by Ady Barkan
Since leaving the Connecticut restaurant, our clients had scattered around the eastern seaboard, so we had to communicate with them by telephone. They spoke no English. We spoke no Mandarin. This made things difficult. So we hired a brilliant sophomore from Yale College to translate on our behalf. Our clients were working at their new restaurants until eleven or twelve at night, and we could speak to them only once they got home. Late into the night we would ask them again and again for their recollections about their time working at the restaurant: What month had they started to work? How much were they paid? What were their hours? Did the restaurant use MSG in the food? What were the conditions like in their basement apartment?
The most shocking part of this case was, in fact, our workers’ living conditions. The employees at Chinese restaurants in New York City live in cramped shared apartments and pay rent. But at Chinese restaurants in the hinterlands, where there was neither a robust rental market nor a vibrant Chinese community, there was often a different arrangement: the restaurant owner provided housing as part of the employees’ compensation. Our clients had been housed in their boss’s cold, dark, poorly ventilated basement apartment—about seven of them in three small rooms, none of which was a lawful habitation. And they weren’t being paid what they were owed.
Our clients understood why we were keeping them up until the middle of the night, asking them for these details over and over again. But they still thought it was crazy—that the lawsuit would never make a real difference in their lives. We shared this sentiment, but at least we were learning how to be good lawyers. When discovery was over, sometime in the fall of my third year, we filed a motion for summary judgment, seeking to win the case without a trial. Although we didn’t prevail on every claim, the judge agreed that the restaurant had clearly violated the minimum wage and hour laws. The restaurant owner could not afford to go to trial, and our clients were eager for some cash and some closure after years of litigation. So, once again, I went into settlement negotiations. But this time I had little of the joy from my experience battling with the U.S. government the previous year. This time, my opponent was a struggling small businessman who would never be able to pay the many hundreds of thousands of dollars that he owed our clients. He, too, was a Chinese immigrant who spoke little English; he, too, had worked horrendous hours as a cook before cobbling together enough money to open his own restaurant. Yes, he had exploited his employees. But, like them, he was still a pawn in a system of global capitalism that was built to benefit others at his expense. He had just made it a couple of rungs higher up the ladder.
We couldn’t reach a settlement agreement; our clients had waited too long to accept pennies on the dollar that they were owed. The restaurant owner, with only about $100,000 in his bank account, simply could not pay them what he owed them. (We tried to look for hidden assets but found nothing.) Graduation arrived for me and my two clinic partners. We handed the case off to two younger students. Finishing these negotiations would become their job. (The case was eventually settled for $136,000. Like so many victims of wage theft, our clients were never paid what they deserved.)
That spring I also had the opportunity to do a different kind of lawyering. A local union approached the WIRAC clinic and asked for help promoting a new living-wage law for the city of New Haven. The current law featured a low wage and no benefits, and it covered too few workers. The union wanted to raise the labor standards and extend the law’s protection to all of the contractors and grant recipients who did business with the city. Over the course of a couple of months, I got advice from the country’s leading living-wage lawyers about how to craft a better policy and then sat down to share my recommendations with the union and its two young progressive allies on the city’s board of aldermen. This kind of lawyering lacked the personal connections that I had made in the landlord-tenant clinic or when representing the Chinese cooks. But, to me, it felt less tedious and more systemic. I began to get a sense for the type of lawyer I would like to become: one who partnered with community organizations to identify creative solutions to serious problems and then turn those ideas into laws.
That sentiment was reinforced when I decided to add an additional clinic to my coursework for my third year. In the legislative advocacy clinic I represented a local nonprofit organization that was part of a coalition of groups that was trying to pass a millionaire’s tax through the state legislature in order to avoid cuts to crucial services. It was the kind of coalition advocacy work that would become my bread and butter in the years following graduation.
And I also got to advocate for a new law directly related to my earlier representation of the public housing tenant. In her eviction case, which had taken place in front of a housing department bureaucrat (as opposed to a judge), there was no recording of the proceeding. If we had lost the case, it would have been very hard to successfully appeal by arguing that the bureaucrat had made an unreasonable mistake. There was an easy fix to this. The department should tape-record each of these hearings, we argued. We drafted a law to mandate this, convinced a legislator to sponsor it, testified at a sleepy hearing, and were pleasantly surprised when it became law that spring.
It was a victory, but it felt like the epitome of incrementalism. Mandating that the public housing authority record the proceedings in which it evicts its tenants is a pretty sad way to try to realize the fundamental notion that all people deserve access to safe and affordable housing. Like litigation, I realized, legislative advocacy could be tedious and underwhelming, too.
