Learned Hand
Learned Hand | |
---|---|
Senior Judge of the United States Court of Appeals for the Second Circuit | |
In office June 1, 1951 – August 18, 1961 | |
Chief Judge of the United States Court of Appeals for the Second Circuit | |
In office September 1, 1948 – June 1, 1951 | |
Preceded by | Office established |
Succeeded by | Thomas Walter Swan |
Judge of the United States Court of Appeals for the Second Circuit | |
In office December 20, 1924 – June 1, 1951 | |
Appointed by | Calvin Coolidge |
Preceded by | Julius Marshuetz Mayer |
Succeeded by | Harold Medina |
Judge of the United States District Court for the Southern District of New York | |
In office April 26, 1909 – December 29, 1924 | |
Appointed by | William Howard Taft |
Preceded by | Seat established by 35 Stat. 685 |
Succeeded by | Thomas D. Thacher |
Personal details | |
Born | Billings Learned Hand January 27, 1872 Albany, New York, U.S. |
Died | August 18, 1961 New York City, U.S. | (aged 89)
Political party |
|
Spouse |
Frances Amelia Fincke
(m. 1902) |
Children | 3 |
Parent |
|
Relatives |
|
Education | Harvard University (AB, AM, LLB) |
Billings Learned Hand (
Born and raised in
Hand possessed a gift for the English language, and his writings are admired as legal literature.
Hand is also remembered as a pioneer of modern approaches to
Early life
Billings Learned Hand was born on January 27, 1872, in Albany, New York, the second and last child of Samuel Hand (1833–1886) and Lydia Hand (née Learned). His mother's family traditionally used surnames as given names; Hand was named for a maternal uncle and a grandfather, both named Billings Peck Learned.[4] The Hands were a prominent family with a tradition of activism in the Democratic Party. Hand grew up in comfortable circumstances. The family had an "almost hereditary" attachment to the legal profession[5] and has been described as "the most distinguished legal family in northern New York".[6]
Samuel Hand was an appellate lawyer,[7] who had risen rapidly through the ranks of an Albany-based law firm in the 1860s and, by age 32, was the firm's leading lawyer. In 1878, he became the leader of the appellate bar and argued cases before the New York Court of Appeals in "greater number and importance than those argued by any other lawyer in New York during the same period".[8] Samuel Hand was a distant, intimidating figure to his son; Learned Hand later described the relationship with his father as "not really intimate".[9] Samuel Hand died from cancer when Learned was 14.[10] Learned's mother thereafter promoted an idealized memory of her husband's professional success, intellectual abilities, and parental perfection, placing considerable pressure on her son.[11]
Lydia Hand was an involved and protective mother who had been influenced by a
Hand was beset by anxieties and self-doubt throughout his life, including night terrors as a child. He later admitted he was "very undecided, always have been—a very insecure person, very fearful; morbidly fearful".[15] Especially after his father's death, he grew up surrounded by doting women—his mother, his aunt, and his sister Lydia (Lily), eight years his elder.[16] Hand struggled with his name during his childhood and adulthood, worried that "Billings" and "Learned" were not sufficiently masculine. While working as a lawyer in 1899, he ceased using the name "Billings"—calling it "pompous"—and ultimately took on the nickname "B".[7][17]
Hand spent two years at a small primary school before transferring at the age of seven to
Harvard
Hand enrolled at Harvard College in 1889, initially focusing on classical studies and mathematics as advised by his late father. At the end of his sophomore year, he changed direction. He embarked on courses in philosophy and economics, studying under the eminent and inspirational philosophers William James, Josiah Royce and George Santayana.[23]
At first, Hand found Harvard a difficult social environment. He was not selected for any of the social clubs that dominated campus life, and he felt this exclusion keenly. He was equally unsuccessful with the
Hand's studious ways resulted in his election to
Hand's three years at Harvard Law School were intellectually and socially stimulating. In his second year, he moved into a boarding house with a group of fellow law students who were to become close friends. They studied hard and enjoyed discussing philosophy and literature and telling bawdy tales. Hand's learned reputation proved less of a hindrance at law school than it had as an undergraduate. He was elected to the Pow-Wow Club, in which law students practiced their skills in moot courts. He was also chosen as an editor of the Harvard Law Review, although he resigned in 1894 because it took too much time from his studies.[29]
During the 1890s, Harvard Law School was pioneering the
Albany legal practice
Hand graduated from Harvard Law School with a Bachelor of Laws in 1896 at the age of 24. He returned to Albany to live with his mother and aunt and started work for the law firm in which an uncle, Matthew Hale, was a partner. Hale's unexpected death a few months later obliged Hand to move to a new firm, but by 1899, he had become a partner.[34] He had difficulty attracting his own clients and found the work trivial and dull.[35] Much of his time was spent researching and writing briefs, with few opportunities for the appellate work he preferred. His early courtroom appearances, when they came, were frequently difficult, sapping his fragile self-confidence. He began to fear that he lacked the ability to think on his feet in court.[36]
For two years, Hand tried to succeed as a lawyer by force of will, giving all his time to the practice. By 1900, he was deeply dissatisfied with his progress. For intellectual stimulation, he increasingly looked outside his daily work. He wrote scholarly articles, taught part-time at Albany Law School, and joined a lawyers' discussion group in New York City. He also developed an interest in politics.[37]
Hand came from a line of loyal Democrats, but in 1898 he voted for
Marriage and New York
After reaching the age of 30 without developing a serious interest in a woman, Hand thought he was destined for bachelorhood. But, during a 1901 summer holiday in the
The family at first spent summers in
The Hands also became close friends of Cornish resident Louis Dow, a Dartmouth College professor. Frances Hand spent increasing amounts of time with Dow while her husband was in New York, and tension crept into the marriage. Despite speculation, there is no evidence that she and Dow were lovers. Hand regretted Frances' long absences and urged her to spend more time with him, but he maintained an enduring friendship with Dow.[49] He blamed himself for a lack of insight into his wife's needs in the early years of the marriage, confessing his "blindness and insensibility to what you wanted and to your right to your own ways when they differed from mine".[50] Fearing he might otherwise lose her altogether, Hand came to accept Frances' desire to spend time in the country with another man.[50]
