Citizen Justice: The Environmental Legacy of William O. Douglas Public Advocate and Conservation Champion

By M. Margaret McKeown

Published: Sept. 1, 2022; Potomac Books

Hardcover, 288 pages, $29.95

Reviewed by: Gustavo A. Gelpí

Justice William O. Douglas is popularly remembered as the longest-tenured justice in history, as a civil libertarian, prolific writer of books, and the author of Griswold v. Connecticut (1965), which established the constitutional right to privacy. In this book, however, Judge Margaret McKeown, of the United States Court of Appeals for the Ninth Circuit, ably paints a vivid picture of his legacy as an environmental champion, both within the high court through his legal writings, and, of greater impact, without his robe as citizen justice. She also addresses the ethical issues presented by his advocacy and extrajudicial activism.

The book consists of 11 chapters threading Douglas’s life between his beloved wilderness and Washington, D.C. Born in Minnesota in 1898, he moved with his parents to Washington state as a toddler, spending most of his adolescent life in the natural beauty of Yakima. As chapter one narrates, following an early bout with polio, Douglas constantly trekked the landscape surrounding Mount Adams and Mount Rainier. Not only did he recover his health, but he immersed himself in nature. Years later, this would become the basis of his conservationist path. Following his graduation from Whitman College, he headed east to Columbia Law School, graduating at the top of his class and serving as a member of its law review. During the next 14 years, he trampolined from corporate law practice to academia—at Yale Law School, to the chairmanship of the Securities and Exchange Commission, and finally to the Supreme Court.

Chapter two paints Douglas’s early tenure at the Supreme Court, during which he became part of the political lifeblood of the nation’s capital, frequently meeting with the President, cabinet members, ambassadors, and members of Congress—both socially and to discuss important national and international issues. At one point, he was even considered a potential presidential candidate. In the 1940s, the dividing line between what federal judges could and could not do outside the courtroom was blurry, to say the least.

Chapters three and four bring us to 1954, a pivotal year for Douglas’s conservation campaigns, which he would continue throughout his life. That year, a proposed highway endorsed by the Washington Post was to raze the Chesapeake and Ohio Canal, which he frequently hiked when in D.C. Douglas, in turn, invited members of the Post’s editorial board to join him in walking the 189 miles of the canal. These power walks convinced the Post to change its views and ultimately preserved the canal. They also led to further long-distance walks across the nation, supported by Douglas’s national prominence as depicted in chapter five.

Following the success of the canal hike, Douglas joined a scientific expedition into the Alaskan wilderness in 1956. Worried that this vast natural expanse would be jeopardized by logging and oil drilling, Douglas lobbied the Eisenhower administration to preserve 8.9 million acres to protect wildlife and wilderness and recreational values. This area would be expanded by future administrations over the following decades. Next, in 1958, Douglas, joined by members of conservation groups, set his efforts on his beloved Washington state and the Olympic National Park, leading a beach protest walk to successfully stop the proposed extension of U.S. Highway 101, which would have put an end to the country’s longest stretch of natural coastline. This protest hike, followed by a second in 1964, sounded the death knell on the highway and saved the coastline.

Chapter six reveals how Douglas slid into D.C.’s power corridors to lead his ambitious conservation crusade until his retirement in 1975. With Presidents Eisenhower, Kennedy, and Johnson, cabinet members, and members of Congress, he employed his advocacy. No federal agency with the ability to impact the environment was safe from his grasp, including the Tennessee Valley Authority, Bureau of Mines, Public Roads Administration, National Park Service, Forest Service, Department of the Interior, and the Army Corps of Engineers. In an unprecedented interview for Playboy magazine, he assailed the agencies for their lack of environmental sensitivity and for despoiling natural resources. A canoe trip protest at the Buffalo River in Arkansas and another at the Red River Gorge in Kentucky arguably culminated in President Johnson signing The Wilderness Act into law.

Chapter seven further expands on Douglas’s outreach efforts. He was a member and board member, respectively, of the Sierra Club and The Wilderness Society. He continued writing to members of Congress and publishing articles in Living Wilderness’s newsletter. He lobbied to stop logging in Oregon’s Minam Valley. Seeking to broaden his audience, he wrote articles for Ladies Home Journal, Reader’s Digest, National Geographic, the Bulletin of Atom Scientists, and many others. And, besides legal books, he wrote books chronicling his life’s connection with nature, exposing readers to natural sites, such as Of Men and Mountains and My Wilderness: The Pacific West.