As if my clinical work didn’t provide enough opportunities for rabble-rousing, I also joined a student group fighting to improve access to essential medicines in poor countries around the world. Like other major research universities, Yale spent many millions of dollars each year conducting basic research that had the potential to lead to the discovery of new medicines. The scientists who worked in the university labs did so primarily in order to advance human knowledge and welfare. But for Yale University, which is a multibillion-dollar enterprise, this scientific research was also a tantalizing opportunity to generate enormous new revenues. It had a well-funded office—the technology transfer office—whose sole responsibility was to try to sell the basic research from Yale’s laboratories to pharmaceutical and biotechnology companies for as much money as possible.
The problem was that when those companies sold their new medicine based on Yale’s research, they charged exorbitant prices that were out of reach for many millions of patients in low- and middle-income countries. In the 1990s, when the HIV/AIDS epidemic was spreading rapidly through sub-Saharan Africa, the pharmaceutical companies refused to sell lifesaving drugs at prices affordable to the people who needed them. That horrific reality began to change in 2001 when a small group of Yale law students, led by Amy Kapczynski, realized that the patent for a key AIDS drug called d4T, sold by the multinational Bristol-Myers Squibb, was owned by the university. Amy and the other students joined with the international organization Doctors Without Borders to launch a campaign to force Yale and BMS to agree not to enforce their patent in South Africa. It led to a monumental victory. By allowing generic companies to manufacture d4T and other crucial therapies, it lead to a 95 percent reduction in the price of AIDS medicine in Africa.
Although Yale had eventually acted correctly in that one case, it still had no good policies in place to ensure affordability of all medicines developed on the basis of Yale research. The students who had led the 2001 fight established a permanent student group at Yale and a number of other major research institutions. They called it Universities Allied for Essential Medicines (UAEM). I joined the group when I arrived on campus in 2007.
As the Columbia University administration had done a few years earlier in response to our demands for better workers’ rights policies, the Yale administration was operating off a tried-and-true playbook: Delay, ignore, and obfuscate until students graduated or got distracted. The leader of the technology transfer office, in particular, saw
us as a threat to his authority and his business practices. He told his bosses that our demands were unreasonable and uninformed. We—a collection of medical, public health, and law students advised by expert professors in our fields—had other opinions. In the fall of 2008, as I was beginning my second year in law school, Yale appointed a new provost who had the reputation for being responsive and open to student voices. I had recently agreed to be one of the leaders of our student chapter of UAEM. Frustrated and sensing a new opportunity, an older mentor and I marched over to the new provost’s office and told his secretary that we needed to see him urgently. We sat and waited for an hour. We were told that his deputy and the technology transfer officer would be happy to meet with us in a few days. We accepted this minor victory and went back to our classmates to plan a strategy for the meeting. To our pleasant surprise, the political dynamics in that meeting were new and different: the deputy provost was expressing an openness to our demands, and the technology transfer officer, who reported to her, was frustrated and on the defensive. That meeting was the first of a series of fruitful negotiations.
That October also witnessed another important breakthrough. Former president Bill Clinton came to the law school for his thirty-fifth reunion. He had spent the past eight years working on issues of access to medicine through the Clinton Foundation, and we saw this as a valuable opportunity to put additional pressure on the university. We enlisted the support of the law school’s dean, Harold Koh, who had served in the Clinton administration and shared our progressive politics and concern with global health. Harold arranged for me and two other students to meet with President Clinton just before he gave his speech to thousands of alumni and the Yale community. Sara was an MD-PhD student with an expertise in infectious diseases, and Robynn was a law student with experience in global development who had worked with the Clinton HIV/AIDS initiative; together, the three of us would try to convince Clinton to join our lobbying efforts. In the days before the meeting, we met repeatedly with the other student activists to come up with the right request for Clinton and narrow down our pitch to a few punchy sentences: we were only going to have a moment with him and needed to get straight to the point.
It was a sunny fall day when Clinton’s motorcade pulled up. Harold introduced us to him; he towered over us and with his friendly charisma seemed in no rush to get into the speaking engagement. We jumped into our pitch, explaining why we thought Yale needed to do a better job to make its scientific research accessible. We asked him for a meeting back at his offices in Harlem to discuss the issue further. He told us he agreed with our general goals and shared some story about his work on the issue. We pushed again: Would he be willing to meet with us for a longer conversation? All of a sudden, his friendly warmth disappeared. “Look, I don’t control my schedule,” he barked at us. “I don’t know if that is possible.” We tried to mutter some pleasantries, but the conversation was clearly over. He stormed off, with Harold trailing behind.
The Yale administrators ushered Robynn, Sara, and me to the front row of the enormous auditorium. Our fellow activist students and the in-the-know professors, who were all in their seats already, watched us with anticipation. “How did it go?” they whispered to us. We were too flabbergasted to have a coherent answer.
Clinton’s speech began with pleasantries about the university and meandered through amusing insights about the presidential primary that his wife had just lost to Barack Obama and about his prescriptions for the American economy, which was in the throes of the financial collapse. Then he began to talk about his work on the international access to medicine. My pulse quickened. Would Clinton talk about our issues? Would he push Yale to do better?
