SPOTLIGHT CLE: LOUIS D. BRANDEIS, KENTUCKY ROOTS –

100 YEARS LATER

CLE Credit: 1.0 Wednesday, May 11, 2016

3:35 p.m. - 4:35 p.m. Cascade Ballroom B

Kentucky International Convention Center Louisville, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenters ................................................................................................................. i Introduction ..................................................................................................................... 1 Brandeis Timeline ........................................................................................................... 2 Top Ten Legal Issues for which Brandeis Was Known – Application Today .................... 3 Not in the Top Ten, but Other Principles for which Brandeis Is Known ............................ 9 Brandeis on Legal Education and the Legal Profession ................................................. 10 Bibliography .................................................................................................................. 14

THE PRESENTERS

Howard Fineman The Huffington Post

Washington, DC

HOWARD FINEMAN is Global Editorial Director of The Huffington Post, an analyst for NBC News and MSNBC, and author of a best-selling book of political history, The Thirteen American Arguments. He is a leader of a team that has grown Huff Post into one of the world's largest news sites with 14 editions worldwide and more than 200 million unique visitors a month. He appears on MSNBC's Hardball with Chris Matthews, Morning Joe and other MSNBC shows and on NBC's Today. Before joining Huff Post he was chief political correspondent, senior editor and deputy Washington Bureau chief of Newsweek. During the course of his award-winning career, Mr. Fineman has interviewed every president and major presidential candidate since 1988, as well as figures in business and entertainment such as Bill Gates, Ted Turner, Jay Leno and Glenn Beck. He has been awarded numerous professional honors including National Magazine, American Bar Association and Sigma Delta Chi (journalism fraternity) awards, the Alumni Award from the Columbia Journalism School; and an honorary doctorate in 2011 from his college alma mater, Colgate University. In May 2013, the University of Louisville, where he attended law school while working as a newspaper reporter, awarded him an honorary doctorate. Mr. Fineman has lectured at more than forty colleges and universities and in 2010 gave a series of lectures at the University of Pennsylvania's Kelly Writers House and Annenberg School for Communication. He has appeared on virtually every major news show, from Face the Nation and Good Morning America to Washington Week in Review to The Daily Show with John Stewart and The Colbert Report. Mr. Fineman joined The Huffington Post in September 2010 as political editor and was named editorial director of a newly created Huff Post Media Group after the company's merger with AOL in March 2011. He began his career at The Courier Journal, where his coverage of the United Mine Workers' record 111-day strike was a finalist for a Pulitzer Prize in national reporting. He also covered local and state politics and the Kentucky legislature, as well as energy and environmental issues. Mr. Fineman has won several awards to travel and report worldwide, including Watson and Pulitzer traveling fellowships to Europe and the Middle East and a Committee of 100 program award to interview leaders in government, business and the arts in China.

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Professor Laura Rothstein Louis D. Brandeis School of Law University of Louisville Louisville, Kentucky 40292 (502) 852-6288 laura.rothstein@louisville.edu LAURA ROTHSTEIN joined the Louis D. Brandeis School of Law at the University of Louisville as Professor of Law and Dean in 2000 (serving as dean until 2005). During her thirty-nine years in legal education, she has taught a number of subjects at five law schools. She has written five books and hundreds of articles on disability rights and other issues. Her primary area of expertise is disability discrimination law in which she applies her extensive scholarship (including the first textbook on Special Education Law). She also teaches first year property, which includes coverage of the views of Justice Brandeis on key property and land use issues. During her tenure as dean, Professor Rothstein engaged in a number of activities to raise awareness of the extraordinary influence and wisdom of Louis Brandeis, a native of Louisville, Kentucky and for whom the University of Louisville School of Law was named in 1997. She has continued that mission as a faculty member. Her work includes an annual presentation to the law school community about Justice Brandeis and his connection to Louisville and the university, co-chairing a 2006 Sesquicentennial Celebration of Louis D. Brandeis at 150, numerous talks to community groups (JCC; Rotary; The Temple) about Justice Brandeis, a 2009 book review in the Courier Journal about Mel Urofsky's book Louis D. Brandeis: A Life, and appearing in the 2007 documentary Justice Louis D. Brandeis, The People's Attorney, which is shown frequently on PBS stations. In 2008, she moderated a KBA program on Brandeis and the Ethics of Public Service. Professor Rothstein received her J.D. from Georgetown University Law Center and is a member of the American Law Institute.

