Yeshiva University - Masmid Yearbook (New York, NY)

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MASMID social philosophy. I have been too intent on con- crete problems of practical justice. At another time he gave his answer to a similar question as follows: I have many opinions, but I am no doctrinaire. Reading his writings, consisting mainly of lawyers ' briefs, judicial decisions and a few addresses, one can discover no social philo- sophy which could combine them all in one con- sistent unit. One cannot point to certain principles of law and procedure and declare that Mr. Brandeis believes in them and relies on them as bases for his liberal opinions. For Mr. Brandeis is more an economist than a jurist, more a student of society than of the law. To a friend he once confessed: I first decide the case on its merits, then dig up the law. As a lawyer he gained fame for his briefs which contained a minimum of law argument and a great deal of economic and social data, on the strength of which he relied to win the court to his side of the issue. The State of Oregon passed a law that no female shall be employed in any mechanical establishment, factory or laundry more than ten hours during any one day. The constitutionality of this act was challenged by an Oregon employer, and Mr. Brandeis, then still a lawyer, represented the State of Oregon before the Supreme Court in Washington. His brief contained two pages of legal argument and one hundred pages of scien- tific data, and extracts from reports of public health bureaus of many countries, all pointing to the great evil of overwork on women in certain industries. The case was decided in favor of the State of Oregon. As a lawyer he once said: In the past, courts have reached their conclusions largely deductively, from preconceived notions and precedents. The method I have tried to employ in arguing cases before them is inductive, reasoning from the faas. Law to him has no existence separate from the facts of life which it is supposed to reg- ulate; they should both develop simultaneously. When law, as finally interpreted, dissociates itself from the real life, it cannot be said any longer to be in the service of truth and justice. The question whether utility lates are high or low obviously can- not be decided by a phrase in the law; rather there must be taken into consideration all the known facts about the utilit) ' in question as well as all the possible results that may reasonably be expected to follow in case the rates are decided one way or another. Mr. Brandeis insists that there must be a con- nection between social change and judicial deci- sion. In order to arrive at what to his mind seems to be a just decision, Mr. Brandeis does not manoeuver the law, but argues with facts and figures. In order to be able to decide whether a Nebraska law requiring a loaf of bread to be of a certain minimum weight was constitutional, Mr. Justice Brandeis made a thorough study of the technique of baking. Remember, he once said, arithmetic is the first of sciences, and the mother of safety. It is because of his worship of facts and his willingness to be guided by them that Brandeis became a liberal. From the darling of the rich in aristocratic Boston he naturally changed into the people ' s counsel, and from an indif- ferent Jew he was transformed into an ardent Zionist. The strange transformation from a de- fender of corporations to a defender of public interests happened as a result of preparations for a course in Business Law which he was asked to give to the students of the Massachusetts Institute of Technology. Studying the law, as well as the industrial unrest of the time, he was led to the conclusion that the Common Law, built up for a simpler life, is inadequate for the complex rela- tions of the modern factory system, and that labor was given inadequate protection. Then followed a period of fighting against the big corporations, for he now saw the many evils that may accrue to labor and to the country as a whole from un- leashed monopolistic corporations as well as from the great waste of uncontrolled competition. He was able so say: I had my share of big corpora- tion work. I even worked for a trust or two. Perhaps that is one reason why I am not a cor- poration lawyer now. Twenty-eighl

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MASMID Urandeis: liis Approach to Ju.slice ? By A. M, Mi:yi;r.son What is juslin ' in ii ilian in world? In a Static society, wIkit ilir rrl.iiionsliip.s between the individual and tiie roiip, the wori er ami iiis im- pioycr, the citizen and ruler or rulers, are more or less permanently established, the jud c, upon whom falls the duty to settle litigation -wliich is unavoidable even under the most ideal of social systems — has a solid foundation on which to base his judicial decisions. The laws correspond more or less to the general conditions prevailing in that society, and the duty of the judge would then be to decide how far a given law was trespassed upon, what relationship was disturbed by the act of the defendant at court. He, the judge, would receive further help and guidance from the gen- erally accepted moral precepts and sense of values. His search for the right or wrong in any given case would thus be made easy, and his decisions would not be questioned in our hypothetical society. In a society like ours, however, where everybody and everything is in constant flux, where daily new, unforseen and uncontrolled forces destroy, qualify or create new relationships, continuous con- flicts are the rule rather than the exception. Con- cepts of right and wrong, good or bad, have lost their old meaning but have not as yet acquired a new one. It is impossible for law and legislation to keep abreast of the fast moving times. The task of the judge to discover .and apply justice in such a world becomes more and more diflicult to perform, often fraught with grave dangers, almost always determinative of the course the future will follow. The above is especially true of a country like the United States w ' here the Supreme Court is the final arbiter of all questions upon which it chooses to pass. Tlie Supreme Court of the United States has the last word on questions of law, its in- terpretation and application. It is true that the highest court of the land is sup[X)scd to be guided in the performance of its duties by the funda- nuntal law, the Constitution. Yet, every student of American Constitutional Law will agree that, in the words of Professor Felix Trankfurter, the Supreme Court is the C onstitution. In other words, the prejudiced opinions held by the majority of the members of that court at a given time hold the balance of power between conflicting forces in organized society, and are therefore the most supreme power in the country. Before the American public lies at present the problem: How far should the government go in control and supervision of industry and commerce? The N. R. A. and other Roosevelt policies are an attempt to gain for the government greater power in these matters. Yet the whole New Deal still hangs in the balance, because thus far the Supreme Court has not yet expressed an opinion on its constitutionality. Incidentally, this fact also ex- plains the vagueness and vacillations of the New- Deal. Under such conditions, the question as to how the judges arrive at their decisions becomes of utmost importance. As this paper is a study of Justice Brandeis ' approach to justice, we need concern ourselves only with his particular method and policies. It so happens, however, that Brandeis, in his personality, both before and after his eleva- tion to the Supreme Court, personifies the pulse of modern life and the clamor of the new forces for recognition. The philosophy of the New Deal, as far as it may he said to possess one, coincides in the main with the ideas and ideals of Mr. Brandeis. as expressed in his addresses, briefs and judicial decisions. When asked once what his social philosophy WAS. Mr. Brandeis answered: I have no rigid Tueni -seien

