• 2 Volume 7 Chicago Illinois Number

GOVERNOR STRATTON ON LAW DAY

May 1, 1958, was designated "Lau: Day-USA" by Presidential and Gubernatorial proclamation. On that date, the Honorable William G. Stratton, Governor of Illinois, delivered a public lecture at the University, School observance as the principal feature of the Law of Law Day. Governor Stratton's address follows. Continued on page 19

Mr. Peter Fiszpatrick delioering his lecture on Chief Justice Edward Douglass White. Edward Douglass White [In April, the Law School sponsored a lecture by Mr. Peter Fitzpatrick, a distinguished member of the Chicago Bar, on Chief Justice Edward Douglass White. Mr. Fitzpatrick's paper follows.] When Wilson named Brandeis to the Supreme Asso­ Court seven past presidents of the American Bar ciation testified against his confirmation. Ex-president Taft wrote to his wife: HI hope White will not end his judicial career with an apoplectic fit caused by the nomination."! At about this time Brandeis con­ ferred with White. Perhaps, because the opposition to Brandeis recalled to White's memory the charge of bribery that once had been leveled against him when he fought the Louisiana Lottery, he immediately accepted Brandeis and insisted that Brandeis should look on him not as the Chief Justice but as a father. Following this meeting, in circulating a draft opinion, Brandeis wrote on the copy to be delivered to White, "Father Chief Justice." In returning the draft opinion, showed of the of the ex- White appreciation spirit Cooernor Stratton delivering his Law Day Lecture in Breasted Continued on page 34 Hall. 34 The Law School Record Vol. 7, No.2

soldier, but if the soldier had the patriotism, and yet impression of massive strength. William Howard him Chief and later suc­ felt compelled to run away when that was needed, he Taft, who appointed Justice was not of much use. ceeded him in that office, said of White, "Massive, as was his his Together with honesty you must have the second dignified, impressive physical mould,

structure was like it. ... His for work of the virile virtues, courage; courage to dare, courage mental capacity while he was a member of to withstand the wrong and to fight aggressively and was enormous."5 Indeed, vigorously for the right. the Louisiana Supreme Court White wrote 80 opin­ ions in 14 months." his 27 on the Su­ And if you have only honesty and courage, you may During years Court of the United States he more yet be an entirely worthless citizen. An honest and preme prepared than 700 His was His valiant fool has but a small place of usefulness in the opinions.P" memory prodigious. which were he delivered body politic. With honesty, with courage, must go opinions, usually lengthy, common sense: ability to work with your fellows, orally. academic halls to work He showed a sense of ability when you go out of the strong judicial responsibility. after out that the of cases with with the men of this nation, the millions of men who Taft, pointing study a view to their decision in conference is a task have not an academic training, who will accept your greater than the of stated that no one leadership on just one consideration, and that is if you preparation opinions, in this show yourself in the rough work of actual life fit and could have been more conscientious regard than Chief White." In the themselves able to lead, and only so. Justice opinions and need White's sense of him to dwell You need honesty, you need courage, you responsibility impelled in work to on the that follow common sense. Above all you need it the continually "consequences" might be done in the building the corner-stone of which we a particular decision. in all cases is laid today, the law school out of which is to come the A suggestion of his general view is revealed in Holmes' to "The men who at the bar and on the bench make and complaining Laski, B. Dick Co. sold a machine to construe, and in construing, make the laws of this A. mimeographing which was attached a which stated "This ma­ country; the men who must teach by their actions to plate it . restriction chine is sold . . with the license that all our people that this is in fact essentially a govern­ with the ink and other ment of orderly liberty under the law. may be used only stencil-paper, made A. B. Dick Co." The of Men and women, you the graduates of this univer­ supplies by purchaser rests a the machine ink from another manufacturer, sity, you the undergraduates, upon you heavy bought sued this manufacturer burden of responsibility; much has been given to you; and the A. B. Dick Co. alleg­ lies an of its A of the much will be expected from you. A great work ing infringement patent. majority discredit court held with A. B. Dick Co. White's dissent fore­ before you. If you fail in it you yourselves, cause of education. And shadowed the view of the you discredit the whole you present majority Supreme Court. His in follows: can succeed and will succeed if you work in the spirit argument part of the words and the deeds of President Harper and "My reluctance to dissent is overcome in this case: because the now made has a of those men whom I have known so well who are in First, ruling much wider than the mere interest of the your faculty today. scope me chance to to this record, since, in the I thank you for having given the speak parties my opinion, effect of that is to in a to you. ruling destroy, very large measure, the judicial authority of the States by unwarrantedly extending the Federal judicial White- power. Second, because the result just stated, by the inevitable development of the principle an­ Continued from page 1 nounced, may not be confined to sporadic or will be as broad as change by addressing his new colleague as "Grand­ isolated cases, but society a and father Justice Brandeis."2 itself, affecting multitude of people capable Another instance of White's playing the father role of operation upon every conceivable subject of or however in­ is revealed in Holmes complaining to Laski, "The human contract, interest activity, and within state author­ C.J., who occasionally speaks to me as if I were un­ tensely local exclusively because the known to the world at large, said the people thought ity they otherwise might be. Third, would ordi­ I didn't work when I fired off decisions soon after gravity of the consequences which arise from such a result is they were given to me."3 narily greatly aggra­ now that Umbreit wrote of Edward Douglass White that he vated by the ruling made, since ruling extends the Federal looked so much like a Chief Justice that he might not only vastly judicial power, as above but as to all the innumerable have merited the position on appearance alone." He stated, to which the be made to refers to him as a monumental man, who gave the subjects ruling may Vol. 7, No.2 The University of Chicago Law School 35