Melvin I. Urofsky 218 Bristol Downs Drive

Gaithersburg, Maryland 20899 Melvin.urofsky@verizon.net

MELVIN I. UROFSKY is Professor Emeritus of History at Virginia Commonwealth University. He received his B.A., M.A. and Ph.D. from Columbia University and his J.D. from the University of Virginia School of Law. Professor Urofsky is a member of the Organization of American Historians and the American Legal History Society. He is widely published and the author of Louis D. Brandeis: A Life.

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LOUIS D. BRANDEIS KENTUCKY ROOTS – 100 YEARS LATER

Professor Laura Rothstein I. INTRODUCTION

In 2009, when reviewing Mel Urofsky's biography of Louis D. Brandeis, Alan Dershowitz noted that if one were ranking the top judges in America's history, Justice Louis D. Brandeis would rank in the top three. If the top lawyers were ranked, nearly every list would rank Louis Brandeis (along with Abraham Lincoln) on the top of the list. The only person whose name would appear on both lists would be Louis Brandeis. January 28, 2016, marks the 100th anniversary of the nomination of noted lawyer and social reformer Louis Brandeis to be a Justice of the United States Supreme Court, a nomination process that took more than four months to complete because of the controversy about his progressive philosophy. The Commonwealth of Kentucky can be proud that Louis D. Brandeis is a native of Kentucky and Louisville and that he always remained strongly connected to the community that shaped his values and principles. He was born in Louisville and chose the University of Louisville School of Law (which was named for him in 1997) as the final resting place for his remains. To mark the occasion, a panel of individuals who have long held Brandeis in high esteem will reflect on how his views on a wide range of issues are extraordinarily relevant today. The panelists are: Melvin I. Urofsky (biographer of Louis D. Brandeis and past Brandeis Medal recipient) and Laura Rothstein (Professor and former Dean, Brandeis School of Law) and moderator Howard Fineman (nationally recognized journalist and graduate of the Brandeis School of Law).

The panel will consider questions such as:

1. Could Brandeis be confirmed today? 2. What is the influence of his work on recent developments on issues such

as free speech; big data; Edward Snowden; legalization of marijuana sales in some states; voting rights issues; the abortion debate; minimum wage increases; Facebook; the Affordable Care Act; the Citizens United decision?

3. How did his life in Kentucky and Louisville shape his judicial philosophy? 4. What influence remains in Supreme Court and lower court decisions? 5. What was his impact on legal education and legal developments as a

result of his influence with his judicial clerks (many of whom became law professors and/or judges)?

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6. How might his views of international issues be viewed today within American jurisprudence?

II. BRANDEIS TIMELINE

1856 Born in Louisville (November 13) 1870 Graduates from Male High School 1872 Brandeis and his family go to Europe Attended Annen-Realschule in Dresden until 1875 1875 Enrolled at Harvard Law School 1877 Graduation from Harvard Law School at the head of the class at age

twenty 1879 Begins practice with Samuel Warren in Boston after practicing briefly

in St. Louis with his brother-in-law 1890 Publishes "The Right to Privacy" with Samuel Warren, still one of the

most cited law review articles in history 1891 Marries Alice Goldmark 1907 Savings Bank Life Insurance Company established as a result of

advocacy of Brandeis 1908 Writes the Brandeis Brief, using social science and economics as part

of a legal argument in the Muller v. Oregon case argued before the Supreme Court

1916 Nominated to the United States Supreme Court (January 28

nomination; June 1 Senate confirmation) 1939 Resigns from the Supreme Court 1941 Dies (October 5); remains and those of Alice Goldmark rest in the

portico of the University of Louisville School of Law 1997 University of Louisville School of Law re-named Louis D. Brandeis

School of Law Law school adopts public service requirement for all students

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III. TOP TEN LEGAL ISSUES FOR WHICH BRANDEIS WAS KNOWN – APPLICATION TODAY1

A. Privacy – "Right to Privacy" article; Olmstead v. United States

(wiretapping) (1928) – Edward Snowden; use of big data; Facebook (right to be unknown)

1. Olmstead v. United States, 277 U.S. 438, 478 (1928).

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

2. "The Right to Privacy," Harvard Law Review v.4 no.5 (December

15, 1890), p.195.