While staying in Cornish in 1908, Hand began a close friendship with the political commentator and philosopher
Hand continued to be disappointed in his progress at work. A move to the firm of Gould & Wilkie in January 1904 brought neither the challenges nor the financial rewards for which he had hoped.[55] "I was never any good as a lawyer," he later admitted. "I didn't have any success, any at all."[56] In 1907, deciding that at the age of 35 success as a Wall Street lawyer was out of reach, he lobbied for a potential new federal judgeship in the United States District Court for the Southern District of New York, the federal court headquartered in Manhattan. He became involved briefly in local Republican politics to strengthen his political base. In the event, Congress did not create the new judgeship in 1907; but, when the post was finally created in 1909, Hand renewed his candidacy. With the help of the influential Charles C. Burlingham, a senior New York lawyer and close friend, he gained the backing of Attorney General George W. Wickersham, who urged President William Howard Taft to appoint Hand. One of the youngest federal judges ever appointed, Hand took his judicial oath at age 37 in April 1909.[57]
Federal judge
Hand served as a United States district judge in the Southern District of New York from 1909 to 1924. He dealt with fields of common law, including torts, contracts, and copyright, and admiralty law. His unfamiliarity with some of these specialties, along with his limited courtroom experience, caused him anxiety at first.[58] Most of Hand's early cases concerned bankruptcy issues, which he found tiresome, and patent law, which fascinated him.[59]
Hand made some important decisions in the area of
It seems hardly likely that we are even to-day so lukewarm in our interest in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few, or that shame will for long prevent us from adequate portrayal of some of the most serious and beautiful sides of human nature.[63]
Hand was politically active in the cause of New Nationalism.[64] With reservations, in 1911 he supported Theodore Roosevelt's return to national politics. He approved of the ex-president's plans to legislate on behalf of the underprivileged and to control corporations, as well as of his campaign against the abuse of judicial power.[65] Hand sought to influence Roosevelt's views on these subjects, both in person and in print, and wrote articles for Roosevelt's magazine, The Outlook.[66] His hopes of swaying Roosevelt were often dashed. Roosevelt's poor grasp of legal issues particularly exasperated Hand.[67]
Despite overwhelming support for Roosevelt in the primaries and polls, the Republicans renominated the incumbent President Taft. A furious Roosevelt bolted from the party to form the Progressive Party, nicknamed the "Bull Moose" movement. Most Republican progressives followed him, including Hand.[68] The splitting of the Republican vote harmed both Roosevelt's and Taft's chances of winning the 1912 presidential election. As Hand expected, Roosevelt lost to the Democratic Party's Woodrow Wilson, though he polled more votes than Taft.[69]
Hand took the defeat in his stride. He considered the election merely as a first step in a reform campaign for "real national democracy".[70] Though he had limited his public involvement in the election campaign, he now took part in planning a party structure.[71] He also accepted the Progressive nomination for chief judge of New York Court of Appeals, then an elective position, in September 1913.[72] He refused to campaign, and later admitted that "the thought of harassing the electorate was more than I could bear".[73] His vow of silence affected his showing, and he received only 13% of the votes.[74] Hand came to regret his candidacy: "I ought to have lain off, as I now view it; I was a judge and a judge has no business to mess into such things."[75]
By 1916, Hand realized that the Progressive Party had no future, as the liberal policies of the Democratic government were making much of its program redundant. Roosevelt's decision not to stand in the
Hand made his most memorable decision of the war in 1917 in
The publishing company sought an injunction to prevent the ban, and the case came before Judge Hand.[83] In July 1917, he ruled that the journal should not be barred from distribution through the mail. Though The Masses supported those who refused to serve in the forces, its text did not, in Hand's view, tell readers that they must violate the law. Hand argued that suspect material should be judged on what he called an "incitement test": only if its language directly urged readers to violate the law was it seditious—otherwise freedom of speech should be protected.[84] This focus on the words themselves, rather than on their effect, was novel and daring; but Hand's decision was promptly stayed, and later overturned on appeal.[85] He always maintained that his ruling had been correct. Between 1918 and 1919, he attempted to convince Supreme Court Justice Oliver Wendell Holmes Jr., a man he greatly admired, of his argument. His efforts at first appeared fruitless, but Holmes' dissenting opinion in Abrams v. United States in November 1919 urged greater protection of political speech.[86] Scholars have credited the critiques of Hand, Ernst Freund, Louis Brandeis, and Zechariah Chafee for the change in Holmes's views.[87] In the long-term, Hand's decision proved a landmark in the history of free speech in the country.[88] In Brandenburg v. Ohio (1969), the Supreme Court announced a standard for protecting free speech that in effect recognized his Masses opinion as law.[89]
Hand had known that ruling against the government might harm his prospects of promotion.
In the final months of the war, Hand increasingly supported President Woodrow Wilson's post-war foreign policy objectives. He believed the United States should endorse the League of Nations and the Treaty of Versailles, despite their flaws. This position estranged him from Croly and others at The New Republic, who vehemently rejected both. Alienated from his old circle on the magazine and by the reactionary and isolationist mood of the country, Hand found himself politically homeless.[92]
Between the wars
The next Second Circuit vacancy arose in 1921, but with the conservative Warren G. Harding administration in power, Hand did not put himself forward. Nonetheless, Hand's reputation was such that by 1923, Justice Holmes wanted him on the Supreme Court,[93] and in 1924 Harding's successor, Calvin Coolidge, appointed Hand to the Second Circuit. It was a sign of Hand's increased stature that figures such as Coolidge and Chief Justice William Howard Taft now endorsed him. Coolidge sought to add new blood to a senior judiciary that was seen as corrupt and inefficient.[94] In 1926 and 1927, the Second Circuit was strengthened by the appointments of Thomas Walter Swan and Hand's cousin Augustus Noble Hand.[95]
After the demise of the Progressive Party, Hand had withdrawn from party politics.
