Wednesday, December 17, 2008

Unlearning Gerald Gunther's Learned Hand

When I was an undergrad, I read a collection of essays by Learned Hand. I do not recall which particular collection I read—there are several—but I do recall, vividly, Hand’s excellent essay on the four necessary sources of law.

One of those necessary sources is Natural Law, or what Hand termed “Super Source”. A law not rooted in Natural Law inevitably weakens the moral authority of the society that enacts such a law, as Hand pointedly noted. This truism—remarkably, not addressed by other noted American jurists—had never before come to my attention (I was twenty years old when I read the essay, and I had never given much thought to the field of jurisprudence). At the time, I thought Hand’s essay was profound. I shall have to seek out the essay in order to read it again soon, because I am not sure I would now accord the same profundity to anything Hand wrote.

Any change in sentiment on my part would have to be blamed, to some degree, on Gerald Gunther’s “Learned Hand: The Man And The Judge”, which I have just completed reading.

Gunther’s book was not written for a wide audience. Devoting hundreds of pages to the minutiae of life on the appellate bench as well as to Hand’s legal opinions, “Learned Hand: The Man And The Judge” is of interest primarily to lawyers, jurists, law professors and legal historians. I cannot imagine the book having appeal beyond those constituent groups.

Hand’s life was not particularly eventful. Hand was a lawyer and a judge, and seemed to enjoy few pursuits outside his chosen field of work. Nothing particularly notable happened to him in the course of a very long life. He cultivated few interests outside the law. He was not what we would consider “a cultivated man”. He lacked, grievously, the gift for friendship. He was a remote figure to his wife and daughters. He apparently was prone to pettiness. He was not good with money. He was not even a particularly successful advocate during his years in private practice, never enjoying the recognition and financial rewards that flow to those at the top of the profession.

Nonetheless, what was interesting about Hand was not the tissue of biographical event that marked his life. What was interesting about Hand was his mind. In the legal arena, Hand had a remarkable clarity of thought, and the ability to capture and set forth that clarity of thought in writing (two entirely discrete sets of skills). These skills made him famous during his lifetime. For decades, the name Learned Hand was synonymous with the concepts of probity, fairness, due process . . .and “the rare ability to clear out the underbrush in a forest of sticky legal thickets”, as one of my former law professors liked to say.

Hand’s celebrity did not long withstand his passing in 1961. He is largely forgotten now.

Today, lawyers know Hand—if they know him at all—as a name from the past, remembered above all as the most celebrated American jurist of the Twentieth Century never to obtain an appointment to the U.S. Supreme Court. Historians associate the name Learned Hand with a widely-hailed speech Hand gave in Central Park during World War II. Persons who are not lawyers or historians know the name Learned Hand not at all.

Gunther’s book is unlikely to change this regrettable state of affairs, because only persons fiercely determined to read in depth about Hand—and prepared to wade through lengthy extracts from innumerable legal opinions—will be able to make it through Gunther’s very long and very tedious volume.

Gunther, now deceased, was a deadly writer. He was entirely incapable of crafting graceful and lucid prose in the English language (Gunther was born in Germany in 1927; he came to the U.S. at age eleven and later was to change his name from Gutenstein to Gunther). His sole lasting work was a casebook, "Constitutional Law", first published in the 1960’s and still in use more than four decades later. (Of course, "Constitutional Law" is a compendium of key legal decisions. As such, it relies upon the words of others, not upon Gunther’s own words.)

Gunther had a checkered career. He was a late convert to the law. After graduating from law school, he was one of the last law clerks of Learned Hand, who at the time had already assumed senior status and was no longer a full-time jurist.

Gunther taught at Columbia briefly, and moved to Stanford in the early 1960’s, a time at which Stanford was not yet a nationally-recognized law school. From his perch at Stanford, Gunther lobbied behind the scenes, mercilessly, for three decades, for a seat on the U.S. Supreme Court. No one took him seriously in these endeavors, as Gunther was not remotely qualified for a seat on the highest court in the land. Nonetheless, Gunther declared himself, publicly, to be America’s Erasmus.

