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Published online by Cambridge University Press: 24 April 2015
In January of 1897 Oliver Wendell Holmes, Justice of the Supreme Judicial Court of Massachusetts, invited an audience at Boston University's School of Law to reconsider the relationship between morality and the common law. Hoping to persuade his listeners that law ought to be kept quite distinct from morality, he explored several areas of the law in which the confusion of law and morality was particularly troublesome. “Nowhere is the confusion between legal and moral ideals more manifest than in the law of contract. …” According to Holmes, “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else. …” Furthermore, and as if to anticipate the objections of those who might tend to see moral obligations entailed in contracts, he added: “But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can.”
1. Holmes, , The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897)Google Scholar [hereinafter cited as The Path]. See also, Holmes, O. W., The Common Law, 235–6 (Howe, M. ed. 1963) (1st ed. 1881)Google Scholar [hereinafter cited as The Common Law]. Note that, in taking the position he does, Holmes does not distinguish between morality and ethics (The Path, supra at 462). Furthermore, he does not distinguish first-order moral considerations of justifiability from secondorder questions about praise and blame; he here equates morality with the latter or with inquiries about persons' internal states—“what he actually intends” (Id. at 463). In taking this tack, and thereby correlating morality with subjectivity, Holmes may have been caught up in the dialectic between his own preferred “objectivist” theory of contract law in opposition to the previously more popular “subjectivist” “meeting-of-the minds” theory (Id. at 463-472). Note further that his account of tort law mirrors the above explanation of law and morality (The Common Law, supra at 65, 88, 106-129). Sharply contrasting with Brandeis, his perspective on contracts and torts is economically uninformed and, although he seemed persuaded that “every lawyer ought to seek an understanding of economics” (The Path, supra at 474), that was an ideal he scarcely approached. “It is not far from the mark,” Mr. Francis Biddle, Holmes' former law clerk says, “to conclude that his thinking in the field of economics stopped at twenty-five.” ( Biddle, F. Mr. Justice Holmes, 86–87 (1942)Google Scholar, as cited in Mason, A. T., Brandeis: A Free Man's Life 574 (1946)Google Scholar). For further confirmation of Holmes' relative ignorance in economics—at least as compared with the knowledge of Brandeis—see his dissenting opinion in Dr. Miles Medical Co. v. Park and Sons Co., 220 U.S. 373, 409 (1911) and the contrast between the Holmes and Brandeis dissents in American Column and Lumber Co. v. United States, 257 U.S. 377, 412 (1921). The following comments made by Holmes appeared on galley pages, circulated intramurally among the Justices of the Supreme Court, regarding the October Term, 1922 case of Atlantic Coast Line RR v. Daughton, 262 U.S. 413 (1922). To Brandeis, who had given the opinion of the Court, Holmes wrote”…I bow to your superior knowledge” with respect to the net income from property, and next to Brandeis' reference to “pyramiding,” Holmes wrote “I don't know what this means.” (See, file folder #13-7 of Louis Dembitz Brandeis Papers in Harvard Law School Library, Manuscript Division.)
2. To construe franchises in contractual terms is not to reject outright the consideration of them in terms of property. It is rather to state a preference on the basis of the advantages a contract interpretation offers in a world where, absent the mutuality which contract notions of consideration entail, franchises may be mistaken for gifts, awards, or privileges without a basis for holding the grantee responsible for obligations to the grantor—and thus laying also the foundation for rights-claims by the grantor (and, in the case of public properties, the public represented by the granting governmental authority). For a provocative suggestion of how this reasoning about more purely public contracts might have application in the more purely private sector of contracting—which always has some more or less desirable effects on the distribution of economic advantages and disadvantages—see Kronman, , Contract Law and Distributive Justice, 89 Yale L.J. 472 (1980)CrossRefGoogle Scholar.
3. The related motion, that of a “lawyer for the situation,” arose when Brandeis' professional ethics were questioned with respect to his simultaneous representation of two or more clients with conflicting interests. In response, he suggested that in such instances the lawyer represents the situation more than any one or more of the clients in it. In this paper I have expanded that notion to denote Brandeis' interest in and analysis of situations in which he perceived the stakes of the public's interests more profoundly than did most, and did it in part by temporarily setting aside the conflict-of-interest conundrum created more by a tooabsolute conception of the adversarial character of our legal system. For further detail on the historical setting and appeal to the term, see Mason, supra note 1, at 475; see also Frank, , The Legal Ethics of Louis D. Brandeis, 17 Stan. L. Rev. 683 (1965)CrossRefGoogle Scholar.
