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I realize I’m arriving a little late to this party, but I just found out about this article. Last year, Valparaiso professor Robert Blomquist published “Thinking About Law and Creativity: on the 100 Most Creative Moments in American Law” in 30 Whittier Law Review (2008) 119. Jumping off from a Posner decision in U.S. v. McKinney, Blomquist discusses the history of innovation and creativity in law — which is by its very nature is a conservative profession. He follow up the discussion with a tentative list of the 100 most creative moments in American law. The top 10 has what one would expect: the Constitution, the Declaration of Independence, the Bill of Rights, Marbury v. Madison, etc. After that, though, the list gets real interesting.
Brandeis makes two appearances: his “Right to Privacy” article is #75, while his opinion in Erie Railroad v. Tompkins is #94. Harlan is represented (sort of) at #20: Plessy v. Ferguson, although Blomquist isn’t really citing Harlan’s dissent. Instead he cites the majority opinion as an example of what he calls negative creativity: where creative means were used to reach a deplorable outcome.
I’m not sure how instructive lists like this are, but they make for fun reading by providing grounds for arguments and head scratching bewilderment. And Blomquist’s list doesn’t disappoint in either area. I have two main objections to the list: one general and one specific. Blomquist specializes in environmental law and he lets his enthusiasm for the subject get the better of him. I count at least 20 items that relate to the environment. I believe protecting the environment is extremely important, but devoting 20% of a list that’s supposed to represent American law as a whole is over the top. Blomquist says that he solicited the opinion of over 400 law professors for examples of creative legal acts. I wonder how many of them chose Rachel Carson’s The Silent Spring (#43) or Al Gore’s An Inconvenient Truth (#68)? Even after reading his justification for including Earth Day (#63) I still don’t see how it qualifies as a legal event.
My other complaint is one of omission. How could Brandeis’ brief for Muller v. Oregon not make the list? Brandeis’ emphasis of social science data over legal precedent forever changed how law was practiced? Without Muller, Brown v. Board of Education (#10) might not have ever happened. (Interestingly, Blomquist does include Lochner v. New York as another example of negative creativity, which Muller was instrumental in discrediting.)
Despite my carping, I enjoyed the list very much and judging from the comments on the article in the blogosphere, a lot of other people have as well. Blomquist says the list is tentative and that he will incorporate people’s suggestions into the book he is planning on producing. It’ll be interesting to see if the Brandeis brief makes the final cut.
Blomquist’s article is available on SSRN.
Brandeis’s brief for Muller v. Oregon is also available online.
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Brandeis and His Clerks
The latest issue of the Journal of Supreme Court History (v. 34, no. 1) has yet another article about Brandeis. (Too bad these articles aren’t being posted on the web.) This one is about his relations with his law clerks. Author Todd C. Peppers used unpublished interviews with the clerks, letters written by Brandeis and other reminiscences to recreate what it was like to clerk for the judge. The job sounds like it was vastly different than it is now. Brandeis always got by with one clerk, who spent most of his time cloistered away in Brandeis’ apartment, away from the other justices and clerks. Besides helping Brandeis prepare his opinions, other duties included answering his mail, doing research (one clerk recounted having to look at every page in over 60 years of the Senate Journal) and acting as bouncer at Mrs. Brandeis’ tea parties. (Those parties must have been wilder affairs than I had realized.) Despite the hard work and isolation, the experience created a lifelong attachment in most of the clerks and their memories provide a fascinating look at the private life of the man.
And, while this isn’t exactly Harlan related, there is also in the same issue an article about Harlan’s hero Henry Clay and his relationship with the Supreme Court. Another good read for people interested in Ketucky legal history.
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Among the Harlan papers collected by the Library of Congress is a listing of his father’s personal effects at the time of his death. Harlan’s father, James Harlan, was a former Kentucky Attorney General and Congressman as well as an avid book collector. The inventory takes up 15 pages, 9 of which are filled with titles of books. Most of the titles are law books, which made it one of the largest legal libraries in the region of its time.
