Category Archives: American Lawyer

Stuart Taylor, Jr.’s The American Lawyer media appearances.

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Electing By Race

by Stuart Taylor, Jr

The American Lawyer

IT’S A CURIOUS COALITION, WITH A seductive but disquieting agenda.

In Georgia black leaders, the American Civil Liberties Union, and the Bush Justice Department are challenging as racially discriminatory a state law that requires legislative and judicial candidates to win by a majority vote.

Across America civil rights lawyers and minority politicians, often with Republican support, are preparing a potent legal and political.offensive to create as many election districts as possible with heavy black or Hispanic majorities as the decennial redis-tricting process gets under way. Under current Voting Rights Act doctrine (as well as reigning liberal political orthodoxy), a lawyer advising nervous Democrats says, "racial gerrymandering is almost required" to create odd-shaped black or Hispanic districts. So race is the first criterion, and a quagmire of litigation looms.

And, in two pending Supreme Court cases, minority plaintiffs are pushing, with qualified Justice Department support, for full application of the Voting Rights Act to judicial elections. The plaintiffs want to force Louisiana to draw a black majority election district for its supreme court and to force states that elect trial judges to abandon jurisdiction-wide voting in favor of single-judge districts, drawn wherever possible along racial lines. These developments illustrate an alliance of convenience that has developed between civil rights lawyers – who for 25 years have battled with astonishing success for full voting rights for blacks and other minorities – and Republicans, whose enthusiasm for minority office-holding surfaced more recently, in tandem with their awareness of how it can help their side.

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Did Jones, Day’s Slik Deals Cross The Line?

by Stuart Taylor, Jr

The American Lawyer

FOR THE THREE. OR FOUR nights and days before Christmas in 1985 the scene at Jones, Day, Reavis & Pogue’s booming Austin office was an apt symbol, even a microcosm, of the Texas real estate market. "There was a lot of money going around," says one participant. "There was a lot of madness in the air."

Representing two Austin savings and loans that were lending more than $115 million in eight interwoven, high-risk land deals, Jones, Day lawyers were churning out mounds of paper amid frenzied last-minute negotiations. With the clients pressing to wrap it all up and book millions in paper profits by year’s end, the deals were closed by Christmas Eve.

"It was a circus in the Jones, Day office," says one who was there (who, like many of those interviewed for this article, would not be quoted by name). "It was basic chaos. The office was full… People were up there until midnight. People were there twenty-four hours a day. Lots of pizzas, lots of fast food… We really took over the law firm." One "particularly diligent" young partner, this player recalls, "developed a nervous twitch" from working long hours without sleep, to the point that "people were worried that he was going to develop a stroke.’"

Among those passing through this maelstrom were Ben Barnes, an influential former lieutenant governor and real estate developer in partnership with former governor John Connally; Louis Reese III, a high-flying, land-flipping, good-old-boy Dallas developer who drove a Rolls-Royce and sported a $100 million financial statement; J. Scott Mann III, a politically connected wheeler-dealer and former University of Texas tackle who owned CreditBanc Savings Association; William Moore, a brainy, clean-cut part owner of Franklin Savings Association; and a supporting cast of appraisers, lawyers, and others.

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We Will Kill You Anyway

by Stuart Taylor, Jr

The American Lawyer

ON OCTOBER 17, AT 10:58 P.M., GOV-ernor L. Douglas Wilder of Virginia sent a message to prisoners on death row, one that says something about what we have come to as a society:

If you treat your guards with exceptional respect and courtesy, if you work hard and strive to reform, if you put yourself at risk to shield hostages threatened with death by prisoners wielding knives and to prevent the brutal rape of a nurse-if you do all this, we will kill you anyway.

They killed Wilbert Lee Evans almost on schedule that night, six minutes after Governor Wilder gave the go-ahead by spurning Evans’s clemency petition.

Wilder’s action was no surprise. He has a burning ambition for national office and reason to worry that he’d be Willie Hortonized if he spared a cop killer like Evans.

Earlier that evening the United States Supreme Court had sent a similar message when it denied a stay and turned aside Evans’s last appeal without comment.

In the eyes of the law, the Court seemed to be saying, a condemned man who heroically protected hostages during a prison break is no better off than if he had killed them. Rewarding good deeds and showing mercy isn’t the business of the courts. Try the governor.

Justice Thurgood Marshall’s scathing, solitary dissent, calling the imminent execution "dead wrong," gave Evans some comfort. "Please bury this with me," he wrote in a childlike scrawl on his copy ofthe dissent. He needed help spelling "bury." He stuffed the opinion in his pocket before walking into the death chamber.

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The Barry Sting

by Stuart Taylor, Jr

The American Lawyer

The prosecutors knew it. The press knew it. The public had reason to know it, though many ignored the signs.

The mayor of the nation’s capital since 1978, purported leader in the struggle against a crippling drug epidemic, was flagrantly abusing illegal drugs.

