As the archivist for the John Marshall Harlan papers here at the University of Louisville Louis D. Brandeis School of Law, I will, from time to time, be contacted by someone wanting to know if we have anything relating to Harlan’s famous dissent in Plessy v. Ferguson. These researchers invariably end up disappointed. Harlan did not leave behind any drafts or notes on any of his decisions. About the only items we have relating to his time on the Court are newspaper clippings and letters from people expressing their reactions to various opinions. And, surprisingly, given the renown of Harlan’s dissent, there was precious little press coverage given to the case. It was generally accepted by the press at the time that the decision merely reiterated the Court’s earlier decision in the Civil Rights Cases.

As a result, Plessy v. Ferguson has been something of a black hole in legal history. But that is about to change with the upcoming publication of a remarkable book by Steve Luxenberg. The book’s full title gives an accurate description of its contents: Separated: the Story of Plessy v. Ferguson and America’s Journey from Slavery to Segregation.

Continue reading ‘An In-Depth Look at Plessy v. Fersguson’


I recently posted about the “New Brandeis Movement,” a collective of economists and antitrust lawyers who are arguing for a return to the idea that the dangers of trusts and monopolies was more than just a rise in consumer prices. If that movement can be said to have a manifesto, it would have to be The Curse of Bigness by Columbia Law School professor Tim Wu.

Wu doesn’t just borrow the title from one of Brandeis’s famous books, he also reclaims Brandeis’s antitrust philosophy and shows how it is still relevant in the 21st century. He starts with a short history of the practice and problems of trusts and how Brandeis and other Progressives developed the theory of regulating competition to prevent their abuses. He then gives a history of how the US government used the Sherman Act (and later Congressional updates) to break up various monopolies, leading to the highest standard of living for American citizens in history. He then spends the bulk of the book describing how Robert Bork and other proponents of the Chicago School of Economics misrepresented the legislative history of the Sherman Act to claim that Congress had only intended to protect consumers from predatory pricing, and that other shady practices, such as product bundling and the undercutting of competitors, were not only legal but were acceptable business practices. Eventually Republican administrations and many judges embraced this point of view, thus pretty much ensuring the end of any effective antitrust actions. The end result being companies in the cable, technology and pharmaceutical industries (just to name a few) are consolidating at a rapid pace, leaving consumers and workers at their mercies and creating the highest gap between the rich and the poor since the Depression. Or, as Wu calls it, the “New Gilded Age.”

Wu ends the book with a “Neo-Brandeisian Agenda”: 6 ideas that will, as Wu puts it, “help us return to an economic vision that prizes dynamism and possibility, and ultimately attunes economic structure to a democratic society.”

The Curse of Bigness is inexpensive, compact and eminently readable. And it has a surprise cameo appearance by John Marshall Harlan. Anyone with an interest in Brandeis, social justice and/or antitrust law should read it.

I have been waiting for years for someone to write a novel about Louis D. Brandeis. He was supposedly a fan of detective stories, so a mystery in which Brandeis solved a murder would seem a natural. So far nobody has filled that niche, but my friend Neal Rechtman has come close with his latest novel, The Ashwander Rules.

The Ashwander Rules is a suspense novel about Zeke Sherman, a Senator from West Virginia, who gets caught up in a political conspiracy when he is warned about a possible assassination attempt of the life of the Chief Justice of the Supreme Court. The title itself is obviously a nod to Brandeis, but Rechtman, who describes himself as an “amateur scholar of Brandeis,” suffuses the entire novel with Brandeis’s philosophy. Each chapter is headed with a quote from Brandeis and the novel touches on many themes near and dear to Brandeis’s heart: Zionism, the role of the private citizen, good government and the importance of voting, to name just a few. That Rechtman is able to weave all these threads into a suspenseful story is a testament to his writing.

The novel also serves as an introduction to the American Majority Party, Rechtman’s solution to what he sees as the crippling effects of the two party system on American democracy. And if that wasn’t enough, there are also a couple quick Bridge tutorials.

Fans of Brandeis will find much to chew on here.

One of the issues that Brandeis was most concerned with during his life was the harmful effect that trusts and monopolies had on American society. His most famous quote “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both” can apply to corporations as well as to people (assuming that you take the non-Supreme Court view that there is a difference between the two.) Brandeis’s view towards what he called “the curse of bigness” was different from many of his contemporaries. While he approved of the Sherman Act, he felt that the best way to deal with monopolies, was to regulate competition rather than regulate business. Washington came around to Brandeis’s thinking, and this philosophy came to guide the government’s antitrust activities from President Wilson on through the 1970s.

However during that time, a counter-philosophy was rising in Chicago. In 1978, Robert Bork, an acolyte of Milton Friedman and the University of Chicago School of Economics, published The Antitrust Paradox, which argued against the regulation of competition and stated that consumer welfare should be the only legitimate concern of antitrust law. The Reagan administration embraced Bork’s views and the consumer welfare emphasis has been the accepted viewpoint of antitrust scholars and economists.

Brandeis’s philosophy came to be viewed as outdated and just plain wrong. However, during the past few decades, monopolies have been on the rise. More and more small and medium sized businesses have been bought out or forced out of the market, while the middle class has been shrinking and the wealth gap between the rich and the poor has continued to increase. As a result, a new generation of scholars and activists have asked a radical question: What if Brandeis had been right all along?

