| Book Reviews |

Louis D. Brandeis: A Life he returned to the United States and served as the co-editor of the five matriculated at Harvard Law School volumes of Brandeis’ correspondence, By Melvin I. Urofsky just as it was beginning its transfor- wrote two earlier concise biographies Pantheon Books, New York, NY, 2009. 955 mation into the country’s preeminent of Brandeis, and has also authored pages, $40.00. institution of legal education under its a history of the Zionist movement in renowned dean, Christopher Columbus America. With this new book, he clear- ly sought to pull together everything Re v i e w e d b y Je f f e r s o n M. Gr a y Langdell. Although his family was relatively he had learned about Brandeis over well-off, Brandeis was still very much four decades, and he has produced a With more than 750 pages of text, a self-made man. In 1879, he opened biography that it is hard to imagine will Melvin Urofsky’s hefty biography of a law practice in Boston with a blue- ever be surpassed. Louis D. Brandeis—lawyer, economic blooded Brahmin classmate. Within Litigators and attorneys in private reformer, political adviser, Zionist lead- little more than a decade, at the age practice will find much of interest er, and Supreme Court justice—is not a of 34, he was already earning today’s in Urofsky’s treatment of Brandeis’ book to be tackled lightly. But if you equivalent of $1 million annually—at years as a practicing lawyer (1878– enjoy American history and judicial a time when there was no income 1916, although progressive reform and biography, this book will amply repay tax. Although he prospered mightily Zionist activities increasingly occupied the investment of time and attention it by representing large commercial cli- his time from 1905 onwards). Brandeis requires. ents, he was a passionate economic made three significant contributions Louis Brandeis (1856–1941) is best reformer who condemned what he to the development of the American remembered by lawyers today as the called “the curse of bigness.” He won legal profession during his years in first Jewish Supreme Court justice and his most celebrated legal victory in practice. First, along with contempo- as a frequently dissenting progressive Muller v. Oregon (1908), in which the raries such as Paul Cravath and William voice on the Court during the last two- Supreme Court upheld a state statute Cromwell of New York, he was one thirds of the Lochner era (1905–1937). limiting the hours of working women of the creators of the modern multi- But, as Urofsky demonstrates, Brandeis to 10 per day. service American law firm. His Boston would deserve to be remembered for Although his adversaries denounced legal practice started out as a two- his contributions to American law, the him as a radical and a socialist, Brandeis, man partnership in 1879, but with the progressive movement, and the devel- Urofsky contends, was motivated by acceleration of the industrial and com- opment of Zionism even if he had lost values that were fundamentally con- mercial revolutions in the last quarter the acrimonious confirmation battle servative. He did not always see eye- of the 19th century, the firm grew as over his nomination to the Supreme to-eye with organized labor, and he able younger colleagues came aboard Court in 1916. believed that working people should to help meet the needs of Brandeis’ Brandeis lived a classic, distinctive, be encouraged to provide for their clients. In 1897, Brandeis promoted and singularly American life, painted own retirements, rather than looking to several of his associates to full partner- across a broad canvas. He was born the government for old-age pensions. ship and the firm acquired the name the year before the Dred Scott decision, He did not believe that reforms should of Brandeis, Dunbar & Nutter. Today, and almost lived to see the Japanese be imposed from the top down, and more than a century later, the direct attack on Pearl Harbor. A second- he distrusted bigness in government— descendant of Brandeis’ law partner- generation American from a non- particularly the federal government— ship continues in business as Nutter observant German Jewish family of quite as much as he distrusted it in McClennen & Fish. prosperous grain merchants, he was the business world. His commitment Brandeis’ second major contribution born and raised in Louisville, Ky., to allowing states to develop their to the legal profession derived from when it was still very much a provin- own approaches to problems shines his fervent belief that lawyers should cial Southern city. He never lost his through in his decision in Erie Railroad devote a portion of their time to public sense of commitment to his birthplace, Company v. Tompkins (1938), in which service. As he told his friend and client and always believed that America’s he held that federal courts in diversity- Edward Filene, the department store smaller cities offered better laborato- of-citizenship cases must follow the owner, “he had resolved early in his life ries for social and economic reform statutes and common law of the states to give at least one hour a day to public than did the great metropolises of the in which they sit. service, and later on he hoped to give East and Midwest. Although he was Melvin Urofsky is well-suited to fully half of his time”—an aspiration he born in the American heartland, he the task of writing a comprehensive may have met by as early as 1903. To completed his secondary education biography of this brilliant and active Brandeis, the greatest luxury that his at a rigorous gymnasium in Dresden, man. A long-time professor of law, success and wealth as a practicing law- Germany, where the instruction was public policy, and history at Virginia yer afforded him was to enable him to in his parents’ native tongue. In 1875, Commonwealth University, Urofsky devote his time “to the pleasure of tak-