apply, makes it the duty of the courts of the Boone moved into Missouri. After the Louisiana Pur­ United States to test the rights and obligations chase, in 1803, Jefferson appointed him a judge. He the on of parties, not by the general law of the land, served the bench until his death six years later. in accord with the conformity act, but by the His son, the first Edward Douglass, became judge provisions of the patent law, even although the of the City Court of New Orleans in 1825, at the subjects considered may not be within the em­ age of 31. He was elected to Congress in 1831 and brace of that law, thus disregarding the state law, served three terms consecutively. One of his contem­ overthrowing, it may be, the settled public policy poraries in Congress was David Crockett. He voted of the State, and injuriously affecting a multitude for the Compromise Tariff in 1833. That caused his of persons .... defeat, when he ran for his 4th term in Congress, "I cannot bring my mind to assent to the con­ but in the next year he was elected Governor of clusion referred to, and shall state in the light Louisiana on the Whig ticket. He served with dis­ of reason and authority why I cannot do so. As tinction as Governor. Under Louisiana law the Gov­ I have said, the ink was not covered by the pat­ ernor was not eligible for a second consecutive term. ent; . . . This curious anomaly then results, that However, he served two more terms in Congress which was not embraced by the patent, which before he retired to his sugar plantation. There the could not have been embraced therein and which Chief Justice was born, on November 3, 1845. White's if mistakenly allowed and included in an express mother was Catharine Sidney Ringgold, a daughter claim would have been inefficacious, is now by of a pioneer Maryland family, whom the Chief Jus­ the effect of a contract held to be embraced by tice's father had met while serving in Congress. The " the patent and covered by the patent law.... Chief Justice's uncle is the Ringgold immortalized in This paper will be concerned with White's contri­ the song, "Maryland my Maryland."9 White's father bution to the development of American law, prin­ died in 1847 at the age of 53. His mother married cipally in the antitrust field and in the field of admin­ again, to a man named Brousseau. istrative law. But, first, it will briefly sketch his White was enrolled in the College Preparatory De­ family background and his career before he reached partment of the Jesuit School in New Orleans at the the Supreme Court. age of 6. Four years later, he attended Mount St. He was of the fourth generation of Whites to be Mary's in Emmitsburg, Maryland. After a year in prominent in the American scene and the third gener­ this school, he transferred to Georgetown College, ation to serve as a judge. His great grandfather, James where he remained until the outbreak of the Civil White, was born in Ireland and came to America War in 1860. That ended his formal education at 15 as a young man. He became prominent as a merchant years of age, except for a few months when he is in Philadelphia, and his name appears as a signer of believed to have studied in the Jesuit College in New the Non-importation Agreement of 1765. That he Orleans during the following year. was of some scholarly bent is shown by his will, in At 16, White enlisted to fight for the Confederacy which he left his Latin books to his son, also named as a private. He was promoted to the staff of Brig. James. The second James White, the Chief Justice's General Beale. He saw active service and was taken grandfather, studied medicine. He moved to Fayette­ prisoner at the Battle of Fort Hudson in 1863. ville, North Carolina, and was elected a member of In 1865, at 20, he commenced the study of law in the Continental Congress from North Carolina in the office of Edward Bermudez. Louisiana, of course, May of 1786, and soon after was appointed the first retained the civil law as enacted in the Code Napoleon, U. S. Superintendent of Indian Affairs of the Southern so all White's early training was in Civil Law. But Department. His interest in the efforts of the Con­ after White was admitted to practice, at age 23, he tinental Congress to draft the Constitution is shown applied himself to the study of the common law as well by a letter to Governor Richard Caswell of North as the civil law, so that he might represent clients with Carolina. After a short stay in North Carolina he litigation in the federal courts. In a short time, he moved to Davidson County, Tennessee, and was developed a successful practice in both the state and elected a delegate to the Territorial Assembly and by federal courts. the Assembly was elected a delegate to the Congress He was also active in politics and took part in the of the United States from Tennessee. He was ad­ fight of the people of Louisiana against the carpetbag mitted to the bar in 1890. His son, Edward Douglass, government of the reconstruction era. He is reported the father of the Chief Justice, was born in Nashville to have used a musket in an armed battle on the levee in March 1794. In the same year, James White intro­ to overthrow the Kellogg Government. He was elected duced a bill in the Assembly of the Territory of Ten­ in 1874, at age 29, to the Louisiana Senate where he nessee to found· Grenville College. He moved to served one term. Then Governor Nichols appointed Louisiana in 1799, at about the same time Daniel him an Associate Justice of the Supreme Court of 36 The Law School Record Vol. 7, No.2