In public, Hand discussed issues of democracy, free speech, and toleration only in general terms. This discretion, plus a series of impressive speaking engagements, won him the respect of legal scholars and journalists,
Hand had voted for Hoover in 1928, and he did so again in 1932; but in 1936, he voted for the Democrats and
Hand was increasingly called upon to judge cases arising from the flood of New Deal legislation. The line between central government authority and local legislation particularly tested his powers of judgment. In 1935, the case of
Hand became an acknowledged expert on New Deal statutes. He relished the challenge of interpreting such legislation, calling it "an act of creative imagination".[104] In a 1933 broadcast, he explained the balancing act required of a judge in interpreting statutes:
On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed.[105]
World War II
When war broke out in Europe in 1939, Learned Hand adopted an anti-isolationist stance. He rarely spoke out publicly, not only because of his position but because he thought bellicosity unseemly in an old man.
Hand still regarded his main job as judging. As circuit leader, he sought to free himself and his judges from too great an administrative burden. He concentrated on maintaining good relations with his fellow judges and on cleansing the court of patronage appointments. Despite the Manton case and constant friction between two of the court's judges,
In 1942, Hand's friends once again lobbied for him to fill a Supreme Court vacancy, but Roosevelt did not appoint him. The president gave age as the reason, but philosophical differences with Hand may also have played a part.
Hand was relieved when the United States entered the war in December 1941. He felt free to participate in organizations and initiatives connected with the war effort, and was particularly committed to programs in support of Greece and Russia. He backed Roosevelt for the 1944 election, partly because he feared a return to isolationism and the prolonging of the wartime erosion of civil liberties.[116] In 1943, the House Un-American Activities Committee or "Dies Committee", for example, had aroused his fears with an investigation into "subversive activities" by government workers. Hand's contemporary at Harvard College, Robert Morss Lovett, was one of those accused, and Hand spoke out on his behalf.[117] As the end of the war approached, there was much talk of international peace organizations and courts to prevent future conflict, but Hand was skeptical. He also condemned the Nuremberg war-crimes trials, which he saw as motivated by vengeance; he did not believe that "aggressive war" could be construed as a crime. "The difference between vengeance and justice," he wrote later, "is that justice must apply to all."[118]
Hand had never been well known to the general public, but a short speech he made in 1944 won him fame and a national reputation for learnedness that lasted until the end of his life.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.[120]
Extracts of the speech appeared in The New Yorker on June 10. Several weeks later, The New York Times printed the whole text. Life magazine and Reader's Digest followed soon after.[98] Hand's message that liberty is safeguarded by everyday Americans struck a popular chord, and he suddenly found himself a folk hero.[121] Though he enjoyed the acclaim, he thought it unmerited. His biographer Gerald Gunther, noting the paradox of the agnostic Hand's use of religious overtones, suggests that the most challenging aspect of the speech was that the spirit of liberty must entertain doubt.[122]
Postwar years
Learned Hand's 75th birthday in 1947 was much celebrated in the press and in legal circles. C. C. Burlingham, Hand's former sponsor, for example, called him "now unquestionably the first among American judges".[123] Hand remained modest in the face of such acclaim. He continued to work as before, combining his role as presiding judge of the Second Circuit with his engagement in political issues. In 1947, he voiced his opposition to a proposed "group libel" statute that would have banned defamation of racial or minority groups. He argued that such a law would imply that intolerance could base itself upon evidence. The effect of the proposed prosecutions, he said, would be "rather to exacerbate than to assuage the feelings which lie behind the defamation of groups".[124]
The Cold War and McCarthyism
In the postwar period, Hand shared the dismay of his compatriots about
Hand particularly despised the anti-Communist campaign of Senator Joseph McCarthy that began in 1950 and which became known as McCarthyism. Though Hand expressed his horror of McCarthyism privately, he hesitated to do so publicly because cases arising from it were likely to come before his court.[127]
Coplon, Dennis, and Remington cases
During this period, Hand took part in three cases that posed a particular challenge to his impartiality on Cold War issues:
Hand's position in the 1950 case Dennis v. United States contrasted sharply with his Coplon opinion. In Dennis, Hand affirmed the convictions under the 1940
In 1953, Hand wrote a scathing dissent from a Second Circuit decision affirming the perjury conviction of William Remington, a government economist accused of Communist sympathies and activities. In 1951, the same panel had originally overturned Remington's conviction for perjury. Rather than retrying Remington on their original perjury charges, the government instead brought new perjury charges based on his testimony at the first trial. He was convicted of two charges. In the latter appeal, Hand was outvoted two to one. The prosecution produced stronger evidence against Remington at the second trial, much of it obtained from his wife. Sentenced to three years' imprisonment, Remington was murdered in November 1954 by two fellow inmates, who beat him over the head with a brick wrapped in a sock. According to Hand's biographer Gunther, "The image of Remington being bludgeoned to death in prison haunted Hand for the rest of his life."[133]
Public opposition to McCarthyism
Only after stepping down from his position as a full-time judge in 1951 did Hand join the public debate on McCarthyism. Shortly after his semi-retirement, he gave an unscripted speech that was published in The Washington Post, an anti-McCarthy newspaper. Hand wrote:
