Edgar S. Cahn has co-founded a law school, created the Time Dollars project, founded and directs the Time Dollar Youth Court in Washington D.C., as well as having authored numerous scholarly works and, at the start of his career, worked for then U.S. Attorney General Robert F. Kennedy.
Together with his late wife Jean Camper Cahn, Professor Cahn founded the Antioch School of Law, the predecessor of the University of the District of Columbia’s – David A. Clarke School of Law, the first law school in the United States to educate law students primarily through clinical training in legal services to the poor. Together, the Cahns served as co-deans of the law school from 1971 to 1980.
In the 1980s, Professor Cahn began the Time Dollars project, a service credit program, that now has more than 70 communities with registered programs in the US and abroad. In Washington, D.C., Professor Cahn founded and directs the Time Dollar Youth Court, in which teen juries judge cases of teens arrested for the first time for non-violent offenses. The Court hears approximately 800 cases per year.
One of Professor Cahn’s articles, “The War on Poverty: A Civilian Perspective,” co-authored with Jean Camper Cahn, provided the blueprint for the National Legal Services. It is one of Yale Law Journal‘s most cited articles.
In the late 1960s, Professor Cahn published Hunger, USA, the pre-eminent exposé of hunger in America, and Our Brother’s Keeper: The Indian in White America, which, among other things, led to the enactment of the American Indian Self Determination Act.
Professor Cahn has been a Visiting Scholar at Columbia University’s Center for the Study of Human Rights, a Senior Research Fellow at the Southeast Florida Center on Aging at Florida International University, and Distinguished Visiting Scholar at the London School of Economics. He graduated from Swarthmore College, obtained his M.A. and Ph.D. from Yale University, and graduated from Yale Law School in 1963.
Spindle Law: What influenced you to pursue a legal career?
Edgar Cahn: My father was a lawyer and a professor of the law. His father was as well. And before that, I come from a long line of rabbis and lawyers. My commitment to fighting injustice may well be rooted in the definition of justice that comes from my father. He taught me that he didn’t think human beings could grasp what justice was. It was too general, too vague, too abstract. But he felt we were born with an innate capacity to recognize and respond to injustice, to disparities of treatment or outcome that were so unjustified as to be simply unacceptable. So my commitment to justice incorporates the definition that my father taught me:
Justice means the active process of remedying or preventing what would arouse the sense of injustice.
However, I had initially rejected the law and instead secured a doctorate in literature. I thought studying literature would help me to preserve my humanity and my ability to empathize. I went to Yale, as a graduate student; I received a Fulbright scholarship and went to Cambridge. I succeeded in my studies. But Jean, my wife, and I were an interracial couple. Because of my marriage, when I graduated with my PhD, I was told the only job available for me would be teaching basic composition at a military academy. So, I literally walked across the street and applied to the law school.
The law was really the way to fight for those values that literature celebrates. Let me share another story. In 1964, my wife and I moved to Northwest Washington, D.C. When we arrived at the street where we were moving to, we found the street blockaded. The neighbors literally would not let us pass. But then one neighbor came up to me, and told me he had received a call from the Attorney General Robert Kennedy. And that there was a memo on an important issue that he needed right away, and could I get that to him. Then, another neighbor came up to me, and said that he had just heard from the Attorney General’s office, and there was another important assignment that needed my attention right away. By the time the third neighbor came up to me, to tell me the same thing, the cars had begun to disperse. We were able to get through and move into our home. The next day when I went in to work, I said “But you have all of those memos.” That’s when I found out that Robert Kennedy had gotten the phone numbers of my new neighbors from J. Edgar Hoover. When the neighbors got those phone calls, they realized that maybe I wasn’t someone they should be messing with. And I didn’t even know that he knew I was moving. That tells you the kind of man Kennedy was. Those were amazing times.
SL: How would you describe your experiences in the early 1960s as a speechwriter for then-Attorney General Robert Kennedy?
EC: Well, in anticipation of talking with you, I went back and was reviewing some of those speeches. There are two I was just reviewing that I felt particularly good about. The first was, I think, the first speech I ever wrote for Robert Kennedy. It was one he gave to the Missouri Bar. I don’t recall his name, but the leader of the Missouri Bar at the time was someone active in the American Bar Association who was opposing integration. I wrote the speech that criticized lawyers who were mounting a massive litigation campaign to resist the implementation of Brown v. The Board of Education. Imagine, the Attorney General telling lawyers not to sue! In effect, he was telling them not to do what they are licensed to do. That speech really dealt with the issue of precedent. It called out lawyers who were irresponsible, undermining the rule of law. And now I am reading from that speech:
Every lawyer knows—though his clients may not—the distinction between the holding of a case and its rationale. We know that although the holding contains a specific disposition of a particular fact situation between the litigants, its reasoning enunciates a rule of law that applies not merely to one case but to all similar cases…there is something less than truth in a lawyer who insists, nine years after the Brown decision and a hundred years after the Emancipation Proclamation, that a law of the land, a guarantee of human dignity and equality, is merely the law of a case.
