Philadelphia Freedom

reviewed by Clyde Leland

Legend has it that someone once asked science-fiction writer Theodore Sturgeon how he could publish his work in science-fiction journals when "90 percent of what's in there is crap." Replied Sturgeon, "Ninety percent of everything is crap."

The corollary to "Sturgeon's Law" is that the other 10 percent makes the crap worthwhile. Luckily, that's the 10 percent that civil rights lawyer and law professor David Kairys gives us in Philadelphia Freedom: stories from his life?the really good ones.

The satisfying result is like a television series about a lawyer whose cases are ripped from the day's headlines, though for Kairys "the day" stretches from the late '60s to the present. In the '60s, Kairys practiced law in Philadelphia with a partner. Now a professor at Temple University's law school, he reflects on his career from the perspective of an elder statesman, or perhaps more accurately an elder smash-the-state man.

Best known for his legal work on behalf of the National Jury Project and scholarly writings that helped launch the Critical Legal Studies movement, Kairys also tackled many important civil rights cases?from resisting a black man's extradition to Georgia when Lester Maddox was the state's openly racist governor, to challenging bail procedures in Philadelphia that discriminated against indigent defendants. Kairys sued the FBI on behalf of an agent who was the victim of racial harassment and discrimination, and he defended activists charged with destroying draft-board records to protest the Vietnam War. Together, these cases and more make up an impressive career and offer a very entertaining read.

The stories work so well partly because Kairys employs a cinematic style, recounting them in the voice of a lawyer sitting in his little office when a client with a cutting-edge case walks in out of the blue. Thus "this week's episode" begins. Kairys acknowledges this contrivance and others, such as creating composite characters and conflating conversations and testimonies to keep the stories flowing.

For example, his public-nuisance litigation strategy against gun makers seems to occur to Kairys in the middle of a meeting with city officials?that the way guns are marketed indicates the manufacturers know they're being used for crime. Similarly, his cross-examinations of government witnesses are depicted as cogent, cutting, and successful?and as unrealistic as those of Perry Mason or the characters on The Practice. But Kairys's accounts are even more entertaining because he explains the law and the legal theories behind his approaches.

"What did this work accomplish?" Kairys asks, but doesn't answer, in the epilogue. Nor does he speculate on whether any of his students finishing law school in 2009 could hang up a shingle and build a civil rights career as he did 40 years ago.

The stories in the book are divided into three periods: before, during, and after the antiwar/civil rights/women's movements. So we have to wonder if one could do such work today without a movement raising legal challenges and supporting the activists and their lawyers. Back in the day, the clients didn't just walk in out of the blue; rather, the radical activists raised issues that had legal components, so they turned to movement lawyers like Kairys and others from the National Lawyers Guild. The guild is still around, and there's no shortage of injustice in the land, but "the movement" ain't what it used to be.

Kairys points out that the conservative counterrevolution that began with the Reagan administration reversed many of the landmark successes noted in his book?such as the expanded definition of entrapment in cases involving government infiltrators of political groups, civil liability for gun manufacturers, and free speech rights on military bases. Courts have curtailed constitutional protections and Congress has enacted legislation to limit jurisdiction over, and liability under, various causes of action.

But even if we can't go back to the '60s ("In that era, reforms were possible," Kairys writes), Kairys's recollections are inspiring. They are not only snapshots of the movement but also evidence of how the law can improve the lives of individual clients and how political commitment can improve the life of a lawyer. And besides, they're fun to read.

Clyde Leland teaches legal writing and presentation skills and is a founding member of the longest-running men's group in the San Francisco Bay Area.

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