66 | The Federal Lawyer | March/April 2011 ing up a problem and solving, or help- he suggests that “the concept of the especially where they related to cor- ing to solve, it for the people without Brandeis brief, that is, the use of non- porate balance sheets and profitability; receiving any compensation.” As this traditional and nonlegal materials to (2) educate the public; (3) know the comment suggests, Brandeis’ pro bono uphold a particular view, has received political power brokers (“ten minutes efforts often focused not on represent- widespread approval”—this is less true alone with the governor,” Brandeis ing an individual client in litigation, but than he believes. The brief in Muller once said, “could yield a veto of a on tackling a public policy problem or was mainly a compendium of sum- bad bill”); and (4) look for win-win acting as “counsel to the situation” to marized legislation and excerpts from solutions that advanced not only one’s develop a solution to a knotty legal, public reports, with surprisingly little own interests, but the corporate inter- economic, or social problem. Although text by Brandeis himself. Reviewing it ests on the other side. his efforts in this latter regard fore- today, its most impressive character- These principles show that claims shadowed to some degree the modern istic is the breadth and sweep of its that Brandeis was a radical or a social- practice of turning to outside mediators research, particularly in foreign sourc- ist could hardly have been further from to resolve cases, confusion and mis- es. (Curious readers can find it at www. the mark. To the contrary, he viewed understandings about the exact nature law.louisville.edu/library/collections/ reform as a means of protecting the of Brandeis’ role sometimes resulted, brandeis/node/235.) Litigants before deeply traditional values he cherished. giving rise to lingering bitterness. This the Supreme Court in recent years As Urofsky sums up his approach: accounted for some of the charges of have argued in favor of limiting capital unethical behavior that were later laid punishment in cases involving juve- Brandeis no more cared for at his doorstep by opponents of his niles and retarded persons by compil- governmental regulation than nomination to the Supreme Court. ing records of state legislative actions did Muller’s attorneys or Joseph Brandeis was a highly effective trial and citing the approaches of foreign Choate [a leading New York cor- lawyer who once wrote to his older courts, and amicus curiae briefs in the porate attorney]. But as a con- brother Alfred that “[t]here is a certain Supreme Court often seek to advance servative who believed that new joy in the draining exhaustion and a broader perspective on an issue times demand accommodation backache of a long trial, which shorter pending before the Court. But few even while holding on to older skirmishes cannot afford.” Today, how- advocates today would produce a brief values, he recognized that the ever, Brandeis’ litigation career is best for an actual party so decoupled from greater the opposition to minimal remembered for his work as an appel- a discussion of the record below and social progress, through measures late lawyer, and it is in that capacity the applicable precedents. such as protective legislation, the that he made a third significant contri- Brandeis’ second “career,” as an greater would be the popular bution to the law. It was the “Brandeis advocate of progressive reform, partic- demand for more extreme mea- brief,” which persuaded a conservative ularly in the economic sphere, is like- sures ... . A real need to protect Supreme Court in Muller v. Oregon to wise fully developed by Urofsky. But workers existed, and that need uphold a state statute limiting the hours this section of the book, presented in would somehow be met. It would of working women. It was noteworthy eight chapters totaling just under 200 be better if men of goodwill both for its length—113 pages—and its pages, is likely to tax the patience of cooperated in ameliorating the contents. After a two-page discussion many readers. Urofsky spends nearly evils of industrial transition. disposed of the handful of applicable 20 pages detailing Brandeis’ unsuc- legal precedents, the remainder of the cessful effort to prevent the New York, Brandeis also did much to build and brief summarized the statutes restrict- New Haven, & Hartford Railroad from shape the nascent American Zionist ing women’s working hours that had acquiring the Boston & Maine line in movement. He was an unlikely figure to been enacted by various states and 1907–1909, and another 23 pages dis- assume such a role. One of his daugh- foreign nations, and excerpted public cussing Brandeis’ later battle against ters described him as “completely non- reports detailing the experience upon what he considered monopolistic prac- religious, a nonobservant Jew,” and he which these statutes were based. tices by the New Haven Railroad, did not join the Federation of American Over the next several years, Brandeis along with his subsequent involvement Zionists (FAZ) until June 1912, when followed up the success of his Muller in railroad rate-setting cases before the he was 55 years old. Yet, barely two brief with similarly prolix and heav- Interstate Commerce Commission. years later, he took over the leader- ily researched efforts. According to In contrast to these complicated and ship of the nearly moribund organiza- Urofsky, one of these briefs ran a tedious discussions, Urofsky’s account tion. Within five years—three of which Tolstoyan 1,021 pages, while in anoth- of Brandeis’ involvement in the Boston overlapped his service as an associate er case he added 400 pages of factual Consolidated Gas Company capitaliza- justice of the Supreme Court—Brandeis material as a supplement to a brief pre- tion controversy of 1903–1906 and had increased the FAZ’s membership pared by New York’s attorney general the Massachusetts Savings Bank Life 14-fold, reorganized it along more cen- defending a statute prohibiting night Insurance reform battle of 1905–1907 tralized and hierarchically structured work for women. usefully showcases Brandeis’ opera- lines, and raised a sum for the relief of Although Urofsky sees the Brandeis tive principles as a reformer. These brief as an influential innovation— principles were: (1) master the facts, reviews continued on page 68

