appended a dissent that, along with Roe v. Wade, has become a defining moment in his legacy. “From this day forward, I no longer shall tinker with the machinery of death,” he wrote. “For more than 20 years I have endeavored—indeed, I have struggled— along with a majority of this Court to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.” He added that he found it impossible to reconcile Furman’s promise of consistent standards with its later guarantee in Lockett v. Ohio of individualized sentencing. Amsterdam had argued both cases.

It is hard not to read in that dissent vindication for Amsterdam, who withstood Blackmun’s hostility to persuade him of the very contradictions the justice identified in his dissent. It may also explain why the justice seemed so easily annoyed by Amsterdam. “I think I was a very convenient figure for him because I think he identified me with an idealistic part of himself that he felt it was his duty as a judge to severely repress,” Amsterdam said. Blackmun retired a few months after his famous dissent, choosing to withdraw from the mess that capital punishment had become and arguably always was.

Amsterdam stands firm, working to save lives and dismantle the system of capital punishment case by case. “When this country repudiates the death penalty, as it will, people will look back at him and say, he devised the campaign that led to this,” David Kendall said. If that happens, and those people know about the low-profile professor, perhaps they’ll come to the same realization that Blackmun seems to have reached: that Amsterdam had it right all along.

—Nadya Labi is a writer based in New York City.