Louisiana. Association), on June 10, 1871, and after leaving the The theme of White's political life in Louisiana State Supreme bench he took an active part in the was the bitter fight carried on by the Nichols forces affairs of the Association. On November 20, 1880, against the corrupt state lottery. In the end Nichols he was made a member of its committee on member­ and White triumphed and the lottery was abolished, ship. This position he retained until after his election but the struggle had its ups and downs. At about as United States Senator. This committee also passed the time of White's appointment to the State Supreme on complaints against lawyers of unprofessional con­ Court, the Nichols administration got the legislature duct. On November 17, 1883, he moved the appoint­ to revoke the charter of the 'lottery company. ment of a committee (on which he served) to reor­ After White began his service on the State Supreme ganize the keeping of the records of the District Court the anti Nichols-White forces succeeded in Court of Orleans Parish. The following year he was amending the state constitution to write the lottery a member of the committee to persuade the State into the state's fundamenal law and to set up a new Legislature to transfer the law books in the State Li­ Supreme Court. The entire court was out. White brary to the Law Association. White also served as Examiners. was always proud of his service on the State Court, chairman of the State Board of Bar because during the short period of his service the In 1888, then 43 years old, he returned to politics court caught up on its docket, which had been heavily and became campaign manager for Nichols in his in arrears. bid for another term as governor. The issue was the During the next decade White did not hold political notorious Louisiana lottery. Nichols won the election office. He devoted himself to the practice of law, and rewarded White by supporting him for the United forming a partnership, first of Spencer & White and States Senate. He became Senator on December 7, later White, Parlange & Saunders. His practice was 1891, and served until he was appointed by Grover successful. White was primarily a student. He spent Cleveland, in March 1894, an Associate Justice of the Court of the United States. almost all his time, not taken up in court appearances, Supreme in his office. It was said that there the light seldom Shortly after his appointment to the Supreme Court, married Mrs. Leita a widow was extinguished until dawn. To pursue his research White Montgomery Kent, in civil law he would consult the original sources in of a Washington lawyer, an old friend of his, and a Latin, Italian, Spanish and French. French, indeed, sister-in-law of the late Senator Gibson of Louisiana. no children. The Whites became known was a second mother tongue to him, and the other They had languages he spoke and read RuentIy. He lived in as an hospitable couple, famous for good food and the French Quarter of New Orleans until he moved good conversation. He was on intimate terms with to Washington, and a great deal of his law practice senators and congressmen and other public figures. the Court all other activ­ was from the French community. In fact, some After he joined Supreme thought that the family name had originally been ities were subordinated to the work of the court. For Le Blanc. Even after his ascent to the Supreme Court example, in spite of his continuing interest in George­ he continued his interest in languages and late in town University, he refused its offer of a chair in the Harlan and others combined life undertook the study of German. By his years of law school, although practice in New Orleans, White earned universal teaching with service on the Supreme Court. He as vice of the board of Tulane regard as a great lawyer with a profound knowledge resigned president even refused to of both civil and common law. University. He attend dinners of the his care During the same period, he was one of the moving Gridiron Club, because of for the dignity of figures in founding Tulane University. In 1882, when the court. When President McKinley offered him to between White was 37, Paul Tulane of Princeton, New Jersey, a place on the commission negotiate peace in he declined placed a large endowment in the hands of trustees, Spain and the United States 1898, the including White, to found a university. Believing appointment. that the cause of education in Louisiana would be His friendship with Theodore Roosevelt began in strengthened if the proposed university were to be 1901. At that time Roosevelt sought his advice on combined with the State University, White devised the question of beginning legal studies which would a plan, implemented by a constitutional amendment, occupy his time and fit him to be a better presiding which allowed a transfer of the State University to officer in the Senate. White advised him that attend­ the Tulane trustees to found what is now known as ing a law school would be derogatory to the office Tulane University. White remained associated with of Vice President. He proposed that Roosevelt read the administration of the University until 1897. law books from a list prepared by White and that White was active in Bar Association activities. He White would give him a quiz every Saturday after­ became a member of the New Orleans Law Associ­ noon. The work was to have started in the Fall, but ation (the predecessor to the Louisiana State Bar the plan was abandoned when Mckinley's assassina- Vol. 7, No.2 The University of Chicago Law School 37 tion made Roosevelt President. Roosevelt in a letter to Henry Cabot Lodge, dis­ cussing Lurton's fitness for the Supreme Court, said, "On every question that had come before the bench, he has so far shown himself to be in much closer touch with the policies in which you and I believe than even White, because he has been right about corporations where White has been wrong."lO White's point of view on legal and economic questions was much closer to President Taft's than to Roosevelt's. In 1909 and in 1910, Taft consulted White about appointments to vacancies on the court. As late as the campaign of 1916, Taft sought information from White concerning whether Hughes would accept the Republican nomination for the presidency. White assured Taft that he would."! Taft appointed White Chief Justice in December of 1910. The appointment Prior to Mr. Fitzpatrick's lecture, shown above are, rear row, members of the Executive Committee of the Committee for was well received. generally the Edward Douglass White Lecture Hall, Walter J. Cum­ Before the appointment and after Fuller's death, ings, [r., P. Newton Todhunter, JD'38, Thomas R. Mulroy, JD'28, Chairman, Michael I. Igoe, Jr., JD'57, and W. McNeil Holmes wrote to Pollock as follows: "As to the Chief Kennedy. In the front row, Hon. William J. Campbell, Judge, Justiceship I am rather at a loss. I should bet he will U. S. District Court, Honorary Chairman, Han. F. Ryan DuffY, Chief Judge, U. S. Court of Appeals for the Seventh Circuit, who has a chance of appoint Hughes, given up being Honorary Chairman, Han. Michael I. Igoe, Judge, U. S. Dis­ Republican nominee for the Presidency, but I know trict Court, Honorary Chairman, and Hon. Julius Hoffman, Judge, U. S. District Court. nothing. I think White, who is next in Seniority to Harlan (too old, etc.) the ablest man likely to be growth in size and complexity of economic and social thought of. I don't know whether his being a Catholic life, it became evident that there would have to be would interfere. I always have assumed absolutely comparable development in the machinery of govern­ that I should not be regarded as possible-they don" ment. The tasks were becoming too many to be car­ appoint side Judges, as a rule. It would be embar­ ried out by old agencies of government, separated rassing to skip my Seniors, and I am too old. I think from each other in three branches, executive, legisla­ I should be a better administrator than White, but tive and judicial. A new system was evolving. A he would be more politic. Also the President's incli­ particular area of governmental concern would be nation so far as I can judge seems to me towards a set aside by Congress and entrusted to a new agency type for which I have but a limited admiration. I which would have governmental power (partly legis­ am afraid White has about as little chance as 1."12 lative, partly executive and partly judicial) in the Taft's brother, Horace, wrote to the President, De­ field assigned it. The prototype of this new form of cember 15, 1910: "The appointment of White was organization, the regulatory commission, was the glorious . . . I see nothing but favorable comment."13 Interstate Commerce Commission created in 1887. The confirmation of the new appointment by the Immediately following the Civil War there was a Senate came within 15 minutes of its reception. great period of railroad building. This railroad ex­ pansion was subsidized by grants of right of way, At the time that White joined the Supreme Court loans, subsidies and outright gifts of millions of acres administrative law was almost non-existent. It would . of public land. Additionally, state governments, coun­ be difficult to exaggerate the importance of this field ties and municipalities almost competed with one of law today. Because White's long service on the another in generosity to the railroad builders. In the bench (27 years) coincided with the need to spell panic of 1873, the people of the Middle West and out the role of the Interstate Commerce Commission Far West began to realize that they were not receiv­ in regulating the railroad industry and because of ing the advantages that they had expected from the White's interest and aptitude in this field, this branch railroads. There were abuses: exorbitant freight and of the law owes more to White than to any other passenger rates, watered stock, discriminatory rebates judge. In fact, he might be called the Father of Ad­ to powerful shippers, and free passes to state legis­ ministrative Law in the "case and controversy" sense, lators and other people of influence. These evils were as Ernst Freund is the Father of the academic con­ aggravated by the attitude of certain of the railroad sideration of administrative law. magnates. Thus Leland Stanford said, speaking to a The rise of government by administrative body was gathering of railroad officials, "There is no foundation inevitable. With the passing of the frontier and the in good reason for the attempts made by the general 38 The Law School Record Vol. 7, No.2

