I received a nice surprise last week. I went on a tour of the University of Louisville’s archives, and Carrie Daniels, the head archivist, had something on display she thought would interest me: two casebooks owned by Brandeis while he was at Harvard Law School. I was surprised because I had no idea they existed. Then I was flabbergasted when Carrie told me they used to be part of the law school’s collection, but that in 1982, the law school’s dean had given them to the University’s archives for reasons that are now lost to history. I, of course, wanted them back but was too polite to say anything. But then I was even further surprised the next day when Carrie emailed me offering to return them to our collection.

The covers of Cases on Pleading and Cases in Equity Pleading.

Both of the books are cheap editions that were published in 1875 so they are in pretty poor shape. 1875 is a significant year. That was the year that Harvard adopted the casebook method of teaching law (although many faculty members held out against it for many years) and it was also the year that Brandeis entered HLS, so he was among the earliest students to be trained that way.

Title page of Langdell's Cases in Equity Pleading casebook.

Christopher Columbus Langdell is credited with creating the casebook method, so it is significant to have a first edition copy of one of his casebooks (although the Equity Pleading casebook was not his first casebook.) The fact that Brandeis once owned it is just icing on the cake.

Two pages from Cases in Equity Pleading

But Brandeis did not just own the book — he covered it with annotations. Brandeis used the book for Langdell’s Jurisdiction and Procedure in Equity class, which I believe he took in his second year. (At the time Brandeis was at HLS, the program just took two years to complete.) Brandeis’s handwriting is fairly clear at this stage of his life (it would become nearly indecipherable later in his life) so a dedicated researcher could read Brandeis’s notes and get a pretty good idea of what Langdell’s classes were like. But it would be quite a chore. Despite being fairly legible, the handwriting is awfully small and there is so much of it! No wonder Brandeis’s eyes nearly gave out while he was in law school.

The cover page of Ames' A Selection of Cases on Pleading at Common Law.

The second casebook was James Barr Ames’ A Selection of Cases on Pleading at Common Law. Ames graduated from HLS just three years before Brandeis enrolled there. I am not sure what course this book was used for, but as you can see from the line below Brandeis’s signature, it was in his first year. It is not as heavily annotated as the Langdell casebook and the annotations on the cover page are quotes from throughout history about pleading. It is unclear whether the quotes were used in class or were found by Brandeis on his own.

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The hardest part of doing any research is knowing when to stop. I figured after spending more than 10 years preparing for my book The Quotable Brandeis, I figured I had performed due diligence. Still, I was afraid I would continue to find quotes and, of course, I was right. Plus, not only were there sources that I missed, but are probably plenty of quotes that I looked at and decided  were not interesting enough to include that other people are using.

Since it is extremely unlikely that there will be a second edition of the book, I have decided to use this blog as an updating tool for the book. As I find “new” quotes, I will add them to this post. Just think of it like a pocket part to the book.


The first entry is from a short typed document I found from the Brandeis papers held here at the Louis D. Brandeis School of Law at the University of Louisville, and it just kills me I didn’t include these quotes in the book. As is often the case, I stumbled onto it as I was looking for something else. The document has the handwritten title “Notes on conversation with L.D.B. 1931.” There is no name attached to it, but I suspect it was compiled by Brandeis’s niece Fannie Brandeis. [Update: Alfred Brandeis’s great-granddaughter Bonnie McCreary has confirmed the handwriting as belonging to Fannie.] It is a series of quotes, or maybe paraphrases of quotes since two of them have quotation marks around them and the others do not. I am presenting them here as they were typed.

One can never be sure of ENDS – Political, Social, Economic – there is always a question of doubt and the difference of opinion. One can be 51% sure.

MEANS are important – fundamentals do not change, centuries of thought have established standards; lying and sneaking are always bad, no matter what the ends.

Detecting crime is demoralizing, and the Government should be thought of as ones self. A man may start his career of detective as an honorable man, but he ends a scamp.

“I do not care about punishing crime, but I am implacable in maintaining standards.”

The fight against the Judiciary is again a recrudescence of the Jeffersonians fight – it comes up from time to time when it seems that the Judiciary is exceeding its power. It has not too much power, but bad decisions make it seem so. What is needed is to appoint the right people.

The scoundrel in politics or a political position is the result of the people in power who put him in – the Jim Browns.

“The cure for that, like most human ill[s], is to have a decent population.”

Chicago and New York are examples of the result of the pernicious system of tipping – you paid people to do their duty – tipped for service – now you pay people to leave you alone.

Racketeers are the outgrowth of indifference to honesty. Chicago and New York don’t really mind racketeering, or they could stop it – they mind having it known.

Moses said “the Masters are gone but we still have the Slaves” and it was forty years before he allowed the Israelites to enter the Promised Land. The hope now is with the youngest generation and the sort of things Mrs. Mapother is doing. [Note: there is a handwritten note–in a different hand than Fannie Brandeis’s–explaining that Mrs. Mapother “taught music appreciation to children in Louisville in the 1930’s.” Incidentally, Tom Cruise comes from a Louisville family named Mapother. It would interesting to know if he was related to this woman.]

States Rights, used by Hoover as justifying his veto of Muscle Shoals was all bluff – “any stick will do to beat a dog.” States Rights should be believed in “in moderation.”


The Quotable Brandeis includes a chapter of quotes that were either impossible to verify or were definitely misattributed to Brandeis. The following quote could fall into either camp.

I can tell you where the edge of the cliff is, but I cannot tell you how hard or in what direction the wind will be blowing when you pass by it.

The earliest instance I can find of this quote is the article “The Lawyer and Business” by Fowler Hamilton, which was published on pages 179 to 188 in the October 1948 issue of Fortune Magazine. In the article, Hamilton describes the quote as advice he gave to clients “who insisted upon an unqualified opinion as to the legality of a proposed business program.” The quote enjoyed a brief run of popularity during the next ten years, being quoted in various Senate hearings, economic addresses and law journal articles before becoming almost completely forgotten. I say “almost” because I did get a reference question about it a few years ago, so I really should have included it in the book.

