Category Archives: Chicago

Declare Your Independence: Those high heels are killers

Following a tradition I began several years ago, I’m once again encouraging women to declare their independence this July 4th and abandon wearing high-heeled shoes. 

I’ve revised this post in light of changes that have taken place during the past year.

My newly revised post follows:

I’ve long maintained that high heels are killers.  I never used that term literally, of course.  I merely viewed high-heeled shoes as distinctly uncomfortable and an outrageous concession to the dictates of fashion that can lead to both pain and permanent damage to a woman’s body. 

A few years ago, however, high heels proved to be actual killers.  The Associated Press reported that two women, ages 18 and 23, were killed in Riverside, California, as they struggled in high heels to get away from a train.  With their car stuck on the tracks, the women attempted to flee as the train approached.  A police spokesman later said, “It appears they were in high heels and [had] a hard time getting away quickly.” 

During the past year, one dominated by the global pandemic, many women and men adopted different ways to clothe themselves.  Sweatpants and other comfortable clothing became popular.  [Please see my post, “Two Words,” published July 15, 2020, focusing on wearing pants with elastic waists.]

In particular, many women abandoned the wearing of high heels.  Staying close to home, wearing comfortable clothes, they saw no need to push their feet into high heels.  Venues requiring professional clothes or footwear almost disappeared, and few women chose to seek out venues requiring any sort of fancy clothes or footwear.  

As the pandemic has loosened its grip, at least in many parts of the country, some women have been tempted to return to their previous choice of footwear.  The prospect of a renaissance in high-heeled shoe-wearing has been noted in publications like The New York Times and The Wall Street Journal.   In a recent story in the Times, one woman “flicked the dust off her…high-heeled lavender pumps” that she’d put away for months and got ready to wear them to a birthday gathering.  According to the Times, some are seeking “the joy of dressing up…itching…to step up their style game in towering heels.”

Okay.  I get it.  “Dressing up” may be your thing after more than a year of relying on sweatpants.  But “towering heels”?  They may look beautiful, they may be alluring….

BUT don’t do it!  Please take my advice and don’t return to wearing the kind of shoes that will hobble you once again..

Like the unfortunate young women in Riverside, I was sucked into wearing high heels when I was a teenager.  It was de rigueur for girls at my high school to seek out the trendy shoe stores on State Street in downtown Chicago and purchase whichever high-heeled offerings our wallets could afford.  On my first visit, I was entranced by the three-inch-heeled numbers that pushed my toes into a too-narrow space and revealed them in what I thought was a highly provocative position.  If feet can have cleavage, those shoes gave me cleavage.

Never mind that my feet were encased in a vise-like grip.  Never mind that I walked unsteadily on the stilts beneath my soles.  And never mind that my whole body was pitched forward in an ungainly manner as I propelled myself around the store.  I liked the way my legs looked in those shoes, and I had just enough baby-sitting money to pay for them.  Now I could stride with pride to the next Sweet Sixteen luncheon on my calendar, wearing footwear like all the other girls’.

That luncheon revealed what an unwise purchase I’d made.  When the event was over, I found myself stranded in a distant location with no ride home, and I started walking to the nearest bus stop.  After a few steps, it was clear that my shoes were killers.  I could barely put one foot in front of the other, and the pain became so great that I removed my shoes and walked in stocking feet the rest of the way.

After that painful lesson, I abandoned three-inch high-heeled shoes and resorted to wearing lower ones.   Sure, I couldn’t flaunt my shapely legs quite as effectively, but I nevertheless managed to secure ample male attention. 

Instead of conforming to the modern-day equivalent of Chinese foot-binding, I successfully and happily fended off the back pain, foot pain, bunions, and corns that my fashion-victim sisters often suffer in spades.

Until the pandemic changed our lives, I observed a trend toward higher and higher heels, and I found it troubling.  I was baffled by women, especially young women, who bought into the mindset that they had to follow the dictates of fashion and the need to look “sexy” by wearing extremely high heels.  

When I’d watch TV, I’d see too many women wearing stilettos that forced them into the ungainly walk I briefly sported so long ago.  I couldn’t help noticing the women on late-night TV shows who were otherwise smartly attired and often very smart (in the other sense of the word), yet wore ridiculously high heels that forced them to greet their hosts with that same ungainly walk.  Some appeared to be almost on the verge of toppling over. 

On one of the last in-person Oscar Awards telecasts (before they became virtual), women tottered to the stage in ultra-high heels, often accompanied by escorts who kindly held onto them to prevent their embarrassing descent into the orchestra pit.

So…what about the women, like me, who adopted lower-heeled shoes instead?  I think we’ve been much smarter and much less likely to fall on our faces.

Foot-care professionals have soundly supported my view.   According to the American Podiatric Medical Association, a heel that’s more than 2 or 3 inches makes comfort just about impossible.  Why?  Because a 3-inch heel creates seven times more stress than a 1-inch heel.

A couple of years ago, the San Francisco Chronicle questioned Dr. Amol Saxena, a podiatrist and foot and ankle surgeon who practiced in Palo Alto (and assisted Nike’s running team).  He explained that after 1.5 inches, the pressure increases on the ball of the foot and can lead to “ball-of-the-foot numbness.”  (Yikes!)  He did not endorse wearing 3-inch heels and pointed out that celebrities wear them for only a short time, not all day.  To ensure a truly comfortable shoe, he added, no one should go above a 1.5-inch heel.  If you insist on wearing higher heels, you should limit how much time you spend in them.

Before the pandemic, some encouraging changes were afoot.  Nordstrom, one of America’s major shoe-sellers, began to promote lower-heeled styles along with higher-heeled numbers.  I was encouraged because Nordstrom is a bellwether in the fashion world, and its choices can influence shoe-seekers.  At the same time, I wondered whether Nordstrom was reflecting what its shoppers had already told the stores’ decision-makers.  The almighty power of the purse—how shoppers were choosing to spend their money–probably played a big role.

But the pandemic may have completely changed the dynamics of shoe-purchasing.  Once we faced the reality of the pandemic, and it then stuck around for months, sales of high heels languished, “teetering on the edge of extinction,” according to the Times

Today, with the pandemic a somewhat less frightening presence in our lives, there are undoubtedly women who will decide to resurrect the high heels already in their closets.  They, and others, may be inspired to buy new ones, dramatically changing the statistics—and their well-being.

I hope these women don’t act in haste.  Beyond the issue of comfort, let’s remember that high heels present a far more serious problem.  As the deaths in Riverside demonstrate, women who wear high heels can be putting their lives at risk.  When they need to flee a dangerous situation, high heels can handicap their ability to escape.

How many needless deaths have resulted from hobbled feet?

The Fourth of July is fast approaching.  As we celebrate the holiday this year, I once again urge the women of America to declare their independence from high-heeled shoes. 

If you’re currently thinking about returning to painful footwear, think again.  You’d be wiser to reconsider.

I encourage you to bravely gather any high heels you’ve clung to during the pandemic and throw those shoes away.  At the very least, please keep them out of sight in the back of your closet.  And don’t even think about buying new ones.  Shod yourself instead in shoes that allow you to walk in comfort—and if need be, to run.

Your wretched appendages, yearning to be free, will be forever grateful.

[Earlier versions of this commentary appeared on Susan Just Writes and the San Francisco Chronicle.]

Another love story

December 2020 marked 50 years since the release of the film “Love Story” in December 1970.  This film played a role in the burgeoning romance between me and the astonishing man who became my husband a few months later.  I’ll call him Marv.

Part I

We waited in a long line outside the theater in chilly Westwood.  The air was nothing like the frigid nighttime air that would have enveloped us in Chicago, or Boston, or Cleveland. But we were in LA, and for LA it was a chilly December night.

We didn’t mind waiting. We were too enthralled with each other, with Westwood, and with the prospect of seeing “Love Story” on the big screen. 

I’d met Marv two months earlier at the Chancellor’s Reception on the UCLA campus. The reception was intended for faculty only, but the director of my legal-services support program at the law school was a member of the faculty, and he circulated his invitation to all of us working in the program.

I’d moved from Chicago in late August and was eager to meet new people in LA. The reception was taking place on a Sunday afternoon in October, and I decided to show up.  I purposely wore my incredibly fetching black sleeveless miniskirt dress with bright red pockets and made my way to the campus under a radiant California sun.

I looked around.  I didn’t know anyone there—I’d been in LA for only six weeks.  I wandered over to the “cookie table” and was pondering which cookies to sample when a woman approached me.  “Are you by yourself because you want to be, or would you like to meet some other people?” she asked.

I immediately responded that I’d like to meet other people, and she led me to a group of four men. She began by introducing her husband, a bearded middle-aged math professor, who was accompanied by three much younger men. As I glanced at the younger men, I instantly recognized one of them–a good-looking guy I’d seen around my apartment building near the campus.

The professor explained that these young men were there because they were new math faculty, and he asked me why I was there. I told him I was working at the law school.  He then asked where I’d gone to law school. When I said Harvard, he turned to the good-looking guy and said, “Marv went to Harvard, too.”

Thus began my bond with Marv.  We had Harvard in common.

I’d noticed Marv around our building but, as it turned out, he’d never noticed me. I’d seen him—alone—diving into the building’s small pool, and I’d seen him walking back and forth along a pathway that connected our apartment building (near the corner of Kelton and Gayley) to the campus.  Sometimes he’d been smoking a pipe as he walked.

I sometimes wondered: How could he help noticing an adorable redhead like me?  But I later decided it was just fine that he never noticed me because that meant he wasn’t noticing any other young women either.

Even later, I figured out why he’d been totally unaware of me.  Whenever he was by himself–in this case, walking to and from campus by himself–he was thinking about math.  Marv was a brilliant mathematician who almost never stopped thinking about math.

When we began talking at the Chancellor’s Reception, Marv discovered what I already knew—we lived in the same apartment building.  He smiled a lot and let me know that he wanted to see me sometime.