[M]y friends, will you not agree that any society which begins to be doubtful of itself; in which one man looks at another and says: "He may be a traitor," in which that spirit has disappeared which says: "I will not accept that, I will not believe that—I will demand proof. I will not say of my brother that he may be a traitor," but I will say, "Produce what you have. I will judge it fairly, and if he is, he shall pay the penalties; but I will not take it on rumor. I will not take it on hearsay. I will remember that what has brought us up from savagery is a loyalty to truth, and truth cannot emerge unless it is subjected to the utmost scrutiny"—will you not agree that a society that has lost sight of that, cannot survive?[134]
Hand followed this up with an address to the
Semi-retirement and death
In 1951, Hand retired from "regular active service" as a federal judge.[137] He assumed senior status, a form of semi-retirement, and continued to sit on the bench, with a considerable workload.[138] The following year, he published The Spirit of Liberty, a collection of papers and addresses that neither he nor publisher Alfred A. Knopf expected to make a profit. In fact, the book earned admiring reviews, sold well, and made Hand more widely known.[98] A 1958 paperback edition sold even better, though Hand always refused royalties from material he never intended for publication.[139]
Louis Dow had died in 1944, with Frances Hand at his side. The Hands' marriage then entered its final, happiest phase, in which they rediscovered their first love.[140] He was convinced that his wife had rescued him from a life as a "melancholic, a failure [because] I should have thought myself so, and probably single and hopelessly hypochondriac".[141]
Former
Learned Hand remained in good physical and mental condition for most of the last decade of his life. In 1958, he gave the Holmes Lectures at Harvard Law School. These lectures proved to be Hand's last major critique of judicial activism, a position he had first taken up in 1908 with his attack on the Lochner ruling.[146] They included a controversial attack on the Warren Court's 1954 decision in Brown v. Board of Education, which in Hand's opinion had exceeded its powers by overruling Jim Crow segregation laws.[147] His views were widely criticized as reactionary and unfortunate, with most deploring the fact that they might encourage segregationists who opposed libertarian judicial rulings. Published as The Bill of Rights, the lectures nevertheless became a national bestseller.[148]
By 1958, Hand was suffering from intense pain in his back and faced difficulty in walking. "I can just manage, with not infrequent pauses, to walk about a third of a mile," he wrote to Felix Frankfurter. "My feet get very numb and my back painful. The truth is that 86 is too long."[151] Soon, he was obliged to use crutches, but he remained mentally sharp and continued to hear cases. In 1960, he worked briefly on President Dwight Eisenhower's "Commission on National Goals", but he resigned because "it involved more work than in the present state of my health I care to add to the judicial work that I am still trying to do".[152]
By June 1961, Hand was in a wheelchair. He joked that he felt idle because he had taken part in no more than about 25 cases that year, and that he would start another job if he could find one.[153] The following month, he suffered a heart attack at Cornish. He was taken to St Luke's Hospital in New York City, where he died peacefully on August 18, 1961. The New York Times ran a front-page obituary. The Times of London wrote: "There are many who will feel that with the death of Learned Hand the golden age of the American judiciary has come to an end."[154]
He was buried next to his wife in the family plot at Albany Rural Cemetery near Menands, New York.[155]
Philosophy
Hand's study of philosophy at Harvard left a lasting imprint on his thought. As a student, he lost his faith in God, and from that point on he became a
Hand's civil instincts were at odds with the duty of a judge to stay aloof from politics.[162] As a judge he respected even bad laws; as a member of society he felt free to question the decisions behind legislation. In his opinion, members of a democratic society should be involved in legislative decision-making.[163] He therefore regarded toleration as a prerequisite of civil liberty. In practice, this even meant that those who wish to promote ideas repugnant to the majority should be free to do so, within broad limits.[164]
Hand's skepticism extended to his
Between 1910 and 1916, Hand tried to translate his political philosophy into political action. Having read Croly's
Jurisprudence
Hand has been called one of the United States' most significant judicial philosophers.[177] A leading advocate of judicial restraint, he took seriously Alexander Hamilton's formulation that "the judiciary ... may truly be said to have neither force nor will, but merely judgement."[178] Any judicial ruling that had the effect of legislating from the bench troubled Hand. In 1908, in his article "Due Process of Law and the Eight-Hour Day", he attacked the 1905 Supreme Court ruling in Lochner v. New York, which had struck down a law prohibiting bakery staff from working more than ten hours a day. The Supreme Court went on to strike down a series of similar worker-protective laws on the grounds that they restricted freedom of contract.[179] Hand regarded this principle as undemocratic.[180] "For the state to intervene", he argued, "to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior force."[181]
The issue concerned Hand again during the New Deal period, when the Supreme Court repeatedly overturned or blocked Franklin D. Roosevelt's legislation.
Hand's democratic respect for legislation meant that he hardly ever struck down a law.[187] Whenever his decisions went against the government, he based them only on the boundaries of law in particular cases. He adhered to the doctrine of presumptive validity, which assumes that legislators know what they are doing when they pass a law.[188] Even when a law was uncongenial to him, or when it seemed contradictory, Hand set himself to interpret the legislative intent.[189] Sometimes he was obliged to draw the line between federal and state laws, as in United States v. Schechter Poultry. In this important case, he ruled that a New Deal law on working conditions did not apply to a New York poultry firm that conducted its business only within the state.[190] Hand wrote in his opinion: "It is always a serious thing to declare any act of Congress unconstitutional, and especially in a case where it is part of a comprehensive plan for the rehabilitation of the nation as a whole. With the wisdom of that plan we have nothing whatever to do ..."[190] Hand also occasionally went against the government in the area of free speech. He believed that courts should protect the right to free speech even against the majority will. In Hand's view, judges must remain detached at times when public opinion is hostile to minorities and governments issue laws to repress those minorities.[191] Hand was the first judge to rule on a case arising from the Espionage Act of 1917, which sought to silence opposition to the war effort. In his decision on Masses Publishing Co. v. Patten, he defined his position on political incitement:
Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard for free government. The distinction is not scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.[192]
In the case of
In the opinion of Kathryn Griffith, "The importance of Learned Hand's philosophy in terms of practical application to the courts lies generally in his view of the
Richard Posner, an influential appellate judge reviewing a biography of Hand, asserts that Hand "displayed a positive antipathy toward constitutional law. To exaggerate only a little, he didn't think judges should have anything to do with it."[204] Posner suggests that although Hand is remembered today as one of the three greatest judges in American history, his status as a truly "great judge" was not based on his "slight" contributions to First Amendment jurisprudence or other fields of constitutional law, but rather on his decisions in other areas such as antitrust, intellectual property, and tort law.[204]
Influence
Hand authored approximately 4,000 judicial opinions during his career. Admired for their clarity and analytic precision, they have been quoted more often in Supreme Court opinions and by legal scholars than those of any other lower-court judge.[3] Both Hand's dissent in United States v. Kennerley[60] and his ruling in United States v. Levine[205] have often been cited in obscenity cases.[206] Hand's view that literary works should be judged as a whole and in relation to their intended readership is now accepted in American law. His use of historical data to gauge legislative intent has become a widespread practice. According to Archibald Cox: "The opinions of Judge Hand have had significant influence both in breaking down the restrictions imposed by the dry literalism of conservative tradition and in showing how to use with sympathetic understanding the information afforded by the legislative and administrative processes."[207] Hand's decision in the 1917 Masses case influenced Zechariah Chafee's widely read book, Freedom of Speech (1920). In his dedication, Chafee wrote, "[Hand] during the turmoil of war courageously maintained the traditions of English-speaking freedom and gave it new clearness and strength for the wiser years to come."[208]
Learned Hand played a key role in the interpretation of new
His opinions have also proved lasting in fields of
Hand was also a founding member of the American Law Institute, where he helped develop the influential Restatements of the Law serving as models for refining and improving state codes in various fields.[218] One American Law Institute recommendation was to decriminalize sexual conduct such as adultery and homosexuality, for which reason the July–August 1955 issue of the Mattachine Society Review, the magazine of the country's first nationwide homosexual organization, published a salute to Judge Hand featuring his photograph on the cover.[219]
After Hand's lectures and publications became widely known, his influence reached courts throughout the country.[220] On the occasion of his 75th birthday on January 27, 1947, The Washington Post reported: "He has won recognition as a judges' judge. His opinions command respect wherever our law extends, not because of his standing in the judicial hierarchy, but because of the clarity of thought and the cogency of reasoning that shape them."[221]
To the wider public, who knew little of his legal work, Hand was by then a folk hero.
Finally, in an essay called Origin of a Hero discussing his novel the Rector of Justin, author Louis Auchincloss says the main character was not based on a headmaster—certainly not, as was often speculated, Groton's famous Endicott Peabody. "If you want to disguise a real life character," Auchincloss advised fellow novelists, "just change his profession." His actual model for the Rector of Justin was "the greatest man it has been my good luck to know"—Judge Learned Hand.[226]
Selected works
- Hand, Learned (1941), Liberty, Stamford, Connecticut: Overbrook, OCLC 2413475.
- Hand, Learned (1952), Dilliard, Irving (ed.), The Spirit of Liberty: Papers and Addresses of Learned Hand, New York: Knopf, OCLC 513793.
- Hand, Learned (1958), The Bill of Rights, Oliver Wendell Holmes Lectures, Cambridge, Massachusetts: OCLC 418364.
- Hand, Learned (1968), Shanks, Hershel (ed.), The Art and Craft of Judging: The Decisions of Judge Learned Hand, New York: Macmillan, OCLC 436539.
See also
References
- ^ Schick 1970, pp. 188–89
- ^ Dworkin 1996, p. 342. Quoted from Hand's 1958 Holmes Lectures.
- ^ a b Stone 2004, p. 200; Vile 2003, p. 319
- ^ Gunther 1994, pp. 3–5
- ^ Gunther 1994, pp. 3, 7, 40; Griffith 1973, p. 3
- ^ Charles E. Wyzanski, quoted in Schick 1970, p. 13
- ^ a b Schick 1970, p. 13
- ^ Gunther 1994, p. 7
- ^ Gunther 1994, p. 6
- ^ Griffith 1973, p. 3
- ^ Gunther 1994, pp. 6–9
- ^ Gunther 1994, pp. 10–11
- ^ Gunther 1994, pp. 4, 6, 11
- ^ Gunther 1994, p. 22
- ^ Gunther 1994, p. 4
- ^ Gunther 1994, pp. 4–5
- ^ Vile 2003, p. 320
- ^ Gunther 1994, pp. 20, 23–25
- ^ Griffith 1973, pp. 3–4
- ^ Gunther 1994, pp. 20–22
- SSRN 2271070
- ^ Gunther 1994, p. 26
- ^ Gunther 1994, pp. 32–33
- ^ Gunther 1994, pp. 26–30, 76
- ^ Gunther 1994, pp. 30–31.
- ^ a b Griffith 1973, p. 4
- ^ Gunther 1994, p. 32
- ^ Gunther 1994, pp. 40–43
- ^ Gunther 1994, pp. 46–47
- ^ a b Dworkin 1996, p. 333
- ^ Carrington 1999, p. 206
- ^ Gunther 1994, pp. 47–50
- ^ Gunther 1994, pp. 50–52; Griffith 1973, p. 4
- ^ Gunther 1994, pp. 53–55
- ^ Carrington 1999, p. 137; Schick 1970, p. 14; Griffith 1973, pp. 4–5
- ^ Gunther 1994, pp. 56–59
- ^ Gunther 1994, pp. 59–61
- ^ Gunther 1994, pp. 61–63
- ^ Gunther 1994, pp. 64–65. This switch did not prove permanent: over the course of the years, Hand voted equally for Democratic and Republican candidates.
- ^ Gunther 1994, pp. 68–70
- ^ Gunther 1994, p. 72
- ^ Gunther 1994, p. 78
- ^ Gunther 1994, p. 79
- ^ Gunther 1994, pp. 80–81
- ^ Gunther 1994, pp. 172–174
- ^ Griffith 1973, p. 7
- ^ Gunther 1994, pp. 171–73
- ^ Gilbert, Alma, Maxfield Parrish: The Masterworks, Third Edition (Berkeley, California: Ten Speed Press, 2001) p. 110.
