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You wore a lot of hats this past year. You ran for Rahm Emanuel’s congressional seat in the spring, wrote the cover story in Harper’s Magazine in April [“Infinite Debt: How unlimited interest rates destroyed the economy”], and argued before the U.S. Supreme Court in October. So: lawyer, author, politician.
Well, “politician.” I don’t know if I’m going to be continuing as a politician. I was glad that I ran the race, and it was great to get out of the office and meet people. You know, lawyers engage in the real world, or imagine they engage in the real world because they have real-world clients and people with problems, and I buy into all of that. But it’s quite different to go to a fish fry on a Friday afternoon and meet people in the neighborhood.
What has stayed with you about the campaign?
I met a lot of elderly people living alone who don’t have enough to live on. Just by knocking on doors. I was really affected by it.
You went door-to-door?
Not enough, I did some. It was awfully cold. If I’d known how cold it was I’m not sure I would’ve run. [laughs]
Why did you run?
The biggest reason was the meltdown, the Wall Street crackup, the economic distress. I thought there would be an audience for the kinds of things I’ve been pushing as a union-side labor lawyer over the years: higher pensions; an increase in Social Security; single-payer national health care; some considered action to deal with the trade deficit; putting caps on interest rates charged by banks, payday lenders and other financial firms, which are not only exploiting and hurting working people but also pulling all sorts of capital out of the manufacturing sector and [putting it] into financial speculation in a way that aggravates our trade deficit and drives down the living standard of the middle class. All of that I thought there was an audience for.
How receptive was the audience?
On a door-to-door basis? Very receptive. But there were 14 candidates in the race, it was hard to distinguish yourself. A friend of mine said, “You did better nationally than you did locally.” I think there were a lot of people who picked up on this on the [campaign] Web site. They weren’t in the district. They were elsewhere in Chicago, or New York or California even.
You also had nice write-ups from Hendrik Hertzberg and James Fallows.
I sure did. But I wasn’t thinking of them specifically. A couple of people read our platform and responded: “Yes! I’m intrigued. This seems the right approach.”
Did you also run because of the disillusionment you felt with the law, which you wrote about in your book In America’s Court? About the lack of moral fulfillment?
Sure. It’s like going to another court. It’s going to the “Big Court” where you actually make the laws instead of going in and asking the judges to tweak them in favor of your clients. Why not just go down to Washington? You can represent your clients better there.
Did I run for Congress as an extension of my law practice? Absolutely.
Do you also write as an extension of your law practice?
Yes. Although I wouldn’t mind writing in a way that isn’t an extension of my law practice. Other writers have said the whole point of writing is to fight injustice. If that’s not what you’re doing you shouldn’t be writing. So it’s easy for me to do that kind of thing as an extension of my law practice. Because what I’m doing as a lawyer is representing working people who haven’t gotten a very good deal over the time that I’ve been practicing.
Who, you could say, have gotten an increasingly lousy deal.
It’s kind of breathtaking because it defies the laws of economic gravity. Under everything you understand about labor economics—if you take Economics 10 or Labor Economics 101—productivity goes up, wages go up. That’s the gold standard. That’s what raises the standard of living.
Hasn’t happened here. Productivity has shot up a lot; the real median hourly wage has gone down.
Does it surprise you that angry populism seems to exist on the right rather than the left?
I think the left is pretty beaten down in this country. The non-electoral checks that I think a republic needs—and here I’m thinking about labor movements, works councils, co-determination—they just don’t exist here. So you would think, given the unemployment, given the debt, given the poverty in this country, and how wealthy it is, you’d think people would be really angry. In fact, I think they are.
There was an article on the front page of The New York Times on Monday about Simmons Bedrest, and how these venture capitalists came in and really scooped out gazillions from this company, and highly leveraged it to pay themselves a ton of money, and then it semi-cratered—it’s in bankruptcy now—and all sorts of people who should’ve been working there all their lives are now without jobs. They interviewed the guy who was president of the steelworkers’ local, who seems like a really stand-up guy. But in the end he just shrugs his shoulders and walks away.
Who are your current clients?
They change a lot, because we do a lot of plaintiff class action cases. But on a regular basis, [we represent] a general committee of the Brotherhood of Locomotive Engineers and Trainmen, and Local 743 of the International Brotherhood of Teamsters, and some unions on an ad hoc basis.
One big client I’m focusing on is Kevin Johnson, who is the victim of a payday lender. We have brought this class action against AmeriCash for evading the payday loan laws. We’re hoping it’s a test case.
In 2005 you wrote a book called The Law in Shambles. Why is it in shambles?
[The book] is about deregulation and how deregulation has increased uncertainty in the law. I went through various categories of law to show why, in my view, we’ve had a decline in labor-contract law and have gone into employee tort law; we’ve had a decline in obligation of charities to provide charity and an increase in collection cases where the charities and the universities come after debtors. And so on and so forth.
That all comes from deregulation. The more we move to a market society, and away from regulation, the more litigation we get. That’s the argument.
What was the reaction among other lawyers to The Law in Shambles?
[Pause] I don’t know who’s read it. It’s just not a book for lawyers. It’s more a book that’s aimed at people who are interested in public policy issues, or where the country is heading, or why things work the way they do. And why institutions that we think serve one purpose actually serve another.
Were you journalist or lawyer first?
I went to law school first. While I was there I had an offer to work for a magazine and my law school adviser said, “Why don’t you take a year off between first and second year and try it, and come back and finish?”
So I was a staff writer at The New Republic from ’72 to ’73, where, [in the summer of ’72], I exhibited the worst possible journalistic judgment that can be exhibited by a human being: I consistently evaded the editor’s request that I write about Watergate, which I found boring and inconsequential, compared to revenue sharing, which I was quite interested in.
The Nixon administration had been putting forward revenue sharing as the centerpiece of its domestic program, and a lot of people thought it was a way of undercutting progressive goals of 1960s legislation.
I just couldn’t imagine why anyone would want me to write about a burglary instead of revenue sharing.
Which activity this year—writing, lawyering, politicking—felt like it pushed your overall argument in the direction you most wanted it to go?
I’m surprised to hear myself say this but I think running for office. At least it was a way that I never expected to push the arguments I was making. And I surprised myself by doing it.
What was your Supreme Court case about?
It was Union Pacific Railroad Company v. Brotherhood of Locomotive Engineers and Trainmen. We were the respondent. We had won in the 7th Circuit. It was taken up on a petition for certiorari filed by Union Pacific based primarily on the fact that there was a split in the circuits about whether constitutional due process was grounds for review of national railway adjustment board decisions under the National Railway Act.
Anything surprise you during arguments?
Have you ever been inside the Supreme Court? It’s got a cozy, country courthouse feel to it—at least relative to the rather chilly architecture of the 7th Circuit. It was a pleasure to find out how the Supreme Court chambers were less intimidating than I expected.
What drew you to the law in the first place?
There are lawyers in the family. My uncle worked for Robert Kennedy in the Justice Department. I just saw him—he sat in on the Supreme Court oral argument. It was a hoot. He lives in Washington and he’s still practicing law: William Geoghegan. He’s the real super lawyer in our family. He argued before the Supreme Court, too. Lost 5 to 4. I’m hoping to do better.
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