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."

3. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue (2015) (pages 184-5, 192, 198, 199-202, 203-4, 205, 206, 274, 340, 350, 357, 415, 425, 426).

In Olmstead, Brandeis "wanted to call attention to what he considered a fundamental right – that of privacy or, as he put it, the right to be let alone."

1 Appreciation is expressed to Peter Scott Campbell, member of the Brandeis School of Law faculty for providing quotes for these topics.

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This dissenting opinion "has resonated very strongly with many Americans. … Brandeis changed our understanding of what the Fourth Amendment means. … [A]fter the Olmstead decision it proved impossible to deal with Fourth Amendment issues without taking his views into account. The dissent…became part of the ongoing constitutional dialogue…" The public debate after news about NSA eavesdropping "surely confirmed Brandeis's opinion of privacy as the right most prized by free men." (pp. 184-185).

B. Freedom of Speech – Whitney v. California, 274 U.S. 357 (1927)

1. Quoted in Alpheus Mason's A Free Man's Life (Viking Press, 1946) p. 506.

No man but a fanatic can be sure that his opinions – political, economic, or social – are correct. But no man, be he reactionary or progressive, ought to doubt that free thought and free speech are necessary in a democracy; and that their exercise in things public should be encouraged.

2. Whitney v. California, 274 U.S. 357, 376 (1927).

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears."

3. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the

Court's History and the Nation's Constitutional Dialogue (2015) (pages 5, 166, 181, 192, 454, 488).

4. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the

Court's History and the Nation's Constitutional Dialogue (2015) (on free speech – pages 25, 163, 167-84, 230, 291, 293, 297, 298, 299, 300, 301).

5. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the

Court's History and the Nation's Constitutional Dialogue (2015) (on picketing as protected speech – pages 239, 293).

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C. Race Issues in Education – Brandeis Brief – Muller v. Oregon (1908) – Brown v. Board of Education (1954)

1. Business – A Profession (Small, Maynard and Co., 1925) p.liv.

"I see no need to amend our Constitution. It has not lost its capacity for expansion to meet new conditions, unless it be interpreted by rigid minds which have no such capacity. Instead of amending the Constitution, I would amend men's economic and social ideals."

2. "The Right to Privacy," Harvard Law Review v.4 no.5 (December

15, 1890), p.193

"Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society."

3. The Letters of Louis D. Brandeis v.2 (State University of New York

Press, 1972) p.601.

I have confidence that the courts will recognize that the right to do what is necessary to protect and develop a man is correlative to the obligation to do so. We cannot perform the recognized social obligation of taking care of those financially or morally needy unless we have the right to deal with them as wisdom demands.

D. The Curse of Bigness – and Other People's Money – Regulation of

Corporate Activity and Antitrust Enforcement; Extended Distrust of Size to Government Size as Well – Citizens United

1. The Curse of Bigness (Viking Press, 1934) p.107.

The successful, the powerful trusts, have created conditions absolutely inconsistent with these – America's – industrial and social needs. It may be true that as a legal proposition mere size is not a crime, but mere size may become an industrial and social menace, because it frequently creates as against possible competitors and as against the employees, conditions of such gross inequality as to imperil the welfare of the employee and of the industry.

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2. Other People's Money and How Bankers Use It (Franklin A, Stokes Co., 1914) p.163.

"Size, we are told, is not a crime. But size may, at least, become noxious by reason of the means through which it was attained or the uses to which it is put."

3. The Family Letters of Louis D. Brandeis (University of Oklahoma

Press, 2002) p.533.

"If the Lord had intended things to be big, he would have made man bigger – in brains and character."