We now walk into the confines of the Supreme Court itself in chapters eight and nine, which tell of Douglas’s mission from the bench to teach the public about conservation. In most cases he did so in dissent. In 1967 he made one of the first references to “ecology,” and in 1970 he was the first justice to use “environmental” in a court opinion. In Udall v. Federal Power Commission (1967), Douglas authored the majority opinion which stopped the construction of a dam on the Snake River in Idaho and held that a public interest existed in protecting the river and its wildlife. In the landmark Sierra Club v. Morton (1972), however, he stood in dissent. The majority held that the Sierra Club had no standing to sue to stop a development in the Sierra Nevada Mountain Range, as it did not allege an injury to itself nor to its members. Douglas, on the other hand, passionately understood that the club had standing given that the environmental harm was the injury itself and the environment cannot speak for itself.

The final two chapters recount Douglas’s many preservation battles: protecting the Miniam River in Oregon against 51 miles of roads to facilitate logging; saving Miners Ridge in Washington state as a national park; and doing the same towards the end of his life for the Cougar Lakes Basin in the Cascades Mountain Range. Finally, we are left to wonder whether Douglas’s conservation advocacy during his 36 years on the Supreme Court would have been possible under the current judicial ethics landscape.

Just as Dr. Seuss’s The Lorax spoke for the trees, “for the trees have no tongues,” so spoke Douglas for the environment as citizen justice. Along with President Theodore Roosevelt and Sierra Club founder John Muir, Douglas’s longevity permitted him to speak out on behalf of nature during a great part of the 20th century from both the bench and wilderness. Thanks to Judge McKeown, Justice Douglas, now more than ever, continues to stand as a giant of environmental law and advocacy.

Hon. Gustavo A. Gelpí was appointed to the U.S. Court of Appeals for the First Circuit in October 2021. He is a past president of the FBA.

Shaping the Bar: The Future of Attorney Licensing

By Joan W. Howarth

Published: December 2022; Stanford University

Press

Hardcover, 240 pages, $35.00

Reviewed by: Marsha Griggs

Shaping the Bar is a must-read for practicing attorneys. Author Joan Howarth, a lawschool professor and former dean, dives deep into the purpose and problematic history of attorney licensure in the United States. Howarth proposes pathways to bar admission that, unlike the timed, multiple-choice memory tests, are anchored in the actual skills of competent client representation. Howarth subdivides her book in to four equally thought provoking sections that: 1) trace the origins of bar admission back to colonial times; 2) offer psychometric and practical critique of the validity of the bar exam as a test of minimum competency; 3) call out the persistent racial disparities in bar exam performance and its impact on the profession; and 4) provide an actionable roadmap to a better system of attorney licensure that prioritizes the skill and input of those engaged in the practice of law. Howarth easily captures an audience of attorney readers as she prefaces chapter one by recounting her experience of studying for the California Bar Exam and awaiting and receiving the results. Describing the day that she found her name on the pass list for the California Bar Exam, she “was delighted to never again have to think about the bar exam.” As Howarth deftly points out, too many of us—once admitted to practice— make the bar exam a distant memory and pay little or no attention to the process by which we determine an aspiring attorney’s worthiness to practice law. While not unreasonable to put the painful memory of the bar exam in the distant recesses of our minds, Professor Howarth reminds us that it is our professional responsibility to both know and have input in determining what minimum competence to practice law really means.

Howarth unflinchingly demonstrates that the current system of licensure by bar exam is insufficient to offer the public the protection it claims because timed, closed-book bar exams do not validly measure attorney competency, and the present-day bar exams perpetuate—once intentional—racial disparities that keep the legal profession “86% white.” This groundbreaking book calls attention to the “rhetoric of public protection” that is more precisely aimed at protecting the profession than those served by it.

