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

 

Advertisements

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.”


Everyone at my library is excited because we just received our copy of Table For 9: Supreme Court Food Traditions & Recipes by Clare Cushman, editor of The Journal of Supreme Court History. It’s a really nice looking book, with lots of photos, recipes and tidbits about the eating habits of the justices, both present and past. Everyone here has been eyeing the book, but they are going to have to wait. Since I’m the one who catalogs books here, I get first dibs on it.

Not surprisingly, there are no recipes in the book from Louis D. Brandeis. There is a page devoted to him though which described how his wife Alice served only ginger snaps and tea at her Monday gatherings, and how he was fond of ice cream and the country hams sent to him by his brother Alfred. Cushman also reports that the dinners held in the Brandeis’s apartment were considered to be Spartan affairs. This is confirmed in an article written by Paul Freund (“Historical Reminiscence,” American Jewish History, vol. 68, no. 1, pp. 7-18, September 1978), who claimed that Julian Mack said that whenever he went to the Brandeises for dinner, he had two meals: one before and another one afterwards.

I have always been curious about what Brandeis liked to eat and whenever I find out about a particular food he liked, I file it away. Here is what I have learned so far:

Cushman is right about the ice cream–I have found many references to his fondness for the dessert. In a Boston Globe article published on January 30, 1916 (“Brandeis Man of Simple Tastes”), it was claimed that “ice cream is his favorite dish no matter what the temperature or even the time of day.” And in an interview with his secretary published the day before in the Boston Post (“Secretary Praises Brandeis”), Alice Grady specified that his favorite flavor of ice cream was chocolate, and she added that he was also fond of gingerbread and baked apples. And in an article published on June 4, 1916 in the Boston American (“Boyhood of Brandeis”), it was revealed that as a child his favorite foods were waffles, poached eggs and hot doughnuts.

Melvin Urofsky and David Levy’s collection The Family Letters of Louis D. Brandeis has a couple letters to Alfred thanking for the country hams (and bourbon!) he sent, while others letters indicate that he enjoyed Budweiser (presumably a taste picked up during the year he spent practicing law in St. Louis) and animal crackers.

This information has impacted life here at the Louis D. Brandeis School of Law in interesting ways. Former dean Laura Rothstein likes to give a lecture to her students every year on Brandeis’s birthday and as a treat she will bring in doughnuts. (My suggestion that she also serve poached eggs and waffles have fallen on deaf ears.) At the end of the lecture, she will give an impromptu trivia quiz on Brandeis and every student who gives a correct answer gets a box of animal crackers. These last items seem to have taken a hold on the students’ imaginations. There has been a long standing tradition here of students placing pennies on Brandeis’s grave out side the school at the end of the semester for good luck on their finals. Now however, there is always one student who adds a box of animal crackers to the offerings.

If you are interested in more information on this topic, you check out a C-SPAN recording of a panel on the Supreme Court and food featuring Ruth Bader Ginsburg, Sonia Sotomayor and Supreme Court curator Catherine Fitts and moderated by Ms. Cushman.


If Brandeis had been “just” a lawyer, or had become an academic like many of his family members wanted, he probably would not be remembered today. But in addition to everything else, Brandeis was a great writer, and his activism and his seat on the Supreme Court gave him a platform to disseminate his philosophy. The fact that he did that so eloquently is illustrated by the many quotes of his that are still in use. People who have never read Other People’s Money or any of his Supreme Court opinions are familiar with quotes like “Sunlight is the best disinfectant” or “Men feared witches and burned women.”

As the archivist of the Brandeis papers at the University of Louisville, I am asked to verify Brandeis quotes all the time. Most of them are easy to find (although one took me over 10 years to track down) but there always seemed to be new ones that would take some digging. There have been a couple Brandeis quote books published in the past but they were long out of print and they did not include some quotes people were asking about. So, about 15 years ago, I decided to read everything Brandeis wrote and to compile my own collection of quotes. And now that collection has been published by Carolina Academic Press.

The Quotable Brandeis, edited by Peter Scott Campbell

The Quotable Brandeis (ISBN 978-1-53100-413-2) collects all of the quotes that I considered noteworthy from his books, articles, judicial opinions, letters, speeches and interviews. In the course of my research, I uncovered a couple speeches and interviews that had completely eluded researchers. Not only does the book include quotes from them, but I hope to post those items in their entirety online soon. And while the Internet has many Brandeis quotes, this book includes hundreds of quotes not currently online, and it provides full bibliographic citations for each one. Also, while researching this book, I discovered that many quotes on the Internet commonly attributed to Brandeis were not said by him at all. (Sorry tax lawyers, but Brandeis never lived in Alexandria Virginia and he never drove out his way to avoid a toll bridge.)  The book includes a chapter that debunks these quotes, giving the correct attribution for them (when I could find it.) The book also has a foreword by Mel Urofsky, a biographical sketch of Brandeis written by me and an insanely detailed keyword index.