4. The Brandeis Guide to the Modern World (Little, Brown and Co.,

1941) p.20.

"Bigness is still the curse. It is idle to say that we are helpless. By taxation bigness can be destroyed. The power is there: what we create we can destroy."

5. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the

Court's History and the Nation's Constitutional Dialogue (2015) p.188.

The first cases in which Brandeis wrote on antitrust amazed some of his reform colleagues. He spoke for a unanimous Court in holding that the Chicago Board of Trade's rules on futures trading, which essentially locked out a group of warehousemen, did not violate the antitrust laws. Then Brandeis dissented when his colleagues held that an association of hardwood manufacturers violated the antitrust law, arguing that the group had legitimate reasons for sharing pricing and other information and that their cooperation fostered rather than limited competition. As one might expect, Brandeis wanted the courts to examine the facts.

6. Peter Scott Campbell, "Democracy v. Concentrated Wealth: In Search of a Louis D. Brandeis Quote," http://www.greenbag.org/ v16n3/v16n3_articles_campbell.pdf (discussing the origins of the attributed Brandeis quote that "We can have a democratic society or we can have a concentration of great wealth in the hands of a few. We cannot have both.") The article notes "While there is not positive proof Brandeis ever said these exact words, he expressed a similar sentiment numerous times. If it is not a Brandeis quote, it is certainly a Brandeisian one."

What is the influence of Brandeis on the consolidation in the airline, pharmacy retail, and other industries? How might today's policymakers consider his views on protecting small business? The public? Or both?

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How might his perspectives influence the thinking about the small number of very wealthy individuals who influence political campaigns?

E. States as Laboratories of Democracy (Relates to Views on Role of Federal/State Governments) and Balance between State and Federal Laws – Erie Railroad Co. V. Tompkins (1930) – Right to Die, Abortion, Marijuana Sale and Use, Firearms Regulation

1. New State Ice Company v. Liebmann, 285 U.S. 262, 311 (1932).

"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

2. Justice Stephen Breyer, "Justice Brandeis as Legal Seer," 42

Brandeis L.J. 711(2004).

3. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue (2015) (page 187).

[In the Liggett v. Lee dissent, Brandeis] "in the best Brandeis brief style, [went on] to explain why the legislature believed big corporations posed a danger and contributed to the current economic distress. Six decades later, Justice Sandra Day O'Connor would be citing Brandeis' view of the states as laboratories for economic and social experiments in dealing with a new and difficult issue, the right to die."

F. Transparency – Sunlight Is Said to Be the Best Disinfectant…. –

Pinchot-Ballinger Affair (1910) – Publicity As the Remedy for Social Injustice

Other People's Money and How Bankers Use It (Franklin A.

Stokes Co., 1914) p.92.

"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

G. Public Service – The People's Lawyer

1. Brandeis on Zionism (Zionist Organization of America, 1942) p.37.

"The true happiness in life is not to donate, but to serve."

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2. The Curse of Bigness (Viking Press, 1934) p.266.

Some men buy diamonds and rare works of art, others delight in automobiles and yachts. My luxury is to invest my surplus effort, beyond that required for the proper support for my family, in the pleasure of taking up a problem and solving, or helping to solve it, for the people without receiving any compensation. Your yachtsman or automobilist would lose much of his enjoyment if he were obliged to do for pay what he is doing for the love of the thing itself. So I should lose much of my satisfaction if I were paid in connection with public service of this kind.

H. Progressivism – Use of Law for Social Change – Impact on His

Nomination to the Court

The Letters of Louis D. Brandeis v.2 (State University of New York Press, 1972) p.532.

"The courts accept and interpret the progress which society has made; but progress in a democracy implies the people's freedom to criticize and develop the very civilization which the courts conserve."

I. Worker Rights – Creation of Savings Bank Life Insurance Company

(1907); Labor Negotiations Work

1. The Letters of Louis D. Brandeis v.2 (State University of New York Press, 1972) p.532.

The workingman sees the club of the officer, the bayonet of the militia, directed against him in the defense of property, and he believes that the hand of the law, strong in the protection of property, often drops listless whenever measures are proposed to lighten labor's heavy burden.