4. See Mason, supra note 1, at 604.
5. Id. at 89.
6. Id. at 106. Lest this characterization (“first important public work”) be misunderstood, we should recall that Brandeis' involvement in public affairs began as early as the mid-1880s when he affiliated with movements for political reform such as the Civil Service Reform Association (1884) and the Boston American Citizenship Committee (1887). Furthermore, in 1891 he attempted to dissuade a state legislative committee from adopting a piece of hastily drafted temperance legislation—in part because it would tend to encourage the already harmful corruption of public officials with the bribes and other importunings of the liquor interests. A year later, while he was still in the process of preparing his lectures for a course on Business Law at MIT, the shocking events of the Homestead Strike (July, 1892) prompted Brandeis to reconsider the adequacy of the common law for modern and more complex relations between labor and industry. This event and his reflections on it occasioned a dramatic revamping of the MIT lectures (given between 1892 and 1896). See A. T. Mason, supra at 87-91, 107-9 and, with respect to the impact of the Homestead Strike, Goldmark, J., Pilgrims of ‘48, 13 (1930)Google Scholar
7. Mason, supra note 1, at 107.
8. Typescript of April 30, 1897 letter from Louis Brandeis to the Boston Evening Transcript as found in NMF series, folder 1-5a of the Papers of Louis Dembitz Brandeis in the Archives of the University of Louisville.
9. Mason, supra note 1, at 316.
10. The Holmes explanation of a contract duty as nothing more than a prediction that one must pay damages for the breach, though relatively new in the late nineteenth century, is now regarded as traditional. In combination with some theories of “economic efficiency,” it has demonstrated an unwillingness to award specific performance in cases where dollar damages offer an adequate substitute and has avoided punitive damages, seeking mainly to place injured parties in the economic position they would have occupied had the contract not been breached. Such policies may tend to encourage parties to break their promises and refuse to perform contracts if they still will have a net gain after having fully compensated the injured party (see Restatement (Second) Contracts § 344 introductory note (1981)). For additional odd social consequences in the distributive effects of these policies of contract law—particularly in the apportioning of economic losses, disadvantages and other burdens—see Linzer, , On the Amorality of Contract Remedies—Efficiency, Equity, and the Second Restatement, 81 Colum. L. Rev. 111 (1981)CrossRefGoogle Scholar and Kronman, , Contract Law and Distributive Justice, 89 Yale L.J. 472 (1980)CrossRefGoogle Scholar. See also some earlier and brilliant cautions about the growing one-sided privilege in contracts and of the social power being assumed by enterprisers able thus to legislate in a substantially authoritarian manner. ( Kessler, , Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629, esp. at 640 (1943)CrossRefGoogle Scholar).
11. It is not entirely appropriate to conjure up here the long and problematic history of meanings attaching to the expressive, evocative and strategic entailments of the term “public interest.” Suffice to say for now that it has not been meaningless, and that it always, if only inchoately, points toward a substantive as well as a procedural content, while creating some of the same problems that slippery but not vacuous legal terms like “the reasonable person” involve. I suggest that in Brandeis' handling the term “public interest” entails at least the following substantive notions. As an interest, it draws upon analogies to the broad legal term used to characterize a right in property, and it implies an analogy to the still broader notion of an interest as a right, that is, as a valid claim justifiable in light of a certain set of rules. As an interest of a public, it denotes some community as possessor of that interest or as a claimant of the right in question. Unless this designated community is specified—as, say, in the people of Boston, the citizens of Massachusetts or of the United States—it, of course, becomes vacuous. Finally, since the access which individuals have to many of life's survival and trans-survival necessities is socially structured through policies of provision and accessibility, publics have interests in those arrangements in prototypical social institutions like business and the economy, health, education, and law.
In making claims on the policies and activities of such institutions publics invoke conventional moral (and sometimes legal) rules governing freedom of choice, equal bargaining, and justice in our mutual promises, exchanges, and allocations of commonly shared benefits and burdens. The leaders and powers of the relevant institutions become respondents to this claiming and are charged with creating policies and arrangements which assure that justifiable public claims will be honored predictably and effectively. Priorities will differ with the times, of course. For example, whereas the urging of the free public flow of information will be of overriding importance in one time or place, health or educational services may be prior in another time and place. Priorities are not always determined in a principled manner, however, and may be worked out behind closed doors or in a fashion more arbitrary and expeditious than moral principles of freedom and justice would demand. Nonetheless, even in an imperfect world in which we can expect but approximate adherence to such principles, the substantive elements in terms like the “public interest” express what ought to be, evoke its imperative as the goal, and occasion strategies which better assure it is not forsaken too readily.