- ^ Gunther 1994, pp. 183–187
- ^ a b Gunther 1994, pp. 187–188
- ^ Stettner 1993, p. 25
- ^ Gunther 1994, pp. 190–193
- ^ Stettner 1993, p. 76
- ^ Gunther 1994, pp. 195, 198–202
- ^ Gunther 1994, pp. 101–105
- ^ Gunther 1994, p. 107
- ^ Gunther 1994, pp. 123–124, 128–133; Schick 1970, p. 14; Griffith 1973, p. 5
- ^ Gunther 1994, pp. 135–136
- ^ Gunther 1994, pp. 137–138, 144–145
- ^ a b United States v. Kennerley, 209 Fed. 119 (S.D.N.Y. 1913)
- ^ Boyer 2002, pp. 46–48
- ^ Griffith 1973, p. 154; Rabban 1999, p. 146; Regina v. Hicklin, LR 3 QB 360 (1868).
- ^ Gunther 1994, pp. 149–150
- ^ Gunther 1994, p. 202
- ^ Gunther 1994, pp. 202–204; Schick 1970, p. 14
- ^ Gunther 1994, pp. 206–210, 221–24
- ^ Gunther 1994, pp. 212–225
- ^ Gunther 1994, pp. 227–229
- ^ Gunther 1994, p. 232
- ^ Gunther 1994, pp. 229–232
- ^ Gunther 1994, p. 233. The new party structure incorporated Jane Addams' Progressive Service, an educational organization aimed at spreading the reformist agenda to the public and to the legislators.
- ^ Griffith 1973, p. 5
- ^ Schick 1970, p. 14
- ^ Gunther 1994, pp. 233–236
- ^ Gunther 1994, p. 237
- ^ Stone 2004, p. 166
- ^ Gunther 1994, pp. 239–241
- ^ Gunther 1994, pp. 190, 241–244
- ^ Gunther 1994, pp. 190, 250–251
- ^ Gunther 1994, pp. 251–256
- ^ Schick 1970, p. 176; Shanks 1968, pp. 84–97; Masses Publishing Co. v. Patten, 244 Fed. 535 (S.D.N.Y. 1917)
- ^ Gunther 1994, pp. 151, 157; Stone 2004, pp. 157, 164–165
- ^ Gunther 1994, pp. 151–152
- ^ Schick 1970, pp. 177–178; Rabban 1999, p. 296; Stone 2004, p. 177
- ^ Gunther 1994, pp. 152, 156–160; Stone 2004, pp. 165–170
- ^ Abrams v. United States, 250 U.S. 616 (1919).
- ^ Irons 1999, pp. 270, 275, 279–280; Gunther 1994, pp. 161–167; Stone 2004, pp. 198–207
- ^ "Judge Hand's injunction against the postmaster's exclusion of The Masses from the mails, though reversed on appeal, is seen, in retrospect, as the precursor of the federal court's present protection of freedom of the press." Judge Charles E. Wyzanski. Qtd. in Griffith 1973, p. 6
- ^ Gunther 1994, pp. 151–152, 170
- ^ Gunther 1994, p. 155; Stone 2004, pp. 165–166
- ^ Gunther 1994, pp. 161, 257–260, 270–71
- ^ Gunther 1994, pp. 263–266
- ^ White 2007, p. 214; Schick 1970, p. 17
- ^ Gunther 1994, pp. 270–277; Schick 1970, p. 15. Taft had once dismissed Hand as "a wild Roosevelt man and a Progressive".
- ^ Gunther 1994, p. 281
- ^ Gunther 1994, pp. 344–352
- ^ Gunther 1994, pp. 362–368
- ^ a b c d Schick 1970, p. 16
- ^ Gunther 1994, pp. 418–428
- ^ Gunther 1994, pp. 416, 435–438
- ^ Gunther 1994, pp. 457–460; Carrington 1999, p. 141
- United States v. A. L. A. Schechter, 76 F.2d 617 (2d Cir. 1935)
- ^ Gunther 1994, pp. 446–448, 451
- ^ Gunther 1994, p. 471; Schick 1970, p. 163
- ^ Gunther 1994, p. 472
- ^ Gunther 1994, p. 485
- ^ Schick 1970, p. 5
- ^ Gunther 1994, pp. 503–509
- ^ Gunther 1994, pp. 514–516, 521; Schick 1970, p. 5
- ^ Griffith 1973, pp. 9–10
- ISBN 0-87840-847-9.
Douglas, qtd in Ashworth.
- ^ Vile 2003, p. 324
- ^ Letter from Learned Hand to Felix Frankfurter (Feb. 6, 1944) (available in Felix Frankfurter Papers, Manuscript Division, Library of Congress, Washington, D.C.). Quoted in Melvin I. Urofsky, William O. Douglas As a Common Law Judge Archived 2017-05-10 at the Wayback Machine, 41 Duke Law Journal 133, 135 n.18 (1991).
- ^ Gunther 1994, pp. 566–570; Dworkin 1996, p. 335
- ISSN 0362-4331. Retrieved March 22, 2023.
- ^ Gunther 1994, pp. 535–541
- ^ Gunther 1994, pp. 541–543. Lovett was removed from his government job by an Act of Congress, but in 1946 the Supreme Court ruled his dismissal unconstitutional as a bill of attainder.