Did I give him my phone number?  I must have because a day or two later he called and asked me to go to dinner.

We agreed that I would meet him at his apartment and make our dinner plans there.  So on Saturday night I walked a short distance from my apartment to his apartment on the same floor. 

Marv and I had both searched for a studio apartment in Westwood at the same time. At the end of my search, I decided that I preferred the building on Kelton.  Hoping to rent a relatively inexpensive studio there, I returned and learned that the last studio had just been rented.  It turned out that the renter was Marv. 

So, because someone (namely Marv) had just rented the last available studio in that building, I had to decide whether to rent a one-bedroom I could barely afford.  It was a stretch for me, financially.  But I decided to go ahead and rent it. 

Destiny? 

When he answered his door, Marv welcomed me and handed me a copy of a paperback book, “101 Nights in California.”  We sat together on his sofa, looking through the book’s list of restaurants, along with their menus.  “You pick wherever you want to go,” he said.

My jaw nearly dropped.  It was 1970, and it was almost unimaginable that a man would say that to a brand new date, allowing her to choose the restaurant where they’d dine that night.  I knew immediately that Marv just might be the right man for me.  He was certainly unlike anyone I’d ever dated before.

I’d already dated some pretty good guys.  But when men met me during my years at law school, or later learned that I was a lawyer, only the few who were immensely secure chose to date me.  Others fell by the wayside.

Marv was completely secure and non-threatened by someone like me.  He actually relished having a smart woman in his life.  And that never changed.

That evening, I chose a French restaurant in Santa Monica called Le Cellier.  How was our dinner there?  In short, it was magical.  We not only had a splendid French meal, but we also used our time together to learn a lot about each other.  My hunch that Marv was possibly the perfect man for me was proving to be correct.

We proceeded to have one promising date after another.  Dinner at Mario’s, a small Italian restaurant in Westwood.  A Halloween party at a colleague’s home in Pacific Palisades.  Viewing the startling film “Joe,” starring Peter Boyle.  (We later ran into Boyle when we ate at a health-food restaurant in LA.)

By December we were hovering on the precipice of falling in love.  We’d heard the buzz about “Love Story,” and both of us were eager to see it.  So there we were, waiting in a long line of moviegoers at the Westwood Village Theater that chilly night.

The plot of “Love Story” wasn’t totally unknown to me.  I’d already read Erich Segal’s story shortly before I’d moved to LA from Chicago.  I was casually leafing through a magazine when I came across the story.

It grabbed me right away.  It was set, after all, in Cambridge, and its leading characters were students at Harvard.  I’d spent three years there getting my law degree, and I’d finished just a few years earlier.

The story was sappy and had a terribly sad ending.  But I relished the Harvard setting, and I couldn’t wait to see the film based on it.  When Marv learned a little bit about it, he wanted to see it too.

We soon found ourselves inside the theater, every seat filled with excited patrons like us, and began watching Hollywood’s “Love Story,” our eyes glued to the screen.

What did we think of the movie that night?  I truthfully don’t remember, and Marv is no longer here to recall it with me.  So I recently decided to re-watch the film—twice–to reflect on it and what it may have meant to us at the time.

In 1970, enamored with my companion, I most likely loved the film and its countless depictions of student life at Harvard.  Marv had graduated from the college in 1963, and I’d finished at the law school in 1967, so we’d attended Harvard at about the same time as author Segal (Harvard class of ‘58, Ph.D. ‘65). 

The two lead actors, Ryan O’Neal (playing Oliver) and Ali MacGraw (playing Jenny), were also contemporaries of ours who could have been Harvard students at about the same time.  Let’s add Tommy Lee Jones, whose first film role is one of Oliver’s roommates.  He was himself a Harvard grad, class of ‘69.  (Segal reportedly based Oliver on two of his friends:  Harvard roommates Tommy Lee Jones and Al Gore.)  By the way, Tommy’s name in the credits is Tom Lee Jones.

Marv and I certainly relished the scenes set in a variety of Harvard locations, including the hockey arena where Oliver stars on the school’s hockey team and where I had skated (badly) with a date from the business school. In another scene, the two leads ecstatically make snow angels on the snow-covered campus. 

And I loved watching Oliver searching for Jenny in the Music Building, a building located very close to the law school, where I occasionally escaped from my studies by listening to old 78 LP records in a soundproof booth.

Overall, Marv and I probably found most of the film a lightweight take on life as a Harvard student (although darker days followed as the story moved toward its tragic end).  I’m sure we were also moved by the haunting music composed by Francis Lai, an unquestionably brilliant addition to the film that earned its only Oscar (out of seven nominations). 

Seeing “Love Story” together that chilly night must have been wonderful. 

But watching the film again, 50 years later?  I have to be honest:  I found it disappointing.

                                       To be continued

Hangin’ with Judge Hoffman

POST #8

This is the eighth in a series of posts that recall what it was like to serve as Judge Julius Hoffman’s law clerk from 1967 to 1969.

The “Chicago 7” Trial (continued)

            How did the Nixon victory lead to the trial of the “Chicago 7”?  The answer is simple.

             With prosecutions by the U.S. Justice Department shifting from the Johnson administration and its attorney general, Ramsey Clark, to those on Nixon’s team who began running the Justice Department, things changed dramatically. 

            AG Clark had been reluctant to go after antiwar activists.  But Nixon was a warped personality, bent on punishing those he viewed as his enemies.  Once in office, with his own attorney general, John Mitchell, securely installed, he could prod federal prosecutors to go after his perceived foes.

            With the assistance of the FBI, long under the direction of another warped individual, J. Edgar Hoover, Nixon was able to track down his enemies, including antiwar protestors who had militated against him.  At the Democratic convention in Chicago in August 1968, antiwar activists’ outspoken opposition to the ultimately successful nomination of Hubert Humphrey (who in their view had not supported their cause with sufficient enthusiasm) disrupted the convention and undermined Humphrey’s ability to defeat Nixon.  As I noted in Post #7, Humphrey’s popular vote total in November was only one percent short of Nixon’s.  But that one percent made all the difference in the now-notoriously-undemocratic Electoral College.

            Many of these protestors had opposed the Vietnam War even before 1968, and they promised to further disrupt things once Nixon was elected.  Hoover’s FBI moved on from targeting people like members of the Communist Party USA to antiwar activists.  A covert program, Cointelpro, used a wide range of “dirty tricks,” including illegal wiretaps and planting false documents. 

I’ll add a recent update on Cointelpro here.

A fascinating revelation appeared in the San Francisco Chronicle in 2021

            On March 7 of this year, The San Francisco Chronicle revealed an FBI break-in that underscores what the agency was doing at this time.  On March 8, 1971, Ralph Daniel, then 26, was one of eight antiwar activists who had long suspected FBI malfeasance and broke into a small FBI office in Pennsylvania to seize records that would prove it.  (March 8 was chosen because, they hoped, FBI agents would be focused on the title fight between prizefighters Ali and Frazier that night.) The break-in was successful, and the records uncovered were leaked to journalists and others, exposing Hoover’s secret FBI program that investigated and spied on citizens accused of engaging in protected speech. 

            This was the massive Cointelpro operation that had amassed files on antiwar activists, students, Black Panthers, and other Black citizens.  Fred Hampton, the leader of the Chicago Black Panthers, was one target of this operation. (He plays a small role in Aaron Sorkin’s film, “The Trial of the Chicago 7,” before his shocking murder is revealed during that trial.  I remember learning of Hampton’s murder and feeling sickened by the conduct of local law enforcement, whose homicidal wrongdoing later became apparent.)

            In 1975, the U.S. Senate’s Church Committee found the FBI program illegal and contrary to the Constitution.      Exposure of Cointelpro tarnished Hoover’s legacy and damaged the reputation of the FBI for years.

            The recent revelation appears in the March 7th edition of The San Francisco Chronicle.  Ralph Daniel, a resident of the Bay Area, revealed his story to a Chronicle reporter fifty years after the break-in took place.

The legal underpinnings of the trial of the “Chicago 7”

            With John Mitchell running Nixon’s Justice Department, federal prosecutors were instructed to focus on one section in a federal statute originally intended to penalize those who created civil unrest following the assassination of Martin Luther King Jr., and specifically to use that statute to bring charges against antiwar activists.  The statute, which had been enacted on April 11, 1968, was mostly a follow-up to the Civil Rights Act of 1964, and it applied to issues like fair housing and the civil rights of Native American tribes. 

            But Title X of this law, which became known as the Anti-Riot Act, did something quite different.  It made it a felony to cross states lines or make phone calls “to incite a riot; to organize, promote or participate in a riot; or to aid and abet any person performing these activities.” This provision, sometimes called the “H. Rap Brown Law,” was passed in response to the conduct of civil rights activist H. Rap Brown.  

How did Judge Hoffman become involved?

            In September 1968, shortly after the Chicago convention, the Chief Judge of the Northern District of Illinois, William J. Campbell, convened a grand jury to investigate possible charges against antiwar protestors who had been active during the convention.  The grand jury, which met 30 times over six months and heard about 300 witnesses, indicted the eight antiwar protestors who came to be dubbed the “Chicago 8” with a violation of the Anti-Riot Act.  AG John Mitchell then asked the U.S Attorney for the Northern District, Thomas Foran, to stay in office and direct the prosecution.

            In Hoffman’s chambers, I was unaware that any of this was happening.  But in the spring of 1969, Hoffman became the judge who would preside over the prosecution.

            Anyone could see from the very beginning that this case was a hot potato–such a hot potato that before it was assigned to Hoffman, it had bounced around the courthouse a couple of times.  Cases were supposed to be randomly assigned to judges according to a “wheel” in the clerk’s office.  But this time, the first two judges who’d been handed the case had reportedly sent it back.  One of these judges was Chief Judge Campbell.  I’m not sure about the other judge, but whoever he was, he had a lot more smarts than Hoffman did.