I cannot find any instances of this quote before Hamilton’s article; it is not in any of Brandeis’s writings or biographies. Normally, I would be quick to dismiss it as being completely fabricated, but there are two possibilities that give me pause. Hamilton practiced law in Washington D.C. during the late 1930s, and Brandeis was known to hold court before a lot of the New Deal lawyers, so it is possible that Hamilton heard the story surrounding the quote from Brandeis’s lips. Hamilton also practiced for a number of years in a firm with Henry Friendly, who had been a clerk for Brandeis, so it possible (in fact, probably more so) that Hamilton heard the story from him. However, at this point there is no way of knowing for sure, so I am classifying the quote as apocryphal for the time being.


[April 24, 2018] The above quote about tipping reminded of a short article that Brandeis wrote about tipping. I thought about including a couple quotes from it in the book but decided against it because of the triviality of the subject. But now that the subject has been broached, this seems like a good opportunity to preserve the article for prosterity. It is from the January 14, 1913 issue of La Follette’s Weekly (volume 5, issue 1, page 7).

Tipping System: An Abomination

by LOUIS D. BRANDEIS

The tipping system is an abomination. It degrades him who gives, as well as him who takes. It is inconsistent, not only with the dignity of labor, but with the dignity of American citizenship. It is inconsistent with American manhood, for it makes a beggar of him who performs a worthy and honorable service, and is apt to make a briber of him who is ready to pay reasonably for service.

The abolition of the tipping system is something worth striking for. It would almost be worth while to have a general strike if it would result in the total abolition of the tipping system, not only among hotel waiters, but in the numerous other departments of life into which this insidious and dangerous poison has crept.

Professor Sumner said long ago: “Sovereigns don’t take tips;” and every American citizen ought to remember that he is a sovereign, a part of a sovereign people. Let organized labor blazon upon its banner, “We don’t take tips,” and it will have added one other to the many debts which the community owes to it.


 


In a previous post about a memoir Brandeis dictated to his secretary, I wrote about how that secretary, Alice Grady, helped run the public relations campaign for Brandeis after he had been nominated for the Supreme Court. The memoir was part of the information about Brandeis’s personal life that Grady collected for press use. She also traveled to Brandeis’s home town of Louisville, Kentucky, to interview friends and family members. She shared parts of those interviews with excerpts from the memoir with a reporter from the Hearst owned newspaper the Boston American, who turned them into an article that became the source for most of what we know today about Brandeis’s childhood. The stories found in the article have been recycled through many of Brandeis’s biographies, but as far as I can tell, the article has never been reprinted in its entirety. I am doing so here so that people can have to read it for themselves.

The article was printed on June 4, 1916, which was after Brandeis had been confirmed by the Senate, so the article did not have a chance to influence anybody. But it seems to have been popular and was apparently reprinted in a number of newspapers across the country. I have transcribed nearly the entire article, leaving out only some repetitive introductory fluff from the beginning and some of the many headlines and section headings. After some internal debating, I decided to not edit a section that many people will find offensive. One of the people Grady interviewed was Lizzie, the Brandeis family cook. The anecdotes she tells are interesting, but they are rendered in a dialect that is hard to read. I haven’t seen Grady’s notes from the trip (they may be in the archives at Brandeis University) but the dialect is so over the top that I cannot help but believe that it was deliberately exaggerated. I have decided to include this section, not only because the stories are worth reading, but also to serve as an example of the casual racism that was so prevalent in American media back then.

BOYHOOD OF BRANDEIS

AN EARLY VIEW OF THE MAN

An Unwritten Chapter in the Life of the New Justice of the U.S. Supreme Court

by Bert Ford

Much has been printed about Louis D. Brandeis as a MAN, but never anything about Louis D. Brandeis as a BOY.

When a man has become distinguished as a national character, it is always more or less comforting to the rest of us to be able to reflect that at one time he was just a boy with all the fun-loving propensities that are the natural inheritance of boyhood.

Miss Alice H. Grady, secretary to Mr. Brandeis for twenty-two years, now gives the Sunday AMERICAN this hitherto unpublished chapter in the life of the Boston publicist and jurist who has just been appointed a justice of the United States Supreme Court.

The facts were obtained by Miss Grady first-hand, from time to time, from relatives and neighbors and former playmates of Mr. Brandeis.

The anecdotes have all the mirth and color and crispness of a “Boy’s Diary” of fiction, They paint in the ordinary, homely pranks and adventures the various stages of boyhood of a man long a national figure. They are fragrant with the domestic atmosphere of the South.

They show that Louis D. Brandeis was just an everyday, fun-loving American BOY.

Mr. Brandeis was born on November 13, 1856, in Louisville, Kentucky, where he lived with his parents until he was sixteen years of age. In 1872 the family went abroad and did not return to America until 1875. Of the three years spent in Europe Brandeis was for two years at the Annen Realschule in Dresden.

Soon after his return to America he entered the Harvard Law School, from which he graduated with a cum laude degree in 1877. His career as a lawyer and publicist during the past forty years is an open book to the American public.

But of the early days in Louisville we have known little or nothing, until Miss Grady was prevailed to talk for a few minutes out of that interesting chapter of Mr. Brandeis’s life, which has hitherto remained a closed book to those who have been interested in him, and in the many public activities with which he has been connected….

“It was on the Fourth of July, 1864. Place: rear veranda of the Brandeis home in Louisville, Ky. Louis was then in his ninth year, [blogger’s note: he would have been seven years old at the time], and his brother Alfred going on twelve [ten]. The two boys were celebrating by taking small quantities of powder from a large flask which was near at hand, dampening the powder and then setting a match to it. The result was a sort of fusee effect, perfectly harmless and yet sufficiently exciting.

