Louis D. Brandeis

Louis D. Brandeis: A Life is a monumental achievement that could only have been written by a scholar, such as Melvin I. Urofsky, who has devoted many years to the subject and his historical context. In the mid-1960’s, when Urofsky was searching for an appropriate problem for a Ph.D. dissertation, he noted that historian Arthur Link had referred to Louis Brandeis as “the architect of [President Woodrow Wilson’s] New Freedom.” After examining Brandeis’s papers, Urofsky concluded that there was not enough material on this particular topic to construct a large dissertation, but he and a fellow historian found the correspondence to be so fascinating that they decided to edit the documents for publication. While teaching, writing, and thinking about various aspects of U.S. legal history during the next four decades, Urofsky became increasingly intrigued with Brandeis’s career, and he decided that a full-scale biography would be a challenging retirement project.

In addition to conducting exhaustive research in primary sources, Urofsky was able to take advantage of a large number of valuable secondary works about Brandeis and the years in which he lived and worked. Philippa Strum has written excellent books on aspects of Brandeis’s political and legal career. Alpheus T. Mason, whose highly respected biography appeared in 1946, had the advantage of interviewing Brandeis over a period of ten days, and he had access to many of Brandeis’s papers, although he was not allowed to use the valuable Supreme Court papers at Harvard. Urofsky was able to use these papers, as well as numerous other manuscript collections that were not available to Mason. In addition, since 1946, many changes in constitutional law and public policy have modified the focus of scholars’ interest in Brandeis’s contributions to jurisprudence and political theory.

Urofsky emphasizes that Brandeis made outstanding contributions as a practicing lawyer, a progressive reformer, a justice on the Supreme Court, and a leader of the Zionist movement. As a lawyer, he was extremely successful. In 1890, for example, when two-thirds of U.S. attorneys earned less than five thousand dollars per year, Brandeis’s annual income was more than fifty thousand dollars. He was one of a new breed of lawyers who responded to the growing importance and complexity of the law during the large-scale modernization of the country. He was highly organized, a tireless worker, and a ferocious adversary. Urofsky frequently points out that Brandeis loved facts and that “time and time again he would trip up the opposition by knowing more about the business than they did.” Despite his general hostility to bigness, he was a pioneer in the development of the modern law firm, which typically uses specialists to concentrate in different areas of the law.

A committed moralist with a strong altruistic turn, Brandeis (who later acquired the nickname “Isaiah”) joined the Progressive movement in an attempt to ameliorate the harsh conditions of the Industrial Revolution. He began his effort at reform during the 1890’s in Boston, fighting against corrupt streetcar franchises, and during the next decade he led a crusade for savings bank life insurance. By then, he was often called the“people’s attorney.” Particularly noteworthy was the argument he made before the Supreme Court in Muller v. Oregon (1908), in which he persuaded the Court’s conservative justices that a there was adequate justification for a law that limited the workday of women to ten hours. His success was primarily due to an accumulation of empirical factual data showing the harmful effects of excessive hours on the health, safety, and welfare of women. This type of pragmatic brief became known as a “Brandeis brief,” and, because the approach emphasized information abut social conditions rather than legal precedents, it was frequently described as “sociological jurisprudence.”

Despite his busy career, Brandeis somehow found time to produce books, articles, and speeches about the theoretical aspects of the law. The best summary of Brandeis’s philosophy of using law for the promotion of humanitarian reform, according to Urofsky, is found in his speech “The Opportunity in the Law,” which he delivered before the Harvard Ethical Society in 1905. The speech was based on the conviction that law can be an instrument of morality, social justice, and progress. Rather than becoming “adjuncts of large corporations,” he urged lawyers to hold positions of independence, between the wealthy and the people.” Urofsky makes it clear that these were precepts and values that Brandeis attempted to integrate into his own life and career. He was also perhaps the first prominent member of the legal community to propose that all lawyers should consider it an obligation to make pro bono contributions to public service or worthy causes.

About 1910, Brandeis first embraced the Zionist movement, in large part because he perceived it as an idealist movement. An unlikely candidate for a Zionist leader, he was raised by secular Jewish parents who had emigrated from Bohemia, and he frequently said that he was not “mystically or religiously inclined.” He...

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