            [I had my own run-in with Judge Campbell, beginning in February 1970.  But that’s a story for another time.]

            When the case landed in Hoffman’s chambers, he seemed somewhat taken aback, but I think he may have been secretly pleased to be handed this case.  He might have even liked the idea that he’d be handling a high-profile prosecution that would draw a lot of attention.  In any event, his ego wouldn’t let him send the case back to “the wheel,” even on a pretext.

            I kept my distance from the “Chicago 8” case.  As Hoffman’s senior clerk, due to leave that summer, I wasn’t expected to do any work on it.  My co-clerk, at that time the junior clerk, would become the senior clerk after my departure, and he assumed responsibility for the pre-trial motions and other events related to the case.  I was frankly delighted to have little or no responsibility this case.  It was clearly dynamite, and Hoffman was clearly the wrong judge for it.

            Since I was still working in Hoffman’s chambers, I could of course observe what was happening there.  And I could see what was going to happen long before the trial began.  Attorneys for the eight defendants (who later became seven when defendant Bobby Seale’s case was severed, in a sadly shocking episode about a month after the trial began) immediately began filing pre-trial motions that contested absolutely everything. 

            As I recall, one pre-trial motion explicitly asked Hoffman to recuse himself (i.e., withdraw as judge).  The defense lawyers’ claim was that Hoffman’s conduct of previous trials showed that he couldn’t conduct this trial fairly.  If Hoffman had been smart, he would have seized upon this motion as a legitimate way to extract himself from the case.  He must have already suspected that things in his courtroom might not go well.  But again, his pride wouldn’t allow him to admit that there was anything in his history that precluded him from conducting a fair trial.

            Soon the national media began descending on the courtroom to report on Hoffman’s rulings on the pre-trial motions.  One day Hoffman came into the clerks’ room to show us a published article in which a reporter had described the judge as having a “craggy” face.  “What does ‘craggy’ mean?” he asked us. 

            My co-clerk and I were dumbfounded, wondering how to respond to such a bizarre question.  The word “craggy” had always sounded rather rugged to me, while Hoffman looked much more like the cartoon character Mr. Magoo (as many in the media soon began to describe him).  I muttered something about “looking rugged,” while my co-clerk stayed silent.  Hoffman looked dubious about my response and continued to harp on the possible definition of “craggy” for another five or ten minutes until he finally left.

            The problem with Hoffman’s treatment of the “Chicago 7′ case was, fundamentally, that he treated it like every other criminal case he’d ever handled.  And the defense attorneys were right.  He had a record of bias in favor of government prosecutors.

            This problem became his downfall.  He refused to see that this case was unique and had to be dealt with on its own terms, unlike all of the other criminal cases in his past. 

            Further, he lacked any flexibility and remained committed to the way he’d always conducted proceedings in his courtroom.  If he’d had some degree of flexibility, that might have helped the trial proceed more smoothly.  But at 74, after 16 years on the bench, he was accustomed to running an orderly courtroom with lawyers and defendants who followed the rules.

            He would not have an orderly courtroom this time, and he was completely unable to bend those rules.

The film, “The Trial of the Chicago 7,” written and directed by Aaron Sorkin

            This film, which first appeared in September 2020 (I’ll call it “the Sorkin film”), has made the trial the centerpiece of a lengthy and detailed dramatization of the trial itself, along with the events that led up to it. 

The film is an impressive achievement.  I applaud Sorkin for bringing attention to the 50-year-old trial and to many of the people and events who were part of it.

I’ve chosen not to critique the film but simply to add comments based on my own recollections from that era along with what I’ve gleaned from my independent research.

The Sorkin film has notably garnered a 90 percent positive score on Rotten Tomatoes, based on nearly 300 critics’ reviews.  Some of the reviews are glowing, others less so.

I’ll quote from a sampling of reviews.

A.O. Scott wrote in The New York Times:  The film is “talky and clumsy, alternating between self-importance and clowning.”

David Sims wrote in The Atlantic:  This is “a particularly shiny rendering of history, but Sorkin wisely [focuses] on America’s failings, even as he celebrates the people striving to fix them.”

Joe Morgenstern wrote in The Wall Street Journal:  The film “diminishes its aura of authenticity with dubious inventions” and “muddies its impact by taking on more history than it can handle.”

Sorkin’s overall themes are opposition to an unjust war, specifically the Vietnam War; the attempt by activists in 1968 to achieve what they viewed as justice and to strengthen democracy; and how all of this played out politically.  As A.O. Scott noted in his review, “the accident of timing” helped to bolster these themes, with “echoes of 1968” clear to most of us in 2020:  “the appeals to law and order, the rumors of radicals sowing disorder in the streets, the clashes between police and citizens.” 

Sorkin himself told an interviewer that protestors in 2020 got “demonized as being un-American, Marxist, communist—all things they called the Chicago 7.”  He added, “The movie is not intended to be a history lesson, or about 1968—it’s about today.”

(As I point out later in “A Brief Detour,” these themes also played out in Greece during the 1960s.)

In his screenplay, Sorkin sets the scene well.  He begins with news coverage noting LBJ’s escalation of troops and draft calls to beef up the war in Vietnam.  He includes a clip of Martin Luther King Jr. stating that the war was poisoning the soul of America.  He also highlights the assassination of Robert F. Kennedy, who had spoken out against the war, while at the same time noting the increase in casualties among the troops in Vietnam.

In addition, Sorkin makes clear that two of the Chicago 7 defendants, Tom Hayden and Rennie Davis, were leaders of SDS, an organization maintaining that the Vietnam War was contrary to our notions of social justice.  He also shows us Abbie Hoffman (hereinafter Abbie, to avoid confusion with the judge) and Jerry Rubin–who wanted to see either Senator Eugene McCarthy or Senator George McGovern nominated for the presidency– proclaiming that there wasn’t enough difference between Humphrey and Nixon to merit a vote for Humphrey.  (Gosh, this sounds familiar, doesn’t it?  It reminds me of Ralph Nader in 2000, proclaiming that there was no difference between Al Gore and George W. Bush. Thanks, Ralph, for helping to defeat Al Gore and giving us George W. Bush and the war in Iraq.) 

One more thing:  Abbie and Rubin claim in a clip that they’re going to the convention in Chicago “peacefully,” but “we’ll meet violence with violence.”

The film has deservedly won over a large number of admiring movie-watchers, but let’s be honest: Many if not most of them have little or no knowledge of the real story portrayed in it.

Sorkin’s screenplay received the Golden Globe award as the best screenplay of 2020, and it’s been nominated for an Oscar in that category.  The film has also been nominated for an Oscar as the Best Motion Picture of 2020.  One of its actors, Sacha Baron Cohen, is nominated for best supporting actor, and the film is nominated in three other Oscar categories.  In April, the cast received the Screen Actors Guild award for the Outstanding Performance by a Motion Picture Cast.

A few of my own comments

            As I’ve previously pointed out, in the spring of 1969 I was serving as Hoffman’s senior clerk.  I wasn’t responsible for advising him on his rulings during the trial (which began after my departure that summer), and I also didn’t take part in his rulings before the trial.  But it was impossible not to observe what was happening in his chambers while I was still working there.

            Although I therefore could observe what went on in Hoffman’s chambers, I was unaware of many of the events that were taking place outside of his chambers, and I don’t recall whether I personally observed any of the pre-trial courtroom appearances of the defense attorneys.  I also never observed the conduct of any of the defendants before the trial began, unless they appeared on local TV news coverage.

            For these reasons, I found much of the Sorkin film illuminating.  Although I’d very much like to know the sources Sorkin relied on in crafting his screenplay, I haven’t attempted to find out exactly what they were.  For proceedings in the courtroom both before and during the trial, I’m sure that Sorkin relied on the court transcript, which would have recorded everything said in court by the prosecutors, the defendants, defense counsel, the judge, and the many witnesses. 

            [Because of my own experience with court reporters, I know that not every word said in court is in fact recorded properly.  When I said during an oral argument (in a case called Doe v. Scott) that there was “no consensus” among medical experts regarding when life begins, the court reporter recorded my response as “no consequences.”  A very different word with a very different meaning in that context.  But in the trial of the “Chicago 7,” it’s probably safe to assume that the court reporter got most of the words right.]

            As for anything said outside of court, I’ll assume that Sorkin chose to rely on reputable sources.  I know, for example, that defense attorney William Kunstler published a book titled “My Life as a Radical Lawyer,” which probably provided helpful background for some of what happened (at least from Kunstler’s viewpoint).  Countless other books, interviews, and media accounts were no doubt researched and used to support scenes in the film.  Kudos to Sorkin if he and his staff perused these books and other background material for insights into what happened.

            I nevertheless want to ask, on my behalf as well as yours:

            How accurate is the film?

            Although Sorkin may have done a thorough job of research, there’s no question that he took considerable “creative license” when he wrote his screenplay.  He chose to emphasize certain events and to de-emphasize, revise, or omit others.  He also created totally new stuff to dramatize the story.

             For a review of what’s accurate and what’s not, I recommend two online articles.  One that strikes me as a careful job that squares with what I remember is “What’s Fact and What’s Fiction in The Trial of the Chicago 7” by Matthew Dessum, published on Oct. 15, 2020, in Slate.com.   A similar article appeared around the same time in smithsonianmag.com.

                                                To be continued

Hangin’ with Judge Hoffman

POST #7

This is the seventh in a series of posts that recall what it was like to clerk for Judge Julius J. Hoffman from 1967 to 1969.

The “Chicago 7” Trial

            In the spring of 1969, shortly before I was to leave my clerkship, a new case arrived in Hoffman’s chambers.  It resulted from a grand jury’s investigation into the events that had transpired in Chicago the previous summer, just before and during the Democratic National Convention in August 1968.  Eight men, later known as the “Chicago 8,” were accused of violating a new federal law, the Anti-Riot Act, by inciting demonstrations and violent encounters with the police in the streets and parks of Chicago.