Kurt Metzmeier, a bibliophile, local historian and co-worker of mine, and I took on the task of trying to identify all of the titles listed in the inventory. The result sheds an interesting light on both the legal book trade of the mid-19th century and on the personal lives of two generations of the Harlan family. We published our findings as “Nursey of a Supreme Court Justice: The Library of James Harlan of Kentucky, Father of John Marshall Harlan,” 100 Law Library Journal 639 (2008). The article can also be found on SSRN.
This also seems like a good time to make a plug for Kurt’s blog, which deals with Kentucky politics and law, both past and present, with a great deal more humor than can be found here.
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Critics of Other People’s Money claim that the book is misguided and out of date, but its ideas keep generating discussion, especially in this time of economic uncertainty. Now Wired Magazine (of all places) has cited Brandeis in its latest issue. Their article “The Road Map for Financial Recovery: Radical Transperancy Now!” talks about the efforts of computer geeks to devise a number of metatags that could take the obfuscations of corporate financial statements and translate them into raw data. The idea is that by making the statements truly transparent, the public would not have to rely on the SEC so much to expose corporate fraud. Instead anybody could become the next Dan DiBartolomeo (who exposed the Bernie Madoff scandal) or even Brandeis (who famously did the same thing with the New Haven Railroad.)
I think the article’s final two paragraphs sums it up perfectly: “Brandeis argued that electric lights were the best police force. Now it’s time to give everyone a flashlight.”
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A conversation with Brandeis
Going through the collection this week, I stumbled upon a small gem I hadn’t seen before. It’s a typed transcription of a conversation held between Brandeis, his wife Alice, British economist Redvers Opie, and one of Brandeis’ nieces, presumably Fannie (who typed the transcription.)
While nothing earth-shattering, the transcription is intriguing in a number of ways. Brandeis’ apartment in Washington was a required stop for dignitaries visiting the city, and it is interesting to get a fly-on-the-wall view of one of these visits. The conversation also dates from 1939, which is a fairly undocumented time of his life. It was about a year after his retirement from the Supreme Court (and about two years before his death) when he had mostly dropped from public view. Since he had pretty much stopped giving interviews once he joined the bench, this is the only instance I know of where he gives his opinion of the war and the situation in Germany. He also touches on a difference between him and Oliver Wendell Holmes and gives an anecdote about his Harvard Law School days.
Finally, it is interesting to hear Brandeis speak in an unguarded voice. Some of letters to his family are written in an informal voice, but this may be the closest we can get to “hear” what a conversation with Brandeis was like. I only know of one other instance of a transcribed conversation: the notes Frankfurter took of various conversations he had that were published in The Supreme Court Review in 1985. But those are too fragmentary to give the flavor of an entire conversation.
I have re-typed the transcribe and posted it on the Brandeis Collection website.
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(I wish I had caught this before Election Day but better late than never.)
As part of their drive for Obama, the National Jewish Democratic Council released a video of two of Brandeis’ grandchildren, Frank Gilbert and Alice Popkin, endorsing Obama. As one of the individuals directly responsible for the creation of Israel, the issue of Obama’s stance on Israel is naturally of high interest to his descendants. Despite some fear-mongering from the right, Popkin and Gilbert find no dis-connect between Obama’s views on Israel and their grandfather’s.
The video and the NJDC press release for the video can be found here.
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The latest issue of the Journal of Supreme Court History (vol. 33 no. 3) has another memoir by Harlan in it. This one covers his political career both before and after the Civil War. It’s a pretty fun read, filled with debates, election day shenanigans, duels and the political ramifications of eating dinner with Frederick Douglass. It also provides a unique glimpse at a pivotal time in US political history, when America morphed from a multi-party to a two party system, and what that meant to men like Harlan who didn’t fit in neatly into either party. Of course, Harlan landed on his feet OK. Once he aligned himself with the Republican Party his future was sealed. The party barely existed in Kentucky at the time, but due to Harlan’s energy and organizational skills, the party quickly flourished. So much so, that Harlan was only narrowly defeated when he twice ran for governor. The party probably would have grown in stature eventually, but it wouldn’t have happened so quickly without Harlan. He was arguably the founder of the party in Kentucky.
Unfortunately the article is not available online, but fans of legal history and political science will probably find it worth their while to track down a copy at the nearest law library near them.