“The two heads were bent intently over the object of their interest, and they failed to observe that they had gradually worked nearer and nearer to the flask which contained the supply of powder–until a terrific explosion burst the powder flask, threw the children backwards and burned their faces frightfully. Neither of the boys screamed, however, for fear of bringing the family to the scene. But each saw that the other’s face was black, and they recalled that they were to go driving with their mother at 3 o’clock.

“It was then after 2. So they decided to repair to the pump and wash the black from their faces, and bear the pain as best they could, and so possibly avoid discovery of the accident. To the pump they went, and tenderly washed each other’s faces, for the agony of the burns was great. Of course with the application of cold water, it was only a few minutes before both faces were swollen to three times their normal size and then discovery was inevitable. A doctor was immediately sent for and the burns properly dressed. But it was many weeks before the scars disappeared.”

Another story she recounted recalls a form of sport at one time very popular with the youth of Louisville, and to this day not altogether abandoned.

“A lot of the boys would get together and make a straw man, and dress him up in old clothes gathered from their several homes–not too many from any one house, because that would be apt to lead to discovery.

“When the man was ready to be introduced into society one boy would be detailed to take Mr. Straw Man to a doorway, ring the bell and then hide. All the other boys would be in hiding at a safe distance across the street to watch [the] proceedings.

“One cold moonlight night, when the ground was covered with snow, the Brandeis and other boys played the game. Alfred Brandeis was detailed to ring the bell and leave Mr. Straw Man at the door of a certain house on Shaw Street. Louis was with the crowd that formed the audience on the other side of the street.

“Having placed the dummy gently against the door, Alfred rang the bell and beat a hasty retreat. The door immediately opened–Mr. Straw Man fell into the arms of a terrified maid–a shriek pierced the air that froze the blood in the veins of the mischief-makers, and at the same instant appeared the householder in the doorway armed with a shotgun.

“For what seemed to the boys like an eternity he stood there ready for action. And from where the young culprits were hidden, not daring to move, they could see him fairly boiling with anger, and they thought if they stirred he would certainly shoot. Finally he closed the door and disappeared. The boys uncoiled their stiffened limbs from their cramped positions in the snow, and went quietly home. By common consent, that particular form of sport was dropped for the time being.”

Still another story appears to establish beyond doubt the fact that the eminent lawyer, jurist and publicist at one time in his career played [with] dolls. Miss Grady states that this bit of boyhood history was obtained from a cousin of the Brandeis family, a charming lady still resident in Louisville, who has a very distinct recollection on the subject, although possibly Mr. Justice Brandeis might claim complete lapse of memory thereon.

“The cousin was a year or two younger than Louis, and was for several months a member of the Brandeis household. Up in the third story of the Brandeis home on Broadway there was an immense wardrobe, where the children’s party dresses and such like things were kept. On top of this wardrobe was a dolls’ house, consisting of two rooms, which had been built for the Brandeis girls, Amy and Fanny.

“The sisters appear to have outgrown their ardent devotion to this form of play, from the fact that the house had been consigned to a place so inconspicuous and inaccessible. In order to reach the dolls’ house the children must climb by means of the shelves in the wardrobe, a performance attended with more or less excitement, for there was always the spicy chance of falling. Louis would climb up first and be ready to pull his cousin up when she reached the top shelf.

“Invariably her slippers would come off in the process of climbing, and these she would throw up to Louis and then continue her venturesome journey. There on top of the wardrobe the two children would play for hours.

“The same lady quite distinctly remembers that on one memorable occasion the two boys, Alfred and Louis, undertook to teach her to skate on the pond back of the Brandeis house. They were quite faithful in their attendance upon her until her skates were securely fastened on, and they had conducted her to the middle of the pond. Thereupon they promptly deserted her, instructing her to skate back to the shore by herself. Her recollection as to how she regained the shore is more or less of a blank, excepting that she was furiously angry.

“The fact remains, however, that she did learn to skate, and that the boys have always taken the credit therefor. She also remembers that her anger was appeased by the fact that the boys came to her and shared with her some hot doughnuts which they had coaxed from Lizzie, the cook; and they also promised to take her as a special guest to the next meeting of the Websterian Debating Society. This was a great honor, and the boys were promptly and fully forgiven.”

From all  accounts, Louis appears to have been a “scrapper.” But the evidence seems to point to the conclusion that the “scraps” were not directly of his own making.

“He was devotedly attached to Alfred, who was three years his senior; and both boys were much with their cousin, Adolph Brandeis, who was a year older than Alfred. In the hot weather the boys of the neighborhood went barefoot, except on formal occasions. And they had a natural prepossession against any boy who varied from this practice.

“The result was that whenever a ‘Little Lord Fauntleroy’ came upon the scene–Louis Brandeis, who was the youngest of the crowd with whom he played, would be egged on by the older boys to fight the newcomer.

“Thus early began his ‘unwarranted’ attacks upon the vulgar display of the plutocracy.

“When Brandeis was about fourteen years of age, he took part in a physical encounter with one of his schoolmates which appears to have eclipsed in interest the memory of his excellence in scholarship in the minds of at least a few of his early associates. The party of the second part was Julius Von Borries.

“There was a girl in the same school named Emma. On a certain evening, at a dance attended by the boys and girls of the neighborhood, Emma became the subject of a squabble between Louis Brandeis and Julius Von Borries. The dispute was not settled that evening on account of the important social obligations imposed by the dance. But it was agreed between the boys that the issue should be fought out between them after school on the following day.

“News of the impending contest leaked out, and great excitement prevailed throughout the school, which numbered some 200 boys and girls. It isn’t known positively who ‘told,’ but the fact appears to be well established that the young lady in question was greatly elated over the fact that the two most popular boys in school were to fight all on her account, and made no attempt to conceal her elation.

“The result was that the youthful combatants found assembled a large and appreciative audience when they arrived upon the scene which was to be the test of knightly valor. The boys were pretty evenly matched, Von Borries being somewhat larger and heavier, and Brandeis very light and quick.