Part one unwinds the interconnection of the American Bar Association (ABA) to the Association of American Law Schools (AALS), and to the National Conference of Bar Examiners (NCBE) that was built on the mutual distrust of non-elite law schools and a shared preference to keep the profession male and white. Howarth describes an outright consanguineous relationship between these regulatory entities. Howarth points out that their weighty influence over the judiciary and the practicing bar has resulted in great judicial deference to the NCBE and state bar examiners, as courts have routinely sided with bar examiners in civil rights cases. That deference, as Howarth describes, includes exemption from Title IV standards, a deferential rational-basis standard, and impenetrable protection from judicial scrutiny. Howarth pulls no punches as she describes, in stark contrast, “the power structure and protection afforded to bar examiners is juxtaposed against the history of purposeful discrimination and exclusion by state bar examiners.”

Part two lays plain legal education’s irrational disdain for the practice of law, evidenced by law schools’ widespread adoption of the Langedellian model of instruction. Howarth is critical of the hiring models employed by most law schools—ones that prioritize doctoral degrees over law-practice experience—leaving future lawyers to be taught primarily by faculty with little to no law-practice experience. She points out that law schools require far less clinical experience than other professional schools. Howarth identifies distressing false assumptions that knowledge of case law rules is separate from and more important than practice skills. Howarth says, “these assumptions have become cascading fallacies of the bar exam, each step taking us further from what lawyers do.”

Highlighting the gap between legal education and law practice, Howarth says the deliberate push away from practice skills in law schools spills over to the bar exam because “licensers have had to look almost entirely to legal education for bar exam content.“ Howarth reiterates longstanding criticism that the bar exam lacks sufficient validity, arguably by design as the exam is modeled after what law schools teach instead of on what lawyers need to know how to do. Howarth takes the unarguable stance that the primary task of the law professors and bar examiners—who are the gatekeepers of the profession—should be to understand what minimum competence in a lawyer looks like.

With receipts in hand, Howarth offers evidence that state bar exams and the multistate bar exams controlled by the NCBE have never been validated. Meaning, as she explains, that “no job analysis or other scientific study links the exam’s content to the skills and knowledge needed by new attorneys.” Describing decades of lost opportunities to engage in practice validity studies, and more recent opportunities to lean into the McCrate Report and the IAALS Building a Better Bar Study, Howarth laments that “nothing guarantees that a law school graduate will have ever set foot in a law office” or a courtroom.

In part three, Howarth offers a bold solution to redress longstanding issues of exclusion, intrusion, and inconsistency in character-and-fitness determinations. The character and fitness process has kept out individuals due to race, ethnicity, LGBTQ status, political activism, gender identity, financial status, and mental health history. She says that predictions about future misconduct are often wrong. Howarth proposes that state bars shift some character-and-fitness scrutiny away from bar applicants to attorneys in practice. She suggests that state bar associations should invest resources into monitoring and preventing attorney misconduct. She also proposes that law schools should better prepare students to cope with the stresses of law practice by emphasizing professional-identity formation at all stages of the law school curriculum. She says, “teaching or learning the rules of professional responsibility is much easier than teaching or learning how to follow them. But both are possible.”

Shaping the Bar ends as it began, with an underscored emphasis on public protection by ensuring that newly admitted attorneys demonstrate minimum competence to be entrusted with client representation. Tackling the problems analyzed in parts one through three, part four lays the framework for a licensure structure centered around the skill of practicing law and not the rote memorization of legal rules that may be unrelated to the new attorney’s practice area, or even the law of the jurisdiction where the new attorney will practice. According to Howarth, better public protection will require “greater jurisdictional leadership,” and arguably more input and participation from those who practice law.

Howarth presents a licensure framework that is well-defined and possible to implement. She offers 12 foundational principles for thinking about more effective ways to protect the public through attorney licensing. I list only five of the principles here:

• New lawyers should have to participate in a “clinical residency” under the supervision of a licensed attorney before receiving a law license;

• Bar exams should test performance skills, not rote memorization of common law rules;

• Jurisdictions should offer multiple pathways to bar licensure;

• Authority to regulate the profession (entry and discipline) should rest entirely in the state courts and state bar associations, and not in test distributors or commercial bar preparation companies; and

• Once licensed, attorneys should have to engage in a modest self-assessment to periodically reassess practice competency.