Gunther was also a bit of a gadfly, quite typical for one lacking a clear-eyed view of his own abilities. Gunther had the unfortunate habit of inserting himself into public controversies having nothing to do with Stanford, the law or himself. Gunther never saw a public forum or open microphone he did not instantly love. He was an object of scorn on more than once occasion, and from more than one quarter. One of his final writings was a New York Times piece in which he offered “advice” to the U.S. Supreme Court, advice that, happily, was not heeded.

One of the strangest incidents in Gunther’s academic career was his attempt to oust the President of Stanford University in the very early 1970’s. Gunther and a colleague, unsolicited, composed a paper critical of the University President and submitted it to the Stanford Board Of Trustees. Shortly thereafter, Stanford’s President stepped down.

Learned Hand clearly had made a great impression upon Gunther, because Gunther worked on his Hand biography for over twenty years. It was the major project of the last two decades of his academic life.

Alas, Hand’s life may be summarized in five sentences—“A New Englander through and through, Learned Hand, son of a lawyer, found his calling early in life. He was appointed to the Federal Bench at age 37 and remained there until his death 52 years later. He had a remarkable talent for imposing clarity upon complicated factual and legal situations. This gift for clarity made him one of America’s best-known judges. His decisions have been cited by other jurists for decades.”—yet Gunther gave himself the task of somehow stretching out the details of Hand’s life to a mind-numbing 818 pages.

Gunther accomplishes this feat primarily with legal opinions. Portions of dozens upon dozens of Hand’s 4000 judicial opinions are reprinted in Gunther’s biography. Even the lawyer’s eye quickly glazes over.

However, Gunther attempts to impose order upon this proliferation of opinion, looking for patterns and searching for a judicial philosophy—and this is precisely where Gunther’s book falls apart. Gunther’s analysis of Hand’s legal opinions is filtered through Gunther’s own peculiar opinions and beliefs, turning the legal philosophy of Hand into hash. Indeed, the book has far more to say about Gunther’s judicial philosophy than it has to say about Hand’s.

For a start, Gunther makes no mention of Hand’s greatest contribution to American jurisprudence: Hand’s formulation of tort negligence. Hand’s analysis is still in use today, and was certainly his most insightful, original and enduring contribution to the field of American law—and yet Hand’s tort analysis is utterly ignored (aside from a passing reference in the forward). Omitting Hand’s work in the field of tort is akin to writing a biography about Samuel Morse without once mentioning Morse’s invention of Morse Code.

The reason for this omission is clear: Gunther has no use for Law And Economics analysis, and addressing Hand’s tort work would require Gunther to step into a field of legal analysis with which he holds no sympathy and about which he lacks penetrating views.

Gunther is resolutely, even ruthlessly, anti-capitalist, planting a veritable minefield of explosive devices in his text whenever he has to deal with business, economics and money: “smug”, “narrow”, “shallow” and “hardened” are Gunther’s four favorite adjectives to describe capitalists whenever he is forced to write about the intersection of law and economic policy. Gunther uses those four adjectives endlessly. The world of business, in Gunther’s mind, is patently evil and should be wiped from the face of the earth.

Alas, having chosen to eliminate Hand’s tort work from Hand’s life, and having further chosen to pay short shrift to Hand’s pioneering work in the field of Commercial Law, Gunther has far slimmer pickings from which to chose in assembling and articulating a coherent Hand judicial philosophy—and, once again, the philosophy that emerges has far more to do with Gunther than it has to do with Hand. Indeed, to fashion Hand’s philosophy in order to parallel his own, Gunther has to rewrite history.