12. Muller v. Oregon, 208 U.S. 412 (1907).
13. For a general discussion see Mason, supra note 1, at 245. In particular see Brandeis' January 3, 1916 address before the Chicago Bar Association, entitled “The Living Law” (to be found in typescript in WB series, file folder 16-10b in Archives of the University of Louisville.) For examples of Brandeis' occasionally exhaustive empirical research into cases before the U. S. Supreme Court, see the 1923 case of Georgia Ry. & Power Co. v. Railroad Commission, 262 U.S. 625 (Harvard file folders 14-9 to 16-1 case 3 298, October Term, 1922), the 1932 case New State Ice Co. v. Liebmann, 285 U.S. 262 (Harvard file folders 75-3 to 76-5, case #463, October Term, 1931), and the 1933 case Liggett Co. v. Lee, 288 U.S. 517 (Harvard file folders #81-1 to 82-14, case #301, October Term, 1932).
14. See printed edition of “The Washington Street Subway: Comments on the Financial Condition of Boston Elevated Railway Co., submitted by Louis D. Brandeis on behalf of the Boston Associated Board of Trade to the Committee on Metropolitan Affairs of the Massachusetts Legislature, April 26, 1902” (University of Louisville, NMF series, file folder 4-3b).
15. See Mason, supra note 1, at 126-140; see also Brandeis, , How Boston Solved the Gas Problem, The American Review of Reviews, (11 1904)Google Scholar reprinted in a 1914 collection of articles and addresses in Brandeis, L., Business: A Profession at 93 (1971)Google Scholar. For the typescript of the same see University of Louisville NMF series, file folder 16-1b (5-4b for an earlier version and 16-1c for a later version). For an indication of how importantly this solution figured in Brandeis' sense of the significance of his public interest activities see the April 20, 1906 letter of President James L. Richards as one of the few such documents kept in Brandeis' scrapbooks (Louisville series Clippings I, Box #233, folder #2, item #44A).
16. Mason, supra note 1, at 181, n. 14; see also The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis, (Frankel, O. K., ed., Part III 1934)Google Scholar.
17. Mason, id. at 410, note 2.
18. Id. at 360, n. 31. We should note here, as well, comparable views in Ryan, J., Distributive Justice (1916)Google Scholar, and the fascinating interplay of comparable ideas from Brandeis and Ryan with respect to McCardle v. Indianapolis Water Co., 272.U.S. 400 (1926). For their nearly identical conclusions, albeit arrived at by means of different styles of reasoning—legal and natural law reasonings respectively—and by virtue of variant conceptions of justice in the allocation of economic losses to the customers of public utilities, see Brandeis' dissent in McCardle v. Indianapolis Water Co., 272 U.S. 400, at 421-5 and Ryan, , The Ethics of Public Utility Valuation, in Questions of the Day, exp. at 141–151 (1967) (first published in 1931)Google Scholar.
19. Mason, supra note 1 at 360 and McCardle v. Indianapolis Water Co., 272 U.S. 400 (1926). Applying this principle to the Boston Elevated, and by analogy to other public utilities, Brandeis contended that, when public streets and the like are used by profit-making corporations, the burdens of such enterprises ought not to fall principally upon the public, which not only is less able to absorb them but also owns commonly the raw materials of the utility. For another interesting application of this principle, note Brandeis' response when in 1910 the railroads threw down the gauntlet offering to let Brandeis name his own salary if he could show them where they might effect cost-savings through better management. In response, to which they never replied, and which, consequently, he had printed in the New York Times of November 30, 1910, Brandeis wrote:
I must decline to accept any salary or other compensation for the …reason…namely, that the burden of increased rates…will ultimately be borne in large part by the consumer through increasing the cost of living, mainly of those least able to bear added burdens. I desire that any aid I can render in preventing such added burdens should be unpaid services. Kindly suggest date and place for conference.
Mason, supra note 1 at 328-9, n.33.