“The excitement lasted about fifteen minutes, and is described by authentic eye-witnesses as a ‘beautiful fight.’ Strangely enough, however, no one seems to remember which of the  principals came off victor. But all agree that each of the boys was borne to his home with his face covered with blood, and trailed by a crowd of admiring schoolmates.

“There also seems to be complete unanimity of agreement on the point that the two boys were thereafter excellent friends, and that in the joy of the combat the girl who caused the rumpus appears to have been promptly and permanently forgotten.”

Miss Grady relates the story of an interview had by her with “Lizzie,” a colored woman who for years was cook in the Brandeis family when the children were small:

” ‘My,’ said Lizzie, ‘how them two boys did love hot doughnuts! And waffles! And eggs! Such a trick as they played on ‘Rastus and me! I ‘member once when Mr. and Mrs. Brandeis had to go off somewhere and wouldn’t be home to supper. But the two girls and the two boys was home. My mother taught me how to poach eggs and serve ’em separate from the toast. So I poached a dozen eggs. We never thought of cookin’ less ‘an a dozen eggs, nohow.

” ‘An’ I toasted a dozen slices of bread. So ‘Rastus took in the platter o’ toast an’ the platter of eggs. An’ when he come back into the kitchen he says, “By the looks o’ dem boys I think they’re up to some mischief, but I doan’ guess what it is.” The girls was late comin’ in, but by an’ by they come, and ‘Rastus went into the dining room. And what do you think? Both platters was empty. And them two boys jes’ look up at ‘Rastus and says: “Them was very fine eggs, ‘Rastus!”

” ‘An’ Mis’ Brandeis,’ continued Lizzie, ‘she sho’ were the fines’ and the bes’ woman that ever did live. I ‘member once when I was on a committee to raise funds for an orphan asylum for colored children–it was mah duty to raise $25–and where the money was comin’ from I sho’ didn’ know. For money come awful hard in those days.

” ‘But I asked Mis’ Brandeis if she would give a little something towards it, and she said, right off: “I certainly will. Doan’ you worry about that, Lizzie.” And what do you suppose she did? She sat right down and wrote Lizzie a check for $25. That’s what she did! And do you think Lizzie ever forgot that? No sir!’ “

Then Lizzie turned to Miss Grady: ” ‘Give my love to Mr. Brandeis, honey. Tell him I pray for him every blessed night since President Wilson asked him to go on the Supreme Court, and them rascally white folks began printing lies about him. But the good Lawd’ll take care o’ him. For he sho’ is the sweetes’ and thoughtfules’ boy in this world.

” ‘I ‘member very well when I went to Mattapoisett with Mis’ Nagel (she that was Fanny Brandeis) and her baby in the Summer of 1882. You see, I hadn’t never been to the seashore befo’, and I didn’t know how white folks went in bathing. Miss Fanny, she gave me a bathing suit, and she says, “There, Lizzie, you put that on and go in bathing.”

” ‘But when I got it on and found that there wa’n’t nothing to it below the knees, I jes’ thought I couldn’t do it. So I said I was afraid of the salt water and I jes’ couldn’t go in nohow. Well, that when on for three weeks. Then Mr. Louis he came down to spend Sunday. All the family went in bathing.

” ‘I walked down on the beach, and there was Mr. Louis lying flat on his back on the sand. I said, “Why ain’t you in bathing, Honey?” An’ he said, “I’m waiting for you, Lizzie.” “Go on,” I said, “I ain’t going in. I’m afraid o’ the salt water.” “That’s all right,” he said. “I won’t let it hurt you. And I ain’t going in one step until you come along.”

” ‘So, rather than have him lose a nice swim that he enjoyed so much, I jes’ had to go and put on that bathing suit, and he led me in just like I was a fine lady. An’ I didn’t never have no more trouble after that. I jes’ couldn’ go in often enough–I enjoyed it that much.'”

“When Louis was in his tenth year, he was one of the least important (because most youthful) members of the Websterian Debating Society, composed of the Louisville boys. The ex-treasurer of the society tells after the lapse of fifty years, with considerable amusement, how the youthful ‘reformer’ descended upon him, with the horrible charge that his accounts were inaccurate. The amount involved must have been as large as fifty cents.

“Did Brandeis establish the accuracy of his charge?” his hearer questioned.

“That isn’t important now,” the ex-treasurer responded. “It is sufficient to say that by the time our interview was ended he had agreed to drop the investigation.”

“When Brandeis was in his sixteenth year he distinguished himself by being awarded the gold medal ‘for pre-eminence in all his studies’ by the University of the Public Schools in Louisville. In those days it was the custom to invite the gold medal student to come to the platform and make a brief speech on graduation day. The graduation exercises were held in the theatre, and were attended by a host of the relatives and friends of the students.

“Louis was overcome by terror at the thought of making a speech, and on the morning of the fateful day it was discovered (to his unspeakable joy) that his voice had disappeared. He was unable to speak above a whisper. So he sat among the other boys and contentedly watched the proceedings. He says that his most vivid recollection of that occasion is that the orator of the day–a distinguished gentleman of Louisville–delivered a stirring address of which the boys remembered not a word, due to the fun-provoking fact that the gentleman throughout the speech remained sublimely unconscious that one of his trouser legs had become caught in the top of his high boot, which it was then the fashion to wear.

“The two brothers, Alfred and Louis, were inseparable companions. Both loved to walk, but Louis was younger and less robust, and therefore easily fatigued, although not readily admitting it.

“When the family was abroad in 1872-3, the boys took long walks with their father in Switzerland. Once, when they had finished a long tramp in the Bernina Mountains to the source of the River Inn, they were contentedly resting from the fatigue of the walk when Alfred had the temerity to suggest that they continue their tramp with a view to finding the source of the River Adda, which he had been informed was somewhere in the near neighborhood. Thereupon Louis with some warmth replied: ‘I don’t see why I should have to find the source of every damned river in Europe.”