            Countless books and articles have been written about this trial, sometimes called the Chicago “conspiracy trial,” and I’ve also seen a number of dramatic presentations on the stage, TV, and film. I don’t question the validity of any of these and won’t comment on them here.

            In 2020, a new film, written and directed by Aaron Sorkin, “The Trial of the Chicago 7,” appeared on our screens.  I’ll comment briefly on that film later.

            Because I clerked for Judge Julius J. Hoffman from 1967 to 1969, and because I lived in Chicago during that tumultuous time, I want to state my personal comments on the trial and the events that led up to it. 

            In this post, I’ll state my point of view as someone in a unique situation, working with Judge Hoffman at the very outset of the case, and who–after the trial was over—briefly talked to him about it.

First, some background 

I began my clerkship with Judge Hoffman during the summer of 1967, and I served as his junior clerk until the summer of 1968, when I became his senior clerk for a year.  My two-year clerkship ended during the summer of 1969.  Throughout my clerkship, I was living in my hometown of Chicago.  To help you comprehend the significance of the trial and surrounding events, I want to put them into some sort of context.

My remarks are based on my personal recollections of Chicago during those years.

            First, I was well aware of the rampant corruption in the city.  At the time, I sometimes described the city’s government as a “benevolent dictatorship.” Looking back, I no longer view it as “benevolent,” but it certainly was a dictatorship.

            The city’s government was dominated by one man:  Richard J. Daley, who served as the city’s mayor from 1955 until his death in 1976.  He not only held the executive leadership role, but he also made sure that local ordinances and everything else he wanted were enacted by a complicit city council filled with his acolytes (I recall only one dissenter during those years, an alderman named Leon Despres).  In addition, he decided who would fill local judicial openings.  As a result, the state courts were rank with incompetent judges loyal to Daley and his machine.

            Federal judgeships were somewhat different.  Many if not most of the judges were more or less independent of Daley, at least once they were on the bench.  Even though these judges probably were not totally lacking corrupt motives of their own, most of them (including Democratically-appointed judges who had some connection to Daley in their past) were not necessarily loyal to the Daley regime. 

            Judge Hoffman was a Republican appointed by Dwight Eisenhower and to my knowledge not connected in any way to the Daley machine, although I suspect that many members of the public thought he was. At a luncheon in Chicago in 2001, I was seated next to a prominent news anchor who voiced his assumption that Hoffman was part of the Daley machine.  I immediately corrected him.

Political developments during 1968

            By early 1968, many Democrats had grown restless with the presidency of LBJ.  National politics heated up when a number of men announced that they hoped to replace him.

            The heat became intense on March 31, when LBJ announced in a live TV appearance that he would not run again. (I recall watching him make that stunning announcement.) 

            LBJ reportedly dropped out because Senator Eugene McCarthy of Minnesota had won 42 percent of the vote in the New Hampshire primary, while LBJ won only 49 percent.  McCarthy was the leading voice advocating an end to the Vietnam War, a position that was becoming increasingly popular.  McCarthy’s primary showing led Senator Robert F. Kennedy of New York to enter the race a short time later.   Like McCarthy, he ran on an antiwar platform and advocated a number of other popular positions.

Even before LBJ’s announcement on March 31, I—like so many others– had become disillusioned with him, despite all of his remarkable accomplishments in the domestic realm, because of his increasing and unwavering support of the Vietnam War.  I never considered supporting Republican Richard Nixon, who had run and lost to JFK in 1960 (and later lost his race for governor of California).  I loathed Nixon for a great many reasons.   But for a while, New York’s relatively moderate Republican governor, Nelson Rockefeller, seemed like a possible alternative to LBJ. 

During a visit to New York City to visit friends in early March, I accompanied one of them to a meeting of the NYC bar association, where Rockefeller was the main speaker.  As he finished his speech and left for the exit, I ran after him.  Just outside the building, I approached him and stuck out my hand to shake his.  “Please run for president,” I urged him as we shook hands.  He smiled and said, “Well, aren’t you dear?” before descending the steps to his waiting car. 

I often wondered how things might have turned out if Rockefeller had taken the advice I offered him on those steps before Nixon’s grip on his party became too strong to overcome.  A short time later, LBJ dropped out of the running, and the Democratic race was wide open.  Rockefeller no long held any real appeal for me.  Now, with LBJ out of the picture, I would decide who, among the Democratic candidates who remained in the race, I’d support.

The Democratic National Convention, which would choose the ultimate nominee, was scheduled to be held in Chicago in late August of 1968.

My life in Chicago

I tried to keep up with political developments that spring and summer, but truthfully, I was primarily focused on the things that dominated my everyday life.  First, there were my responsibilities as Hoffman’s law clerk.  Then there was travel, like my trip to NYC in early March.  I also spent time with old friends I’d known for years along with some new ones.  And then there was my attempt to meet potential suitors.  (I was focused on my career but not to the exclusion of marriage and kids.)

In April, Chicago was rocked by the murder of Martin Luther King Jr. in Memphis.  Fires and looting broke out in parts of the city.  I recall visiting the apartment of someone I was dating at the time.  Together we stood at the windows of his high-rise apartment in Sandburg Village viewing the widespread fires we could see below.  I was immensely saddened by King’s death and the terrible destruction that followed.  But my own everyday life didn’t really change.

Was I aware of the efforts by antiwar activists who were gearing up for the DNC in August?  Just barely.  I often watched local TV news and read the daily Chicago Sun-Times, so I was vaguely aware that there was a Yippie movement headed by Abbie Hoffman and Jerry Rubin.  Didn’t they publicize a stunt where they brought a pig to Chicago, announcing that it was a candidate for president?  Because that struck me as pretty ridiculous, it was hard to take them seriously.  

I probably had read something about Tom Hayden and the SDS, but I honestly knew very little about them.  I was also vaguely aware of the Black Panthers, led in Chicago by Fred Hampton, but their agenda didn’t have any noticeable impact on my everyday life.

I did follow the campaigns of the leading Democratic hopefuls.  Eugene McCarthy was my early favorite, but by early June I was considering shifting my allegiance to RFK.  I was therefore horrified, along with the rest of the country, when he was assassinated in the Ambassador Hotel in LA that June.  I had lived very near the Ambassador when I briefly lived in LA at the age of 12, where my family’s first home was a rented apartment on Normandie just off Wilshire Boulevard, a location very close to the Ambassador, and I had strolled near there.  That memory made RFK’s assassination even more real to me than it might otherwise have. 

After he died, I returned to supporting Eugene McCarthy, but I ultimately resolved (with reservations) to support LBJ’s vice president, former Minnesota Senator Hubert Humphrey, as the most electable of the Democratic candidates for president.  Humphrey had a long and admirable record as a liberal Democrat who had supported civil rights legislation and other liberal causes for many years.  But although he earned the support of liberal senators like Fred Harris of Oklahoma and Walter Mondale of Minnesota, he faced vehement opposition because of his adherence to LBJ’s Vietnam policies.  He spoke out against Senator McCarthy and Senator George McGovern’s call for an immediate end to the bombings in Vietnam, an early withdrawal of troops, and setting talks for a coalition government with the Viet Cong. 

Humphrey didn’t enter any of the primary elections held in 13 states, but he won the party nomination at its chaotic convention in Chicago in August.  He lost the November election by less than one percent of the popular vote, but he carried only 13 states. 

The Democratic convention and the events surrounding it led to the trial of the “Chicago 7.”

My vacation that summer

I planned to take my summer vacation during the convention for a simple reason: A close friend who lived in NYC asked me to join her on a road trip that would leave Chicago just as the convention was beginning. I was living paycheck-to-paycheck (my salary was $6,000 for the year), so I jumped at the chance to get an essentially free ride to NYC. 

My friend was coming to Chicago for a wedding, and we would leave on our road trip to NYC on Sunday, August 25, just as the convention was about to begin.  I planned to see friends in NYC and Boston, and then travel from Boston to Cape Cod with another close friend.  Because I was busy making my vacation plans, I was largely insulated from news about the convention.

In Hoffman’s chambers, things at this point seemed routine.  I was largely preoccupied with ruling on the case of The Inmates of Cook County Jail, which I’ve discussed in Post # 4.  As I mentioned in that post, I left my semi-radical opinion on Hoffman’s desk on Friday afternoon the 23rd for him to read while I was away.  (I was later amazed on my return to Chicago to learn that he’d read this opinion from the bench during my vacation.)

I was living that summer at 1360 Lake Shore Drive (where the rent on my studio apartment was a whopping $140 a month).  My mother lived a few miles farther north at Lake Shore Drive and Aldine.  Leaving my mother’s apartment the Saturday night before I was to take off on my vacation, I rode on a bus that drove through Lincoln Park (the largest park on the North Side of the city) en route to my apartment.  I was startled to see masses of people gathering in the park shortly before the convention was to begin.  During the work week, I’d been similarly shocked to see U.S. Army jeeps driving up and down city streets in downtown Chicago when I walked to work in the Federal Building on Dearborn Street. 

Both unprecedented sights made me wonder exactly what might happen in the city during the convention.  But these somewhat shocking events weren’t front and center in my mind.  I remember feeling kind of glad to be leaving town and avoiding what promised to be ominous events happening in Chicago while I was away.

Did I follow the news during my road-trip vacation?  Not really.  So I was pretty much unaware of what was happening at the convention.  But once I arrived in NYC, I stayed with a friend in Greenwich Village and, on the night that became notorious, I watched the convention with her and her husband on their living-room TV.  Needless to say, I was shocked by what I saw.  And terribly embarrassed by the behavior of Chicago’s Mayor Daley, revealed for all to see on TV.  I remember watching Senator Abe Ribicoff speaking at the podium, nominating George McGovern for president, and defying Daley, whose henchman booed the U.S. senator from Connecticut.  Daley was caught on camera mouthing expletives about Ribicoff that TV wouldn’t or couldn’t describe.