the and government and by the states to especially control gress and to courts. Decisions by White by the court over which he established basic your affairs. It is a question of might and it is to your presided that to a definite interest to have it determined where the power re­ principles, such as, there had be sides."14 grant of governmental function to the commission by The American people endured the abuses with Congress, that the commission had to follow proce­ extraordinary patience, believing "That government dure consistent with due process of law, that when commission a the had governs best which governs least." However, in the the adopted procedure, parties followed-and midwestern states there was a growing reaction and a right to insist that it be perhaps most the Illinois Constitution of 187015 contained a clause important of all-that when the commission was given a function of to that directing the legislature to pass laws to prevent unjust government perform by Congress discrimination and extortionate rates of freight and the courts would respect its role and not usurp it. state. One of the administrative law cases de­ passenger tariff on the different railroads in the important The legislature then passed laws prohibiting discrim­ cided by White was Texas & Pacific Railway v. ination and establishing a maximum rate, and created Abilene Cotton Oil CO.20 Justice Frankfurter explained "In to avoid a railway and warehouse commission to regulate rail­ the significance of this decision: order roads, grain elevators and warehouses. This legisla­ mischievous opportunities for the assertion of individ­ tion was denounced as socialistic, but when it reached ual claims by shippers as against the common interest the United States Supreme Court, in Munn v Illinois/6 of uniformity in construing railroad tariffs, this Court in 1876, Chief Justice Waite upheld the Illinois Stat­ so construed the Interstate Commerce Act in the case as to withdraw from ute as an extension of the historical right of the state famous Abilene Cotton Oil to regulate businesses with a public interest, such as, the shipper the historic common law right to sue in inn-keepers, common carriers and ferries. the courts for charging unreasonable rates. It re­ On the same day that the court sustained the valid­ quired resort to the Interstate Commerce Commission ity of the Illinois Statute, it handed down decisions because not to do so would result in the impairment approving the right of a state to establish maximum of the general purpose of that Act. It did so because this freight and passenger rates."? The period of public even though theoretically Court could ultimately regulation of railroads by state governments lasted review such adjudications imbedded in the various a could to a court about ten years. Then the United States Supreme judicial judgments-if shipper go Court nullified an Illinois law attacking the "long and in the first instance-there would be considerations short haul" evil!", and three years later the court of fact which this Court could not possibly disentangle declared rate regulation by a state legislative com­ so as to secure the necessary uniformity. The benef­ mission invalid.l" These decisions put an end to state icent rule in the Abilene Cotton Oil case was evolved regulation of railroads. Congress responded with the by reading the Interstate Commerce Act not as though Interstate Commerce Act of 1887. It specifically pro­ it were a collection of abstract words, but by treating an out of hibited pooling, rebates, discrimination of any char­ it as instrument of government growing acter and higher charges for a short haul than for a long experience with certain evils and addressed to long haul. It provided that all charges be "reasonable their correction. Chief Justice White's opinion in that and just" and it required the roads to post their tariffs. case was characterized by his successor, Chief Justice To administer this law Congress established the first Taft, as a 'conspicuous instance of his unusual and permanent administrative board of the American remarkable power and facility in statesmanlike inter­ Government, the Interstate Commerce Commission. pretation of statute law'." Finally, Justice Frankfurter In 1906, the Hepburn Act authorized the Interstate epitomizes his evaluation of White's opinion as "A Commerce Commission to determine and prescribe creative act of adjudication unanimously accom­ maximum rates. plished.">' Another of White's in administrative law Of course, ideas which are clear to us today were precedents v. Stranahan.t? This not so at the time that White started to write his is Oceanic Steam Navigation Co. famous opinions on the Interstate Commerce Commis­ case involved the validity of a congressional act em­ a official to The sion. It was White's contribution to the development powering custom's impose penalties. of law that he integrated the regulatory commis­ statute was attacked on the ground that the imposition sion into our private and public common law, and and enforcement of penalties was primarily a judicial the contention because it did it in such a way that it appears almost a child function. White rejected all other of the common law. This was not an easy task be­ magnified the judicial to the detriment of The effect of this cause it involved the division of authority between departments of the government. the national government and the states and the delin­ case was to give greater scope to the action of admin­ eation of the relationship of these new agencies to istrative agencies, and, like Marshall's decision in the executive branch of the government, to Con- Marbury v. Madison, to define the power of the Vol. 7, No.2 The University of Chicago Law School 39 courts.P In the case of East Tennessee, Virginia & Georgia Ry. Co. v. Interstate Commerce Commissioni" White held that substantial findings of fact of the commission made after hearings were not subject to review if they had not been questioned in the lower court. In another case he further developed the law with regard to findings of fact made by an administrative body to support its determination to the effect that if the findings by the commission were not of sufficiently substantial character to sustain the order then the court did not have the duty to undertake an independ­ ent investigation of the facts in order to substantiate the order."

Another decision of White was U. S. ex rel Kansas City Southern Railway v. Interstate Commerce Com­ mission.26 An amendment to the Interstate Commerce Act empowered the Commission to evaluate property owned bv a common carrier. The commission failed to do thi� even at the request of the railway, claiming that it was impossible to arrive at an evaluation. White held that the Commission had erred in refusing to The Officers and Directors of the Mandel Legal Aid Associa­ tion, the student group responsible for student participation exercise the to it, and that in so authority granted in the work of the Mandel Clinic. Left to right, Darrell Kel­ doing, it was actually assuming authority it did not logg, Hiawatha, Kansas, AB., U of Kansas; Matthew E. Bris­ lawn, Pullman, Washington, AB., Washington State College; possess. Alford Penniman, Rockford, Illinois, A.B., Carleton College; A landmark decision of White in this field was U. S. Neale Secor, President, Maywood, N. J., A.B., Drew University; 27 Frederick P. Roehr, Kansas City, Mo., A.B., Rice Institute; v. Sante Fe, wherein of the commissioner speaking Carter D. Peebles, Oak Park, Illinois, University of Stockholm, of the general land office and his subordinates, White A.B., DePauw University; and James Weldon, Glenside, Penna., AB., Amherst College. held that the function of government sought to be exercised by the administrative body must be one which comes under the role assigned to the body by Congress. White, in another case, stated the basis of judicial 28 review of administrative rulings as follows: "Beyond controversy, in determining whether an order of the commission shall be suspended or set Continued on page 40

Donald H. Fradkin, a student in the Law School, at work in the offices of the Mandel Legal Aid Clinic.