“While the family was still abroad, Louis went to Dresden to attend school. He was obliged to make the journey alone, due to his sister’s illness, which detained the rest of the family in another part of Germany.

“This was a great experience for him, because for the first time in his life he was thrown upon his own resources. Arrived at Dresden, he took lodgings at a little hotel (Hotel Meissner) and the next day, Sunday, called upon a gentleman to whom he had a letter of introduction. The gentleman himself had two sons in a private school in Dresden, and suggested that he would be glad to take Louis there.

“But Brandeis had made up his mind that he wanted to go to the public school. So the friend said he would take him to the public school and introduce him, but that he could not do it until Wednesday because of other matters which consumed his time during the intervening two days.

“His youthful caller replied that he didn’t believe he could wait until Wednesday, and he would therefore go alone to the school. The next day–Monday–like a moth around a candle–he circled the public school building, trying to get up his courage to go in. Finally he got inside, and made his way to the room of the principal, there called rector, who stated that he could not admit a new pupil to the school unless he should pass the required examination.

“Brandeis replied that he didn’t want to make a try for the examination because he had been studying very different things under very different circumstances, and he didn’t believe an examination would be a fair test of his fitness to enter. The rector was firm in his position, but finally said, ‘In three weeks it will be time for the mid-year examinations. Take some private lessons and then you can try for the examination.’

“The boy was further informed that in addition to passing the examination it would be necessary for him to submit a birth certificate and a vaccination certificate. To this he replied, ‘That fact that I am here is proof of my birth; and you may look at my arm for evidence that I was vaccinated.’

“He immediately arranged to take private lessons from the several teachers and professors in the school, and during the next three weeks he worked about thirteen hours a day. The holidays came along, and the beginning of a new term. And when the new term began, young Brandeis slipped into that school without having to try for the examination. Nobody ever asked for one.

“It was from this school two years later that he received a ‘prize for diligence and good conduct.’ According to the custom, the prize-winner was permitted to select his own prize, and Brandeis selected–‘Charakterbilder aus der Kunstgeschichte’ by A. W. Becker.”

The writer was permitted to see the volume. The inscription on the flyleaf is in German script. Translated it is as follows: “From the Heymann Endowment. Prize for diligence and good conduct awarded to Louis Dembitz Brandeis, Member of the Unter Prima, by the Faculty of Annen Realschule. Dresden, March 19th, 1875. M. Job, Rector.”

“Two years later (1877) Brandeis graduated from Harvard Law School. In those days it was the custom for the class to select six men to write the oration. Then, they having written it, the faculty selected the one man to deliver it. Brandeis led the class on the popular vote. Then the faculty felt itself in an embarrassing position. For the law of the university provided that nobody could graduate who was not twenty-one.

“The question came up: ‘How could a man who was not twenty-one be the orator when he couldn’t get a degree?’ Professor Langdell was much troubled. He really wanted Brandeis to deliver the oration. So he pondered and he stroked his beard and finally sent the young man to President Eliot (the first time Brandeis had ever seen the  president), who said: ‘The rule is that the orator is to be one of those who is to receive a degree. The law says that you can’t have a degree until you are twenty-one. You will not be twenty-one til November. Commencement is in June. I do not see, Mr. Brandeis, how you can be the orator.’

“Thus, in less than three minutes, was settled the embarrassing question, and young Brandeis’s mental comment on the proceeding was: ‘There is an example of the efficient executive.’ His pleasure in observing the efficient way in which the older man disposed of the matter appears to have overshadowed whatever disappointment he may have been inclined to experience with reference to the oration.

“To his complete surprise, on the morning of Commencement Day it was announced that a special vote had been passed–in view of the very high standing of Brandeis–and under a special dispensation he was to receive a cum laude degree that day.”

As to the impression made by Brandeis upon his associates in the Law School, Philip Alexander Bruce of Norfolk, Va., thus expresses himself:

“We were members of the same law class at Harvard University about 1877. That class contained at least 200 young men who had graduated very high in New England colleges, and who had been led by their unusual ability and culture to adopt law as their profession in life. I think it would be admitted by every surviving member of that class, however distinguished, that Mr. Brandeis, although one of the youngest men present, had the keenest and most subtle mind of all.

“Mr. Brandeis had hardly taken his seat in our class room before his remarkable talents were discovered and his claim to immediate distinction allowed. Nearly forty years have passed since I was present at those scenes in the Harvard class room, and yet I can recall as clearly as if it were yesterday the pleasant voice of that youthful student, his exact and choice language, his keen intellectual face, his lithe figure, his dark yet handsome aspect, and finally the unaffected suavity of his manner, that had in it something of the polish of the Old World. Intellect, refinement, an alert and receptive spirit, were written all over his attractive personality.”


In November 2016, I traveled to Boston to do some last minute research for my Quotable Brandeis book. While there, I took a train to Waltham to spend the afternoon rooting around the Robert D. Farber University Archive and Special Collections at Brandeis University. I went there in hopes of discovering a few “new” quotes, and while I certainly accomplished that, I also had an experience that researchers dream about: I discovered an unknown piece of Brandeis writing. And not just any writing–it was a brief autobiography.

Now having said that, I should immediately qualify it. What this document appears to be is Brandeis dictating his life story to his secretary Alice H. Grady over a number of sessions. In all of his published works, Brandeis would rework the pieces until they shone like diamonds, with each word selected for maximum effect. This document is not like that. It was clearly never meant for publication. It was produced in early 1916, after Wilson’s nomination of Brandeis to the Supreme Court but before the Senate’s confirmation. During that time, Grady was collecting information about Brandeis’s life as part of a public relations campaign in support of the nomination. Grady even traveled to Brandeis’s boyhood home of Louisville, Kentucky to interview family members and friends. She would combine those interviews and Brandeis’s dictation to produce a now famous look at Brandeis’s boyhood that was published in Heart’s Boston American newspaper. (I will be reprinting this article in my next post.) Since there seemed to be no intention to print it, the document is kind of a mess. There are run-on and fragmentary sentences, the timeline jumps back and forth, and it repeats itself often.

