Louis D. Brandeis at 100 – Influence on the 250 Legal Milestones

08Feb16

This is this blog’s first post by a guest writer. The name Laura Rothstein should be familiar to anyone who reads this blog as it seems like I mention her in about every other post. She is Professor of Law and Distinguished University Scholar here at the Louis D. Brandeis School of Law at the University of Louisville. She is also a self-described “Brandeis groupie.” She was kind enough to provide this review of a new book that talks a lot about Brandeis’ influence on the law.

The LAW BOOK, written by Michael H. Roffer and published in 2015 (Sterling Press), compiles the 250 Milestones in the History of Law (From Hammurabi to the International Criminal Courts.  In his introduction, Professor Roffer (New York Law School faculty member) notes that he takes an “eclectic approach,” and that the choices are his own, and that he has “tried to capture [the] breadth [of law that is all-inclusive and far-ranging] with a representative sampling of important topics with broad appeal.”  He notes that these are not “the 250 landmarks,” and that “reasonable minds will disagree on the importance of” those he has chosen.  He notes, however that of the milestones he has chosen “most have effected profound change — for good or for bad — and each reflects a new, historical structure or path on the legal landscape.

With these caveats in mind, it is nonetheless quite noteworthy that during this centennial year of the appointment of Louis D. Brandeis to the Supreme Court, his influence is quite prominent.  His name appears in two of the 250 entries, and his influence can be traced to many others.  His impact is specifically noted in the entry on “The Right to Privacy” which cites the article by that name that Brandeis and his law partner, Samuel Warren, published in the Harvard Law Review in 1890.  (p. 175) The term “privacy” does not appear in the United States Constitution, but “scholars routinely credit the article by Brandeis and Warren as the seminal source of the right to privacy.”  The primary focus of privacy in the article was the right to individual privacy or the “right to be let alone.”  The article remains one of the most cited law review articles in history.

The issue of privacy is found in the second entry in The LAW BOOK that mentions Brandeis.  The 1928 entry on “Wiretaps” references the Olmstead v. United States Supreme Court decision allowing the warrantless use of wiretaps on phone lines because wiretaps did not involve entering a residence and were therefore not a “search.”  In the “now-famous dissent,  Justice Louis Brandeis urged analysis of the rationale underlying the Fourth Amendment, asserting that the Constitution needed to remain adaptable to protect American citizens from this very sort of privacy invasion.” (p. 234) As Roffer notes, “safeguarding that right has become the basis for much modern-day constitutional analysis, and in 1967 the ruling in Katz v. United States expressly repudiated the rationale of the Olmstead (majority) decision.”  It is apparent from the issues raised by governmental interest in accessing internet communications of private citizens that Brandeis was prescient about how technology might continue to change how individual privacy could be compromised and the importance of protecting it.

Although other entries do not specifically mention Brandeis, many of them reference issues of privacy grounded in the 1890 article.  These include the 1948 entry “The Hollywood Ten” (p. 290); the 1957 entry “The Wolfenden Report and Gay Rights (p. 310); the 1965 entry “The Body and the Right of Privacy” about the Griswold v. Connecticut decision and its application to reproductive freedom (p. 332); the 1973 entry on “Roe v. Wade” (p. 384) relied on Griswold; in the 1976 entry on “The Right to Die” (p. 396) discussing the Karen Ann Quinlan case in which the New Jersey Supreme Court’s decision was based on the “constitutional right to privacy” from Griswold  and Roe; the 1995 entry on “Stem Cell and Cloning Legislation” (p. 460); and the 1997 entry on “Physician-Assisted Suicide” (p. 474) referencing the Cruzan v. Missouri Department of Health (in which the Court discusses the balancing of the right to refuse treatment with state interests).  Although Brandeis was no longer living at the time of any of these milestones, the concept of the right to privacy was prominent in addressing all of these issues.  It remains at the core of these discussions today.

The Brandeis influence can be found in many of the other entries – those relating to free speech, governmental regulation, the use of social science and economic arguments (the “Brandeis Brief” technique) in advocacy, monopoly and banking, and deference to states as laboratories of democracy in considering state policies.

Regardless of whether one agrees that the milestones selected by Professor Roffer are the most significant, the book is both an interesting review of legal milestones and also a book with beautiful photographs to accompany each entry. For those who follow the work and impact of Louis Brandeis, it is noteworthy that one hundred years after his appointment to the Court and one hundred and sixty years since his birth, Brandeis remains an extraordinary influence on a wide range of legal issues.

Laura Rothstein © February 7, 2016
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