The only question left unanswered by Professor Howarth’s exhaustively researched book is whether a system of legal education and licensure that cherishes the practice of law instead of disregarding it—one where status hierarchy does not privilege those without law practice experience over those with it—would be the condition precedent for the rollout of her plan or the professional utopia that will result from it. 

Marsha Griggs is an associate professor at Washburn School of Law where she teaches Professional Responsibility and Remedies. Before teaching she practiced commercial litigation and served as Assistant Regional Counsel for the Federal Bureau of Prisons.

Alan Ellis’ Federal Prison Guidebook (Revision 6)

By Alan Ellis, Maureen Baird

Published: Jan. 1, 2022; James Publishing

Paperback, 600 pages, $299.95

Reviewed by: Elizabeth Kelley

I have reviewed several editions of Alan Ellis’ Federal Prison Guidebook for The Federal Lawyer. The reason I always volunteer to review the latest edition is that each time, there is important new material. This edition is no exception.

Ellis is a longtime—bordering legendary—criminal defense lawyer. He has established himself as a pioneering specialist in federal sentencing. Others have come after him, but he remains the first. The Federal Prison Guidebook is now in its 24th edition, or as its publisher states on the cover, revision six. With one exception, it has been reliably published every two years since 1998. The evolution of the book is itself a story.

It all began many years ago when Ellis was a brand-new lawyer practicing in State College, Pennsylvania. He tried two jury cas- es, and both times, his clients were convicted. An experienced lawyer offered him some advice: First, when the government refers to your client by a derogatory term, do not nod your head in agreement. Second, in closing argument, don’t say your client didn’t do it; rather, wrap your arms around the flag and argue reasonable doubt. In his next jury trial, Ellis followed this advice, and his client was acquitted. Nonetheless, Ellis decided he wasn’t cut out for this and changed the focus of his practice. He began representing people at parole hearings and, eventually, built a nationwide practice.

At that time, the Bureau of Prisons published a relatively thin guide to prisons. In 1998, it stopped publication. Ellis decided that it was a valuable resource, and that if the bureau was not going to publish it, he would. Thus, he began self-publishing the Federal Prison Guidebook. In 2010, he was approached by James Publishing, who offered Ellis a lifetime contract for producing a new edition every two years. A look at the guide over the years shows that it has grown in length and that various experts in the field of federal sentencing have contributed chapters—such as Mark Allenbaugh, Jonathan Edelstein, J. Michael Henderson, and Doug Passon. Former Bureau of Prisons warden, Maureen Baird, joined Ellis in this edition as a co-editor.

This latest volume follows the same organization as past editions. The first half of this two-and-a-half-inch book (it doesn’t have page numbers but rather section numbers) is both a deep dive into and an intricate examination of all aspects of federal sentencing and post-conviction remedies. (It is this level of detail which caused a criminal defense lawyer with whom I have worked to say that not having a copy of the guide is malpractice.) The first chapter is “Federal Prisons 101”—it discusses everything from reporting to prison to metal health resources to commissary. Other chapters cover prison placement, RDAP (Residential Drug Abuse Program), and how to do time. In this edition, there are over a dozen new sections on topics such as compassionate release, the First Step Act, and loss calculation in white collar sentencing.

The second half of the guidebook is a description of every federal prison in the country. It is arranged by region (i.e., Mid-Atlantic, Western), and contains details on counseling, health, and rehab services; mail policy; and location (along with information on the closest airport, which is particularly helpful for prisons located in remote areas).

Granted, much of the content in the guidebook is available online. Many of its sections appeared as articles in other publications, and the Bureau of Prisons maintains a webpage for each of its facilities. However, one of advantages of the guide is that all the material is collected in one comprehensive volume. Additionally, although Ellis and most of the other contributors are criminal defense lawyers, the guide is filled with facts and objective detail, thus being a valuable resource for anyone involved in the federal criminal justice system—including judges, assistant U.S. attorneys, and probation officers.

My prediction is that the next edition will be even more valuable. First, the U.S. Sentencing Commission, for the first time in many years, has a full slate of appointees, and as of the writing of this review, is busy drafting new policies. Second, Colette Peters was recently appointed director of the bureau; she has been tasked with much-needed reform, and for the sake of the more than 158,000 individuals who are incarcerated within the federal system, there will likely be many changes by the time the 2025 edition is released.