The book is on sale now. If you live in Louisville, you can get a copy from Carmichael’s Bookstore. If you don’t live here, you order it directly from Carolina Academic by calling 919-489-7486. It is also for sale from eCampus.com–in fact you can even rent it from them if that is something you feel inclined to do. The book is been on Amazon as well, but they claim it is out of stock and apparently you have to for a number of weeks to receive your copy.


We haven’t received the Summer 2017 issue of The Green Bag yet here at the Law Library, but it has appeared online, which these days may be the only edition that matters. I’m being stubborn and waiting for my paper copy so I haven’t read the entire thing, but there are two articles I wanted to bring attention to.

While doing some Brandeis-related research, I stumbled across an 1883 speech by Louisville lawyer (and one-time partner of Brandeis’s uncle Lewis Dembitz) Byron Bacon called “How to Explain to Your Client Why You Lost His Case.” Even though the speech was over 130 years old, I thought it was still pretty funny and forwarded it on to Ross Davies at The Green Bag, who decided to publish it along with an introduction and a couple footnotes by yours truly. The humor might be a little dry for some people, but I think it has held up amazingly well.

Like I said, I haven’t read the rest of the issue yet, but I did notice that Brandeis got cited in one of the other articles. Andrew Jensen Kerr’s “The Law According to the Most-Cited Law Review Articles of All Time” attempts to summarize the breadth of American law with points made from the 50 most cited articles from law journals. The result is a delightfully bizarre synopsis that not only includes a citation to Brandeis’s “The Right to Privacy” article, but also one to an article by William Prosser that indulges in some odd speculation about the physical attractiveness of the daughter of Brandeis’s co-author, Samuel Warren. This article is even funnier than Bacon’s.


Contrary to popular belief, the Louis D. Brandeis School of Law is located at the University of Louisville, in Kentucky, and not at Brandeis University. Brandeis was born in Louisville in 1856, and while he never lived there again after he graduated from Harvard Law School, he retained a fondness for his hometown for the rest of his life. Starting in the 1920’s, he began a campaign to improve the quality of the University of Louisville. The Law School ended up being the biggest benefactor of the campaign. He arranged for the school to obtain subscriptions to various law reporters, as well as paper copies of all the briefs submitted to the US Supreme Court. (The law school continues to receive those briefs today, a distinction shared by only nine other libraries.) Brandeis also donated the bulk of his personal papers to the Law School–a collection of about 250,000 items. After their deaths, the remains of Brandeis and his wife were buried under the Law School’s portico.

Two short articles recently published online by the University of Louisville reflect upon the relationship between the University and Brandeis. The first one is about former Dean Don Burnett and his efforts to align the Law School with Brandeis’s ideals. His efforts culminated with the institution of a mandatory pro bono graduation requirement and the renaming of the school after Brandeis. (His successor, Laura Rothstein, would carry on the tradition of the school’s identification with Brandeis even further.)

The University of Louisville’s University Libraries department publishes a newsletter called The Owl. The latest issue of The Owl features an article written by myself that outlines Brandeis’s campaign to improve the University and its effect on the campus’s libraries. It turns out Brandeis’s fingerprints are all over the place here if you know where to look.


There have been many summations of Brandeis’s philosophy over the years, but there is always room for new looks at his life’s work. The latest overview is an article by Joel K. Goldstein and Charles A. Miller called “Brandeis: The Legacy of a Justice” (100 Marquette Law Review 461-495).

Their article actually comes out of research they have done on former Brandeis law clerk, Paul Freund. Taking Freund’s comment that Brandeis was “the most most moral teacher ever to have sat on our highest court” as their starting point, they look at Brandeis’s discretionary opinions and the impact they have had on the Supreme Court and US presidents in the years after his death.

In describing the moral center of Brandeis’s judicial philosophy, they divide his dissents and concurrences into five threads: the rights of the individual, the duties of citizenship vs. the infringement of rights, bigness in both business and government, the inappropriate use of government power, and the necessity of government regulation. (They make the interesting point that with the exception of Ashwander, almost none of Brandeis’s majority opinions have had much historical impact.)  After describing how Brandeis’s opinions support these threads of his thought, they go on to show how they have influenced later Supreme Court justices on both sides of the political spectrum.

People looking for a concise introduction to Brandeis’s Supreme Court legacy, or for examples of how morality can shape American jurisprudence are encouraged to read this excellent article.