The second speech I am particularly proud of was given at Law Day ’64, at the University of Chicago. For that speech, they asked me to write what it’s been like to be Attorney General. I said I couldn’t write that, I did not know what it was like to be the Attorney General. So we decided, at this speech, he had to make the case for legal services for the poor. It was about getting lawyers to accept responsibility for permitting the rise of two systems of law: one for the rich and one for the poor. By now, the Supreme Court had decided that people had the right to legal representation in criminal cases, but of course not in civil cases. This was when the whole area of law around certain entitlement benefits, such as due process upon eviction from public housing, welfare benefits, and the like, what Charles Reich called “The New Property,” was developing. From that speech:
We need to practice preventative law on behalf of the poor. … We need to begin to develop new kinds of legal rights in situations that are not now perceived as involving legal issues. We live in a society that has a vast bureaucracy charged with many responsibilities. When those responsibilities are not properly discharged, it is the poor and the helpless who are more likely to be hurt and to have no remedy whatsoever. We need to define those responsibilities and convert them into legal obligations. We need to create new remedies to deal with the multitude of daily injuries that persons suffer in this complex society simply because it is complex. I am not talking about persons who injure others out of selfish or evil motives. I am talking about the injuries which result simply from administrative convenience, injuries which may be done inadvertently by those endeavoring to help—teachers and social workers and urban planners.
I was, of course, getting at the harm that was being done for the sake of administrative convenience, and systems established for the benefit of the bureaucrats, rather than the benefit of those the bureaucracy was intended to help.
Around this same time, my wife and I had completed the article “The War on Poverty: A Civilian Perspective.” I wanted this article to be the first publication of the Office of Economic Opportunity. There were those who didn’t want that to happen, but once [Office of Economic Opportunity creator Sargent] Shriver read the draft of that article, he declared “It was like Columbus discovering America, an exciting thing for me to discover…something that captured my mind and imagination. That’s the genesis of Legal Services — it’s really pretty simple.” (quoted in Stossel, SARGE: The Life and times of Sargent Shriver, p. 433.)
So you can see, I have always been into causing lots of trouble. And I hope to continue to do so.
SL: Tell me about the trouble you’ve been causing recently.
EC: There are two things, primarily, that I am working on now. First, a couple of years back, I was asked to look into what we can do about racial disparity that we see in every system. So, I went and looked at the law. Starting with the Supreme Court decision in Washington v. Davis, there is no remedy for racial disparity unless you can prove discriminatory intent. And the problem is, no one has been able to prove intent. But considering the case law, I reasoned I know how to prove intent. The thing is, you cannot prove intent by past motives, acts, or conduct. No one is stupid enough to write down their discriminatory practices or intentions. And a lot of what we see is institutional racism, patterns that persist because they are entrenched and have been for a long time. For example, the police officer who sends the kid home for a minor misdemeanor but takes the kid down to the station and books him if the child is black. Or a child who shows up with bruises, and he’s white, then the family gets support. But if he’s black, the kid ends up traumatically separated from his family in foster care. So, the focus has to shift from past to future.
The idea is to put these institutions on notice. If they are faced with more effective, less injurious, and less expensive alternatives to what they are currently doing, and continue to perpetuate business as usual, that perpetuation is intentional. We had to put the institutions on formal notice. So, we held public hearings. We did this in Pennsylvania within the last two years. Our forum was in front of the legislature. So we had the opportunity to present these alternatives to those who could really make change. Our idea was, don’t go to a judge after the fact, go to the legislature and conduct a Public Notice Hearing. And the Republican senator who had initiated many of the get-tough-on-crime laws saw the innovations that had been developed in Philadelphia and called upon the state commission to utilize the police training statewide. The judges have now adopted new rules which require them to articulate why they are not utilizing less restrictive alternatives before ordering a juvenile into confinement. The governor’s office made over $800,000 available to establish juvenile diversion centers. It seems creating a public notice forum can help generate change that saves both lives and money. This is the work of the Racial Justice Initiative.
All of this was based on the radical idea that there is only one group of people who are not legally obliged to make use of knowledge about what works. They are called officials. But, once they are on notice of the disparity created by present practice and the availability of alternatives that are effective, reduce disparity and are less expensive, then going back to previous practice gives rise to a civil rights claim under Section 1983.
