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4.2.12
WC: 191694

In my thirties, I made another significant choice. Having spent my first 5 or 6 years at Harvard as a pure scholar, writing dozens of law review articles, two case books and hundreds of lectures, I was becoming restless. I wanted more action. I “think therefore I am” (even if Des Carte got the order right) was not enough. I wanted to do. “I do, therefore I am,” is more consistent with my personality and energy level. But I also loved teaching. I didn’t want to stop being a professor.

I also have always hated to choose among good things. My choice has always been to do everything—not to miss anything. (“FOMS” again! I am terminal!) I never want to miss anything. My wife always reminds me of the great Yiddish expression: “With one Tuchis (rear end) you cannot dance at two weddings.” Maybe not, but there’s no harm in trying. And why only two, if there are three. (My son Elon, a filmmaker, recently made a clever, short cartoon video, showing me breaking the Martha’s Vineyard record by attending five parties in one night!)

And so, consistent with my lifelong aversion to choosing, I chose not to choose. I decided to remain a professor while also arguing cases and becoming deeply involved in causes.

The immediate precipitator of this change did not come from within me. It came from a tragedy that struck my 10 year old son Elon, who was diagnosed with brain cancer. I dropped everything I was doing and focused all my energy on getting him the best surgical and oncological care in the world. Following successful surgery at Boston’s Children’s Hospital, he had radiation therapy at Stanford Medical Center in California. Then it was time to wait. Waiting—not doing—is difficult for me. I simply couldn’t concentrate on long term scholarly projects that had no deadlines. My mind wandered to my son and I could get no work done. I had to put on hold a major scholarly book project on the preventive state.

I decided that what I needed was short term projects with deadlines that required me to complete the work on schedule. Appellate cases fit the bill perfectly, and I began to take on criminal appeals.

When Elon was diagnosed, I had no money. My salary was meager and I had no outside income. I had to borrow money from Judge Bazelon to assure Elon the best care. I vowed that I would never again put my family in that position and I decided to try to earn additional income from cases. I took half my cases on a pro bono basis, but the other half earned me a nice outside income, which I invested cautiously. I remember vividly charging my first legal fee: $35 an hour. I couldn’t believe anyone would be willing to pay me so much—almost 50 times as much as the 75 cents an hour I had earned as a babysitter and Bar Mitzvah tutor! Within a few years it was $75 an hour, then a hundred. My goal was to be certain that if Elon experienced a recurrence, I would have enough money to assure the best treatment without having to borrow. Fortunately, Elon has been fine, but the years go by awfully slowly when you have a child at risk for recurrence.

Once having dipped my toe in the water of practice, I wouldn’t stop. I loved the challenge of the courtroom and took to it quite naturally. I’ve never looked back. Practice has made me a better teacher, and teaching has made me a better practitioner.

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