At the same time, TV news coverage highlighted what was happening elsewhere in Chicago.  The convention was held at the International Amphitheater, a considerable distance from the center of the city.  But a multitude of antiwar protesters had gathered in the very large downtown park, Grant Park, located adjacent to Michigan Avenue.  These protestors created havoc as they began to move onto Michigan Avenue.  The resulting chaos, and the violent reaction to the protestors by the Chicago police department, seen across the world on TV, was later described as a “police riot.”

In NYC, I put that chaotic vision aside and went on to meet another friend in Boston.  We traveled together to Cape Cod, where we heard that Humphrey had chosen Maine Senator Edmund Muskie as his VP.  Muskie seemed like a good choice, and despite the turmoil in the Democratic Party, I was hopeful that the Humphrey-Muskie ticket could defeat Tricky Dick.

Flying back to Chicago to resume my life there, I discovered that things had largely settled down.  What had happened during the convention didn’t loom large in my mind as I began to pay close attention to the much more compelling 1968 election campaign.  The outcome would steer our country down Humphrey’s path or down a very different one.

In November, I was plunged into gloom by the dispiriting Nixon victory.  I remember watching election-night news coverage in agony as Tricky Dick’s votes added up.  I saw his victory unfold on my tiny black-and-white TV, seated on my sofa next to a date who’d asked me to accompany him earlier that evening to a performance of “Jacques Brel Is Alive and Well and Living in Paris” at The Happy Medium.  Maybe because I associated the guy with that terrible night, I was OK when he gradually faded from my life.  I honestly didn’t care if I never saw him again.

Nixon’s victory changed everything. 

To be continued….

Hangin’ with Judge Hoffman

POST # 6

This is the sixth in a series of posts recalling what it was like to serve as a law clerk to Judge Julius J. Hoffman during 1967 to 1969.

Sitting on the Seventh Circuit

            Judge Hoffman was always worried about the fate of his rulings in the appellate court, the U.S. Court of Appeals for the Seventh Circuit, which reviewed the rulings of the district courts in the circuit, including ours.

            The Seventh Circuit was made up of appellate judges who sat in three-member panels in a courtroom in the same courthouse as the district court courtrooms.  But, as I recall, the Seventh Circuit courtroom was larger, was on a higher floor than the district court courtrooms, and was grander in every way.  The court, as an appellate court, also conducted its proceedings in a far more rarefied atmosphere than the one that permeated the more rough-and-tumble atmosphere at the trial court level.

            Hoffman was frequently reversed by the Seventh Circuit.  In the process, he was often severely criticized by one or more appellate judges for the way he had conducted a trial or reached a legal conclusion.  The South Holland school-district case was a prime example.  Another example was the Amabile case, in which the Seventh Circuit opinion pointed out how easily Hoffman could have avoided reversal if he hadn’t so adamantly refused to ask the jury about the influence of the media on the jury’s thinking.

            Of course, the “Chicago 7” trial was the leading case in which Hoffman was eventually slapped down by the Seventh Circuit.  (I’ll say much more about that trial soon.)

            In early 1969, despite his spotty record with the Seventh Circuit and several months before the “Chicago 7” trial, Hoffman was asked to sit “by designation” on a panel of the Seventh Circuit.  The U.S. Courts of Appeals were at that time frequently overwhelmed by their caseloads, and they would ask retired judges or district court judges to sit by designation on a panel made up of two regular appellate court judges and one non-regular judge. 

            There was great excitement in Hoffman’s chambers when he was asked to do his bit for the Seventh Circuit.  He was thrilled to play the role of appellate judge for a change.  I’m quite sure that he longed to be appointed to the appellate court (he called it being “kicked upstairs”), but that plum had never been offered him.  At least he could now be Appellate Judge for a Day.

            As senior clerk, I was assigned to assist the judge in this new and challenging role.  So when the briefs in the case he was to hear arrived in our chambers, he asked me to read them and prepare questions he could ask during the oral argument.  This sounded reasonable enough.  He was busy with his routine courtroom work and didn’t want to devote much time to the appellate briefs. 

            Still, I did expect him to scan the briefs and have some knowledge of the issues before the oral arguments would be heard.

            I was myself excited about assisting the judge with his new role as appellate judge.  I hadn’t applied for a clerkship with an appellate court, a clerkship that was (like the role of appellate judge vs. that of trial-level judge) more prestigious than the clerkships I applied for with the Northern District of Illinois.  Looking back, I probably didn’t explore the possibility of an appellate clerkship because I was pretty sure that I had a better chance of getting a clerkship with the district court, when securing even one of those was a challenge for a woman applicant in 1967. 

            I’d therefore resolved that if I was offered a clerkship with the Northern District, which was based in my hometown of Chicago, I would grab it and forgo my inclination to work as a lawyer in Washington, D.C. 

            I’d always been fascinated with being at the center of power in D.C.  But at the time of my last year in law school, Lyndon Johnson had squandered the remarkable record he’d acquired on domestic issues (for example, propelling the enactment of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and creating the Office of Economic Opportunity) by plunging further and further into the disastrous Vietnam War.  I decided to await the results of the presidential election of 1968 before committing to D.C.  So I was quite happy to accept a district court clerkship in Chicago.

            My own affinity for appellate-level work had been sparked when I participated in my law school’s moot court program, the Ames Competition.  In my first attempt at appellate brief-writing in the fall of my first year, I’d triumphed over a male classmate who was openly miffed that he was assigned to compete against a woman student.  He was overheard complaining that “If you win against a girl, you’ve only beat a girl.  And if you lose to a girl, you’ve been beaten by a girl!” 

            Some of my closest and longest-lasting friendships began in law school, and a great many of them are with male classmates.  But it’s entirely possible that, at that time, there were some others among my male classmates who shared the same misguided notion as my Ames opponent. 

            All of which made my victory especially delicious when I walloped him in moot court.  I earned a higher score from our three male judges, both on our oral arguments and on our briefs.  I almost felt sorry for my opponent.  His lawyer-father had traveled a thousand miles from the Midwest to witness his son’s humiliating defeat.

            Competing in moot court, I discovered my love of brief-writing, and I continued to compete in the Ames Competition as long as I could, hoping to do brief-writing during my career as a lawyer.  As things turned out, I did write appellate briefs during my career, and I went on to teach appellate brief-writing to students at law schools like Northwestern and the University of Michigan.

            The day Hoffman sat on the Seventh Circuit, I was present in the imposing courtroom, perched on a chair just behind the judges.  Once the oral arguments began, the judges were free to interrupt the lawyers with questions, and I had provided Hoffman with a list of challenging questions for both sides. 

            I was shocked when Hoffman finally spoke and revealed his vast ignorance of the legal arguments presented in the briefs. 

            He asked the right questions, of course (I had written them out clearly for him), but he asked them at the wrong time.  Once or twice, he asked a question that a lawyer had already answered, and the lawyer was forced to repeat what he had said a few minutes earlier.

            Hoffman also asked some questions completely out of context, revealing his total lack of understanding of the issues.  As the appellate lawyers struggled to complete their well-prepared presentations, I cringed.  The man was smart enough.  He simply hadn’t bothered to learn anything about the case being argued in front of him, and it showed.

            After the argument, the three judges and their law clerks adjourned to the chambers of one of the appellate judges, and the judges took an informal poll of where they stood.  Once the two appellate judges announced how they were leaning (the two were tentatively in agreement), Hoffman of course jumped in and agreed.  He was then assigned the task of writing the court’s opinion.

            Back in our chambers, Hoffman asked me to write the opinion.  I was excited and eager to bite into the apple of appellate opinion-writing, something I’d never expected to do while working for a trial court judge.  I immediately immersed myself in the law that applied to the case. 

            The law turned out to raise serious constitutional questions.

            The legal issues were complex, and I discovered that I was not completely sold on the outcome the three judges had tentatively agreed upon.  I began going back and forth, one day deciding in favor of the appellant, the next day agreeing with the appellee. 

            Looking for help, I sought out one of the appellate judges’ law clerks.  He was a friend I’d known in law school, and I was sure that he could give me some guidance.  But, like me, he seemed uncertain which way to go, so our brief discussion didn’t help me resolve my internal debate.

            Once or twice, Hoffman asked me how my opinion was coming.  I assured him that I was researching the applicable case law and giving the issues a great deal of thought.  I stated quite clearly that I was deeply involved in pondering these important issues and that I wanted to write an opinion he would take pride in.

            I didn’t see any reason to rush to judgment.  I preferred to think through the issues and come up with a well-reasoned ruling.  Appellate court opinions are often not issued for many months after oral argument.

            But Hoffman’s obsession with speeding through his caseload triumphed over my desire to do a thoughtful and thorough job. 

            One morning I arrived in chambers and was abruptly informed by Hoffman’s secretary that the opinion was written and I no longer needed to do any work on it.  After catching my breath, I asked, “What happened? Did the judge write the ruling himself?”

            Of course not, I was assured.  He had hired someone to write his opinion for him.  Although the secretary didn’t reveal the name of the author, it was a professor at a local law school. 

            So, without telling me, Hoffman had turned the case over to a law school professor, whom he paid out of his own pocket.

            I was astounded.  If Hoffman had given me a deadline (say, “If you don’t write this by June 1st, I’ll have to take it out of your hands”), I would have finished writing an opinion by the deadline.  And it would have been as good as, or better than, whatever the law professor came up with.

            But I wasn’t given any deadline.  After I spent weeks doing difficult legal research and evaluating the merits of the competing issues, the case was yanked out of my grasp and turned over to someone else.

            I never checked to learn how the opinion fared.  Did the two other judges go along with it?  Did the parties appeal to the U.S. Supreme Court?  The truth is that, after the shock wore off, I really didn’t care what happened, so I never bothered to find out.