Marion Barry, Jr., chanted, "Down with dope," and kept turning up in the company of dope dealers. He visited one, Charles Lewis, at least four times in seven days in December 1988; the last visit aborted a police raid. Barry parried questions about these suspicious activities with implausible yarns, while publicly declaring, "Never in my life have I used illegal drugs."

By late 1989 federal investigators had evidence from Lewis and others that Barry was a regular cocaine user and had lied to a grand jury about Lewis. They also suspected the mayor of steering city contracts and jobs to people who gave him drugs, and of possible links to the financial corruption that had felled some of his top aides.

Barry was out of control, a festering sore on the body politic. Any good prosecutor would have wanted to nail him. But at what cost?

Nailing Barry would not be easy. He was cagey, doing drugs in bathrooms with lovers and friends, using code names. And he was popular with Washington’s black majority, a bold, brash, self-styled champion of the disenfranchised. A case built on plea-bargaining snitches might bomb with a jury.

"The only way you’ll convict Marion Barry," one prosecutor involved in the investigation told colleagues after years of frustration, "is if you catch him with his pants at his knees and the coke at his nose."

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The Last Moderate

by Stuart Taylor, Jr

The American Lawyer

He has one of the Supreme Court’s most potent and fertile minds. His opinions are clear, imaginative, and as distinctive as his jaunty bow ties. His questions at arguments are the least obvious-and the most dangerous. He is hard-working, dedicated, open-minded, gentlemanly, unassuming, adored by his clerks, and extraordinarily courteous to counsel.

Yet after nearly 15 years on the job, Justice John Paul Stevens is the Court’s least-known member. Fewer than 1 percent of those asked to identify all the Court’s sitting members in two surveys in the past year could name Stevens. Although this 70-year-old Midwestern Republican writes more opinions than anyone else, most go unsigned by his colleagues and sink into obscurity, rarely cited by anyone but him.

As Stevens himself said half in jest in a 1986 speech, "The audience that I most frequently address does not always seem to be listening to what I have to say."

Why has so gifted a jurist had so little apparent impact?

The standard explanation from former clerks at the Court, journalists, and scholars is that Stevens is too much the maverick to be a leader-even that he "is squandering his chance to become a great justice," as a by veteran Supreme Court litigator once told The New York Times.

Scholars complain that by fragmenting potential majorities his many separate opinions muddy the Court’s meaning. Some fault him for lacking a driving philosophical or moral vision.

And some former clerks for other justices say he is too unwilling to compromise, too quick to lecture his colleagues in print, too prone to sail off on odd tangents.

"Suddenly he discovers a difference from what everybody else is talking about," complains a law professor who clerked for another justice, "and he’s off, he’s gone, forget it."

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Ten Years For Two Ounces

by Stuart Taylor, Jr

The American Lawyer

"For the kingpins-the masterminds who are really running these operations, and they can be identified by the amounts of drugs with which they are involved-we require a jail term upon conviction. If it is their first conviction the minimum term often years."- Robert Byrd, Democrat of West Virginia, then the Senate minority leader and a principal sponsor of the Anti-Drug Abuse Act of 1986, on September 30, 1986.

MEET RICHARD Anderson and Susana Sanchez-Robles, drug kingpins.

Born poor into a Louisiana sharecropping family, Anderson left school in the eleventh grade to work. He fought his way into the longshoreman’s union in Oakland in the six-ties, when black-while brawls were part of the job. He did well. Now 48 years old, he is a skilled crane operator with a stellar work record after 24 years on the docks.

Anderson was driving his heat-up 1972 Toyota through Fast Oakland the evening of December 12, 1988, headed for a family birthday party at his sister Marilyn’s house. From there he would go to the docks to work the graveyard shift.

Anderson spotted Michael Lucero at a phone booth. Lucero, the teenage boyfriend of a friend’s daughter, flagged him down. Could he have a ride to Burger King and then home? Sure, for a couple of dollars of gas money.

At the Burger King parking lot, Lucero got out and said he’d be back in a few minutes, Moments later a big man-6 feet 5 inches big-opened the passenger-side door and got in. It was night and a dangerous part of town. Anderson was scared. The big man picked up a yellow paper bag Lucero had left between the two front seats. "Is this the stuff?" he asked. "I don’t know," said Anderson. "What stuff?" The big man took the paper bag and left.

Now Anderson knew this was a drug deal. He was trying to start his car and leave when men with guns and badges swarmed around him.

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Smart, Tough and Political

by Stuart Taylor, Jr

The American Lawyer

IT WAS THE FIRST SUPREME Court argument by an attorney general since 1980. Dick Thornburgh had chosen the occasion with care. He was defending the constitutionality of mandatory testing for drugs and alcohol in a case that he was sure to win: a challenge to federal regulations requiring extraction of breath, blood, and urine from railroad workers after train accidents.

Thornburgh started his November 2, 1988, presentation well enough, outlining the safety hazards posed by intoxicated railway engineers. But he ran into trouble as soon as the justices started asking questions. Do the railroads’ own rules against working under the influence of alcohol apply to dining car waiters? asked Justice William Brennan, Jr.

Thornburgh: "I’m not sure, Your Honor."