So it might be a bit of a stretch to call this a piece of Brandeis’s writing. But it is in his own words and it is absolutely fascinating reading. And I might be wrong about this, but it looks to me that none of Brandeis’s many biographers had seen this document. It has many stories about Brandeis’s pre-Supreme Court career that have never been revealed before, and stories that have been written about before (like Brandeis’s talking his way into admission to Annen-Realschule in Dresden) are given previously undisclosed details.

After I finished preparing the quote book for press, I turned my attention to this memoir: (lightly) editing it to make it more readable and adding copious footnotes to identify all of the people Brandeis mentions in passing (although this was not always possible.) After I was finished, the Journal of Supreme Court History was kind enough to agree to publish it in their first issue of their 43rd volume, which has just come out. Unfortunately, there is no free online access to the article (unless you are associated with a library that has access to the Wiley Online Library), so if you want to see it, you will have to go to a library that has a subscription to the journal or buy a copy of it from the Supreme Court Historical Society.

Journal of Supreme Court History

I would like to thank Brandeis’s grandson Frank Gilbert for his permission to reprint the article and for his helpful suggestions. I also want to thank the Filson Club Historical Society for their permission to reprint a previously unpublished photograph I found there of Brandeis’s father’s business partner William W. Crawford. This is the only known photograph of Crawford and it has the added benefit of including a group of men, one of whom I am convinced is Brandeis’s father Adolph.

And last, but very far from least, I would like to give a shout out to Sarah Shoemaker and Chloe Morse-Harding at the Farber Archives at Brandeis University. They could not have been more gracious and they made my time there genuinely pleasurable. I spend a lot of time on this blog talking about the Brandeis collection at the University of Louisville because I work there, but the Brandeis papers in Farber is another awesome collection with many more previously unseen gems. (I was especially intrigued by the typewritten anecdotes about Brandeis written by his son-in-law, and Frank’s father, Jack Gilbert.) I wish I had alloted myself more time to research there, and I cannot wait to go back.


In 1890, Louis D. Brandeis and his law partner Samuel D. Warren published the article “The Right to Privacy” in the Harvard Law Review. It is one of the most cited law review articles of all time, and Brandeis and Warren are often credited with creating a new legal right. But were they really the first to articulate this basic human right. Megan Richardson, professor Melbourne Law School does not think so, and she argues her case in a new book published by Cambridge University Press titled The Right to Privacy: Origins and Influence of a Nineteenth-Century Idea. To bolster her thesis, Richardson looks at not only the sources that Brandeis and Warren cite, but also some that they missed, and weaves them together to show how what was once a non-existent legal right has become one that everyone takes for granted.


On February 2, 1893, Louis D. Brandeis wrote a letter to William Harrison Dunbar, a young man who had been practicing law in Brandeis’s firm for over five years. Dunbar was a bright man who showed a lot of promise, yet Brandeis apparently felt that his career was not advancing the way it should. In response, Brandeis wrote the letter I have transcribed below which outlines the steps be believed Dunbar should have been taking. (The advice must have worked–four years later he would be named a partner of the firm.)

Some of the advice is specific to Dunbar, but most of it is universal in its scope, which is why I am reprinting it here. Brandeis’s central points are that knowledge of the law is not enough to make a good lawyer, that an active social life will inform a professional one and that rest and recreation are essential components to an effective career–points that are probably rarely mentioned in law school. The letter was first reprinted in Alpheus Mason’s biography Brandeis–A Free Man’s Life, and it has since then gained a reputation as a classic example of advice to beginning lawyers. I am reprinting it here to make it more widely available for everyone who are just starting their legal careers.

(The first two and the final paragraphs of the letter are specifically about Dunbar, so I have not bothered reprinting them here.)

…Cultivate the society of men–particularly men of affairs. This is essential to your professional success. Pursue that study as heretofore you have devoted yourself to books. Lose no opportunity of becoming acquainted with men, of learning to feel instinctively their inclinations, of familiarizing yourself with their personal and business habits, use your ability in making opportunities to do this. This is for you the indispensable study–as for another the study of law–or good habits of work are the missing desideratum.

The knowledge of men, the ability to handle, to impress them is needed by you–not only in order that clients may appreciate your advice and that you may be able to apply the law to human affairs–but also that you may more accurately and surely determine what the rules of law are, that is, what the courts will adopt. You are prone in legal investigation to be controlled by logic and to underestimate the logic of facts. Knowledge of the decided cases and of the rules of logic cannot alone make a great lawyer. He must know, must feel “in his bones” the facts to which they apply–must know, too, that if they do not stand the test of such application the logical result will somehow or other be avoided….

If you will recall [Sir George] Jessel’s opinion you will see what I mean. Knowledge of decisions and powers of logic are mere handmaidens–they are servants, not masters. The controlling force is the deep knowledge of human necessities. It was this which made Jessel the great lawyer and the greater judge. The man who does know intimately human affairs is apt to make of the law a bed of Procrustes. No hermit can be a great lawyer, least of all a commercial lawyer. When from a knowledge of the law, you pass to its application the need of a full knowledge of men and of their affairs becomes even more apparent. The duty of a lawyer today is not that of a solver of legal conundrums; he is indeed a counselor at law. Knowledge of the law is of course essential to his efficiency, but the law bears to his profession a relation very similar to that which medicine does to that of the physicians. The apothecary can prepare the dose; the more intelligent one even knows the specific for most common diseases. It requires but a mediocre physician to administer the proper drug for the patient who correctly and fully describes his ailment. The great physicians are those who in addition to that knowledge of therapeutics which is opened to all, know not merely the human body but the human mind and emotions, so as to make themselves the proper diagnosis–to know the truth which their patients fail to disclose and who add to this an influence over the patients which is apt to spring from a real understanding of him.