2. The Curse of Bigness (Viking Press, 1934) p.92.

Both labor and employers should bear constantly in mind that each is his brother's keeper; that every employer is injured by any single employer who does labor a wrong; and that every laboring man and every union is injured by every individual unionist who does an employer wrong.

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J. Acquisition of Facts – How Internet Might "Level the Playing Field"

Interstate Trade Commission – Hearings before the Committee on Interstate and Foreign Commerce, House of Representatives. Sixty Third Congress, Second Session, January 30 to February 16, 1914. (Washington: Government Printing Office, 1914.) p.5.

"Knowledge is essential to understanding and understanding should precede judging."

IV. NOT IN THE TOP TEN, BUT OTHER PRINCIPLES FOR WHICH BRANDEIS IS

KNOWN

A. Limiting Presidential Discretion – Immigration Issues; Middle East Military Actions; Use of Executive Orders (Delay in Implementing the Affordable Care Act Employer Mandate)

1. Schecter Poultry v. United States, 295 U.S. 495 (1935) (declaring

National Industrial Recovery Act to be unconstitutional; discussing dangers of unfettered Presidential discretion) and Louisville Joint Stock Landbank v. Radford, 295 U.S. 555 (1935) (declaring Frazier-Lemke Act unconstitutional; Fifth Amendment does not allow taking private property without just compensation no matter how great the nation's needs).

2. Shadee Ashtari, "Obama Has Issued Fewer Executive Orders

than Any President in the Last 100 Years," Huffington Post, November 24, 2014.

B. Environment – Pinchot Ballinger Affair; Drilling in Alaska, BP Oil Spill;

Fracking

Boston American, January 8, 1911.

Conservation means not merely saving the natural resources of the country and preventing wastes; it means utilizing fully the opportunities offered; saving the natural resources to the people, utilizing them for the people, so devising legislation and administration of the government that the people as a whole may get the benefits instead of their going to the special interests which are unduly enriching themselves to the injury of the people.

C. Zionism

The Curse of Bigness (Viking Press, 1934) p.209.

"Practical experience and observation convinced me that to be good Americans, we must be better Jews, and to be better Jews we must be Zionists."

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D. Democracy

Boston Record, April 14, 1903.

"The most important office and the one which all of us can and should fill is that of private citizen. The duties of the office of private citizen cannot under a republican form of government be neglected without serious injury to the public."

E. Leisure

1. Quoted in Alpheus Mason, A Free Man's Life (Viking Press, 1946)

p.78

"I soon learned that I could do twelve months' work in eleven months, but not in twelve."

2. Letter to William Harrison Dunbar, February 2, 1893.

"The bow must be strung and unstrung … there must be time also for the unconscious thinking which comes to the busy man in his play."

V. BRANDEIS ON LEGAL EDUCATION AND THE LEGAL PROFESSION

"It is, as a rule, far more important how men pursue their occupation than what the occupation is which they select."

"The Opportunity in the Law," 39 American Law Review 555 (1905)

As is the case with other issues, Brandeis provides perspective and wisdom about both the practice of law and about the process of legal education. Within the practice, he was adamant about preparation and having the facts, working hard, the obligation to provide public service, and the duty to perform any occupation ethically and with civility. As is noted below, his appreciation for the role of legal education and how to use the law to teach is evident. The legal profession and the role of legal education related to the profession is going through an extraordinary evolution. In summer 2012, the American Bar Association created a Task Force on the Future of Legal Education to make recommendations for how to change the economics of legal education and how it affects the practice of law. In January 2014, the Task Force issued its report and recommendations. The key conclusions focused on pricing and funding of legal education, the accreditation process, implementing innovation (and doing so in a way that is transparent), more attention to skills training and experiential learning (balancing doctrinal learning and focused preparation for the delivery of services, and a broader system of delivery of legal services (that would open up delivery of these services by those who do not have a J.D.). http://www.americanbar.org/ content/dam/aba/administrative/professional_responsibility/report_and_recommendations_of_aba_task_force.authcheckdam.pdf

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What is the influence of Louis Brandeis on these issues? See e.g., Melvin I. Urofsky, "Louis D. Brandeis on Legal Education," 22 Am. J. Legal History 189-201 (July 1978).