First, Gunther pretty much throws Hand’s philosophy of Judicial Restraint out the window. Hand’s seminal Harvard lectures on Judicial Restraint, for example, the result of a lifetime of thought and study, are ignored. Hand’s public criticism of Brown v. Board Of Education as a classic example of “judicial usurpation” is also downplayed (although Gunther is quick to inform the reader that Gunther himself wrote major portions of the Brown decision while he was a clerk for Chief Justice Earl Warren). Gunther has to ignore such considerations because they do not comport with the fictional philosophy of Hand he has crafted.

Second, Gunther sets up an imaginary clash between the legal philosophies of Hand and Felix Frankfurter, comparing their written decisions on issue after issue and always finding Frankfurter to be on the losing side of the argument. Such a contrast is entirely specious. The two judges shared similar views far more often than they held opposing views and, in any case, the two judges served on different courts and heard different cases—and different TYPES of cases, no less. This use of Felix Frankfurter as a straw man is a most troubling device, coming, as it does, from a Professor Of Law who would chide first-year law students for erecting such straw-man arguments.

Third, Gunther is totally lost amid the fabric of American history. He makes a complete and unaccountable botch of the U.S. role in World War I, the causes of the worldwide Depression of the 1930’s, and the U.S. role in World War II. Gunther’s treatment of historical background material is shocking in its ignorance. Clearly, Gunther was anything but a well-read man.

Despite spending 64 years of his life in the U.S., Gunther was the rare foreigner who apparently was never able to grasp the essence of the United States Of America and its special and unique role in advancing liberty and opportunity. Instead, Gunther equates the U.S. with big business interests, and views big business as the dominant, even primal, force in American history. Gunther finds the bogeyman of big business lurking around every corner and hiding behind every bush, and at every turn he seizes upon his deep-seated need to thwart business interests with gusto. It colors every subject Gunther touches.

Because Hand did not share Gunther’s hatred of big business, Gunther has to ascribe it to him anyway. He does this by “grading” Hand’s decisions. Those decisions Gunther decides to be anti-big business are deemed “correct” and “thoughtful”. Those decisions Gunther decides to be pro-big business are the result of other factors: Hand’s reluctant acceptance of the votes of other judicial panel members, Hand not fully understanding the effects of his decision, or Hand simply having a bad day. Such nonsense is unworthy of a serious judicial biography.

Even were Gunther capable of keeping himself and his personal ideology out of the story, he was not a natural biographer. He clearly had no talent for the field. I doubt I have ever read a more poorly-written and more poorly-organized “serious” biography.

The only reason I kept going, picking the book up and putting it down over a period of six weeks, was my hope that, if I kept plugging along, things were bound to improve.

They did not.

At no time does Gunther succeed in bringing Hand to life. In Gunther’s telling, Hand is an inscrutable, one-dimensional jurisprudence machine, issuing opinions much like a factory produces parts or a meat plant produces sausages. Gunther’s Hand was industrious and diligent in churning out opinions, but otherwise without distinguishing characteristics. Gunther has no idea what motivated Hand, what gave Hand pleasure, what Hand disliked, why Hand never traveled, why Hand was unable to develop lasting friendships, and why Hand was a remote and mostly unsatisfactory husband and father.

In biography, great length is no substitute for insight. At the conclusion of 818 pages, the reader knows no more about Hand the individual than the reader knew on page one. However, by page 818, the reader knows quite a lot about Gunther, and Gunther’s legal thinking, judicial philosophy and political ideology. Given this, Gunther would have been far better off writing about his favorite subject, himself, rather than having a go at the life of someone else. Gunther’s tome will keep better authors and better thinkers away from the subject of Hand for another fifty years—and that is the genuine tragedy of Gunther’s book.

Otherwise, no damage has been done. No one outside the field will ever read the book, and those within the field will all too quickly recognize its biases and shortcomings, even assuming they persevere to the end, as I managed, stubbornly, to do.

For Gunther, it was a wasted twenty years, all in all. He would have been better off devoting those many years to another project.

It will be up to someone else at some future time to present the real story of the American Lord Mansfield. Meanwhile, Gunther’s volume will collect dust, unread, on library shelves.

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