March/April 2011 | The Federal Lawyer | 67 reviews continued from page 67

the Jews in war-ravaged eastern Europe In modern terms, Brandeis believed tably characterized as “men of zeal, that exceeded the entire amount that in a living Constitution, writing that well-meaning but without understand- the organization had previously taken “Our Constitution is not a strait-jacket. ing”). He would doubtless have some in during its 15 years of existence. It is a living organism. As such, it trenchant and troubling observations Brandeis envisioned the future Zionist is capable of growth—of expansion to make about modern American soci- state as a secular society that would be and adaptation to new conditions.” ety, where commercial and govern- informed by both Jewish and American “Originalists” such as Justice Antonin ment data-mining, the pervasiveness values, predominantly agricultural in Scalia would have perplexed him; as of cameras and video devices, and the character, and without the large busi- Urofsky writes, to Brandeis, “the origi- widespread accessibility of the Internet ness organizations that he believed nal intent of the Framers had been to make possible the exposure of private served to undermine democracy and create an instrument that would change and intimate moments and commu- social justice in the United States. as the nation changed, but at all times nications in ways and on a scale that Yet, despite his accomplishments, relying on fixed and immutable moral Brandeis could never have imagined. Brandeis’ period of influence in the values.” In a time when the legal profession international Zionist movement was Although Brandeis died almost 70 has been shaken by the economic relatively brief. He had deep res- years ago, his economic and social downturn and a growing sense that ervations about the English chemist views remain strikingly relevant today. technological developments and the Chaim Weizman, who came to domi- His denunciations of “the curse of big- high costs of legal services are alter- nate the movement’s European branch ness” have attracted renewed attention ing the practice of law in fundamental following World War I, and, in 1921, in the wake of the financial crisis of ways, Urofsky’s Louis D. Brandeis: A Brandeis, Felix Frankfurter, and his 2008. He fretted that a relative handful Life provides a timely reminder that it other close associates all resigned their of bankers had gained control over too is indeed possible to live greatly in the leadership positions in the American large a share of the country’s invest- law. Near the beginning of the last cen- Zionist organization. ment capital, vigorously advocated the tury, Brandeis told students at Harvard Urofsky devotes more than 200 pages separation of investment and bank- that “Those of you who feel drawn to to Brandeis’ 22 years on the Supreme ing functions, and even published [the legal] profession may rest assured Court (1916–1939), providing a com- a muckraking book exposing dubi- that you will find in it an opportu- prehensive overview of his career. He ous banking practices, entitled Other nity for usefulness which is probably argues convincingly that Brandeis ulti- People’s Money: And How the Bankers unequaled. There is a call upon the mately proved to be a more influential Use It (1914). During the Depression, legal profession to do a great work for jurist than his colleague and great friend he heartily endorsed the stimulus pro- this country.” As we move deeper into Oliver Wendell Holmes. Brandeis was grams and public employment initia- a new century, his words can chal- a forceful exponent of judicial restraint tives that President Roosevelt sent to lenge and inspire us still. TFL and of deference to legislative policy Congress, although, he added, “I want choices; he memorably argued that “It 10 times as much.” He also commented Jefferson M. Gray is an assistant U.S. is one of the happy incidents of the in a letter to Felix Frankfurter that, attorney in the Criminal Division of federal system that a single courageous rather than going off the gold standard, the Maryland U.S. Attorney’s Office. State may, if its citizens choose, serve “I wish [President Roosevelt] would He served as the president of the FBA’s as a laboratory; and try novel social and experiment instead with banishing the Maryland Chapter in 2005-2006. economic experiments without risk to bankers ... and putting on heavier the rest of the country.” He was also a estate taxes.” staunch defender of privacy interests— Likewise, from as early as 1890, All the Devils Are Here: The lauding “the right to be let alone” as “the when he co-authored a famous law Hidden History of the Financial most comprehensive of rights and the review article titled “The Right to Crisis right most valued by civilized men”— Privacy” (available at www.law.louis- against new and intrusive technolo- ville.edu/library/collections/brandeis/ By Bethany McLean and Joe Nocera gies such as electronic eavesdropping. node/225), through his rejection of Penguin Books, New York, NY, 2010. 380 pages, During America’s first “Red Scare,” in warrantless wiretapping in his dis- $32.95. the years immediately following World senting opinion in Olmstead v. United War I, he argued that only the starkest States (1928), Brandeis sought to pre- Re v i e w e d b y Ch r i s t o p h e r C. Fa i l l e of emergencies could justify restrictions serve a sphere of personal autonomy on freedom of speech: “If there be time and confidentiality where life could to expose through discussion the false- be carried on free from the intru- This is a marvelously thick account hood and fallacies, to avert the evil by sions either of a sensationalistic and of the financial crisis of 2007–2008 and the processes of education, the rem- scandal-mongering press or of overly its origins. Thick is good. The thin edy to be applied is more speech, not aggressive and self-righteous govern- gruel offered in some interpretations enforced silence.” ment investigators (whom he unforget- of events comes in two forms: the

