Victor Rabinowitz is what I have referred to elsewhere as a "first generation" left-activist cause lawyer (Scheingold, forthcoming).
That means that he began to practice in the 1930s and was, therefore, in on the very earliest stages of left wing political lawyering
in the U.S. As a result, his political and professional lives have been a roller coaster ride of highs and lows. Unlike the second
generation that emerged in the heady days of the civil rights and anti-war struggles, it was often difficult for the Rabinowitz
generation in the early days of their careers to make a decent living. Later on, because of their sympathies and associations with
the Communist Party, they got caught in the post W.W. II anti-Communist frenzy. Then, there were the struggles between their
old left and the New Left as second generation left-activists reinvigorated and destabilized the National Lawyers Guild.
Given Rabinowitz's impeccable credentials and the relative dearth of attention to left-activist cause lawyering, especially in its
early days, this book is a valuable, albeit a very personal, document. It is certainly no substitute for a well researched historical
analysis but can be seen, along with a similar book by Arthur Kinoy (1983), as a kind of a down payment on that much needed
project. There are probably no surprises here, but Rabinowitz's amiable, reflective, and fair minded memoir provides informative
first hand accounts of watershed events in the development of left-legal activism in the United States. I will focus on the
McCarthy period and on the National Lawyers Guild and neglect other aspects of the book that may well be of equal or greater
interest to other readers--including, for example, Rabinowitz's representation of Castro's Cuba and Allende's Chile in
Understandably much of the book is taken up with Rabinowitz's run-ins with McCarthy era anti-Communism, and his prominence
meant that he was involved in celebrated constitutional controversies of that era. As the lawyer for the American Communications
Association, he was counsel in American Communications v. Doud. He also represented Steve Nelson during a portion of the
proceedings that ended in the U.S. Supreme Court as Pennsylvania vs. Nelson. By his own estimate, Rabinowitz represented
about 150 witnesses called before Congressional investigating committees, including Alger Hiss.
Rabinowitz offers an interesting account of the legal, political and personal minefields that witnesses and their attorneys had to
negotiate. The 5th amendment was a reliable way to avoid prosecution but ordinarily led to losing one's job. To challenge a
committee's jurisdiction or to plead the First Amendment was to make a bold political statement--amounting in effect to civil
disobedience, according to Rabinowitz. But it was legally risky--normally resulting in prosecution, conviction in the trial court and
an extended and uncertain battle for reversal on appeal. Rabinowitz provides an insider's view of how these trade-offs figured into
the calculations of lawyers, clients and the Communist Party. For his part, Rabinowitz yearned to use these cases to make a
political statement and is critical of the Communist Party's failure to develop a political strategy. He believed that attacking the
jurisdiction of the committees made good sense legally and politically. Nonetheless, he felt compelled to advise his clients that the
5th Amendment was the only certain way to stay out of legal trouble.
Given his "unrepentant" left-wing politics and the burdens under which he and his clients labored, it is understandable that
Rabinowitz would be tough on the institutions and adversaries that he confronted.
It takes only a few pages to describe the court battles over the authority of the congressional investigating committees . . .
but it took sixteen long years . . . to play them out. The devastation wrought by the committees during this period was
overwhelming, and I have tried to suggest its scope. The courts were of no help whatsoever (p. 130).
Similarly, in discussing his defense of New York city school teachers dismissed because of their unwillingness to sign loyalty oaths,
he notes that they endured five years of suspension "although every judicial decision had been in their favor" (p. 150). Nor is he
reluctant to nail those for whom he has little respect. Anti-Communists on both the reformist left and the reactionary right take a
steady beating in this book. Of Judge Richard Owen who presided during his representation of Alger Hiss, Rabinowitz says: "In
our appeal to the court in Hiss's case, we weren't arguing before an average judge (which is bad enough), but to an unusually dull
and obtuse one" (p. 146). He is even more contemptuous of Roy Cohn: "Of all the evil men I've encountered in six decades of law
practice, Roy Cohn was the most vicious" (p. 112).
