Harvard Law School - Yearbook (Cambridge, MA)

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economic and social problem. Public Utilities was long ago called the Case-of-the Month Club, and the name should be kept alive as a memorial to his steady refusal to yield to the fetish of covering ground. Administrative Law and Federal Juris- diction, it is fair to say, were year in and year out among the most provocative and fruitful seminars in American government being conducted in any American uni- versity. Neither was a course in the utilitarian aspects of the subject, any more than was Public Utilities, and each was incomparably more valuable than it would have been had he compromised even in part with a utilitarian purpose. Mr. Frankfurter held true, in his teaching as in his life, to the fundamental faith of the scholar. He believed, in other words, in trying to see things in their relation to other things, in the fullest perspective that the power of mind can give. With his warmth of human sympathy and his extraordinary gifts of intellect, he has been able to give this faith a superb vindication. The loyal practice of that faith seems to me to have been a decisive factor in his remarkable and increasing powers as an individual, Examples are diverse, from the whole range of his activities. Archibald MacLeish, editing last spring his occasional papers written over a period of twenty- Hve years, makes the point. He finds that, by the test of the significance of his thinking for the future, Mr. Frankfurter must be called one of the few great journal- ists of our time, and finds the explanation in his insistence on viewing transient problems in their setting in the fiow of national life. Thus, the proposal for the recall of judicial decisions was an ill-considered panacea to be condemned in a few sentences. But the reasons why the proposal had been made called for an essay, which has even more meaning now than when it was written. A reading of this and the other papers will suggest something of the quality of his teaching, though it can convey little of the color and fun and spontaneity of it. Mr. F1-ankfurter's judgments were seldom, surprisingly seldom, merely ad hoc, they were related to standards of judgment-to standards worked out the hard w'ay by reading, experience and reflection. It was this which gave him, to students as well as to others, his quality of unexpectedness. He eluded other people's ready- made patterns, condemning what too easily it had been thought he would praise and praising what too easily it had been thought he would condemn. By the same token he was, in dealing with specific problems of all kinds, essentially a moralist. H51

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classes knows of these and other qualities. They explain a great deal of the friend- ship and devotion which it has been his gift so frequently to inspire. But they do not seem to me to tell the whole story. Mr. Frankfurter taught law, in Holmes' phrase, in the grand manner, and I venture to think that in this more was involved than the lmfolding alone of a vivid, provocative, generous personality. To teach law in the grand manner, for Mr. Frankfurter, was to teach it in its relations to life. To say this is easy. To do it requires not merely talent but will, the will to make a choice between the important and the unimportant, the steady effort to see and insist upon what is important. Such a conception of teaching law assumes a deliberate and continuous absorption in how' law works-the how of the process as well as of the result. It assumes caring about how it works, caring about life and caring about law as a way of life. It assumes, to put it at its narrowest, a persisting habit, in thinking about legal questions, of looking beyond the end of your nose-the end of the noses of so many lawyers, students and even law teachers being, of course, simply the doctrine of the particular case. It seems to me that it was Mr. F rankfurter's habit of doing that which gave to his teaching so much fresh- ness and stimulation and kept both him and his classes so intensely interested in what they were doing. The trinity of courses which Mr. Frankfurter gave in later years were Public Utilities, Administrative Law, and Federal Jurisdiction. To those who associate him with those subjects it may seem incongruous that he emerged from his undergraduate work as, among other things, an enthusiastic property lawyer and assistant of John Chipman Cray, and that his earlier teaching included such diversities as Municipal Corporations, Partnerships, Criminal Law and Restraint of Trade. But the incon- gruity is only apparent. His insights are fruitful for the study of private no less than of public law, and one may regret that his recent occasional half-serious oifers to teach Torts or Contracts were never taken up. The three courses of recent years were characteristically of his own creation, and each bore the unmistakable imprint of his special conception of the function of teaching. His was the pioneer effort to explore systematically the body of the Interstate Commerce Acts, he made it a study not merely of those Acts but of the legislative and administrative processes as such, in the setting of an intractable E141

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The inveterate trick of seeing the particular as an instance of some general was on occasion baffling and irritating, especially to those who did not want to discuss inconvenient questions. The validity of the general, or the existence of a relationship between it and the particular, might he open to challenge. But what was above all important was the integrity, discipline and steadiness of the effort. It made him, in matters public and private, legal and a-legal, an incomparably wise counselor. Hosts of men-students and, it is reported, even Presidents-came to recognize this, and to recognize also that the value of his counsel was not at all dependent on agree- ment or disagreement with his specific convictions. Some members of his classes were impatient that he gave them so few rules for the out-of-hand decision of cases. The majority, I think, quickly or slowly came to realize that he was teaching some- thing vastly more important-he was teaching, by example and otherwise, the method of wise counsel, the method indeed of law itself. It was a corollary of Mr. Frankfurter's view both of law and of the function of teaching that he was intensely interested in procedure, in its technical as well as its more spacious aspects. For the mere holding of a case was only a fragment of law, and perhaps not even that. But the way in which it was decided illumined the whole legal process. Hence it was that he would spend hours in taking apart exhaustively a single litigation. As so often happens, the impractical proved for many men to be the truly practical. It was a conunon experience of those who had taken his courses to discover that such training did more than anything else in their Law School work to make them feel at home in the law. Similarly, a feeling for the processes of government, as well as of litigation, was part of the significant residue of his seminars. It is not, I think, laboring the point to assimilate this passion for procedure to his whole intellectual outlook and to his effectiveness as a teacher and otherwise. For law is essentially a way of life, and the faith of a scholar is at bottom a faith in an intellectual procedure. Langdell Hall October 1, 1939 I16l