Hon. William J. Campbell, Judge of the U. S. District Court and Honorary Chairman of the Committee for the Edward Douglass White Lecture Hall, introducing Mr. Fitzpatrick. 40 The Law School Record Vol. 7, No.2

White- to end corrupt and dishonest practices and by the fear that the natural resources of the country were Continued from page 39 being ruthlessly exhausted and that small businessmen all relevant of aside, we must consider, a, questions were being faced with ruin. In 1890, the Sherman constitutional or all power, right; b, pertinent ques­ Act was passed by Congress. Every contract, com­ as to administrative order is within tions whether the bination, in the form of trusts or otherwise, or con­ the of the under which it scope delegated authority spiracy, in restraint of trade or commerce among the to have been a purports made; and, c, proposition several states or with foreign nations was declared to which we state in its essence independently, although be illegal, and every person who should monopolize it be contained in the one, viz., whether, or com­ may previous or attempt to monopolize any part of trade even the order be in form within the dele­ although merce among the several states was made guilty of a treated as not gated power, nevertheless it must be misdemeanor. because the exertion of embraced therein, authority Taken literally the Sherman Act would have forbid­ which is has been manifested in such an questioned den almost every contract or combination. White unreasonable manner as to cause it, in truth, to be would not accept such an indiscriminate application the rule that the and within elementary substance, of the law. In his famous dissent in United States v. determines the of the exer­ not the shadow, validity Trans-Missouri Freight Assn.,32 166 U. S. 200, 351,

.. . Plain as it is that the cise of the power powers ( 1897) he argued, "To define the words 'In restraint stated are of the essence of authority, just judicial of trade' as embracing every contract which in any and not be curtailed, and whose which, therefore, may degree produced that effect would be violative of not be us in a case avoided, discharge may by proper reason because it would include all those contracts it is that such powers lend no equally plain perennial which are the very essence of trade and would be whatever to the that we may, support proposition equivalent to saying that there should be no trade, under the of guise exerting judicial power, usurp therefore, nothing to restrain." The dilemma which administrative functions aside a merely by setting would necessarily arise from defining the words (con­ lawful administrative order our as upon conception tracts in restraint of trade) so as to destroy by render­ to whether the administrative power has been wisely ing illegal the contracts upon which trade exercised." �epends, and yet pre-supposing that trade would contmue and of this case and of two others handed Speaking should not be restrained, is shown by the argument White on the same Edward H. down by day, Mosely, advanced, and which has been compelled by the of the Commission, wrote to F. W. Car­ Secretary exigency of the premise upon which it is based." then Taft's "I am penter, secretary, explaining, case sen�ing The following year the Addyston Pipe ap­ three opinions of the Supreme Court of the Umted peared on appeal before the 6th Circuit Court of States, Mr. Justice White, which speaking through Appeals." William Howard Taft wrote the opinion were rendered last and which so Monday strongly the conten­ .. for the court. In "29 sustaining government's hen the 0f the Comrmssion. strengt power tion, that the combine in question was illegal, Judge In a letter to Laski, Holmes said ", . , I think the Taft began by stating that the (majority) opinion in credit is his about the re­ wholly (White's) making the Trans-Missouri case would he a sufficient answer lations between the Interstate Commerce Commission to the defendants, since the majority opinion held and the whole and our court clear putting important Sher­ every restraint of trade to be forbidden by the business on a sound and workable footing."30 man Act. However, he then proceeded, by an analysis Chief Taft in speaking of White's opinions Justice of the authorities, to show that the practices of the in this field said: are models of clear and "( They) defendants could not be considered reasonable in the satisfactory reasoning which give to the people, to common law sense. Five years later suit was brought state legislatures, to Congress, and the courts a much by the government to dissolve the holding company needed of the functions the Com­ knowledge practical set Hill, and Harriman, the Northern how up by Morgan merce Commission was to discharge, and of they Securities case.33a The majority held that there was were to be reconciled to government ma­ existing a violation of the Sherman Act. There were four instances his . of . are . They conspicuous chinery dissenters: White, Fuller, Peckham and Holmes, on unusual and remarkable power for facts and states­ the ground that the Sherman Act did not apply to manlike interpretation of statute law."31 contracts the of stock. Somewhat similar to the need to control and reg­ concerning ownership It was in the Standard Oil34 and American Tobacco ulate the railroad industry was the need to control the cases'" that then Chief for great combinations of wealth that grew up in America White, Justice, speaking toward the end of the 19th century. Laws to regulate the court, with only Harlan dissenting, defined and trusts and monopolies were motivated by the desire explained the rule of reason, distinguishing between Vol. 7, No.2 The University of Chicago Law School 41 those economic combinations that were harmful and origin from the common law, and that the Sherman those that were useful in modern society. Act was adapted to the prevention, in modern con­ Two criticisms have been made of the rule of ditions, of conduct or dealing effecting the wrong, at reason: first, that it was obiter dictum because the which the common law doctrine was aimed. This, it Standard Oil Company and American Tobacco Com­ was said, is 'the dread of enhancement of prices and of other which it was pany were violative of the Sherman Anti-trust Act wrongs thought would flow from the undue limitation on conditions under any interpretation. Therefore there was no need competitive of a distinction between reasonable and unreasonable caused by contracts or other acts of individuals or ' restraints of trade. Secondly, that in basing the rule of corporations ... The court declared, page 59, that 'the statute was drawn in the of reason on common law principles White erred in that light the existing of restraint the common law only made the distinction between practical conception the law of of trade,' reasonable and unreasonable restraints of trade in the and drew the conclusion that the restraints which were condemned the statute are those matter of contracts that were ancillary to a main con­ by which, following tract of sale and reasonably adapted and limited to the common law analogy are 'unreasonable or undue: This view was followed and more stated in the contract's lawful purpose. The charge that the explicitly "rule of reason" concept does not comport with the United States v. American Tobacco Co., 221 U. S. ' common law is well answered by quotations from 106, 169, where it was said: ... it was held in the Justice Stone and from Justice Holmes. Standard Oil Co. Case that as the words 'restraint of trade' at common law and in the law of this Justice, later Chief Justice, Harlan F. Stone, said: country at the time of the adoption of the Antitrust Act only "In seeking more effective protection of the public embraced acts or contracts or agreements or combina­ from the growing evils of restraints on the competitive tions which operated to the prejudice of the public effected the concentrated commercial power system by interests or of 'trusts' and 'combinations' at the close of the nine­ by unduly restricting competition unduly obstructing the due course of trade or which, either teenth century, the found ready at their legislators because of their inherent nature or effect or because hand the common law concept of illegal restraints of of the evident purpose of the acts, etc., injuriously re­ trade or commerce. In enacting the Sherman law they strained trade, that the words as used in the statute took over that concept by condemning such restraints were designed to have and did have but a like signif­ wherever they occur in or affect commerce between icance.' In thus grounding the 'rule of reason' upon the states. They extended the condemnation of the the analogy of the common law doctrines applicable statute to restraints effected by any combination in to illegal restraints of trade the court gave a content the form of trust or otherwise, or conspiracy, as well and meaning to the statute in harmony with its history as by contract or agreement, having those effects on and plainly indicated by its legislative purpose."36 the competitive system and on purchasers and con­ Holmes said in one of his letters to Mr. Wu, sumers of goods or services which were characteristic Justice "In Nash v. United States, 229 U. S. 373, 376, 377, a of restraints deemed illegal at common law, and they man was indicted under the Sherman Antitrust Act for gave both private and public remedies for the injuries a in restraint of trade and to flowing from such restraints. conspiracy monopolize trade. It was objected that as a criminal statute the "That such is the scope and effect of the Sherman law was bad, because it had been construed to pro­ Act was first judicially recognized and expounded in hibit only such contracts and combinations as unduly the classic opinion in United States v. Addyston Pipe restricted competition or unduly obstructed the & Steel Co. (CCA 6th) 85 F 271, affirmed in 175 course of trade, and so construed it was too indefinite U. S. 211, written by Judge, later Chief Justice Taft, for a criminal law. But in the opinion I pointed out, and concurred in by Justice Harlan and Judge, later p. 377, that 'the law is full of instances where a man's Justice Lurton of this court. This court has since re­ fate depends on his estimating right, that is, as the peatedly recognized that the restraints at which the jury subsequently estimates it, some matter of degree,' Sherman law is aimed, and which are described by its that an act might be murder, manslaughter or mis­ terms are only those which are comparable to re­ adventure according to the degree of danger straints deemed illegal at common law, although ac­ attending it according to common experience in the circum­ complished by means other than contract and which, stances known to the actor. As I it in a later case for constitutional reasons, are confined to transactions put