            Looking back, I probably should have realized that Hoffman desperately wanted to get the appellate case out of the way so he could get back to his everyday routine.  I had assumed that he could separate his appellate court role from his obsession with being in first place in the district court’s statistics.  While he waited for a well-reasoned opinion, he could have speeded through his trial-level caseload the same as always. But I was mistaken on that score.  He couldn’t separate the two roles. 

            In retrospect, maybe I could have proceeded differently.  Maybe I spent too much time going back and forth on the complex legal issues.  Maybe I should have set aside my trial-court responsibilities and focused exclusively on the appellate case.

            I could have simply sat myself down and written an opinion that favored one side or the other.  And been done with it. 

            But I still think that Hoffman was unforgivably wrong to do exactly what he did.

            As disillusioning as so much of my experience with him was, I view this entire episode as one of the worst examples of Hoffman’s high-handed behavior.

Hangin’ with Judge Hoffman

Post #5       

This is the fifth in a series of posts recalling what it was like to serve as a law clerk to Judge Julius J. Hoffman from 1967 to 1969.

•     My brush with patent law

      During my clerkship, I had a memorable encounter with patent law.  I’ll explain.

      First, a brief introduction to patent law–and how patent litigation has been handled by the federal courts. I know this sounds boring, but it’s actually pretty interesting.

      Patent law is a very old doctrine.  In the U.S., patents were first acknowledged in the 1787 Constitution. The framers of the U.S. Constitution knew that preserving the rights of authors and inventors was vital if our country was going to succeed.  Article I declares that Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  This clause, attributed to James Madison, was adopted unanimously without debate.

      To promote innovation and ensure consistent results throughout the country, Congress went on to give the federal courts the authority to decide any disputes over patents–for example, who was the rightful owner of a patent awarded to a particular invention.  Over the years, Congress has enacted a number of laws enforcing copyrights and trademarks as well as patents. 

      When it comes to patent disputes, federal district judges decide these cases at the trial level.  If one or both sides are unhappy with the district judge’s ruling, they can appeal.  At the time of my clerkship, appeals were heard by the circuit court of appeals that heard appeals from that district.  In our case, that was the U.S. Court of Appeals for the 7th Circuit.

      It was widely known that the judges at both the trial level and the appellate level were woefully lacking in the science background needed to decide these often complicated cases.  They would therefore rely to some extent on the lawyers who presented the arguments on behalf of their clients.  But their rulings were often pretty awful.

      In 1968, I remember hearing that about half of all district court rulings on patent cases were overturned by the courts of appeals, but the truth is that very few of the judges at either level were competent at making these decisions.

      In 1982, Congress changed things.  District judges would continue to decide cases at the trial level, but appeals would be heard by a newly created court, the U.S. Court of Appeals for the Federal Circuit, an appellate court whose judges had a greater knowledge of science and applicable patent law.  But during the years of my clerkship, appeals from Judge Hoffman’s patent rulings were still decided by the 7th Circuit Court of Appeals.

On to my story:          

            At the beginning of my first year as Judge Hoffman’s clerk, the judge distributed his two pending patent cases to my co-clerk, Susan Getzendanner, and me.  Susan was the senior clerk.  She had already served as Hoffman’s clerk for a year.  I was the new and junior clerk.  She and I became good friends, and I learned a great deal about clerking for Hoffman, and clerking in general, from her.  (Thanks, Susan.)

            As the senior clerk (and later the district’s first woman judge), Susan was handed the more difficult case, one that involved a patent for a TV antenna.  I got what I viewed as a still-challenging case, one that involved power tools.

            Susan, who was already the mother of one child, announced at some point during the winter that she was expecting her second child in the spring.  At first, Hoffman was visibly upset.  Would her pregnancy somehow affect his standing in the court statistics?  (You remember the judge’s focus on being first in the district court’s statistics, right?)

            When it turned out that the baby was due in March and that Susan didn’t intend to take time off before the birth (and almost no time afterward), Hoffman relaxed.  After all, in March he would be taking his annual month-long vacation, going off to a luxurious resort, The Breakers in Palm Beach, Florida.

            The only problem was the TV-antenna patent case.  Hoffman had heard evidence in a bench trial (a trial held without a jury), and he’d expected Susan to write his decision while he was gone in March.  So even though, as things turned out, Susan continued to work in chambers during most of March, shortly before Hoffman left on vacation he turned the TV-antenna case over to me.

Although I had already immersed myself in the ins and outs of power tools, that case was extracted from my pile of pending cases, and the TV-antenna case replaced it.

            I was dumbstruck when the implications of Hoffman’s decision began to sink in.  I had never even taken high school physics (a decision I still regret), but I was now expected to rule on the status of a patent on a TV antenna!  The absurdity of having judges who have no scientific training decide patent cases suddenly hit me.  I was even more shaken up when I sat down in March, after Hoffman had left for Florida, and began to leaf through the transcript of the bench trial.

            I tried to make sense of what had taken place in the courtroom.  I struggled with the scientific terminology, reading and re-reading passages of the transcript and the briefs presented by both sides.  But I became absolutely livid when I discovered what the judge had done during the course of the trial.  At least twice, the patent lawyers had given him the opportunity to hear a clear and simple explanation of the science that was critical to deciding the case–and Hoffman had both times refused to hear it.  In his haste to move the trial along (always keeping his statistics in mind), he essentially told the lawyers, “No, no, that’s not necessary.  Don’t waste my time.  I understand everything you’re saying.”

            When I read those passages in the transcript, I felt like screaming.  How could he say that, knowing that he was going to dump this case on one of his unsuspecting clerks?

            I struggled on, trying to gain some understanding of the science behind TV antennas.  I reviewed the briefs filed by both sides and looked at the competing antennas that were stored in the evidence room.  I finally threw up my hands and started writing an opinion. 

            I knew that an earlier opinion by a federal judge in Iowa had ruled against the plaintiff who had claimed infringement in a similar case. The Iowa court ruled that the patent was invalid and therefore was not infringed.

            I reviewed the Iowa ruling and decided that I would not be influenced by it.  Instead, I would make my own decision.  A 1936 ruling by the U.S. Supreme Court (which all lower courts were required to follow) dictated that a patent holder could not assert the validity of a patent that had already been declared invalid in a similar case.  But I decided that, although this case was similar to the Iowa case, it was different enough to rule differently.

            So even though I was uncertain about the science underlying the parties’ claims, I decided to rule in favor of the plaintiff, the holder of the patent, who claimed that its patent had been infringed.  My opinion held that the patent in our case was valid and had been infringed.

            When Hoffman returned from Florida, he wasn’t pleased with the decision I wrote, but he filed it anyway.   As always, he didn’t publish the opinion, but it can be found as a public record:  Civil No. 66-C-567 (N.D. Ill., filed 6/27/1968).

            The decision was appealed by both sides, and the 7th Circuit affirmed in part and reversed in part.  422 F.2d 769 (1970).  It affirmed my decision that the patent was both valid and infringed.

            Guess what happened next.  The case ended up going to the U.S. Supreme Court and, believe it or not, became a landmark case in patent law. 

            Both my opinion and the Seventh Circuit’s opinion had relied on the U.S. Supreme Court ruling from 1936.   But the Supreme Court decided to use this case to reverse its own ruling.  This meant that we were able to uphold a patent that another court had not.

            The Supreme Court decision became a landmark ruling. .University of Illinois Foundation v. Blonder-Tongue Laboratories., Inc., 401 U.S. 313 (1971).  Patent attorneys all know this case as “Blonder-Tongue.”

            In my wildest dreams, I never suspected that my painfully wrought opinion in the TV-antenna case would wind up in the Supreme Court and be considered, in any way, by the highest court of the land.

            Go figure!

Hangin’ with Judge Hoffman: Post #3

 

This post is the third in a series of posts recalling what it was like to work as a law clerk for Judge Julius J. Hoffman.

 •      His treatment of lawyers

                Hoffman tended to treat most lawyers disrespectfully.  During court sessions, he would berate lawyers for their failings, no matter how minor, and he would generally speak to them in a condescending tone.  Seated in the courtroom, where I sometimes had to listen to lawyers’ arguments or witnesses’ testimony, I often found myself cringing when Hoffman demeaned a lawyer who appeared before him.

                There were a few exceptions.  He was generally impressed with lawyers from the biggest, most prominent firms in the city, and he tended to treat them better than less well-connected lawyers. 

                 He also treated government lawyers with some deference, and he was almost courtly to the few women lawyers who appeared before him.  If a lawyer was both a woman and a representative of the U.S. government, Hoffman would treat her like a queen.  A woman friend of mine who worked for a federal agency could never understand why lawyers complained about Hoffman.  She thoroughly enjoyed her appearances in his courtroom.

•     Hell, no, I won’t…publish

                Hoffman almost never published his opinions.  He justified his refusal to publish by saying he didn’t want lawyers to throw his own words back at him in a later case.  Early in his judicial career he had apparently published some opinions, and lawyers did just that.  At that point, he swore off publication. 

                The only decision of mine that Hoffman chose to publish involved an arcane tax issue involving Rosehill Cemetery.  Later, when Hoffman went along with a controversial ruling I wrote in a case involving the inmates of Cook County Jail, he read the ruling from the bench but refused to publish it, despite numerous requests from lawyers that he do so. 

            I guess he thought he had done enough just reading the damned thing from the bench.  He was not about to put it in black and white.  The ACLU ended up buying a copy of the transcript from the court stenographer and making copies of it, so the opinion eventually was widely circulated, but in less-than-official form.  (I’ll have more to say more about this case in Post #4.)

•      His view of habeas corpus petitions

                In the late ’60s, both state and federal prisoners tried (as they still do) to get out of prison by filing habeas corpus petitions.  Some prisoners were fairly skillful jailhouse lawyers who submitted petitions citing legal authority for their claims.  Others sent crudely drafted handwritten pleas with very little to go on.