68 | The Federal Lawyer | March/April 2011 one-devil-will-suffice gruel, and the say, the possibility that a meteorite builds his vessel for speed, capacity details-about-furniture gruel. But here will hit an elephant at the Bronx Zoo and comfort—giving little thought to we get finance, not burled-wood tables on the head tomorrow morning, one stability and strength.” or the other pseudo-novelistic details need hardly trouble oneself with it. But The part of the probability curve at that fascinate Andrew Ross Sorkin what if a certain result will happen one the further leftward part of the graph— in his book, Too Big to Fail, which out of every 20 times one establishes hurricane territory—might have to be I reviewed in The Federal Lawyer in a position? That’s a 5 percent prob- drawn higher on the graph paper than February 2010. We also get, as the ability, and it is just plausible enough the “normal distribution” would have Shakespeare-inspired title implies, lots that institutional “risk managers” have it. The good news is that this would of different intersecting lines of cause often employed it as a boundary. allow you to draw a fatter tail at the and effect—plenty of devils. When you hear of “stress testing” in an right end of the graph, the prosperous I dissent from several of the themes investment context, this is often what end, too. The bad news is that, in the and interpretations in this book, but I is meant. An institution’s risk manager midst of a hurricane, the good news won’t make this review about my dis- asks himself: what will happen to our will seem mighty irrelevant. sents. The book’s very thickness made portfolio if various 1-in-20 bad shots some disagreement inevitable. There come to pass? Don’t Demonize Goldman Sachs is a lot to like and, because I’m in an VaR is a single number created Weatherstone, to his credit, didn’t angelic mood, I will focus on that. by the risk managers at JPMorgan in take VaR too seriously. He viewed McLean and Nocera speak briefly the early 1990s. They would present it as the beginning, not the end, of but with great clarity about the birth it every afternoon, after the close of a serious consideration of risk. But of the “Value at Risk” (VaR) metric. trading, to their then-CEO, Dennis JPMorgan soon made its use of VaR This is a measurement of the haz- Weatherstone. It meant: Netting out publicly known. The number spread ard posed by a particular asset, on a all of our positions and all of our dif- through finance, becoming standard period-by-period (and, in its origin, on ferent risks across this institution, we by the late 1990s, and became a bit a day-by-day) basis. Suppose that you can be 95 percent sure that our losses of importantly misplaced abstraction— own stock in XYZ Co. The probability tomorrow, if any, will amount to no one of the “devils” emptied out of of various events in the near future of more than X million. Thus, a VaR of hell. XYZ’s stock can be laid out as a curve, 42 would signify a value at risk, in this One refreshing element of this book thus: sense, of $42 million. is that McLean and Nocera refrain from It will occur to demonizing Goldman Sachs. GS has some of you, even taken a lot of heat of late. Heck, Matt though not educated Taibbi, writing in The Rolling Stone in in either finance or July 2009, called Goldman Sachs “a statistics, that VaR great vampire squid wrapped around as described is a the face of humanity, relentlessly jam- very simplistic way ming its blood funnel into anything to think about risk. that smells like money.” But McLean After all, when that and Nocera contend that there are 20th day comes, how good reasons for GS’ success, and much further down indeed that the pity is that the other the slope than $42 major Wall Street institutions didn’t act million would the somewhat more like this squid. One loss be? Is it enough aspect of GS’ superior risk manage- to know it will be at ment was, precisely, that it didn’t take The most likely result (the highest least $42 million, without regard to the VaR seriously. But there was more. point on the curve) may represent a difference between $42.5 million and “Goldman was a stickler for using small profit. Higher levels of profit $84 million? what’s known as mark-to-market become increasingly unlikely as one Even more fundamental: Who says accounting, meaning that it marked gets more ambitious, as indicated by the bell curve is the appropriate shape? its books, every day, at the price at the downward slope to the right. The Perhaps the appropriate curve is not which securities traded in the market,” downward slope to the left of the mean, the standard one, but a curve with McLean and Nocera tell us. If an insti- however, represents first the slide into fatter tails. The great mathematician tution (A) has a $1 million IOU from 0 percent profit and, later, the descent Benoit Mandelbrot, famous for fractal another institution (B), but it knows into loss at ever-higher levels. geometry, thought so. In 2004, he that B is in trouble and that the most wrote, “I believe the conventional likely outcome is that it will only get Maybe Worry about Meteorites models … are not merely wrong; they $100,000 from B, then what is the For how serious a loss should an are dangerously wrong. They are like value of that instrument? Most accoun- investor holding this stock make plans? a shipbuilder who assumes that gales Surely, if something is as unlikely as, are rare and hurricanes myth; so he reviews continued on page 70

March/April 2011 | The Federal Lawyer | 69 reviews continued from page 69

tants would agree that it represents quants [quantitative analysts] and told a variety of financial issues, and is the only $100,000 worth of wealth in A’s them to sign off on a new valuation co-author, with David O’Connor, of a possession, and should be marked that method the mortgage desk wanted to user-friendly guide to Basic Economic way. This is called marking to market use for CDOs squared.” The quants felt Principles (2000). simply because, if A wanted to sell that that they were being maneuvered into IOU to a third party (C), that $100,000 responsibility for something improper, represents what it could reasonably so they complained to their boss, John Colonel Roosevelt expect to get from that sale consistent Breit. Breit soon discovered that the By Edmund Morris with honest dealing. exposure of Lattanzio’s operation was Random House, New York, NY, 2010. 766 A publicly traded corporation that not in the millions (as Lattanzio had pages, $35.00. keeps the IOU on its books at the been pretending), but in the billions. face value of $1 million in such a case Lattanzio was fired in early October is, quite arguably, defrauding its own 2007, as Stan O’Neal finally came to Re v i e w e d b y He n r y S. Co h n investors. Even more important for the understand the enormity of the crisis point McLean and Nocera are mak- unfolding. It was, in a sense, too late. Edmund Morris has completed his ing here is that the management of a From the time of that firing, Merrill had award-winning three-volume biogra- company that valued that instrument less than a year left as independent phy of (1858– at $1 million would be deceiving itself. entity. It had to sell itself at the peak of 1919) with Colonel Roosevelt, the title McLean and Nocera in effect praise the panic in September 2008 to Bank being Roosevelt’s preferred appella- Goldman Sachs because it did not of America. tion during the last decade of his life. deceive itself in this way. While others Although the factual outlines of this around them adhered to increasingly A Personal Appeal book may be found in any number of meaningless book values, GS main- I conclude this review with a word other works—including Lewis Gould’s tained the discipline associated with specifically to those who, like me, Four Hats in the Ring and Joshua mark-to-market accounting. Of course admire the operations of free mar- David Hawley’s Theodore Roosevelt: the specific instruments involved in the kets and believe that the roots of our Preacher of Righteousness—no prior recent bubble-and burst, such as collat- troubles are to be found in too little effort can compare with Morris’ book eralized debt obligations (CDOs), were capitalism, not in too much. You may in its literary flair. a good deal more complicated than an know that McLean and Nocera are not Each chapter of Colonel Roosevelt old-fashioned IOU. But the principles among our number in this respect. The begins with a stanza from a poem by of fair valuation were the same. point of view of this book is much , a devo- too friendly toward regulators, much tee of Roosevelt, that links to the Complicated: Not Quite the Word too inclined to believe that, if only chapter’s subject matter. Morris does I won’t try to explain what exactly a Washington had been looking more not limit his book to political mat- CDO is, but I will mention that, when carefully over Stan O’Neal’s shoulder, ters, as he masterfully describes, for an institution packages many of them everything would have been okay. example, Roosevelt’s tour of a New together, it can create something even So, fellow free marketers: There York City exhibit of newly completed more obscure, appropriately called a are passages in this book that will tick paintings of the Ashcan School, as well CDO squared. you off. Read through and past them, as Roosevelt’s published reaction to it Merrill Lynch was among the firms though. There is so much of value here in the magazine Outlook. Morris also that did not display Goldman-like dis- that you will want to press on, and includes Roosevelt’s own contributions cipline, but that suffered nonetheless will be glad once you have done so. to the political lexicon, such as the fol- from what the authors call “Goldman Behind it all, the book shows—even lowing, which date from Roosevelt’s envy.” They discuss the CEO of Merrill though the authors would likely not final decade: “The credit belongs to the Lynch, Stan O’Neal, and make a con- put it this way—that those firms that man who is actually in the arena, whose vincing case that he was ignominiously survived the worst of the crisis, notably face is marred by dust and sweat and isolated from the operations of his Goldman and Bank of America, did so blood”; “My hat is in the ring”; “The company throughout crucial months in because they possessed the virtues of New Nationalism puts the national need 2006 and 2007. Indeed, one sign that the ants in the fable, and that those that before sectional or personal advantage”; he was out of touch was that he took failed, like Lehman and, in a different and “I’m as fit as a bull moose.” This VaR far too seriously. “His feel for the manner, Merrill, did so because they last declaration, of course, gave rise to firm’s risk positions came primarily possessed the shortsightedness of the the Progressive Party’s nickname—the from reading the daily VaR reports.” grasshopper. It is, at its bottom, the Bull Moose Party—and to numerous All the Devils Are Here also describes classic free market lesson. TFL cartoons and political symbols in the an incident in August 2007, when Dale shape of a moose. Lattanzio, the head of Merrill’s CDOs Christopher Faille, a member of the Colonel Roosevelt begins with the operations, “commandeered two junior Connecticut bar since 1982, writes on fascinating story of Roosevelt’s run