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M A S M 1 D Realism, cxpc-ricncv, ilirul l)iii lilc, ilicsc liclp him jiiilgc the merits of a case, ami they supply him with the facts to defend his opinion. In this approach to justice, both as a lawyer ,muI .i jud c, he was a pioneer, the first, in each lasc, lo i.ikc full accoimt of what is happening ouisidt the I ' oirr walls (if the jiidi e ' s chamhcr. i ' lir this .ilocc Hraiidtis will ixinain ininuiri.il, ' Ihoiigh Mr. Urandeis has no ildiniiu philosophy of law, a few fundamental iHlitl ' s of .ilniost axiomatic strength may he discerned through all his writings. They arc his credo as a man and his guiding stars as a jurist. Once turned a liberal he agitaicil lor and de- fended in court such liberal legislation as minimum wage laws, shorter hours for women, rights of labor, woman ' s suffrage, workmen ' s compensation, protection of holders of life insurance policies. A warm sympathy for the underprivileged and a deep sense of righteousness are the latent forces that have now come to the fore and demanded expression in social propaganda and political action. ' ct Mr. Hrandeis is a firm individualist. This he has shown not only in his fights against tlic trusts and other concentrations o f power in the econoinic arena, but also in defending self-expres- sion by the individual in the press and the public forums, at home and at work. In one place he speaks of the right to be left alone as the most comprehensive of rights, and the right most valued by civilized man. Individual liberty, however, cannot be achieved without econoinic freedom. Worshipping not words but facts, he demands a society where in- dividual freedom of action is just as much a part of the rights of a orker as it is of his employer. The Roosevelt plan for insurance of every . merican person against the usual contingencies of modern life was long ago advocated by Brandeis in the following statement: We must find means to create in the individual financial independence against sickness, accidents, unemployment, old .ige and the dread of leaving his family destitute if he suffer premature death. We have become practi- cally a world of employees; anti if a man is to have real freedom of contract in de.iling with his employer he must be financially indcix-ndcnt of the.se ordinary contingencies. Unless wc protect him from this oppression it is useless to call him free. Brandeis is a democrat. But his belief is in democracy as a practice, not merely as an ideal. He started with the assumption that in this tountry every person of voting age belongs (or should belong) to the ruling class. Therefore he is in favor not only of high minimum wages but also of a minimum of leisure so that e ' cn the workingman may have ample time to study and understand the problems that his country is faced with. The individual, whoever he be-, must not bc separated from his rights in the continuous flux of affairs. But no right whatsoever should be absolute in a world where everything is subject to change. For all rights are derived from the purpose of the society in which they exist; above all rights rises the duty to the country. Here we see Brandeis the Individualist sacrificing of his liberty for the benefit of the group. The concept of social justice is superior to that of individualism. And who shall hold the balance between the two but the government. ' The government must keep order not only physical but social. While on the bench Mr. Brandeis continues his close contact with the social and economic phases of modern life even as he did before, and he grows with them. From advocating the removal of the more prominent abuses of modern industry- he has advanced to the sanaion of social experi- mentation which demands as a prerequisite definite checks on individual enterprise. The Legislature of Oklahoma found that more ice w.is being pro- duced in that state than was being demanded. Ir tlierefore passed a Law forbidding the building of new ice faaories until warranted by the demand. On appeal, the Supreme Court declared this law to be unconstitutional. Justice Brandeis delivered a dissenting opinion that has already become classical and which reads like a charter for the