                Hoffman gave clear instructions to his law clerks that we were never to grant a habeas corpus petition, no matter what sort of claim the prisoner alleged.  He directed us to find something, anything, on which to base a dismissal of the petition.

                I quickly learned a few shortcuts and repeatedly cited the same language, followed by the same precedents, over and over again.  But in a few cases I couldn’t see any way to get around a prisoner’s claim.  The prisoner had made a genuine constitutional argument, and I believed it was necessary to hold a hearing where he could make his case.  But whenever I tried to explain this to the judge, he blew me off.

                “I will never allow a prisoner to be brought to my courtroom for a hearing,” he declared.  “If the Seventh Circuit wants to order me to hold a hearing, I will hold it, but I will never order one myself.  Find some reason to deny the petition!”  So even in those few cases, I had to comply with the judge’s position and come up with some pretext to deny the petitions–hoping, of course, that the prisoners were not too discouraged to file an appeal with the court of appeals.

In the case of one prisoner, I was happy to go along with the judge’s dictates. Jack K. was a perennial petitioner who must have filed one or two handwritten petitions every month. He filed so many that we never took any of them seriously. Prisoners like him eventually led the federal court system to clamp down on all prisoners and impose rules that would prevent abuse of the system by people like Jack.

Hangin’ with Judge Hoffman

This month I’m beginning something new.

I’m beginning a series of posts that will focus on my personal recollections of working as a law clerk for a federal judge–a judge who became notorious shortly after I left my clerkship.

Judge Julius J. Hoffman was a U.S. district court judge in Chicago who became notorious when he presided over the “Chicago 7” trial that began in the fall of 1969.

As Hoffman’s law clerk from 1967 to 1969, I observed him closely throughout my two-year tenure with him. This two-year period included, in its final months, the road that led to the “Chicago 7” trial.

This trial is now the subject of a new film written and directed by Aaron Sorkin, “The Trial of the Chicago 7.” Because the film has inspired new interest in Judge Hoffman, this seemed to be an appropriate time to publish my recollections.

As Judge Hoffman’s law clerk during the two years before the trial began, I could foresee much of what would happen in his courtroom.  I later sat in on the trial, as a spectator, on two very cringe-worthy occasions.

This is the first post in a series that will examine what it was like to clerk for a judge like Hoffman. I’ll begin at the beginning: my first encounter with Judge Hoffman and how I came to work for him.

I’ll go on to describe a wide range of issues that arose during my tenure. These will include my observations during the frenetic time just before and during the “Chicago 7” trial. I’ll conclude with my final communications with the judge, just before I left Chicago in 1970.

Post #1

          In the fall of 1969, Judge Julius J. Hoffman moved from relative obscurity into the spotlight of national attention.  Although he had earned a reputation within the Chicago legal community as an irascible judge with a strong conservative bent, he was otherwise a little-known figure.  The public knew him only as one of Chicago’s U.S. district judges, and as such, he was generally respected.  Even lawyers who had appeared before him were compelled to admit that, despite his personal shortcomings, he could sometimes be an excellent judge.

          All that changed in the fall of 1969.  Assigned to be the presiding judge in what became known as the “Chicago 7” trial, Hoffman was suddenly the focus of journalists and lawyers from every corner of the United States, even the world.  Suddenly his courtroom demeanor was under a microscope, probed for rationality and fairness.  And just as suddenly, he became a national villain, even a national joke.

My first encounter with the judge

          In his custom-made elevator shoes and his black robe (double-stitched for longer wear), Judge Julius J. Hoffman would stride imperiously into his courtroom.  He would seat himself behind his imposing judicial bench, his tiny figure almost lost in the high-ceilinged courtroom he occupied on the 23rd floor of the federal courthouse in Chicago’s Loop.

“The motion will be dee-nied!”

                I can still hear the judge spouting those five words, the five words he must have said a thousand times during the two years I worked for him.  He always seemed to be denying motions rather than granting them.  But that was just one feature of this eccentric and soon-to-be-notorious judge.

          Julius Hoffman was a diminutive, bald-headed man with a prickly ego that was easily punctured.  But when I met with him over the Christmas holidays in 1966, he struck me as a charming and altogether reasonable person to clerk for.  I was in my last year of law school, and Hoffman was one of only three U.S. district judges in Chicago who had agreed, in that benighted era, to interview me, a woman, for the job of law clerk.

          For a number of reasons, Hoffman became my first choice of the three, and when he offered me the job, I decided to take it.  Although I had done almost no research into what kind of judge Hoffman was, I was thrilled with the simple prospect of being any federal judge’s law clerk.

          My failure to research Hoffman’s reputation later came back to haunt me.  I soon discovered that I was working for an irascible, difficult man who had unusual proclivities and a bizarre personality that often played itself out on the bench.  So although I loved my job as a federal judge’s law clerk, and I learned a great deal from my experience working in the federal courts, I was sometimes sorry I had so quickly settled on Hoffman as the federal judge to clerk for.

RBG in ’72

Countless words have been, and will continue to be, written about the incomparable U.S. Supreme Court Justice Ruth Bader Ginsburg, who served on the high court for 27 years.

I will leave discussions of her tenure on the Court to others.

What I will do here is recount the one and only time I encountered her in person, at a law school conference, at a pivotal point in her career.  If you’re interested in learning about that encounter, please read on.

In September of 1972, I was a full-time faculty member at the University of Michigan (UM) Law School.  Notably, I was the only full-time faculty member who was a woman.

The law school had a desirable setting on the UM campus, whose multitude of elm trees were unfortunately denuded of leaves, thanks to Dutch elm disease. The law school buildings made up the stunning Law Quadrangle, featuring beautiful old buildings constructed in the English Gothic style.

My role on the faculty was to help first-year law students learn the basics of legal education:  how to analyze court rulings (the kind they would read in the books assigned to them in courses like Torts and Contracts); how to do their own research into case law; and how to write a readable legal document, like an appellate brief aimed at persuading an appellate court to decide in their favor.

I was one of four young lawyers hired to fill this role.  The three men and I each taught one-fourth of the first-year class.  As I recall, we got to choose our offices in the law school library, and I immediately chose a plum.  It was an enormous wood-paneled room with charming hand-blown stained glass windows.  One entered it via a stairway leading upstairs from the library’s impressive reading room.  I treasured my office and happily welcomed meeting with students there.  And I wonder, in light of renovations at the law school, whether that glorious office still exists.

At some point early that fall, I learned that a conference on “women and the law” would be held at the New York University School of Law in October.  This was a bold new area of law that most law schools didn’t consider worth their attention.  NYU was clearly an exception. 

The idea of the conference immediately grabbed my attention because I had a longstanding interest in its stated focus.  One reason why I had myself attended law school a few years before was that, beginning very early in my life, I was and remain concerned with achieving equity and justice, including equal rights for women.

This focus had led me to attend law school during the mid-’60s.  My first job was that of law clerk to a U.S. district judge in Chicago.  After finishing my clerkship, I became a practicing lawyer as a Reggie assigned to my first choice, the Appellate and Test Case Division of the Chicago Legal Aid Bureau.  [I discussed the Reggie program in a blog post, “The Summer of ’69,” published on August 7, 2015.]

And so, three years earlier, in October of 1969, I had begun working on a lawsuit that had a significant bearing on women’s rights because it would challenge the constitutionality of Illinois’s restrictive abortion law. This law had an enormous impact on the lives of women, especially poor and non-white women.

I worked with Sybille Fritzsche, a lawyer with the ACLU in Chicago, who became my close friend.  Sybille and I spent months preparing our case.  We filed our lawsuit in February 1970, argued it before a three-judge federal court in September, and won a 2-to-1 ruling in our favor in January 1971.  (The ruling in that case, Doe v. Scott, and the events leading up to it, are the focus of a book I’m currently writing.  In the meantime, you can read about our case in historian Leslie Reagan’s prize-winning book, When Abortion Was a Crime.)

Now, in the fall of 1972, I learned about the conference at NYU.  Because I was extremely interested in attending it, I decided to ask the UM law school’s dean, Theodore St. Antoine, whether the school might send me to New York to attend it.  I thought I had a pretty persuasive argument:  I was the only full-time woman on the law school faculty.  Didn’t the dean think it would be a good idea to send me to represent UM at the conference? 

How could he say “no”?  Ted thought about for a moment, then gave his approval.  So off I went, my expenses paid by the kind patrons of UM. 

My hotel, the Fifth Avenue Hotel, located near NYU’s law school, had sounded appealing on paper, but it turned out to be something of a dump.  It suited me just fine, however, because I barely spent any time there.  I was too busy attending the conference sessions and, when I could, taking a short break to reconnect with a couple of law-school classmates and briefly sample life in New York City, a city light-years removed from less-than-exhilarating Ann Arbor, Michigan.

The conference, held on October 20-21, turned out to be a symposium sponsored by AALS (the American Association of Law Schools), “The AALS Symposium on the Law School Curriculum and the Legal Rights of Women.”  It featured a number of prominent speakers, mostly law professors and practicing lawyers who had turned their attention to “the legal rights of women” in areas like tax law, property law, and criminal law.  I attended most of these sessions, and each of them was excellent.

But the only session I was really excited about was a talk by someone named Ruth Bader Ginsburg.  I was quite certain that I would relish hearing her talk, “Toward Elimination of Sex-Based Discrimination: Constitutional Aspects,” because the topic was right down my alley.

Looking back, I don’t think I knew anything about RBG at the time.  But when she was introduced (by NYU dean Robert McKay) and began to speak, I was riveted by every word she uttered.  She spelled out everything she had already done and planned to do to achieve gender-equity.

So although I was not already familiar with her, I knew immediately that she clearly was and would continue to be a brilliant leader in the field of women’s rights.  I filed her name away in my memory so I could follow whatever she would do in the coming years.  And I did just that, enthusiastically following the many astounding accomplishments she achieved after 1972.