20. Mason, id. at 582 ff; see also Levy, and Murphy, , Preserving the Progressive Spirit in a Conservative Time: The Joint Reform Efforts of Justice Brandeis and Professor Frankfurter 1916–1933, 78 Mich. L. Rev. 1252 (08, 1980)CrossRefGoogle Scholar; Murphy, , Elements of Extra-Judicial Strategy: A Look at the Political Roles of Justices Brandeis and Frankfurter, 69 Geo. L.J. 101 (10, 1980)Google Scholar; The Brandeis/Frankfurter Connection: The Secret Political Activities of the Supreme Court Justices (N.Y.: Oxford, 1982)Google Scholar, and Dawson, N., Brandeis, Louis D., Felix Frankfurter, and the New Deal (1981)Google Scholar. In particular, I call attention here to Brandeis' indirect shaping of legislation, to his influence on public opinion through the media, especially The New Republic, and his instrumental activities in improving legal education as well as in shaping the considerations of legal scholars and journals.
21. Predictably, Brandeis' critics characterized his works in terms of humanitarianism and socialism, but his perspective was much tougher than the frequently anemic versions of the former and was much more flexible than the often doctrinaire styles of the latter. His notions stemmed more from the common law courts of equity, from some traditional American understandings of the equality constitutive of democracy, and from what he gradually came to acknowledge as a distinctive Jewish contribution in Western civilization. For more on the latter point see Gal, A., Brandeis of Boston (1980)CrossRefGoogle Scholar.
22. Alleging that Brandeis' positions turn ultimately on answers to questions of duty signifies here that the theoretical posture they imply is primarily, but not exclusively, dutybased. That his positions entail elements from rights-based and results-based moral theories does not amount to saying that they are, therefore, contradictory. In fact, in theory as in life, one should expect a certain amount of prima facie incoherence. This is necessarily so if the life and the theory it reflects and seeks to systematize aim to address or to account for the complexity of the moral dimension in personal and social life.
Formally in theory as informally in life, duties are to be correlated with rights, as are means with ends. Inclining Brandeis toward an implicit theory tightly correlating duties with rights were at least three life-shaping influences: his training and experience in the practice of common law, his always present if only dimly acknowledged Jewish sensibilities, and his encounter with socio-economic powers all too willing to respond to conventional claim-rights while slow—to their own long-range detriment, he argued—to acknowledge claims of conscientious and ideal rights in times which called for movement beyond conventions.
A duty-based position on morality can and ought to take account of ends or purposes as well as means or qualitative duties; it can and should attend to results and consequences as well as to the obligations around which its judgments critically pivot. Attention to ends or purposes—indeed even to results or consequences—is necessary if a moral theory is to represent life adequately since human actions are unquestionably end-oriented; in fact, human actions would be short on meaning were they not purposefully related to some end. This is not to make the thoughtless claim that any end justifies any means whatever, nor is it to allege that moral rightness or wrongness pivots critically around the question whether or not certain ends are desirable. It is rather to say that theory should represent life which, in a less than perfect world, finds it irresponsible to reject the possibility, and often the necessity, of choosing the proportionately better or at least the least wrong option as the one presently and realistically available for approximating long-range ideals. In such a world, any moral theory that would hope both to account for what realy happens and to foster the essentially good orientations in that reality must take results and consequences as serious, but not the sole, determinants of right and wrong—and to do so while still holding for adherence to duty as the overriding and decisive test. Just such a world is what Brandeis seems to have encountered and for which he accounted implicitly in the positions he took on a case by case basis. His lifestyle and professional activities in the public interest seem less concerned with short-range results and more concerned finally with the long-range consequences. They are not, therefore, crudely utilitarian and pragmatic. Rather, rejecting the latter as well as the sometimes self-righteous “let the chips fall where they may” slogans of inadequately conceived theories of moral duty, Brandeis' theory in action accomodates imperfection and, aiming often only for the second best results, sets out constructive policy alternatives as well as effective strategies for countering the opposition sure to come from social sectors with vested interests in the present state of affairs.
23. Gal, A., Brandeis of Boston, at 26, 137, 179–80 (1980)CrossRefGoogle Scholar.
24. This characterization is indebted in part to Gal's interpretation (id., esp. pp. 179-80), and in part also to two addresses by Brandeis: (1) “What Loyalty Demands,” November 28, 1905, at the New Century Club of Boston on the occasion of a celebration making the 250th Anniversary of the Settlement of the Jews in the United States (Louisville, NMF series file folder 12-6; and, for the first three drafts of that address see WB series, file folder 10-2); (2) “True Americanism,” an oration delivered before the city government and citizens of Boston in Faneuil Hall, on the 139th anniversary of the Declaration of Independence, July 5, 1915 (Louisville, LDB Clippings II series, pp. 216-232).
25. Mason, supra note 1, at 139-40.