- ^ Gunther 1994, pp. 543–547
- ^ Griffith 1973, pp. 11–12
- ^ Qtd. in Gunther 1994, p. 549
- ^ Griffith 1973, pp. 11–13
- ^ Gunther 1994, pp. 549–552
- ^ Gunther 1994, p. 575
- ^ Gunther 1994, pp. 576–577
- ^ Gunther 1994, p. 578; Stone 2004, p. 398
- ^ Gunther 1994, p. 581
- ^ Gunther 1994, p. 585; Stone 2004, p. 399
- ^ United States v. Coplon, 185 F.2d 629 (2d Cir. 1950); Dennis v. United States, 183 F.2d. 201 (2d Cir. 1950); United States v. Remington, 208 F.2d. 567 (2d Cir. 1950)
- ^ Gunther 1994, pp. 592–597
- ^ Gunther 1994, p. 596; Griffith 1973, p. 37
- ^ Schick 1970, pp. 176–181; Griffith 1973, pp. 150–152; Irons 1999, pp. 379–380
- ^ Gunther 1994, pp. 598–599
- ^ Gunther 1994, pp. 624–625; Stone 2004, p. 369
- ^ Hand 1977, pp. 223–24
- ^ Gunther 1994, pp. 588–589
- ^ Gunther 1994, pp. 589–590
- ^ Gunther 1994, pp. 586–587, 639
- ^ Schick 1970, p. 15
- ^ Gunther 1994, pp. 639–643
- ^ Gunther 1994, pp. 570–571
- ^ Gunther 1994, pp. 84–85
- ^ Dworkin 1996, p. 347
- ^ Gunther 1994, p. 620
- ^ Gunther 1994, pp. 300–302
- ^ Gunther 1994, p. 586
- ^ Lochner v. New York, 198 U.S. 45 (1905)
- ^ Gunther 1994, pp. 654–657; Carrington 1999, pp. 141–143
- ^ Gunther 1994, pp. 662–664; Carrington 1999, pp. 141–143; Griffith 1973, p. 109
- ^ Vanessa Grigoriadis (January 29, 2010). "Searching for J.D. Salinger: A Writer's New Hampshire Quest". Rolling Stone. Retrieved December 26, 2018.
- ISBN 9781611299052. Archivedfrom the original on August 26, 2021. Retrieved December 26, 2018.
- ^ Gunther 1994, p. 674
- ^ Gunther 1994, p. 676
- ^ Gunther 1994, p. 677
- ^ Gunther 1994, p. 679
- ^ Grondahl, Paul (December 5, 2013). "Learned Hand (1872-1961): Judicial eminence, '10th man on the U.S. Supreme Court'". Albany Times-Union. Archived from the original on March 4, 2016. Retrieved January 11, 2016.
- Lewis F. Powell, "Foreword", Gunther 1994, p. x
- ^ a b Griffith 1973, p. vii
- ^ Gunther 1994, p. 405
- ^ Schick 1970, p. 165; Dworkin 1996, p. 12
- ^ Griffith 1973, p. 192; Dworkin 1996, p. 342
- ^ Griffith 1973, pp. 131–140; White 2007, pp. 217–218
- ^ Schick 1970, p. 186
- ^ Griffith 1973, pp. 57–58; Dworkin 1996, pp. 342–343
- ^ "The limits Hand placed on choice are similar to those John Stuart Mill placed upon freedom when he denied the freedom to destroy liberty or the social and political structure which protected it." Griffith 1973, p. 60
- ^ Carrington 1999, p. 138; Polenberg 1995, pp. 296–301
- ^ Gunther 1994, pp. 62–63
- ^ Gunther 1994, pp. 193–194
- ^ Griffith 1973, p. 65
- ^ Wyzanski 1964, p. vi
- ^ Griffith 1973, p. 86. "Hamilton thought government consisted of combinations based on self-interest and that liberty did not rest on anarchy. Man required an ordered society, which included not only individual concerns but collective interests and which permitted human life to rise above that of the savage and made possible joint efforts and thus more comfort, security, and leisure for a better life. He believed that while Jacobins cried for liberty what they really wanted was to exercise their own tyranny over the mob. It appeared to Hand that history had proved Hamilton right."
- ^ Gunther 1994, p. 193
- ^ Griffith 1973, p. 67
- ^ Griffith 1973, p. 190
- ^ a b Griffith 1973, pp. 56–57, 60–63
- ^ Gunther 1994, p. 453
- ^ Gunther 1994, pp. 368, 535
- ^ Schick 1970, p. 191
- ^ Griffith 1973, p. 83
- ^ Dworkin 1996, p. 412
- ^ Wyzanski 1964, p. viii
- ^ Gunther 1994, pp. 118–123
- ^ Griffith 1973, pp. 18–19
- ^ Horwitz 1995, p. 264; Schick 1970, pp. 162–163; Gunther 1994, p. 122
- ^ Griffith 1973, pp. 109, 211
- ^ Carrington 1999, p. 141
- ^ Griffith 1973, pp. 219–222
- ^ Schick 1970, p. 164
- ^ White 2007, p. 235
- ^ Griffith 1973, p. 112
- ^ a b Griffith 1973, pp. 112–113
- ^ Griffith 1973, pp. 107–108
- ^ Qtd. in Griffith 1973, p. 144
- ^ Gunther 1994, pp. 604–605; Stone 2004, pp. 399–400
- ^ Griffith 1973, pp. 146–153
- ^ Irons 1999, p. 380; Schick 1970, pp. 180–181; Stone 2004, p. 400
- ^ Dworkin 1996, pp. 338–39
- ^ Gunther 1994, p. 603
- ^ Griffith 1973, pp. 192–193
- ^ Griffith 1973, pp. 130–138; Horwitz 1995, pp. 262–263
- ^ Griffith 1973, p. 122
- ^ "The statute may be far from the best solution of the conflict with which it deals; but if it is the result of an honest effort to embody that compromise or adjustment that will secure the widest acceptance and most avoid resentment it is 'Due Process of Law' and conforms to the First Amendment." From Hand's The Bill of Rights. Qtd. in Schick 1970, p. 163
- ^ Gunther 1994, p. 383; Carrington 1999, p. 140
- ^ Griffith 1973, p. 140
- ^ a b Posner & Gunther 1994, pp. 511, 514
- United States v. One Book Called Ulysses, 72 F.2d 705 (2d Cir. 1934), in which a trial court decision by Judge John M. Woolseywas affirmed by a Second Circuit panel including Hand.
- ^ Griffith 1973, p. 157; Gunther 1994, p. 149
- ^ Qtd. in Griffith 1973, p. 174
- ^ Schick 1970, p. 178
- ^ Griffith 1973, p. 35
- ^ Gunther 1994, pp. 304–305, 532–533; Judd 1947, pp. 405–422
- ^ United States v. Carroll Towing Co., 159 F.2d 169 (2nd Cir. 1947)
- ^ Weinrib 1995, p. 48. Hand proposed that the defendant's duty is a function of three variables: the probability of an accident's occurring, the gravity of loss if it should occur, and burden of adequate precautions. He expressed this in the algebraic formula: "If the probability be called P; the injury, L; and the burden, B; liability depends on whether B is less than L multiplied by P: i.e., where B is less than PL." See also Calculus of negligence.