70 | The Federal Lawyer | March/April 2011 for the presidency in 1912. He had representative at the funeral of Edward liberal platform of his day. Roosevelt vaulted to prominence as governor of VII. His speeches and appearances replied that he was fighting for vital New York in 1898. When President enhanced his position as the world’s principles, such as conservation of McKinley’s popular vice president, most highly regarded political figure. natural resources, recall of corrupt Garret Hobart, died before the 1900 While Roosevelt was in Europe, judges, workers’ compensation, and Republican convention, Roosevelt was the calls continued for him to run universal old-age insurance. “We stand chosen as Hobart’s replacement. Then, for President in 1912, and, when at Armageddon, and we battle for the in 1901, McKinley was assassinated he arrived home in , Lord,” Roosevelt said of himself and at the Pan-American Exposition in his ship was met by a great throng, his equally progressive running mate, Buffalo, N.Y., and Roosevelt, age 42, and a ticker-tape parade followed. Hiram Johnson. Roosevelt’s platform was summoned from his Adirondacks Meanwhile, Taft’s standing continued presented ideas, such national health vacation to take the oath of office; to slip. Taft appeared to dislike execu- insurance, that are still debated today. he is still the youngest man ever to tive branch affairs; the judiciary inter- Roosevelt took his campaign to the become President. Roosevelt was tri- ested him more and, in 1921, President country, and exhausted himself travel- umphantly re-elected in 1904. In 1908, Harding appointed him chief justice of ing through both East and West in his much to the public’s disappointment, the Supreme Court. Concerned with special train, the Mayflower. On Oct. he chose not to run again and, instead, the public’s potential reaction to his 14, 1912, in Milwaukee, a mentally ill urged that the Republican conven- turning on his hand-picked successor, man shot Roosevelt in the chest, but tion nominate , Roosevelt lingered in deciding to break Roosevelt was spared major injury as who was secretary of war and one with Taft, but finally did so. the bullet penetrated his eyeglass case of Roosevelt’s closest advisors. The To win the Republican nomination, and the 50-page text of his address in Republicans did so, and Taft went on Roosevelt needed to attract delegates, his jacket pocket before it lodged in his to defeat William Jennings Bryan, who but Taft, as the incumbent, had most chest. The bullet did not penetrate the lost his third presidential race. (Morris of them under his control and had lung wall, and Roosevelt gave his cam- covered this material in his prior vol- the party leaders in his corner too. paign speech before he sought medical umes, The Rise of Theodore Roosevelt Roosevelt, however, took all but one attention. In this speech, he said, “I have and Theodore Rex.) of the few state primaries that were just been shot; but it takes more than On inauguration day, on March held, managing a major victory in that to kill a bull moose.” The G.O.P.’s 4, 1909, Roosevelt handed the reins Pennsylvania to ensure that he held effort was shattered by Roosevelt’s of government to Taft and headed, sufficient delegates to make the choice bolting from the party, and Democrat with his son Kermit, to British East a contest. The raucous Republican Woodrow Wilson cruised comfortably Africa for an extensive hunting trip. convention at Chicago proved to be to victory, with Roosevelt coming in He promised to furnish specimens a battle between Taft’s regulars and second and Taft a distant third. to the Smithsonian and a manuscript Roosevelt’s insurgents, who claimed Roosevelt would never again run about big game kills to his publisher, that Taft was defying the public will. for office. The assassination attempt Scribners. While in Africa, having great But Roosevelt failed to obtain the had long-term effects on his circulatory success in killing elephants and lions, nomination of the Republican Party, system, and, in traveling to Brazil in Roosevelt received a troubled mes- and he moved his quest down the street 1914, he had a bout of “Cuban fever” sage from Gifford Pinchot, his friend to the convention of the Progressive that also left him weak. In 1913 and and appointee as chief of the Forest Party. Its leaders were Jane Addams, 1915, he was involved in two contro- Service. Pinchot reported that Taft had the heroic Chicago social worker; Ben versial libel suits that arose from the fired him after he had feuded with a B. Lindsey, founder of the Denver 1912 campaign. In the first, Roosevelt superior whom Taft favored. When juvenile court; Roosevelt’s former advi- sued a newspaper editor who had Roosevelt finished his hunting trip, he sor Gifford Pinchot; and two legal suggested that Roosevelt had shown met Pinchot in Italy. Pinchot related scholars who later became judges, signs of alcoholism on the campaign that Taft was under the thumb of Learned Hand and Felix Frankfurter. trail. The editor apologized on the G.O.P. conservatives and was retreat- Roosevelt addressed the convention, witness stand and Roosevelt agreed to ing from a pro-conservation stand. attacking the two major parties as mere nominal damages. In the second case, Pinchot begged Roosevelt to return “husks”—boss-ridden and controlled Roosevelt was sued because, in a cam- to the United States at once to try to by the privileged. In response, the paign speech, he had accused a politi- remedy the situation. convention joined in singing “Onward cian from Syracuse, N.Y., of abetting Roosevelt, however, refused to Christian Soldiers,” and a reporter “rotten government.” The jury found challenge Taft. He traveled from Italy compared the convention, in its enthu- for Roosevelt. to France, Germany, and England, siasm for Roosevelt, to a religious In 1914, World War I broke out, meeting with officials such as Kaiser convocation. The Progressive Party and, in 1916, when the Republicans Wilhelm, and he gave lectures at vari- nominated Roosevelt. nominated Charles Evans Hughes to ous parliaments and universities, call- To conservatives, Roosevelt was run against Wilson, Roosevelt was ing for a “league of nations.” At Taft’s now a radical who had bolted from his bidding, he served as the United States’ lifelong attachments to accept the most reviews continued on page 72