But this is not a polemic. Rabinowitz is generous with those adversaries whom he admires. When Rabinowitz represented Cuba in
the important Sabbatino case, one of the opposing attorneys was John Laylin of Covington and Burling. Referring to Laylin's
influential amicus brief in that case, Rabinowitz has this to say: "He was articulate, deft, experienced, and learned, and he
exemplified the very best of this country's corporate lawyers" (p. 221). Even Senator McCarthy gets his due for "his usual
geniality . . . in personal relations" (p. 110). Similarly, his ostensible allies on the left do not escape unscathed. The Communist
Party and the Soviet Union come in for some tough minded criticism as do his younger New Left colleagues in the National
At its core, this book is about Rabinowitz's constant and conscientious effort to reconcile his two vocations: left-wing politics and
the law. His lack of patience with those who were unwilling to engage in the hard work of developing and defending principles
emerges most revealingly in a (for me) too short chapter on the ebb and flow of the National Lawyers Guild from its inception in
the 1930s through the 1970s. The guild was for Rabinowitz, as for most other left-activist lawyers in the United States, the one
place where their political and professional lives came together, but the guild was also in continuous turmoil. In the 1930s, there
was a struggle for control between New Deal anti-Communist lawyers and more radical elements that were sympathetic to and/or
associated with the Community Party. Then in the 1950s, the guild was targeted by the anti-Communist right. By the end of the
McCarthy period, the guild was seemingly on its last legs--only to be revitalized and significantly transformed by the civil rights and
For Rabinowitz, however, this revitalization, welcome though it was, came as something of a mixed blessing. Civil rights activism
was to his way of thinking devoid "of any political approach--of any theoretical basis" (p. 176): "I feared that the guild was
forgetting other critical issues . . . We in New York, on the other hand, had developed a full program ranging from social security
legislation to concern about nuclear war and the growing East-West tensions on the international front" (p. 178). The anti-war
activists were even more disconcerting. Their New Left politics were much too vague and eclectic for Rabinowitz. Speaking of
the 1968 guild convention he says:
For much of the convention, the students and other younger lawyers, all part of the New Left, met on the Santa Monica
beach in caucus "plotting" ways of carrying out their program, a program, incidentally, which was pretty murky and
expressed itself chiefly in slogans: "The Guild is the legal arm of the Movement" was the most popular. Some of us, reacting
like lawyers, would have liked a definition of the "Movement," but it turned out to be one of those indefinable concepts (like
obscenity or poetry) that we were all supposed to recognize when we met it (p. 187).
These young Turks were also suspect as lawyers. Speaking for himself and others in his generation, Rabinowitz complains that
this new generation were:
undisciplined, unlawyerlike, and disorderly . . . sloppy in their dress, and their language would have been unprintable in
family newspapers in 1968. They were boisterous and lacked the flannel-suit solemnity many of us saw as typifying a
lawyer. We also had doubts as whether they knew or cared much about the law; certainly they didn't act the way we
expected lawyers to act (pp. 186-187).
As his "flannel suit solemnity" comment suggests, Rabinowitz was not altogether comfortable with his conventional lawyer's
sensibilities. At the same time, he was profoundly wary of the unruly and iconoclastic second generation, who seemed
contemptuous of legal institutions and professional ideals and were also without clearly articulated political principles and
Despite his misgivings, Rabinowitz played a crucial role in the transfer of power in the guild from the first to the second
generation. Was Rabinowitz simply bowing to the inevitable? Perhaps, but I think not. Deeply committed to his ideals and yet
aware of his limitations, Rabinowitz somehow manages to convey a sense of distance despite the unapologetically partisan nature
of this account. This is a worthwhile and well written book by a decent, thoughtful and committed man. Students interested in the
topic would find it accessible and informative--even inspiring. No doubt there are other sides to this story, and I hope that someone
will undertake the task of systematically researching and telling them while it is still possible to get first hand accounts from at least
some of principal protagonists.
Kinoy, Arthur (1983) RIGHTS ON TRIAL : THE ODYSSEY OF A PEOPLE'S LAWYER. Cambridge, Mass.: Harvard
Scheingold, Stuart (forthcoming) "The Struggle to Politicize Legal Practice: Left-Activist Lawyering in Seattle" in Austin Sarat and
Stuart Scheingold, eds., CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFES-SIONAL
RESPONSIBILITIES. New York: Oxford University Press.
AMERICAN COMMUNICATIONS ASSOCIATION V. DOUDS, 339 U.S. 382 (1950)
BANCO NATIONAL V. SABBATINO, 376 U.S. 398 (1964)
PENNSYLVANIA V. NELSON, 350 U.S. 497 (1956)