A group of journalists and lawyers associated with a think tank called Open Markets have been making the news lately with a series of articles and media appearances, arguing, among other things, that there are no such things as market forces and that economics is a political tool that can and should be used to reshape society. Because of their affinity with Brandeis’s philosophy, this movement began to be called the “New Brandeis Movement” and the name appears to be sticking.

“This Budding Movement Wants to Smash Monopolies,” an April 4, 2017, Nation article by David Dayen is a good introduction to this group. Ostensibly a recap of an economics conference at the University of Chicago, Dayen is clearly on the side of the “New Brandeisians” as he calls them, as he recounts the arguments of Barry Lynn and his cohorts from Open Markets. (I cannot find any reference to the term “New Brandeis Movement” before this article. Is it possible that Dayen originated it?)

“Inside the New Battle Against Google,” a September 17, 2017, Politico article by Danny Vinik outlines the history of Open Markets, while describing its emphasis on combating the evil of monopolies in technology, primarily Google, Amazon and Facebook. The article also discusses three people who appear to be the primary architects of the New Brandeis Movement.

The founder of Open Markets is Barry Lynn. Lynn’s awakening to the dangers of corporate concentration came in 1999 when he saw how an earthquake in Taiwan had reverberations in corporations across the world. He has since then wrote a number of books and articles about how antitrust law should be used to protect people from corporate overreaching. He founded Open Markets in 2011 to “to empower Americans to reclaim all the freedoms fundamental to a happy life as independent and fully engaged citizens.” This interview with Lynn gives a good look at the New Brandeisians’ view of 20th century American antitrust law.

Vink also mentions Matt Stoller, who describes himself as a policymaker. Stoller has helped write Congressional legislation, and has produced and starred in shows for MSNBC  and FX. He is a prolific author and has published stories in the New York Times, Politico, the Guardian, the Huffington Post, and Salon.

A rising star, recent Yale Law School graduate Lina Khan, recently made waves by publishing an article in the Yale Law Journal that stated that Amazon’s size and influence warranted a new approach to antitrust law. (“Amazon’s Antitrust Paradox,” 126 Yale Law Journal 564 (2017).) The article had an explosive impact and has garnered her a lot of media attention, including this New York Times article that profiles both her and the New Brandeis Movement.  She also recently published an article (“The New Brandeis Movement: America’s Antimonopoly Movement,” 9 Journal of European Competition Law & Practice 131 (2018),) that serves as a great primer to the movement’s philosophy.

Any movement that goes against 40 years of economic thought is going to face backlash, and the New Brandeis Movement has been getting it in spades. (Some economists have dismissed the movement by jeeringly referring to it as Hipster Economics.) But in this day of economic uncertainty, people are listening, and that includes politicians on both sides of the aisle.

On June 29, 2016, Elizabeth Warren gave a speech at an Open Markets event where she echoed many of the New Brandeis Movement’s themes. Not only did she quote from Brandeis’s dissent in Liggett v. Lee (288 U.S. 517), but she even came up with this Brandeisian nugget of her own: “Competition in American is essential to Liberty in America.”

In 1912, Brandeis helped Woodrow Wilson develop his ideas on monopolies for his election campaign, which ended up guiding the direction of antitrust for the next several decades. Given the New Brandeis Movement’s influence on Elizabeth Warren’s thinking, will history repeat itself 108 years later if Warren decides to run for President in 2020?

I have just received word that Alice Brandeis Popkin, Louis D. Brandeis’s only granddaughter, died on July 18, 2018. According to my sources, she passed away peacefully in her sleep, shortly after a harp recital that was performed in her room.

Alice was the daughter of Brandeis’s daughter, Susan, and her husband Jack Gilbert. She had two brothers and one cousin, Walter Raushenbush, the son of Brandeis’s daughter Elizabeth. The four children used to spend their summers with their grandparents in Chatham, a story I related in a previous post. Those childhood summers must have made a deep impression on her as she and her husband moved to Chatham after they retired.

Alice followed her grandfather’s footsteps in many other ways. She also became a lawyer (although she attended Yale rather than Harvard) and she devoted her professional career to public service work. She worked for the Peace Corps and the Environmental Protection Agency, as well as the Georgetown Institute of Criminal Law and Procedure. Even after retiring, she remained committed to public service and served on various local boards and committees of organizations around Chatham. This list of accomplishments just scratches the surface of a very full life. You can read a much more detailed description in her obituary.

She also shared her grandfather’s interest in (what is now named) the Louis D. Brandeis School of Law at the University of Louisville. She faithfully attended every function the school hosted that honored her grandfather (while her health permitted) and her presence helped promote interest in the events, the school and her grandfather’s legacy. The picture below is from 2001, when she attended that year’s Brandeis Medal dinner. She is standing in front of her grandparents’ graves at the law school with Samuel Dash, her friend and recipient of that year’s medal.

Alice Brandeis Popkin and Samuel Dash

Alice is survived by her brother Frank Gilbert and her cousin Walter Raushenbush, as well as her children, grandchildren and many cousins. She will be greatly missed by all.

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.

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


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.

[July 6, 2018] I am not sure why I did not include the following quote in the book. I guessed it seemed too common place. It is from a magazine article called “Brandeis” which was written by Ernest Poole and appeared in the February 1911 issues of American Magazine. (It also served as the introduction to Business–A Profession.)

Young men who feel drawn to the legal profession may rest assured that they will find in it an opportunity for usefulness which is probably unequalled elsewhere. There is and there will be a call upon the legal profession to do a great work for this country.