One of the key aspects of the life of Louis Brandeis was that he was a teacher. The following book review highlights that and frames the thought that Brandeis gave to the role of education and learning. The following excerpt from a book review of a biography by Melvin I. Urofsky reflects the influence of Louis Brandeis on legal education and the value he placed on learning and teaching.

BOOK REVIEW Louis D. Brandeis: A Life By Melvin I. Urofsky 'Louis D. Brandeis: A Life': Brandeis as Teacher By Laura Rothstein © 2009 Published in the Courier Journal, November 8, 2009

"Knowledge is essential to understanding and understanding should precede judging." This Brandeis quote is featured on the Harold Berg mosaic in the University of Louisville Louis D. Brandeis School of Law entry area only a few feet from the final resting place of the Louisville native for whom the law school is named. It appropriately captures a key element in the life of Louis Brandeis, teaching and learning and its value to building and maintaining a just society for all. Most Louisvillians are aware that Louis Brandeis was born (1856) and raised in Louisville, and many know of his commitment to privacy, free speech, and opposition to big government and big business. In spite of his name recognition, many Louisvillians do not know a great deal about his life and work. Melvin I. Urofsky's Louis D. Brandeis: A Life provides a marvelous opportunity to learn why Brandeis is still (even 70 years after he resigned from the Court in 1939) such an icon and why his ideas and principles are relevant to the social and political issues of the twenty-first century. With numerous other biographies and books and other publications about Brandeis (including many by Urofsky himself) what is special about this one? Although many other works provide rich detail and insight into every aspect of Brandeis, this is the first major biography in fifteen years and it benefits from looking at Brandeis and his views in light of current issues. Melvin I. Urofksy, a professor of law and public policy at Virginia Commonwealth University, has written about Brandeis for almost four decades, including both a five-volume collection of his professional letters and a 2002 annotated volume of The Family Letters of Louis D. Brandeis (both with another noted Brandeis biographer David Levy). The personal letters are found in the

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University of Louisville Brandeis School of Law library archives, a rich source of research for many Brandeis scholars. *** Urofsky's rich and detailed biography often includes a specific reference to a current issue and analyzes it from a Brandeis perspective. He emphasizes how Brandeis dissents have almost all become the prevailing view of the law today, a testament to his prophetic abilities and his enduring values. Even without the author's highlighting, the reader is frequently reminded in reading the book of how much of Brandeis's life work is relevant today. The preface notes the challenge of capturing in a biography the four exemplary careers of one of the most recognized and respected figures in American history, an individual whose reputation spanned the globe. Urofsky weaves together the story of the lawyer, the reformer, the Zionist, and the jurist into a single tapestry that interrelates these four careers. A theme uniting all aspects of his life and these four careers was Brandeis as teacher. Throughout the book, it is clear that Brandeis valued teaching, learning, understanding, and the importance of supporting educational institutions. Urofsky demonstrates that the foundation for Brandeis's life work was his Louisville roots and his highly educated and industrious family and extended family. Many of Louis Brandeis's brother Alfred's descendants still live in Louisville. Brandeis learned from the example of his family regarding social justice (they were abolitionists) and the world of business (from his father's successful grain dealership). The first mention of Brandeis as teacher is at age 16, while attending school in Dresden, Germany, where his family had gone to escape the economic downturn from the Civil War. Louis, "sensitive to the diminishing family fortunes…earned some money by tutoring students who wanted to learn English." It was at this school that Brandeis "really learned to think." He discovered that "ideas could be evolved by reflecting on…material…." After Brandeis returned to America, he attended Harvard Law School, graduating two years later at age 20 with the highest grade point in the school's history. While there, he was exposed to the new approach to legal education that replaced memorization of rules with understanding how legal rules evolved and how facts mattered. After a short time in practice with his brother-in-law in St. Louis, Brandeis returned to Boston and his legal career began in earnest. As a reformer, one of his proudest achievements was the creation of the Savings Bank Life Insurance Company to counter the unconscionable practices by some life insurance companies. These practices included onerous forfeiture penalties for life insurance policies purchased by low income workers, where a