You are inclined to look upon your duty as if it were merely to take a rule of law and apply it to the facts given to you, to blame the client if he fails to give you all the facts and to assume that the “blood must rest on his head” if the rule of law when applied to those facts work badly. On the contrary, your duty is as much to know the facts as law–to apply from your own store of human experience the defects in the clients’ statements and to probe the correctness of those statements in the light of your knowledge. That knowledge must also enable you to determine the practical working of the advice you are to give.

What I have said in regard to your relation to clients is of course equally true of your relations with others when acting for clients. Again, acquaintance with men and knowledge of them is essential to the expedition of business, and impressing and satisfying the clients.

Your law may be perfect, your knowledge of human affairs may be such as to enable you to apply it with wisdom and skill, and yet without individual acquaintance with men, their haunts and habits, the pursuit of the profession becomes difficult, slow and expensive. A lawyer who does not know men is handicapped. It is like practicing in a strange city. Every man that you know makes it to that extent easier to practice, to accomplish what you have in hand. You know him, know how to talk, how to treat him; he knows you and the transaction of business is simplified.

But perhaps most important of all is the impressing of clients and satisfying them. Your law may be perfect, your ability to apply it great and yet you cannot be a successful adviser unless your advice is followed; it will not be followed unless you can satisfy your clients, unless you impress them with your superior knowledge and that you cannot do unless you know their affairs better than they because you see them from a fullness of knowledge. The ability to impress them grows with your own success in advising others, with the confidence which you yourself feel in your powers. That confidence can never come from books; it is gained by human intercourse.

Intercourse with and knowledge of men will also develop in your power to assume responsibility without which the successful practice of the profession is impossible.

You are prone to defer to others in the settlement, or rather to ask the advice of others in the office for the solution of trifling matters which you ought to decide yourself and which if you were knocked about a little among men you would readily so decide–in the office this is a matter of internal economy and it is very expensive; but as to the clients the willingness to assume responsibility and the ability to carry out responsibility so assumed is indispensable. Clients want support–if they did not they would rarely be clients.

Again intercourse with men would afford you what you greatly needed–relaxation. A bookkeeper can work eight or ten hours a day, and perhaps twelve–year in–year out and possibly his work may be always good (though I doubt it). But a man who practices law–who aspires to the higher places of his profession–must keep his mind fresh. It must be alert and he must be capable of meeting emergencies–must be capable of the tour de force. This is not possible to one who works alone–not only during the day but much of the night–without change, without turning the mind into new channels, with the mind always at the same tension.

The bow must be strung and unstrung; work must be measured not merely by time but also by its intensity; there must be time also for the unconscious thinking which comes to the busy man in his play; I am convinced that your work would be better if it were more varied.

You have, I think, been led to underestimate the importance of having clients of your own. The fact that plenty of work has always been supplied to you has not doubt let you imagine that you need give yourself no concern about getting personal clients. If so, you have overlooked the important educating influence of clients. If you had more clients of your own you would be led to feel their dependence on you–the necessity of your help and with it would come willingness to assume responsibility, ability to carry responsibility and that confidence in your powers which begets confidence in others…

You can find quotes from this letter and other advice to lawyers in The Quotable Brandeis, on sale now at higher quality book stores everywhere.

The Quotable Brandeis, edited by Peter Scott Campbell

 


This is a semi-sequel to an earlier post that was written in response to the publication of Clare Cushman’s Table For 9: Supreme Court Food Traditions & Recipes. I probably should have put more thought in the title, because while this post does talk about food and recipes, it doesn’t really talk about eating habits that much. And I separated the two posts because I wanted to have one each for Brandeis and Harlan, but now that I have had a chance to reread the source material for this post, it turns out not to involve Harlan very much at all. Oh well…

While Cushman’s book does mention the first John Marshall Harlan a couple times, she doesn’t really mention any foods he was fond of. And I’m afraid I don’t really know what he liked either. (I have heard that he was the last Supreme to use a spittoon while on the bench. However, since you are not supposed to swallow chewing tobacco, I don’t suppose it counts as food.)

However, the newspaper story transcribed below did come to mind while reading Cushman’s book. Years ago, when Justice Ruth Bader Ginsburg visited the Louis D. Brandeis School of Law, I was charged with finding items in our collection of Brandeis and Harlan papers that she might find of interest. Leafing through one of the scrapbooks of newspaper clippings that Harlan’s wife Malvina kept, I stumbled upon a gem of an article from the June 30, 1905 issue of the New York Herald which describes the Supreme Court Justices struggling over the legal issue of whether fish paste was a sauce or not. I had heard that Ginsburg’s husband, Martin, was known for his culinary skill, and so I thought because of that, and the role played by the Justices’ spouses, she might be amused by the story. She did seem to get a kick out of it, and since she wrote the foreword to Table For 9, this seemed like a good opportunity to share it with the world.

The Harlan connection is a bit tenuous. He is not mentioned by name anywhere in the article, but it is in his scrapbook and the article had a nice drawing of Malvina, which I’m including as well.

The case, by the way, was Bogle v. Magone, 152 U.S. 623. And for more food-related decisions, don’t forget about the Great Margarine Controversy of 1898.

THEY UPSET THE SUPREME COURT

THEY UPSET THE SUPREME COURT.

Wives of the Justices Decide That Anchovy Paste Is not a Sauce.

His Dictionary Misled the Court, but Domestic Common Sense Won the Day.

HOW MRS. GRAY ARGUED IT.

WASHINGTON, D. C., June 29, 1895—An important case, involving the question “What is a sauce?,” was decided by the Supreme Court of the United States not long ago in a way satisfactory to a certain New York firm, but the records of the Court fail to explain how the decision was reached. It has just transpired that the Judges had reached an opposite opinion, and Justice Gray was to write their decision that fish paste was a sauce, when he happened to mention the case to his wife and changed his mind. When the other Judges  consulted their wives they also changed their minds, and so the Supreme Court of the United States had to reverse its judgment on sauce. The practical common sense of the household upset the entire judicial Bench, and Justice Gray was instructed to write a decision to the effect that fish paste is not a sauce.