The other current project I wanted to mention was a new organization called the Homecomers Academy. This is an organization for people returning from prison; the challenge was to find a way to address recidivism. It is a Phelp-Stokes program. A third of the folks who were involved in the planning had served between one and thirty years in prison. And their input was the most important. For instance, they do not want to be called ex-cons. They wanted to be called homecomers, because they are people coming home to their community from prison. They also suggested that they be able to present themselves to the community as students on a journey of learning and service for their communities. So they have created the National Homecomers Academy. One thing they are doing is providing safe passage for children walking to school through gang territory. And while they’re doing that, they get time credit for it. Also, there is a legal aid attorney in Oregon who, starting in 2012, is implementing a Time Bank retainer for her clients. This creates a kind of pay-it-forward obligation in those who are receiving legal aid.
So, this is what I am doing in my non-retirement. [Laughs.]
SL: Can you tell us more about the Time Bank programs with which you’ve been involved?
EC: The basic idea is that people earn time credits by giving of their time. We all have something to give of our skills and talents: doctors, lawyers, teachers, gardeners, computer programmers, mechanics. Giving time can be used to earn credits or pay back debts or discharge obligations. Each person’s time is equal: a credit is a credit. I invite people to learn more online at http://timebanks.org/, but let me give you a few examples. Teenagers charged with various misdemeanors pay back by staffing a youth court jury that has had a documented impact on reducing second arrests by over 50%. A community group, in return for legal help getting rid of crack houses, ran an evening escort program for seniors and a campaign to get better street lighting. Seniors in an HMO provided shopping, companionship, rides, and informal support that reduced hospital stays, deferred or avoided nursing home care. Patients receiving health care have paid back by learning how to function as medical translators for Latino patients; once certified, they got jobs as translators by a sponsoring hospital.
SL: Those sound like fantastic programs. Can you describe a little bit your experiences teaching law in and outside of law schools?
EC: Every place I have taught law, I have found a desire that is universal. People go into law to contribute; they want to make a difference in people’s lives and in the world. Too often, the intensity of law school and the craft they have to master numbs that or drives it out. Survival can trump everything. But the desire is always there—ready to be awakened.
SL: Finally, what general advice do you have for law students and new lawyers?
EC: Something that helps me is to remember that nothing I do is enough. It is what I set in motion that matters. We need to get over our egos. Remember that what we do is ultimately for others.
We must ask ourselves how we change the delivery system. Our current system is one in which so few can afford legal services. I don’t even know many lawyers who can afford lawyers. We need to be active in helping people know their rights, effectuate their rights, exercise their rights, without reducing or forgoing the leverage that the law provides, particularly for those who are most marginal. We need to create vehicles where people can learn and effectuate their own rights without the current prohibitive costs.
Law students need to be reminded that law is a calling. It carries a public responsibility to advance justice. It is not just a way to make a living, or to get status. In 1980, I had a heart attack. I spent a long time in intensive case. In the thirty years since, I have taken one vacation and a honeymoon. I work seven days per week, 14-16 hours per day, and my heart is now 80% healed. I am driven by only two questions: Why are we here? and What kind of a world do we want to leave behind? We get so involved in the day-to-day, that we lose track of what’s important.
SL: Do you have any advice for how to break down big picture problems into solutions that can be implemented one day at a time?
EC: As lawyers, we are trained to ask, “How can I help you?” And when we get the answer, we equate the client’s problem with the whole client. But that problem is only 5% of the client. We need to understand that the other 95% is important. We need to enlist that 95% working for the world that we want to create for our children and their children. We must start with the revelation of what an awesome being each client is. We need to approach problems in a holistic way and we must enlist the clients, and their networks, as partners—as co-producers of justice. If we don’t, we are perpetuating scarcity, privilege, and divisions that are counter to what we want to do. We must have an awareness of the significance of what we do and the opportunity each transaction gives us to mobilize our clients, our community and as well as those of us in the legal service universe to advance justice in the way I was taught: to reduce or prevent that which would arouse our sense of injustice.
There is a Buddhist saying that I try to live by: “Thou shalt not traffic in human misery.” And I ask myself, am I violating that by earning a living? I know that I am not if I use my knowledge as a catalyst to let that person—my client, my student—fulfill their potential. If my work can be a liberating and transformative force in their lives, then it is not work. It is being alive. It is a joy, and it is living with a purpose.
Finally, don’t ever stop being passionate about what you do. We are so very privileged to be allowed to devote any portion of our lives to working for what we believe in. That is truly a gift.