Justice Thurgood Marshall: "I can testify no."

Thornburgh: "You can testify no?"

Marshall: "No."

Thornburgh: "I will accept an expert witness’s testimony on that." There was laughter in the courtroom; Marshall had once been a dining car waiter, like his father before him. "Adopt the statement by Mr. Justice Marshall," Thornburgh added with relief.

But as the questions continued, it became more obvious that Thornburgh had not done his homework. He did not know which railway workers were barred from drinking on or before the job, which employees were subject to the testing rules, or how the coverage of those rules corresponded to the safety concerns he was using to justify them. "I think it’s rather important," Brennan said, as Thornburgh fumbled.

At last the attorney general was reduced to saying, "I am not going to palm myself off on this Court as an expert." Mercifully, none of the justices asked him just what, in that event, he was doing there.

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Second Class Citizens

by Stuart Taylor, Jr

"THE CITY ATTORNEY LOOKED AT ME," SUSAN REEVES recalls, "and he said, ‘Little lady’-even though I’m five feet eight inches tall, he called me little lady- ‘blacks congenitally do not like to fight fires.’ "

The year was 1975. The place was Birmingham. And Reeves could sense that settling her class action suit to bring more blacks into the lily-white fire department and other city agencies was not going to be easy.

It got easier in time, through a combination of tough litigating and black power at the ballot box. Reeves, who was Birmingham counsel for the Washington, D.C.-based Lawyers’ Committee for Civil Rights Under Law, her colleague Stephen Spitz, and her former colleagues at the Justice Department won one round in the case and started another. After Richard Arrington, Jr., became Birmingham’s first black mayor in 1979, the case moved toward settlement.

Finally-or not so finally, as it turned out-in a May 1981 consent decree the city, the black plaintiffs, and the Justice Department agreed on a sweeping citywide affirmative action plan that forced rapid hiring and promoting of blacks in city government.

Since 1981 this consent decree has become the focus of a legal and ideological war that produced a major Supreme Court decision this June, allowing white fire fighters to go forward with a challenge to the decree’ preferences for blacks in promotion.

That war was intensified by a bitter brawl between the Reaganized Justice Department, which switched sides and sought to eviscerate an affirmative action consent decree it had signed in 1981, and a pro bono team from New York’s Cravath, Swaine & Moore headed by partner Robert Joffe.

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Swing Vote on the Constitution

by Stuart Taylor, Jr

The American Lawyer

THE SUPREME COURT IS ON THE BENCH, hearing argument on whether it should overturn Roe v. Wade. The chanting of the crowds outside does not penetrate here. The lawyer at the lectern is defending Roe’s recognition of an absolute right to abort fetal life before viability. Through history, he says, "this was always the line chosen, whether it was called quickening or viability, there is little difference, timewise."

Justice Sandra Day O’Connor leans forward in her chair. "Well, there is a difference, is there not, in those two?" she asks. At common law, she notes, quickening was "when the fetus was first felt by the mother."

"A kick, yes, absolutely, approximately two or three weeks before what we would consider viability today," responds the lawyer, Frank Susman of St. Louis.

And the only justice who has ever felt that kick settles back in her chair, betraying no clue how she will vote.

With the Supreme Court poised between moderate pragmatism and conservative counterrevolution, Justice O’Connor, 59, has become its ideological center of gravity. She is strategically situated to channel the course of constitutional law-not only on abortion, but also on affirmative action, sex discrimination, church-state issues, use of the death penalty for teenage killers, and more.

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Thomas Henderson

by Stuart Taylor, Jr

The American Lawyer

Asbestos. Agent Orange. Dalkon Shield. DES. Bendectin. Copper-7. Atomic waste. Love Canal. Bhopal.

A tidal wave of mass toxic tort litigation began stirring in the seventies and swept violently through the eighties. It clogged courts, bankrupted billion-dollar companies like Manville Corporation and A.H. Robins Company, Incorporated, sent shudders through corporate America and the insurance industry, enriched legions of lawyers, fueled talk of a "litigation explosion" and juries gone mad with million-dollar verdicts. It spawned debate about whether the tort system can fairly compensate toxic injuries-or any injuries-and inspired proposals to reform the system or even scrap it.

But before these cases began to unsettle the legal system and capture the imaginations of tort reformers, asbestos, the Dalkon Shield, and other products had ravaged the lungs, reproductive organs, and other tissues of thousands of Americans.

That was where the contingent-fee lawyers came in-lawyers like Thomas Henderson of Pittsburgh, a serious, intensely competitive steel-worker’s son known as a tough negotiator and a doggedly determined litigator. He has been a major player in the multibillion-dollar asbestos litigation and had a significant role in the last few frantic months of the mammoth Agent Orange class action, which seven major chemical companies settled for a record $180 million in 1984. And he, as much as anyone, is emblematic of the new breed of plaintiffs lawyers that have put the big toxic tort cases together over the past 15 years. His career illuminates the mix of skills and strategies it has taken to rise to the top of the mass toxic tort field-as well as the rewards these cases offer and the issues of public policy that they raise.