March/April 2011 | The Federal Lawyer | 71 reviews continued from page 71

again a team player. Wilson, running Child-Centered Practices for the infant trauma and mental health. The on the slogan, “He kept us out of the Courtroom and Community: A authors are more than professors; they war,” was re-elected. Roosevelt could Guide to Working Effectively with have served in the trenches. abide neither Wilson nor his secre- Young Children and Their Fami- Their book is directed at those who tary of state, William Jennings Bryan, work within the child welfare system. who viewed the war as exclusively a lies in the Child Welfare System It is replete with sample questions that European affair. Roosevelt spoke out By Lynne F. Katz, Cindy S. Lederman, every lawyer and judge should ask, against the “pacifist” Bryan until he and Joy D. Osofsky, with Candice Maze sample court reports, sample evalu- was removed from the cabinet in June ation reports, sample child-caregiver Paul H. Brookes Publishing Co., Baltimore, MD, 1915, and, in April 1917, Wilson asked 2011. 203 pages, $34.95. relationship assessment forms, and Congress to declare war. many other forms and questionnaires Roosevelt wanted Wilson to act more that will be helpful to the professional. aggressively and to send more troops. Re v i e w e d b y Ge o rg e W. Go w e n The authors’ commendable expertise He declared, “Peace is not the end. may discourage the lay reader, but Righteousness is the end. ... If I must The New York State Bar Association their goal is to assist those whose daily choose between righteousness and devoted its January 2011 Journal to lives are committed to assisting the peace, I choose righteousness.” Likewise youth courts, which are special courts child and parent entrapped by inter- he thought that Wilson’s 14 points, in which youths aged 14 to 18 pros- generational collapse. issued as the war concluded, were too ecute, defend, and sentence youthful I was told by a social worker that idealistic and foolish. He agreed with offenders. I recommend this issue of juvenile killers seem not to care or French premier George Clemenceau’s the Journal, and I mention it as a lead- realize that those whom they kill are icy comment on the 14 points—even the in to Child-Centered Practices for the human beings. I was equally shocked good Lord had only 10. Courtroom and Community because to read that Pam, the teenage mother, Roosevelt’s last years—beautifully the child welfare system—the subject had to learn to play with her child and captured by Morris—were semi-tragic. of the book—is as much in need of the only with the assistance of a therapist His health failed and his dream of bar’s attention and of new ideas as are did she learn that “my babies love mounting a presidential campaign for juvenile courts. me.” 1920 vanished. He was delighted to The book follows the teenager Pam Just as youth courts are a nontradi- orchestrate the weddings of his daugh- and her two sons through the child tional approach to teen delinquency, ter Ethel and his son Archie, but had welfare system. Pam had her first child so, the authors explain, are juvenile to face the death of his son Quentin, at age 14 while she was repeating the dependency courts a nontraditional whose fighter plane was shot down over 9th grade for the second time and fail- approach to child welfare problems. France by a German aircraft in 1918. ing all of her classes. Two and half They write, “The juvenile dependency On Jan. 6, 1919, at age 60, Roosevelt years later, she had a second son. Hers court, more than any other court, died suddenly of a heart attack, and is a tale of multi-generational violence, must identify, address, and resolve debate began over his political legacy. drugs, and child abuse—Pam herself issues of domestic violence, substance H.L. Mencken called him “a liar, a had been victimized at age three. abuse, child abuse, child neglect, and braggart, a bully, and a fraud,” and Fathers are identified as “boyfriends” other problems that require signifi- Mark Twain labeled him a showy who take no responsibility for their cant investment of time, energy, and charlatan. But Edna Ferber said that progeny and are often the perpetrators resources to properly address, if not he was “the most encouraging person of violent crimes against the mothers solve. Problem-solving courts have that ever breathed.” And his distant and their children. emerged on the scene as an alternate cousin, Franklin Roosevelt, who put The three authors of this disturbing to traditional courts.” TFL many of Theodore Roosevelt’s ideas book are experienced and knowl- into effect, called him the greatest man edgeable. Lynne Katz is an assistant George W. Gowen is a partner with New he had ever met. Perhaps the honor professor at the University of Miami York law firm Dunnington, Bartholow that would have pleased Roosevelt the Department of Psychology, with an & Miller LLP. His areas of practice are most was that his fellow delegate to the appointment in pediatrics, and director trusts and estates, corporate law, and 1912 Progressive Party convention, the of an intervention center at the univer- sports law. He was an adjunct profes- sculptor Gutzon Borglum, placed him sity. Cindy Lederman is a circuit court sor at the New York University Gradu- on Mt. Rushmore with Washington, judge at the Juvenile Justice Center in ate School of Business, has served on Lincoln, and Jefferson. TFL Miami and a leader in the creation of United Nations Commissions, as coun- the Dade County Domestic Violence sel to leading sports organizations, and Henry S. Cohn is a judge of the Con- Court. Joy Osofsky is a professor of as chair of environmental and humane necticut Superior Court. pediatrics and psychiatry at Louisiana organizations. State University and has received wide recognition for her books and work on