. . . 'The conditions are as as in or which affect interstate commerce. permanent anything and a of on the civil "In Standard Oil Co. v. United States, 221 U. S. 1, human, great body precedents 54,55, 58, decided in 1911, this court, speaking through side coupled with familiar practice make it com­ Chief Justice White, pointed out that the restraint of paratively easy for common sense to keep to what is '''37 trade contemplated by section 1 of the Act took its safe. 42 The Law School Record Vol. 7, No.2

That White's construction of the Sherman Act was others but as freedom to associate. Judge Hershey of beneficial is generally conceded by his critics. Pro­ the Illinois Supreme Court expressed the same idea fessor Dishman in his article on "Mr. Justice White when he regarded the criminal law as if it was the ex­ and the Rule of Reason,"38 although rejecting the pression of the minimal social duty exacted of the in­ 44 common law historical basis of the rule of reason, dividual by the government. the to be avoided in states: "This is not to say, as some critics have said, White sensed that danger that the rule has seriously hampered the Depart­ social reform was that it might destroy society by ment of Justice in enforcing the antitrust law. We fragmenting it. He knew society only existed by have it on the authority of Thurman Arnold that reason of people combining together formally and in­ without the rule the Sherman Act would have been formally in countless ways. The search for a balance­ leave men free to associate unworkable because every combination between two the compromise that would their so that it would serve men in business is in some measure a restraint of trade. and yet guide associating The rule, he has said, has the effect of preventing the the well-being of the community-may explain his dis­ antitrust law from destroying the efficiency of those sent in the Trans-Missouri Freight Association case combinations which are instead of ex- where White said "the construction which reads the actually serving,. ploiting, the consumer."39 rule of reason out of the statute embraces within its inhibition contract or combination which There is not space to discuss White's contribution to every by men seek to better their condition." other fields of law. However, someone is bound to working peaceably It his adherence to the in the raise the question, where did White stand on the great may explain majority C and Adair cases'? which struck down social issues of his day? Was he a liberal?-like Holmes? oppage45 legis­ the massive White into a lation to discriminate against It is impossible to squeeze forbidding employers a workman because he to a union if his pigeonhole however labelled. There is always a de­ belonged action is in these instances. mand to put Supreme Court Judges into categories. judged wrong time in the with White It eliminates the need to examine what they decided During White's court, voting with the the was up­ or to read what they said-we know all about them majority, following legislation from the label. held: A state law limiting the hours of work in minesr'? First and foremost White was a lawyer. To him the A state law limiting the hours of work for women.t" law was a discipline in the academic sense with its The Illinois Child Labor law;49 own and When he decided cases goals methodology. 50 State workmen's compensation laws; before him, he decided them according to legal stand­ A state law setting up safety regulations for coal ards, that is, the law he found in the constitution, the mines.P! statutes and the case precedents, with a permissible A state law requiring that script used to pay miners leeway allowed judges, as it is expressed by Cardozo, be redeemed in cash;52 "as new problems arise, equity and justice will direct A state law that coal be before it the mind to solutions which will be found, when they requiring weighed and was screened in computing the wages of miners.:" are scrutinized, to be consistent with symmetry A state law contracts to limit the order or even to be a starting point of a symmetry forbidding liability of an for sustained his work­ and order theretofore unknown."39a That White had a employer injuries by classical notion of "facts" as well as law is shown by men.v' A state law his remark to counsel during the oral arguments of prohibiting pool rooms.i" A state law that Stettler v. O'Hara,40 "Mr. Frankfurter, I could gather requiring private employment be licensed?" was but one twice as much material to show that private property agencies upheld abolishing a re­ was overthrown."? is wrong and should be abolished,"41 manifesting private employment agencies luctance to regard sociological data gathered upon a The Federal Employers Liability Act was upheld.r" hypothesis as the equivalent of evidence emerging The Adamson Act limiting hours of railroad workers from direct and cross-examination. and for the duration of a specific emergency fixing their was His rule of reason in the antitrust cases and his per­ wages upheld.!" sistent interest in the new field of administrative law­ The state right to fix intra state rates was upheld.s" defined by Dean Pound as "that branch of modern law The grandfather's test of eligibility for voting was under which the executive department of government held bad;61

. . . for interferes with the conduct of the individual A city ordinance forbidding negroes to live in a the com­ the purpose of promoting the well-being of particular area if more than half the householders 62 a munity . . ,"42 is evidence that White had feeling were white was held invalid; 43 for the unity of society. Freedom is seen by him as The power of a congressional committee to punish not freedom from the obligations of association with for contempt was limited.'" Vol. 7, No.2 The University of Chicago Law School 43