The case was brought by William B. Bogle, Ruluf Lyles, Alexander Scott and William Y. Bogle, plaintiffs in error against the Collector of the Port of New York. The suit was to recover an excess of duties paid upon goods imported as “fish paste.” The Custom House assessed the goods as “sauces.” At the trial in the Circuit Court one of the plaintiffs testified that the goods were imported as “anchovy paste” and “bloater paste.” Webster’s dictionary was quoted to fix the definition of sauce, and in spite of the evidence that anchovy paste and bloater paste were not recognized in trade as sauces, the Circuit Court directed that a verdict be entered for the Collector of the Port, on the ground that the term “sauces of all kinds” in the Tariff act was to be taken in the ordinary meaning and not in its trade meaning.

Then came the hearing before the Supreme Court; the only Justice absent being Justice Jackson.

JUSTICE FIELD’S STORY

Justice Field interrupted the proceedings once to tell a story of which the alleged sauce reminded him.

“There was once a young Irishman, an officer in the English lancers, who had served with Wellington in the Peninsular war,” said the Judge. “Upon his return he attended a dinner and was asked by his neighbor, a burly young English officer, if he would have some of the anchovies.

” ‘Indeed and I will,’ responded the lancer, ‘I have seen them growing in Spain.’

” ‘Growing?’ repeated the other in surprise.

” ‘Yes, growing,’ returned the Celt, exasperated at the question. ‘I’ve seen whole bushes of them, and picked them, too.’

” ‘You are crazy, man,’ ejaculated the Briton. ‘Anchovies don’t grow on bushes; they swim in the sea.’

“The Irishman, already hot with wine, gave the other the lie, and the inevitable duel was the result. When the principals were placed next morning, the Irishman’s second whispered to him, ‘Shoot low, my boy, and see him cut up the capers.’

“At that word the Irishman cried out: ‘Hold. I was wrong. It was capers, not anchovies, I saw growing in Spain.’ “

This pleasant interlude to the argument was much enjoyed, and the spectators were so much interested in the outcome that they took sides, and several of those who knew what anchovy paste was took the opposition, on the sauce side, down to Chamberlin’s and gave them substantial proof, washed down with the customary sparkle.

WHAT THE JUSTICES DECIDED

After the arguments were concluded, the Judges considered the points, and were a unit in favor of upholding the definition of the lower Court, and the definition of Webster’s Unabridged Dictionary, and making Messrs. Bogle et al. pay thrity -five per cent ad valorem on “sauce.”

Justice Gray was awarded the important duty of writing the decision in accordance with this view, and when he went home that night he mentioned the matter to Mrs. Gray, at the same time telling Justice Field’s story.

When Mrs. Gray learned that the great Supreme Court was going to decide that fish paste was sauce all the domestic vigor in her soul was aroused, and she proceeded to read her distinguished spouse such a lecture upon the cuisine and the constituents entering into it that he began to waver. In a calm and penetrating manner she held up the delicious effects fish paste would have on a tender head of lettuce, and described its palate pulsating delight, when freely embellishing chicken salad.

“Sauce, indeed,” said Mrs. Gray, “so are sardines and smoked red herring, then.”

WHAT THEIR WIVES DECIDED

Next day, when Justice Gray reached the Supreme Court, he called his colleagues together and acquainted them with the feminine view of the sauce question.

“You are all married men like myself,” he said, “and maybe you’d better sound your wives before we make a precedent about anchovy and bloater paste being sauce.”

This was agreed to, and the next day eight Justices of the Supreme Court met and solemnly concurred that the Customs Department of the United States and the Circuit Court of the Southern District of New York and Webster’s Unabridged Dictionary didn’t know anything more about what sauce was than a tomtit did about the Pentateuch. If Justice Jackson had been there he would have acquiesced too.

DID MRS. GRAY HELP?

Accordingly Justice Gray wrote another decision. Of course Supreme Court Justices write their own opinions, but there are hints in some of the paragraphs ensuing of a pair of feminine eyes looking over his shoulder. Here is a part of the interesting document:—

[Editor’s note: the transcription of the opinion here varies quite a bit from the official opinion.] “The word ‘sauce,’ as commonly used, designates a condiment generally, but not always, of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable, and is not applied to anything which is eaten either alone, or with a bit of bread, either for its own  sake only or to stimulate the appetite for other food to be eaten afterward. For instance, cheese eaten with bread, or ham or chicken eaten in a sandwich, or anchovies or herrings, caviar, or shreds of salt fish, eaten, whether with or without bread, as an appetizer before a meal, would hardly be called a sauce.

“In the dictionary of Webster, referred to at the trial, the primary definition of ‘sauce’ is accordingly given as ‘A mixture or composition to be eaten with food, for improving its relish; a relishing condiment; appetizing addition to the principal material of a dish.’

“At the trial, the plaintiffs introduced evidence that the goods in question were manufactured out of anchovies or bloaters, ground up and spiced; were used as food in a distinct form, or as an appetizer, principally in a sandwich, or sometimes with a cracker, and not as a condiment; and were specifically known as ‘anchovy paste’ and ‘bloater paste,’ and that in trade and commerce the word ‘sauces’ was applied to liquids, only, and not to these pastes.

“The Circuit Court, in directing a verdict for the defendant, ruled, in substance, that, as matter of law, and without regard to commercial usage, these articles came within the words ‘sauces of all kinds’ in the Tariff act. We are unable to concur in that view, or to say, either of our judicial knowledge or in view of the evidence introduced, that these articles are necessarily ‘sauces’ of any kind; still less, that this is so clear as to exclude the usual test of commercial designation.

“On the contrary, we are of opinion that the evidence of the nature and the use of these articles, and of their commercial designation, would have warranted a jury in finding that they were not ‘sauces,’ and were ‘fish, preserved or prepared.’

“Judgment reversed, and case remanded to the circuit court, with directions to set aside the verdict and to order a new trial.”