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Brandeis Papers Web Site Updated
This isn’t exactly earth-shattering news, but the web pages for the Brandeis Papers collection at UofL have been updated. The law school’s web site got a face lift about a year and a half ago, but since I was responsible for the Brandeis portion of the site, it was left the way it was. The combination of the volume of pages in the site and other, more pressing responsibilities kept me from updating it. However, eventually I ran out of excuses and I finished updating the pages last week. You can find the new, improved web pages here: http://www.law.louisville.edu/library/collections/brandeis/
To celebrate the “new” web site, I posted a previously unpublished Brandeis speech that I recently found entitled The Regulation of Competition Versus the Regulation of Monopoly. It’s not, I admit, the most exciting of Brandeis speeches, and portions of it were reprinted in Brandeis’ book The Curse of Bigness. But it hasn’t been reprinted in its entirety since its first publication in 1913 and it’s a good representation of Brandeis’ views on business regulation.
BTW, this speech is just one example of the many writings by Brandeis that we have on our web site. Not only do we have landmark writings such as Other People’s Money and Business–A Profession (in their entirety), The Right to Privacy and his complete brief for Muller v. Oregon, bur also many other speeches and interviews that have never been published in book form. As an added bonus, we also have his closing statements in the Ballinger-Pinchot congressional hearings–a rare example of Brandeis’ courtroom oratory. You can find all of these writings here: http://www.law.louisville.edu/library/collections/brandeis/writings
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Written in 1984, Philippa Strum’s Louis D. Brandeis: Justice For the People still stands as the definitive Brandeis biography. When Laura Rothstein was Dean at the Law School here at the University of Louisville, she was so taken with the book, she used to give copies of it away to visitors. The latest issue of the ABA newsletter Focus on Law Studies has a round table discussion with a number of Supreme Court biographers, including Strum, Juan Williams, Joan Biskupic, Linda Greenhouse and others. Strum gives a number of anecdotes about writing the biography, including an archivist who refused to let her view some Brandeis papers and an interview with the one of Brandeis’ former clerks who didn’t like him. She also talks about Brandeis’ relationship with Woodrow Wilson, Brandeis’ discomfort with Homes’ views on free speech and the evolution of his views on women’s suffrage. What I found most interesting was her explanation as to why she started researching Brandeis in the first place. She wondered how such a secular Jew could become such an avid Zionist. Her story of how she tracked down her answer is a great description of the type of detective work historians have to perform.
The coversation between the authors take up the entire issue which can be found online:
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Considering that Brandeis’ “Right to Privacy” is one of the most famous law review articles, it was surprising for me to discover that he only wrote a handful of other articles. (The majority of his published writing was made up of speeches, Supreme Court opinions and magazine articles.) The Summer 2008 issue of Green Bag republishes one of Brandeis’ few other law review articles: a history of the Harvard Law School that was originally published in the first issue of the original Green Bag. Brandeis wrote the article in 1889, about 70 years after the founding of the school and 10 after he had graduated from there. It’s an engaging read about the school’s early days. Brandeis devotes the last half of the article to the arrival of Langdell and his introduction of the case method of teaching law, which at the time of the article’s writing, had not been adopted by many other law schools.
It is probably the discussion of Langdell and his reforms that prompted the Green Bag to republish the article as it is prefaced by an article by Elena Kagan, the Dean of Harvard Law School. Kagan uses her introduction to the Brandeis article to announce a major revamping of the Harvard curriculum. While praising Langdell’s reforms, Kagan claims that they are insufficient to meet the needs of 21st century lawyers. What is needed now are tools that develop what she calls the law students’ “legal imagination.” In other words, it is no longer enough to merely teach legal reasoning, but now students need skill that will enable them to become leaders and problem solvers.
I won’t try to summarize all of the innovations here. The big changes are an addition of three courses to the first year curriculum (they’re making way for the courses by shaving hour credits off of existing courses) and what Kagan calls a “clinical renaissance”. Harvard has created eight new clinical faculty positions and have doubled the number of students enrolled in clinics. As the University of Louisville will be rolling out its first clinic soon, this aspect particularly caught my eye.
Langdell’s innovations in legal education became the standard by which legal education was taught in all law schools. Will the same happen with Harvard’s new innovations? It will be interesting to see.
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