However, an act of Congress forbidding the interstate their own procedures. To' a degree, the acceptance of transportation of goods manufactured by child labor the belief that procedure is of little importance is a was held unconstitutional.v' and White silently dis­ yielding on the ideal of government by law and not by sented in the case upholding war time rent control personalities. World War I. 65 during James the First was not the last legal primitive. The White's last judicial act was his dissent in the New­ simplicist notion of law is the cause of a great deal of berry Case.v" There White insisted, against the misunderstanding, and of unfair criticism of the courts. majority, that the Federal Government did have When Chief Justice Oliver Ellsworth was a young man jurisdiction over primary contests. in New England it was expressed as follows: The In conclusion, I think to understand the greatness common law was only "adapted to a people grown old in the habits of vice" while the law which the of White, we have to see it apart from the subject courts of Connecticut administered "was derived from matter of his decisions. He is a great man because he typifies the Judge in society. You recall the famous the law of nature and of revelation.Y? The voice of heard in criticisms of controversy between Sir Edward Coke and James the this tradition is sometimes today 67 of the Court. First. James the First had given judgment in a case decisions Supreme that arose concerning the ownership of land. Coke, on The law is the dividing of the big truths which, to behalf of the court, set the King's judgment aside. quote Arthur Miller, "define humanity and the right Then the King said that he thought the law was way to live, so that the world is a home and not a founded upon reason and that he and others had battlefield, or a fog in which disembodied spirits pass reason as well as judges, to which it was answered by each other without recognition"71 into the little truths Coke, as he reports it, that no doubt His Majesty had by which everyday life may be regulated. What the great endowments of nature but His Majesty was not law is trying to do in the field of action is a little like learned in the laws of his realm and cases are not to be Morris Cohen's search for concepts with a smaller decided by natural reason but by the artificial reason twilight zone in the field of reasoning." This is not and judgment of law, which law is an act which re­ done in any free hand style. White's opinions, like the quires long study and experience. At another time, judgments and opinions of other competent judges, are Coke remarked that the law was "an artificial perfec­ a painstaking practice of an ancient art according to tion of reason gotten by long study, observation and its own tested methods. and not of man's natural for experience every reason; White's opinions are also an answer to the sophis­ nemo nascitur artifex."68 This might be translated ticates, who would require such certainty of legal "N0 one is a born Judge." definition that the law would be straight jacketed and White is the type of the professional judge. This is alike unable to serve the community, or do justice shown by his expertness in procedure. In a sense between individuals. is the of in the art procedure beginning competence By honoring White our faith and pride in our tradi­ of being a lawyer or a judge, because procedural law tion of justice by means of the law is renewed. We is the means which obtain the benefits of by litigants may hold our heads a little higher because Edward other laws. When White went on the Supreme Court Douglass White lived. a great number of cases involving questions of pro­ cedure were turned over to him. The same thing is FOOTNOTES true of his service on the state court. This is unusual. 1 Klinkhamer, a.p., Sister Marie Carolyn, Edward Douglass of and are Ordinarily, questions procedure jurisdiction White, Chief Justice of the United States, Catholic University decided by the chief justice of an appellate court or of America Press, 1943. This scholarly work is not only a biog­ of his are assigned by him to one of the senior associates. raphy of White, but it contains a discussion opinions classified to matter. It is one of the of White's according general subject noteworthy things judicial 2 Paul A. Freund, "Mr. Justice Brandeis," in Mr. Justice, Uni­ service that 54 of the 80 cases decided him on the by versity of Chicago Press, 1956, p. 106. Louisiana Court were concerned with 3 Supreme pro­ Howe, Mark De Wolfe, Holmes-Laski Letters, Nov. 26, 1920, cedure, and about one-third of all the cases decided p. 294, VoL I, Harvard University Press, 1953, p. 294. 4 Eleven 366. by White in the United States Supreme Court were Umbreit, Kenneth Bernard, Our Chief Justices, p. 5 of Edward 275 U. S. concerned with Proceedings in Memory Douglass White, procedural questions.v? XXVII. From the is the ad­ 6 lawyer's standpoint procedure January, 1879, to March, 1880, 31 and 32 Louisiana Reports. venture of the law, and from a judge's standpoint, 6a Proceedings in Memory of Edward Douglass White, 257 U. S. XV 153 to 256 U. S. procedure pertains to the due process according to (1922). Reports. 7 in of Edward 257 which he decides controversies. In the field of ad­ Proceedings Memory Douglass White, U. S. XXVII. ministrative for courts insist law, example, reviewing 8224 U. S. (1912) 1, 49, 51. act with 9 that administrative agencies consistently Umbreit, cited to Note 4 above, p. 369. 44 The Law School Record Vol. 7, Nu. 2