72 | The Federal Lawyer | March/April 2011 After America: Narratives for the Starobin states that Americans are could enter another period like the Next Global Age under the illusion that we are still the medieval dark ages, with rampant star- world leader in nearly every important vation, poverty, and disease, and little By Paul Starobin respect, when, in fact, the opposite is hope for the individual beyond mere The Viking Press, New York, NY, 2009. 368 true. France spends 11 percent of its survival. However—perhaps revealing a pages, $26.95. gross domestic product on health care nihilist bent to his political philosophy— and its people have a longer life expec- Starobin posits that the result of the tancy than those in the United States, decline of the United States could be Re v i e w e d b y Jo h n C. Ho l m e s which spends 15 percent; Japan, and a “happy chaos” in which, freed from not the United States, leads in robotics; the restraints of nation-states, people Journalist Paul Starobin believes that not only Japan but also the small coun- could use modern technology to estab- America has passed its peak. He sets try Estonia has made more and better lish their own destinies, much as the the high-water mark of the “American advances with respect to the Internet. lawlessness of the American frontier Century” at 4:26 p.m., Washington, The United States also lags behind the provided creative individuals with such D.C., time, on Aug. 22, 1991, when Netherlands, Belgium, Spain, Canada, opportunities. the Soviet government removed the and South Africa in recognizing gay A second possible result of American statue—which had stood as the sym- marriage, and is slow to develop a decline, according to Starobin, could bol of Soviet communism—of Feliks green society. be a multipolar world led by nations Dzerzhinsky, the founder of the Soviet The United States is bogged down such as India, China, Russia, Brazil, secret police, from its pedestal in in the conflicts in Iraq and Afghanistan, and Iran, in addition to Great Britain, Moscow. Starobin sets out five of the costing us both financially and in world Germany, and the United States, in most likely scenarios that may follow opinion. We are increasingly a debtor a precarious balance of power. On America’s decline as a world power nation, with foreign governments— opposite sides of the balance might be (hence the title, After America) and particularly China—holding the debts democracies and autocracies, East and discusses how America could cope and, thereby, potential future lever- West, or English-speaking nations and with these various scenarios. age over us. Starobin alleges that the others. Starobin cites India as a usually America’s dominance began after United States is no longer looked to overlooked (but less so since President World War II, when it emerged as by most nations for leadership. Many Obama’s visit in November 2010) a military power rivaled only by the Arabs, as well as other world citizens, potential power. It has a huge popula- Soviet Union. The United States was are revolted by aspects of American cul- tion, educated citizens, an advancing admired for its democracy, culture, and ture, including movies that champion economy, increasing military strength, economy, and was appreciated for its sex and violence, sports and entertain- and nuclear capability. While India has Marshall Plan to help rebuild Europe. ment excesses, and celebrity worship. close ties to the United States due to However, rather than laud America for Starobin believes America’s ideal of our shared values of democracy and its exceptionalism and as a model for worldwide democratic government is a nonexpansive foreign policy, it also the world to emulate, Starobin finds probably doomed to failure. The best has cultural and historical ties to Iran, that the United States had become an example of this, to which he devotes a country it doesn’t fear. For this and “accidental empire”—just another of a chapter of the book, is Russia, which other reasons, India could become a the many influential powers—such as has apparently returned to its autocratic world power broker. Starobin believes ancient Rome, the Ottoman Empire, past after it had seemed so likely to that, although the United States would and Great Britain—that have ebbed embrace freedom and democracy fol- probably have little ability to influ- and flowed throughout history. lowing the fall of communism. ence countries such as China, Iran, Indeed, Starobin attributes America’s Starobin suggests that one outcome and Russia to emulate our democracy, ascendancy to its earlier good fortune of of the decline of the United States’ world we could comfortably exist in such a being isolated from other world powers influence could be chaos. The region multipolar world and, by not being the in Europe, Asia, and the Middle East, stretching from Central Asia to Eastern dominant world power, even benefit and serving as a magnet for people Europe suffers from tribalism, sectarian- by having reduced financial and mili- from those regions seeking freedom and ism, religious fanaticism, tyranny, politi- tary expenses. opportunity. The immigration of such cal corruption, poverty, and gangsterism. An obvious third scenario is the dom- people turned the United States into Post-colonial Africa has not evolved into inance of China. Examining an alterna- a dynamic, creative society. Starobin a democratic bastion but rather has auto- tive to the idea that the world could notes, however, that the country was cratic governments and frequent tribal be better off with a multipolar power also seriously flawed by political corrup- wars and bloodshed. The United States structure, Starobin posits that perhaps a tion, criminal gangs, and robber barons itself could be the target of terrorists who dominant nation is necessary for world that exploited the common people. He unleash nuclear weapons or digital mass stability and that China is the most is dismissive of our modern presidents, attacks that could cripple the American likely candidate to fill that role. China whom, except for Franklin Roosevelt, he psyche and financial structures. With no has taken great strides in acquiring trad- views as unsophisticated in understand- nation to replace the United States as ing and assessing other world cultures. a counterbalance to chaos, the world reviews continued on page 74

