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.



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.



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.”