41 10 Klinkhamer, cited in Note 1 above, p. 44. Quoted in Mason, Alpheus T., Brandeis: Lawyer and Judge 11 Klinkhamer, cited in Note 1 above, p. 59. in the Modern State, Princeton University Press, 1933. 12 12 Sept. 24, 1910, Holmes-Pollock Letters, p. 169, Vol. I. Roscoe Pound, "Constitutional Aspect of Administrative 13 Klinkhamer, cited in Note 1 above, p. 54. Law," 9 American Bar Association Journal, 513, quoted in 14 Quoted in Morison and Commager, The Growth of the Amer­ Klinkhamer, cited Note 1 above, p. 70. 43 ican Republic, New York, 1950, p. 115. Compare: Nisbet, The Quest for Community, p. 227. Free 15 Constitution of 1870, Article XI, Section 15. society, according to the social reformers of the 18th and 19th 1694 U. S. 113 (1876). Centuries would be composed of socially and morally separated 17 Peik v. Chicago & Northwestern R. R. Co., 94 U. S. 164 individuals. H (1876); Chicago, Burlington & Quincy R. R. v. Iowa, 94 U. S. People v. Shields, 6 Ill. 2d 200, 206. 45 155; Winona & St. Peter R. R. v. Blake, 94 U. S. 180; cited Coppage v. Kansas, 236 (1914) u. S. 1. 46 in Morison and Commager, cited in Note 14 above. Adair v. United States, 208, U. S. (1908) 161. 4. 18 Wabash, St. Louis & Pacific Ry. Co. v Illinois, 118 U. S. Holden v. Hardy, 169 U. S. (1898) 366, 380. For a discus­ (1886) 557. sion of Supreme Court Cases having to do with social issues, 19 Chicago, Milwaukee & St. Paul R. R. v. Minnesota, 134 see Rodes, "Due Process and Social Legislation in the Supreme ( 1890) u. S. 418. Court-A Post Mortem," 33 Notre Dame Lawyer 5. 48 20204 U. S. (1907) 426, 430. Muller v. Oregon, 208 U. S. (1908) 412, 416. 21 759. 49 Elgin & J. E. R. Co. v. Burley, 325 U. S. (�945) 711, Sturges & Burns Mfg. Co. v. Beauchamp, 231 U. S. (1913) 22214 U. S. (1909) 320, 338. 320. 23 Compare: Frankfurter "One of the greatest duties of a judge, 50New York Central R. R. Co. v. White, 243 U. S. (1917) the duty not to enlarge his authority." Quoted by Brown, 188; Hawkins v. Bleakley, 243 U. S. (1917) 210; New York Ernest J. "Justice Frankfurter, and the Position of the Judi­ Central v. Bianc, 250 U. S. (1919) 596. In another case, ciary" 67 Yale Law Journal 221. Mountain Timber Co. v. Washington, 243 U. S. (1917) 219, 24181 U. S. 1 (1901) 24, 27. a type of workmen's compensation law requiring compulsory, 25 Interstate Commerce Commission v. C. B. & Q. R. R. Co., monopolistic, state fund insurance was approved, but there 186 U. S. (1902) 320, 341, 342. were 4 dissenters, including White. In the Arizona Employers' 26252 U. S. (1920) 178, 187, 188. Liability Case, 250 (1919) u. S. 400, White was a silent dis­ 27165 U. S. (1897) 675, 714. senter. Cited in Rodes, Note 47 above. 28 ill Interstate Commerce Commission v. Illinois Central R. R. Barrett v. Indiana, 229 U. S. (1913) 26. 52 Co., 215 U. S. (1910) 452, 470. Knoxville Iron Co. v. Harbison, 183 U. S. (1901) 13. 29 53 Klinkhamer, cited Note 1 above, p. 48. McLean v. Arkansas, 211 U. S. (1909) 539. 30 54 Holmes-Laski Letters, Note 3 above, p. 294. C. B. & Q. Ry. v. McGuire, 219 U. S. (1911) 549. 31 55 Proceedings in Memory of Edward Douglass White, 257 Murphy v. California, 225 U. S. (1912) 623. 56 U. S. XXV. Brazee v. Michigan, 241 U. S. (1916) 340. 57 32166 U. S. (1897) 290, 351. Adams v. Tanner, 244 U. S. (1917) 590. 33 58 United States v. Addyston Pipe & Steel Co. (CCA 6th) 85 Second Employers Liability Cases, 223 (1912) u. S. 1. White F. (1898) 271, Aff'd. 175 U. S. (1899) 211. wrote the opinion invalidating the first enactment in this field, 33a Northern Securities Co. v. United States, 193 U. S. (1904) 207 U. S. (1908) 463. 59 197. Wilson v. New, 243 U. S. (1917) 332. 34221 U. S. (1911) 1, 30. 60 Minnesota Rate Cases, 230 U. S. (1913) 352. 35 61 221 U. S. (1911) 106, 142. The gradual development of the Guinn v. United States, 238 U. S. (1915) 347. 62 rule of reason from its first statement by White in his dissent in Buchanan v. Warley, 245 U. S. (1917) 60. 63 the Trans-Missouri Freight Case is discussed by William How­ Marshall v. Gordon, 243 U. S. (1917) 521. & 64 ard Taft, The Antitrust Act and the Supreme Court, Harper Hammer v. Dagenhart, 247 U. S. (1918) 251. 86. Taft's contribution his in 6il Bros., 1914, p. 72, by opinion Block v. Hirsch, 256 U. S. (1921), also Marcus Brown Co. the Case is in a Addyston Pipe important. Justice Brewer, v. Feldman, 256 U. S. 170 (1921) 135. separate concurring opinion in the Northern Securities Case, 66 Newberry v. United States, 256 U. S. (1921) 232. added the point that the terms of the statute, being words 67 Retold in Wu, Fountain of Justice, New York, 1955, p. 92, having common law significance, are to be interpreted in the citing Prohibitions Del Roy, 12 Co. Rep. 63 (K. B. 1612). of their at common law. With Brewer light meaning adopting 68 Quoted in Wu, cited above, Note 67, p. 30. the rule reason, Holmes said in his "I of dissenting opinion, 69 Klinkhamer, cited above Note 1, p. 108. am happy to know that only a minority of my brethren adopt 70 cited above Note 88. This is not a criticism an interpretation of the law (Sherman Act) which in my Umbreit, 4, p. of the tradition of natural law which offers reaonableness, opinion would make eternal the bellum omnium contra omnes rather than as the sanction of law. Natural law answers and disintegrate society so far as it could into individual atoms." force, 36 more the is law?" rather than "what Apex Hosiery Co. v. Leader, 310 U. S. (1940) 469, 497-500. question "why something 37 is law?" Since it lacks and it cannot Letter to Mr. Wu dated December 2, 1922, Shriver, Justice particularity certainty a a law than the Oliver Wendell Holmes, His Book Notices and Uncollected be substitute for system of positive anymore can do with the need for Letters and Papers, New York, 1936. precept "love thy neighbor" away 38 which assist one 13 Review of Politics, 229. the many customs, habits and actions might 39 in a See A. P., Natural Law, A footnote in Nashville Milk Co. v. Carnation Co., 355 U. S. being good neighbor. D'Entreves, Hutchinson 1951, p. 118. (This is a printing (1958) 373, 377, Note 4, states that a total of 71 statutes are House, London, of a series of lectures at the of in set forth in a compilation entitled Antitrust Laws with Amend­ given University Chicago ments, 1890-1951, indicating the legislative development in 1948). 71 this field. Miller, Arthur, Collected Plays, New York, 1957, p. 32. 3Da 72 A to Meridian New Quoted in Wu, cited in Note 67 below, p. 266. Cohen, Morris R, Preface Logic, Books, 40243 U. S. (1917) 629. York, 1956. p. 92.