March/April 2011 | The Federal Lawyer | 73 reviews continued from page 73

ing partners and businesses throughout areas that surround and encompass and other materials and exports clothes the world, and doing so will be neces- cities produce most of the world’s and automobile parts; the United States sary for it to continue to progress as an wealth. Not only established cities such imports oil and exports computer soft- advanced society. Starobin notes that as New York, London, Paris, Moscow, ware and agricultural products. These China has forged strong relationships Hong Kong, Shanghai, and Tokyo, transactions require international co- not only with Hugo Chavez’s Venezuela but emerging cities such as Tel Aviv, operation and regulation. for obtaining oil, but with democrat- Dubai, Abu Dhabi, Bangalore, and Starobin looks forward to the United ic Chile, which owns 38 percent of Santiago could become economically States becoming a less dominant and the world’s copper production. China’s and culturally more important than the less militaristic power, with a more economy has expanded at a rate of countries of which they are a part. peace-loving and culturally advanced close to 10 percent annually for the past Starobin calls his fifth “after America” population; he somehow sees California 30 years—a faster rate than that of the possibility universal civilization. As as a model to emulate. After America United States in its heyday, and certainly America evolved from individual states is a wide-ranging, fast-paced narrative, faster than our current (2009) rate of to a centralized nation and European with material garnered from extensive about 3 percent, Japan’s of 2.2 percent, countries joined together to form the conversations with high-level officials or Germany’s of 2.7 percent. Starobin European Union, so could the world and experts as well as with ordinary citi- envisions China’s combination of eco- join together to create a single govern- zens throughout the world. It contains nomic expansion, military strength, and ing entity. Many nations are already both statistical and analytical research, diplomatic aggressiveness as the path to moving in this direction in their trade as well as more than a little speculation. its future global dominance. negotiations, defense alliances such as The reader need not agree with all of Starobin labels a fourth possible the North Atlantic Treaty Organization, its premises or conclusions to find the outcome of American decline as “City- and the World Court. Moreover, book of considerable value. TFL States”—a modern version of those in advanced technology, convenient trav- ancient and medieval times. Under this el, and instant communications have John C. Holmes served as a U.S. admin- scenario, the importance of the nation- produced worldwide interacting econo- istrative law judge for 30 years, retir- state would diminish as populations mies. Toyota has become a successful ing in 2004 as chief administrative law feel more connected to the cultural “American” company, while General judge at the U.S. Department of the In- developments of their more immedi- Motors and Burger King are successful terior. He currently works part time as a ate regions. Although this notion may in Japan and other countries throughout legal and judicial consultant and can seem unlikely, Starobin notes that 40 the world. China imports coal, iron ore, be reached at [email protected]. insular cases continued from page 25

Endnotes Califano v. Torres, 435 U.S. 1 (1978); Harris v. Rosario, 446 1See Treaty of Peace, Dec. 10, 1898, U.S. Spain, 30 Stat. U. S. 651 (1980). 1754; Joint Resolution to Provide for Annexing the Hawaiian 8Balzac v. Porto Rico, 258 U.S. 298 (1922). Islands to the United States, Res. No. 55, 55th Cong., 30 Stat. 998 Co n g . Re c . 1528 (1952); Examining Bd. of Engineers, 750 (1899). Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 595 233 Co n g . Re c . 2105 (1900); Co n g . Re c . 6019 (June 14, 1898). n.26; 1966 U.S.C.C.A.N. 2786–90. 333 Co n g Re c . 3616 (1900); 56th Cong., 1st Sess. pp 704–-712 10Balzac v Porto Rico, supra, note 8. (Jan. 9, 1900). 11E.g., LSA-C.C.P. Article 1731–1841; Pub. L. No. 42, 3d 4Theodore Roosevelt, Address at the Hartford Coliseum, Guam Legis., 1st Sess. §§ 3 and 4 (1955); U.S. Virgin Islands Connecticut (August 22, 1902); Theodore Roosevelt, Speech Rev. Organic Act of 1954 § 3, 48 U.S.C. § 1561. at Methodist Episcopal Church Celebration of the African Dia- 12United States v. Laboy-Torres, 553 F.3d 715, 721 (3rd Cir. mond Jubilee, Washington, D.C. (Jan. 18, 1909). 2009). 5E.g., Downes v. Bidwell, 182 U.S. 244 (1901); Hawai‘i v. 13E.g., Igartua De la Rosa v. United States, 417 F. 3d 145 (1st Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. Cir. 2005) (en banc), cert. denied, 547 U.S. 1035 (2006); Bal- 138 (1904). lentine v. United States, 486 F.3d 806 (3rd Cir. 2007); Attorney 6G. Edward White, Ju s t i c e Ol i v e r We n d e l l Ho l m e s : La w a n d General of Territory of Guam v. United States, 738 F.2d 1017 t h e In n e r Se l f , 298–301 (Oxford Univ. Press 1993); Liva Baker, (9th Cir. 1984), cert. denied, 469 U.S. 1209 (1985); Romeu v. Ju s t i c e f r o m Be a c o n Hi l l , 346–49 (Harper Collins 1991); Shel- Cohen, 265 F.3d 118 (2d Cir. 2001). don M. Novick, Ho n o r a b l e Ju s t i c e : Th e Li f e o f Ol i v e r We n d e l l 14Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, Ho l m e s , 234–37 (Little, Brown & Co. 1989). 475–76 (1979). 7Downes v. Bidwell, 182 U.S. 244, 282 (1901); Hawai´i v. 15Boumediene v. Bush, 553 U.S. 723 (2008). Mankichi, 190 U.S. 197 (1903); Balzac v. Porto Rico, 258 U.S. 16Igartua v. United States, 626 F. 3d 592, 612–38 (1st Cir. 2010). 298 (1922); Morales v. Bd. of Registration, 33 P.R.R. 76 (1924);

74 | The Federal Lawyer | March/April 2011