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policy would be canceled and all premiums lost after only a single missed payment. Some insurers also used premium payments for sometimes risky investments instead of keeping funds secure as was required for banks. After gathering the facts, Brandeis devised an innovative plan to allow banks to provide insurance policies and to encourage workers to save money at the same time. He then set out to "educate" the public, the Massachusetts Legislature, and savings bank officials that his plan allowing banks to provide these insurance policies in a way that would better protect workers would work. The plan would also provide competition for the existing insurance companies. He wanted people to "own the reform" and "that required education." Brandeis viewed this and other pro bono work as public service, a unique concept at the time. Brandeis became known as the "People's Attorney," and his example became the model for all lawyers to perform public service. Brandeis taught law only briefly at Harvard, but he encouraged all of his law clerks on the Supreme Court to go into law teaching, and most did, including his last clerk, Adrian Fisher, who later became dean of Georgetown University Law Center. While serving on the Supreme Court he would frequently say to his clerks who had worked with him on numerous drafts of a dissenting opinion, "Now I think the opinion is persuasive, but what can we do to make it more instructive." This effort to "teach" through his opinions bore fruit, when almost all of his dissents eventually became the prevailing view. Valuing education and ensuring that academics were supported is demonstrated by his efforts to rescue academics from Nazi Germany before World War II. The University of Louisville and its law school also benefited from the numerous generous gifts by Brandeis to support libraries and provide Supreme Court briefs to the law library, a resource of great value before the internet age. Brandeis was a teacher by example and by the way he lived his life. He thought the government served the role of teacher as well. In a famous dissent, he wrote, "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." The Urofsky biography is richly detailed and annotated with endnotes referencing correspondence, legal sources, newspaper stories, and other documents. It is a treasure trove of information about American history and politics from the Civil War to World War II, the Supreme Court, Zionism, regulation of business, ethics, and other topics. And throughout the book, Urofsky informs us about Brandeis as teacher.

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The reviewer is professor of law and distinguished university scholar at the Louis D. Brandeis School of Law of the University of Louisville where she served as dean from 2000 to 2005.

http://archive.courier-journal.com/article/20091108/FEATURES06/911080327/ New-biography-pictures-Brandeis-teacher

VI. BIBLIOGRAPHY

A. Works by Brandeis

1. "The Right to Privacy" (co-authored with Samuel D. Warren), 4 Harvard Law Review 193-220 (1890).

2. Other People's Money, and How the Bankers Use It. (New York:

Frederick A. Stokes Co, 1914.) 3. Business – A Profession. (Boston: Small, Maynard & Co., 1914.) 4. The Curse of Bigness: Miscellaneous Papers of Louis D.

Brandeis. Edited by Osmond K. Fraenkel. (New York: Viking Press, 1934.)

5. The Unpublished Opinions of Mr. Justice Brandeis: The Supreme

Court at Work. Edited by Alexander M. Bickel. (Cambridge: Belknap Press, 1957.)

6. The Letters of Louis D. Brandeis. 5 volumes. Edited by Melvin I.

Urofsky and David W. Levy. (Albany: State University of New York, 1971-1978.)

7. "Half Brother, Half Son:" the Letters of Louis D. Brandeis to Felix

Frankfurter. Edited by Melvin I. Urofsky and David W. Levy. (Norman: University of Oklahoma Press, 1991.)

8. The Family Letters of Louis D. Brandeis. Edited by Melvin I.

Urofsky and David W. Levy. (Norman: University of Oklahoma Press, 2002.)

B. Opinions

1. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (A 1936 case about the construction of the TVA dam. Brandeis wrote a concurring opinion that outlined seven rules that offered guidance to the types of cases the Supreme Court should – or should not – hear. These rules have come to be called the Ashwander Rules.)

2. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (A 1938 case

involving a man who was injured by a passing train. Brandeis's opinion asserted that federal courts should adhere to state law when settling cases that arise between states.)

