| 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 REVIEWED BY JEFFE R SON M. GR AY 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.