He told the audience that he had just met with three students outside the auditorium. He said that we were worried that Yale had become part of the problem, rather than the solution. The students, he said, were “working on the idea that the universities, which are big engines of biomedical research, should be able to take a lead in changing America’s policy so that the patent process does not prevent lifesaving drugs in new areas from getting to people who need them.” He expressed his support for this mission, saying, “I like that, because that’s turning good intentions into positive change.”
Our stress and uncertainty disappeared. He had given us what we needed. In front of Yale’s entire leadership, he had validated our critique and called on his alma mater to do better—even if he had used more polite and nuanced language than I would have liked.
Combined with the arrival of the new provost, the pressure that we were able to put on the university with that boost from Clinton was enough to generate a series of productive negotiations. We presented the administrators with a comprehensive policy proposal. They seemed willing to accept much of it. And then one spring morning, as we appeared close to our final agreement, I was surprised to wake up to a Bloomberg headline: six major research institutions announcing a new shared commitment on access to medicine. We were blindsided but also hopeful. Our advocacy at Yale, combined with student efforts at other universities, had led to a major breakthrough for our organization. But the language of the universities’ commitment was not as strong as what we had thought we would be getting out of Yale, and certainly not as strong as our proposed language.
Was this a victory? A setback? Would Yale and the other universities actually implement the new policy commitments—or would they just continue with business as usual and wave the document at the next generation of students who complained to them? The only way that this announcement would actually lead to better access to medicine in poor countries was if students remained vigilant, insisting that Yale prioritize the public interest over the pharmaceutical companies’ profit margins. That meant that our UAEM chapter needed to develop new generations of educated activist students—students who could organize broad support from across the campus, identify strategic campaign opportunities, make use of connections and resources (as we had done with Harold Koh and Bill Clinton), hold their own in negotiations with university administrators, and use the media to put pressure on Yale to do the right thing.
It required, in essence, building a strong institution that could survive beyond any one student leader. Political change, I began to learn, was achievable only through sustained struggle, which required sustainable and powerful institutions that could continue pursuing their objectives for many years.
When the time came for me to start thinking about finding work after law school, I asked for advice from Amanda Shanor and Shayna Strom, two older students in UAEM. They told me about a special organization in New York City whose offices were filled with Spanish-speaking immigrants taking classes, singing songs, registering voters, cooking chicken and rice, designing campaign plans, filing lawsuits, phone banking, and making art. I knew I had to see it for myself, so I traveled into the city and then took the 7 train out to Queens, watching through the window as we rattled over vibrant immigrant neighborhoods. I descended onto Roosevelt Avenue in Jackson Heights and walked into a storefront office; the walls were covered in revolutionary art, the air filled with purpose and dignity. I fell quickly in love.
The fellowship that I received to work at Make the Road New York lasted only twelve months, but it was the best political education I ever got. As the lawyer for the organization’s Queens workers’ committee, I worked to help our members win justice after they were deprived of minimum wage, overtime, or other workplace rights. But along the way I got to see what it means to do community organizing in pursuit of collective liberation: to meet people where they are, bring them into a shared space, and move them together toward a common goal. In the decade since then, I have seen organizing succeed and I have seen it fail. But I have never seen it practiced like at Make the Road New York. The organizing done there was more profound and more powerful because it embraced the full humanity of its members. The members of Make the Road New York were residents of the local communities, but they were also so much more. When they walked i
nto the offices, they were recognized as workers and immigrants, as mothers and sisters, teachers and artists, students and musicians, readers and writers, dreamers and leaders. They were treated as full human beings—human beings facing tremendous obstacles but also bringing incredible resources to bear, bringing incredible power and creativity to their fights for dignity and justice.
The organizing done at Make the Road New York begins with a one-on-one conversation, and over the years, through tens and hundreds of thousands of such conversations, the political power built within those colorful walls has delivered to New Yorkers more livable apartments, better schools, larger paychecks, safer medicine, more affordable university, a less oppressive police force, and a less intrusive deportation machine. When my year there ended, and I left for a job in the federal courthouse downtown, I didn’t yet know exactly what kind of a lawyer I wanted to become. But I had seen what kind of power I wanted to help build and what kind of movement I wanted to join.
CHAPTER THREE
APPRENTICESHIP
“All rise!” said Jim, the flamboyant, clever, socially awkward courtroom deputy. Fifteen reporters sitting in the jury box rose, along with about one hundred members of the public. Two tall, handsome prosecutors stood with confidence, one sporting a Sikh turban, the other a mop of sandy-blond hair. A few feet away stood a Russian immigrant defense attorney in a fancy suit with his hair gelled straight back. Beside him, his client displayed a quiet demeanor and simple appearance that belied his ferocious reputation: this man was Viktor Bout, the infamous “Merchant of Death,” known throughout the criminal underworld, portrayed by Nicolas Cage in Lord of War, and now in federal custody after two decades on the most-wanted list.