Your image of RBG may be that of the frail, petite woman who took center stage in our culture in her 80s.  But the RBG I saw in 1972 was very different.  She was an amazingly attractive young woman of 39.  You can see photos of her at that time in The New York Times of September 18 (in Linda Greenhouse’s long review of her life and career) and in a recent issue of TIME magazine (Oct. 5-12, 2020). Although much has been made of her short stature (one I share), she was so very energetic and focused that one quickly forgot how small she was.

It turned out that she had attended Harvard Law School about a decade before I did.  Like her, I’ve been called a “trailblazer” and a “pioneer,” and I also confronted gender-bias at every turn throughout my life.  My path was only a bit less rocky than hers:  My class at HLS included the whopping number of 25 women in a class of 520, while hers had only 9.

I’ve since learned that October 1972 marked a pivotal time in RBG’s career.  She had just switched her teaching position from Rutgers Law School to Columbia Law School (a considerable upgrade).  And she had just assumed another new position:  Director of the Women’s Rights Project at the ACLU, a project she had helped to found a short time before. 

So I’m left wondering…did she know about the case Sybille (an ACLU attorney in Chicago) and I brought in February 1970, a case that put a woman’s right to reproductive choice front and center?

RBG was an ardent supporter of reproductive rights during her tenure on the Supreme Court.  She discussed her views on abortion and gender equality in a 2009 New York Times interview, where she said “[t]he basic thing is that the government has no business making that choice for a woman.”

But I know that she had also stated that she wasn’t entirely happy with the way in which Roe v. Wade gave every woman in the U.S. that choice by bringing cases like Doe v. Scott in the federal courts.  She stated that she would have preferred that the argument had been made, over time, in each state’s legislature, with the right to choose being gradually adopted in that way rather than in one overriding court ruling that included every state.

Notably, on the 40th anniversary of the court’s ruling in Roe v. Wade, she criticized the decision because it terminated “a nascent democratic movement to liberalize abortion laws” that might have built “a more durable consensus” in support of abortion rights.

She had a point.  A democratic movement to liberalize abortion laws would have been the ideal route, and might have been a less contentious route, to achieving abortion rights throughout the country. 

But I think her position was influenced by her own life story. 

It stemmed, at least in part, from the fact that in April 1970, she was living and working in New York, where the state legislature had passed a new law allowing abortion, and New York Governor Nelson Rockefeller had signed it on April 11, 1970.  New York became only the second state in the U.S. (after Hawaii) to permit abortion, and only a few other states had carved out any sort of exception to what was otherwise a nationwide ban on abortion.

RBG may have optimistically believed that other states would follow New York’s lead.  But history has proved otherwise.

If women had waited for each of the 50 states to accomplish the goal of women’s reproductive choice, I think we’d still have many states refusing to enact laws allowing choice.  In support of my view, I ask readers to consider the situation today, when some states are trying to restrict abortion so frenetically, with or without achieving a complete ban, that they’re now simply waiting for a far-right conservative Court to overturn Roe v. Wade.

Whether or not RBG was aware of what was happening in the courtrooms of Chicago in 1970, I think I could have persuaded her that Sybille and I were doing the right thing.  

By advocating that the federal district court hold that the restrictive Illinois abortion law was unconstitutional, and persuading the court to decide in our favor, we achieved our goal of saving the lives and health of countless women who would have otherwise suffered from their inability to obtain a legal and medically safe abortion.

What greater achievement on behalf of women’s rights could there have been? 

I like to think that, after hearing my argument, RBG would have approved.

I Shouda Ran

I just came across some great news for joggers.  Researchers have found that strenuous exercise like jogging does NOT boost the risk of arthritis in one’s knees.  A recent study enlisted nearly 1,200 middle-aged and older people at high risk for knee arthritis.  Result?  After 10 years, those who did strenuous activities like jogging and cycling were no more likely to be diagnosed with arthritis than those who did none. (See the July/August 2020 issue of Nutrition Action, noting a study reported in the New England Journal of Medicine.)

And according to a writer in The Washington Post, most data show that running actually helps keep knee joints lubricated.  (See the report by John Briley on August 6, 2020.)

Hmmm…

So…maybe I shoulda ran?

What?

I’ll explain.

When my daughters were small, my husband and I often relied on PBS kids’ programming to keep us from going bananas whenever we were home with them for more than a few hours.

I’m still indebted to “Sesame Street” and “Mr. Rogers’ Neighborhood” for offering wonderfully positive content that expanded our daughters’ minds.

I can still remember many of Fred Rogers’s episodes and his delightful music.  The recent films (e.g., “A Beautiful Day in the Neighborhood”) that highlight his music and the many layers of his unfailing kindness are moving tributes to everything he did.  (I obliquely noted Rogers’s important role in our family when I briefly mentioned him in my 2011 novel, Jealous Mistress.)

Similarly, I can’t forget countless “Sesame Street” sketches and songs we watched over and over again. In addition to stalwarts like Kermit the Frog and Big Bird, I loved less-prominent Muppet characters like Don Music, who’d take out his creative frustrations by crashing his head on his piano keyboard.

One “Sesame Street” sketch I vividly recall focused on words than rhymed with “an.”

The setting is a rundown alley in a big city.  Tall buildings loom in the distance.  As the sketch begins, two Muppets garbed as gangsters breathlessly arrive at this spot.  The savvier gangster tells his partner Lefty that “We got the ‘Golden AN’.”

The word “AN” is clearly written in bold upper-case letters on a metal object he’s holding.  Explaining their “plan,” he points to a “tan van” and says, “This is the plan. You see that van? You take the Golden An to the tan van.  You give it to Dan, who will give it to Fran.”  He adds:  “Everything I’m telling you about the plan rhymes with AN.”  He takes off, leaving Lefty alone.

Lefty, who’s pretty much of a dolt, repeats the plan out loud a couple of times while a Muppet cop is watching and listening.  The cop approaches, identifies himself as “Stan…the man,” and tells Lefty he’s going to get “10 days in the can for stealing the Golden An.”

Lefty then chides himself:  “I shoulda ran.”

This carefully crafted sketch was clearly intended to teach little kids about words that rhyme with “an,” although much of it seemed aimed at parents and other adults watching along with the kids.  How many little ones knew the meaning of “the can”?  The bad grammar in the sketch (“I shoulda ran”) was forgivable because kids watching “Sesame Street” didn’t really notice it, and the whole thing was so darned funny.

But what has stayed with me over the decades is the final line:  I shoulda ran.

When I was growing up, I always liked running fast, and I rode my fat-tire Schwinn bike all over my neighborhood.  So I wasn’t indolent.  But as I grew older and entered public high school in Chicago, I encountered the blatantly sexist approach to sports.  Aside from synchronized swimming, my school offered no team sports for girls.  So although I would have loved to be on a track team, that simply wasn’t possible.  Girls couldn’t participate in gymnastics, track, basketball, baseball, tennis, or any of the other teams open to boys our age.

We were also actively discouraged from undertaking any sort of strenuous physical activity.  It was somewhat ironic that I applied to be, and became, the sports editor of my high school yearbook because I was completely shut out of the team sports that I covered in that yearbook .  And I foolishly gave up my coveted spot in the drama group to do it—what a mistake!

I had a somewhat different experience during my single semester in school in Los Angeles, where I spent the first half of 8th grade.  Although sexism was equally pervasive there, girls at least had a greater opportunity to benefit from physical activity.  Because of the beautiful weather, we played volleyball outdoors every day, and I actually learned not to be afraid of the ball!  I was prepared, when we returned to Chicago (reluctantly on my part), to enjoy a similar level of activity during my four years of high school.  But that would not happen.   The girls’ P.E. classes were a joke, a pathetic attempt at encouraging us to move our bodies.  And things didn’t begin to change until 1972, when Title IX was enacted into law.

Over the years, I continued to ride a bike wherever I lived and whenever weather permitted. I took up brisk walking and yoga as well.  And I sometimes thought about running.

Jogging– less intensive running–took off in the late 1970s and early 1980s.  Why didn’t I begin to jog?

There was a bunch of reasons.  First, I was afraid of damaging my knees.  I’ve always loved aerobic dancing, the kind popularized by Jacki Sorensen.  I’d jump along with the music in my favorite Jacki tape, and I began to notice that jumping was possibly beginning to wear away the cartilage in my knee joints because occasional pain resulted. So I kept dancing, but I stopped jumping.  I figured that running would place even further stress on my knees.

And then there was Jim Fixx.

I didn’t know a lot about Jim Fixx.  He became a media celebrity when he published his best-selling book, The Complete Book of Running, in 1977, and his claims about the health benefits of jogging suddenly showed up on the news.  But in 1977, I had a brand-new baby and a toddler, along with a challenging part-time job, and I couldn’t focus on starting something new like jogging.  By the time I was getting ready to launch into it, I heard the news that Fixx had died of a heart attack while jogging.  He was 52.

Fixx’s death shook me up.  I didn’t know at the time that he may have had a genetic predisposition to heart trouble and he had lived a stressful and unhealthy life as an overweight heavy smoker before he began running at age 36.   All that I knew was that this exemplar of health through running had died, while jogging, at age 52.

Chicago weather also stood in my way.  Happily ensconced in an area that allowed our family to ride our bikes along Lake Michigan and quiet residential streets, and where I could take long and pleasant walks with my husband, I was reasonably active outdoors during the six months of the year when good weather prevailed.  But during the harsh winters, confined indoors, I had less success.  I played my Jacki tapes, I tried using a stationary bike (it never fit me comfortably), and I sampled a local gym.  But I didn’t pursue strenuous exercise.

Now, learning about the recent evidence I’ve noted–that, if I’d jogged, my knees might have been OK after all–I regret that choice.  My current climate allows me to be outside almost every day, and I take advantage of it by briskly walking about 30 minutes daily, much of it uphill.  So that’s my workout now, and it’s a pretty good one.

But I probably would have loved running all those years.

It’s a bit late to start now, but I can’t help thinking:  I shoulda ran.