- ^ Schick 1970, p. 169
- ^ Griffith 1973, p. 26
- ^ Griffith 1973, pp. 26–30. See also Chirelstein 1968, "Learned Hand's Contribution to the Law of Tax Avoidance".
- recusals. Hand's opinion set the standard for future rulings.
- ^ Schick 1970, p. 188
- ^ Griffith 1973, pp. 43–44; Gunther 1994, pp. 410–414
- ^ Mattachine Review, Issue No. 4, July–August 1955, cover and p. 2.
- ^ Schick 1970, p. 189
- ^ Qtd. in Gunther 1994, p. 574
- ^ Gunther 1994, p. 550
- ^ Schick 1970, p. 12
- ^ Schick 1970, pp. 154, 187
- ^ Schick 1970, p. 355; Auerbach 1977, p. 259
- ISBN 0-395-28151-2
Bibliography
- Auerbach, Jerold S. (1977), Unequal Justice: Lawyers and Social Change in Modern America, Oxford: Oxford University Press, ISBN 978-0-19-502170-7.
- Boudin, Michael; Gunther, Gerald (January 1995), "The Master Craftsman", Stanford Law Review, 47 (2): 363–386, subscription required for online access.)
- Boyer, Paul S. (2002), Purity in Print: Book Censorship in America from the Gilded Age to the Computer Age (2nd ed.), Madison, WI: University of Wisconsin Press, ISBN 978-0-299-17584-9
- Carrington, Paul (1999), Stewards of Democracy: Law as Public Profession, New York: Basic Books, ISBN 978-0-8133-6832-0.
- Chirelstein, Marvin (January 1968), "Learned Hand's Contribution to the Law of Tax Avoidance" (PDF), Yale Law Journal, 77 (3): 440–474, JSTOR 794940, retrieved July 13, 2019.
- Dworkin, Ronald (1996), Freedom's Law: The Moral Reading of the American Constitution, Oxford: Oxford University Press, ISBN 978-0-19-826470-5.
- Griffith, Kathryn (1973), Judge Learned Hand and the Role of the Federal Judiciary, Norman: Oklahoma University Press, ISBN 978-0-8061-1071-4.
- Gunther, Gerald (1994), Learned Hand: The Man and the Judge, New York: Knopf, ISBN 978-0-394-58807-0.
- Hand, Learned (1977), Dilliard, Irving (ed.), The Spirit of Liberty, Chicago: University of Chicago Press, ISBN 0-226-31544-4.
- Horwitz, Morton J. (1995), The Transformation of American Law 1870–1960, Oxford: Oxford University Press, ISBN 978-0-19-507024-8.
- Irons, Peter (1999), A People's History of the Supreme Court, New York: Viking Penguin, ISBN 978-0-670-87006-6.
- Judd, Orrin (February 1947), "Judge Learned Hand and the Criminal Law", Harvard Law Review, 60 (3): 405–422, subscription required for online access.)
- Polenberg, Richard (June 1995), "'A Conservative among Liberals, and a Liberal among Conservatives': The Life of Learned Hand", Reviews in American History, 23 (2): 296–301, subscription required for online access.)
- Oakes, James (January 1995), "The Master Craftsman", Stanford Law Review, 47 (2): 387–394, subscription required for online access.)
- Posner, Richard; Gunther, Gerald (November 1994), "The Learned Hand Biography and the Question of Judicial Greatness" (PDF), The Yale Law Journal, 104 (2): 511–540, JSTOR 797010, retrieved July 13, 2019.
- Rabban, David M. (1999), Free Speech in Its Forgotten Years, 1870–1920, Cambridge: Cambridge University Press, ISBN 978-0-521-65537-8.
- Richardson, Elliot L. (January 1995), "Book Review: The Spirit of Liberty Is Skeptical, a Review of Learned Hand: The Man and the Judge, By Gerald Gunther", Boston University Law Review, 75: 231.
- ISBN 978-0-8018-1214-9.
- Shanks, Hershel, ed. (1968), The Art and Craft of Judging: The Decisions of Judge Learned Hand, New York: Macmillan, OCLC 436539
- Stettner, Edward A. (1993), Shaping Modern Liberalism: Herbert Croly and Progressive Thought, Lawrence, KS: University Press of Kansas, ISBN 978-0-7006-0580-4.
- Stone, Geoffrey R. (2004), Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism, New York: Norton., ISBN 978-0-393-05880-2.
- Vile, John R., ed. (2003), Great American Judges: An Encyclopedia, vol. 1, Santa Barbara: ABC–CLIO, ISBN 978-1-57607-989-8.
- Weinrib, Ernest J. (1995), The Idea of Private Law, Cambridge, MA: Harvard University Press, ISBN 978-0-674-44212-2.
- Westbrook, Robert B. (1993), John Dewey and American Democracy, Ithaca, NY: Cornell University Press, ISBN 978-0-8014-8111-6.
- White, G. Edward (2007), The American Judicial Tradition: Profiles of Leading American Judges (3rd ed.), Oxford: Oxford University Press, ISBN 978-0-19-513962-4.
- Wright, Charles Allan, "A Modern Hamlet in the Judicial Pantheon", 93 Michigan Law Review 1841 (1995).
- Wyzanski, Charles E. (1964), "Introduction", in Hand, Learned (ed.), The Bill of Rights, New York: Atheneum, OCLC 4038843
External links
- Wade, Stephen (October 5, 1999), "Learned Hand", All Things Considered, NPR. Retrieved on July 27, 2008. Includes excerpts of Learned Hand's recordings of folksongs for the Library of Congress, part of a commercially released disc of American folksongs.
- Learned Hand at Find a Grave
- Learned Hand Papers, 1840-1961, Harvard Law School Library, HOLLIS 990006016050203941
- Works by or about Learned Hand at Internet Archive