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3. New State Ice v. Liebmann, 285 U.S. 262 (A 1932 case involving Oklahoma's requirement that companies manufacturing ice should be licensed. The Court struck down the Oklahoma law, but Brandeis dissented, arguing that states should have the leeway to experiment to solve their problems. This opinion is the source of the famous quote which described states as the "laboratories of democracy.")

4. Olmstead v. United States, 277 U.S. 438 (A 1928 case involving

the conviction of a bootlegger based on evidence gathered from a telephone tap. The Court upheld the conviction but Brandeis dissented, arguing that the police violated the Fourth Amendment by not obtaining a warrant for the tap.)

5. Whitney v. California, 274 U.S. 357 (A 1927 case in which the

Court upheld the conviction of a woman for violating California's law against speaking out in favor of the overthrow of the government. In a concurring opinion, Brandeis made a stirring statement on the importance of free speech.)

C. Books about Justice Brandeis

1. Jacob de Haas, Louis D. Brandeis; a Biographical Sketch. (New

York: Bloch Publishing Co., 1929.)

2. Alfred Lief, Brandeis; the Personal History of an American Ideal. (New York: Stackpole Sons, 1936.)

3. Alpheus Thomas Mason, Bureaucracy Convicts Itself. (New York:

The Viking Press, 1941.)

4. Alpheus Thomas Mason, Brandeis, a Free Man's Life. (New York: The Viking Press, 1946.)

5. Samuel J. Konefsky, The Legacy of Holmes and Brandeis. (The

Macmillan Company, 1956.)

6. Melvin I. Urofsky, A Mind of One Piece: Brandeis and American Reform. (New York: Charles Scribner's Sons, 1971.)

7. Allon Gal, Brandeis of Boston. (Cambridge: Harvard University

Press, 1980.) 8. Nelson L. Dawson, Louis D. Brandeis, Felix Frankfurter, and the

New Deal. (Hamden: Archon Books, 1980.) 9. Melvin I. Urofsky, Louis D. Brandeis and the Progressive

Tradition. (Boston: Little, Brown and Company, 1981.) 10. Lewis J. Paper, Brandeis. (Englewood Cliffs: Prentice-Hall, Inc.,

1983.)

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11. Leonard Baker, Brandeis and Frankfurter: A Dual Biography. (New York: Harper & Row, 1984.)

12. Philippa Strum, Louis D. Brandeis: Justice for the People.

(Cambridge: Harvard University Press, 1984.) 13. Nelson L. Dawson, editor. Brandeis and America. (Lexington:

University of Kentucky Press, 1989.)

14. Philippa Strum, Brandeis: Beyond Progressivism. (Lawrence: University Press of Kansas, 1993.)

15. Stephen W. Baskerville, Of Laws and Limitations: An Intellectual

Portrait of Louis Dembitz Brandeis. (Cranbury: Associated University Presses, 1994.)

16. Edward A. Purcell, Jr., Brandeis and the Progressive Constitution.

(New Haven: Yale University Press, 2000.) 17. Brandeis at 150: The Louisville Perspective, Sesquicentennial

Publication prepared by the Louis D. Brandeis School of Law. (Butler Books 2006.)

18. Melvin I. Urofsky, Louis D. Brandeis: A Life. (New York: Pantheon

Books, 2009.)

D. Recent Books about Justice Brandeis

1. Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue (Pantheon Books 2015) (includes a focus on the Brandeis dissent in the wiretapping case).

2. Philippa Strum, Speaking Freely: Whitney v. California and

American Speech Law (University Press of Kansas 2015) (includes a focus on the Brandeis focus on the value of free speech).

3. David Dalin, The Jewish Justices of the Supreme Court from

Brandeis to Kagan: Their Lives And Legacies (Brandeis University Press 2016).

4. Jeffrey Rosen, Louis D. Brandeis: American Prophet (Yale

University Press 2016).

E. In Addition

Current information about Brandeis can be found on a blog by Scott Campbell, faculty member at the Brandeis School of Law – The Brandeis and Harlan Watch blog: https://brandeiswatch.wordpress.com/.

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