Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 13, Number 2 Louisville, Kentucky- March, 1988 Circulation 5400
Dean Lewis: It's a Man's World
by Tom Lukins
Dean Barbara Lewis began by rattling
off the statistics: "Women haved moved
into the law in dramatic numbers.
Today, 50lhO!o of the first year class are
women, and women make up 47% of
our total enrollment. We have seven
women faculty. Ten law deans in the
United States are women. Last year the
Louisville Bar Association had its first
woman president."
Still, said Lewis, it's a man's world,"
if we consider the question in terms of
who has power. The legislatures are still
predominately male, and men control
the majority of wealth. Whatever you
want to do in law, you must deal with
the fact that it is still very much a male­dominated
society.''
Lewis' remarks came in a
presentation at the Law School entitled
"Women in Law School: It's Still a
Man's World- Or Is It?" Her talk was
sponsored by the Women's Law Caucus.
Lewis contrasted today's near-even
sexual mix with that of the U of L
School of Law she attended in the early
sixties. At tha time she was the only
woman student, and there were no
women faculty. Nor were women
welcome in the legal fraternities. Lewis
said that she was invited to join the
"Law Wives", but, not being one, she
declined.
Although Lewis graduated first in the
1962 class, the prospects for women law
graduates at the time were dim. Even
then, she said, "I knew I wanted to
teach. But I was told by the Dean that
there was no place for women in
teaching. He was right; that was an
accurate statement at the time."
The opportunites for women in
private practice were just as limited.
Firms openly said that would not even
interview women. The commonly held
view was that women do not use their
law degrees, Lewis said.
Even today, when a woman attorney
becomes a professor, said Lewis, she can
expect to be confronted with a double
standard. "If you make a mistake, or if
you're not top quality, it's never because
you're human or you're having a bad
day. It's because 'that woman can't
teach.' And it's used as evidence that
women as a group can't teach."
In adminstration as well, Lewis said,
the double standard persists. "A man
and a woman may act the same way in a
given situation, but the man will be
considered to be aggressive, playing
hardball, and be admired for it, while
the woman will simply be considered
nasty.''
"Consequently, when I have to be
angry and confrontational to get
something done, many people will tell
you that I'm the biggest bitch walking.
Well, that's their problem. I may win
their grudging respect, if not their
undying love and affection.''
To illustrate the stereotyping done by
both men and women, Lewis
commented on two questions asked her
Louisville Law Forum
The Private Lives
Of Candidates
By Michael R. Campbell
"Is it any of our business that Pat
Robertson's first child was conceived
out of wedlock?"
This question was posed by Jean
Becker, political reporter for USA
Today, at a Louisville Law Forum panel
discussion on political candidates' right
to privacy. Joining Becker as panelists
were Harvey Sloane, Jefferson County
Judge/ Executive; Allan Steinberg,
Jefferson Community College professor
and counselor and a recent candidate for
the state House of Representatives; and
attorney Rebecca Westerfield, now a
Jefferson Circuit Judge.
Westerfield began by giving a brief
outline of the legal issues involved. She
said that candidates do not relinquish
their constitutional right to privacy from
unwarranted governmental intrusions,
nor do they give up any statutory rights
protecting all citizens.
In addition to constitutional and
statutory protection, said Westerfield,
there exists a common law right to
privacy in most states. But even where
the right is recognized, she said, it is
greatly diminished with respect to
political candidates.
"Candidates certainly have some right
to privacy; they don't invite people to
come up and ring their doorbells at all
hours of the night or wiretap their phone
conversations," said Westerfield.
"However, anything which is a matter
of public record may be disclosed ."
''A candidate is always the focus of
legitimate public interest, she continued.
Therefore they are by their very essence
newsworthy and everything about their
lives is newsworthy. The press clearly
(Continued on Page 3)
when she first came to U of L as Dean.
One was, "Can you be tough,
professional and feminine?" "What a
stupid question!", said Lewis.
Second, in response to the question:
"What do you bring to the job as a
woman?", Lewis replied, "Not a damn
thing. I bring many characteristics as a
person." Lewis did note, however, that
there are many women she respects who
disagree with this view.
Lewis admitted that she has made
career decisions on a "sexist" basis. For
example, when she had to decide what to
teach, she chose taxation, "because it is
recognized by men as being rigorous and
demanding. I did not want people to
think that women somehow could not
teach taxation."
Still, when she interviewed for a
teaching position at the University of
Cincinnati, they insisted on discussing
whether she would teach family law,
"an obvious selection for a woman with
an L.L.M. in taxation," joked Lewis.
Despite what Lewis called
''increasingly subtle'' discrimination,
she counselled the women in the
audience to persevere.
''A lot of the decisions you make will
be affected by the fact that it's a man's
world, but never, never let that deter you
from doing what you really want to do."
Lewis listed three rules for dealing
with the "man's world": "Be very
professional, be very professional and
be very professional.''
"And being professional does not
mean trying to act like a man," Lewis
said. "You do not have to be 'one of the
boys'. For example I've been told that
basketball is played in Louisville. I hate
sports, and I refuse to discuss sports in
order to, for example, make contacts.''
Nor does being professional mean
trying to dress like a man. "There is no
rule that you must wear a blue business
suit to be properly dressed for the
business world," said Lewis.
Lewis said that she encourages women
attorneys to be involved in both
professional organizations and in
women's groups. "As female lawyers,
we have advantages. We're bright and
we've had opportunities. This means
that we have obligations to others."
Lewis identified four issues of particular
importance to women: "Domestic
violence, rape, child care and poverty,
because the majority of those in poverty
are women and children."
In response to a question, Lewis said
that the provision of child care within
the law school has been discussed but
found not to be feasible. "We do not
have the budget to meet state child care
regulations," said Lewis. "However,
concern for students who are also
parents was one reason we became more
flexible in the scheduling of day and
night classes.''
Is it a man's world? "Yes," said •
Lewis, "but it's my world and yours.
How you live in a man's world is a
matter of your own style and your own
choice. I've seen great changes in
twenty-five years, and you will see even
greater changes."
Photo by Todd Bolus
From left to right: Allan Steinberg, Harvey Sloane, Rebecca Westerfield and Jean
Becker.
Page2 Louisville Law Examiner March, 1988
LOUISVILLE LAW EXAMINER
EDITORIAL BOARD
Tom Lukins
Editor-in-Chief
Gayle Bodner
Bill Crowe
Associate Editors
Todd Bolus
Photography Editor
Brian Clare
Managing Editor
Joe French
Night Associate Editor
Rosemary Lane
Brandeis Brief Editor
Randy Strause
Business Manager
STAFF
Shealia Murphy-Owens
Pat Kidd
Dennis Howard II
Chris Sanders
Todd Seaver
Michael R. Campbell
Laura Frazier
Theresa Brown
Professor LAURENCE W. KNOWLES, Consultant
The Louisville Law Examiner (ISSN 0890-8605) is published six times dur­ing
the academic year in the interest of the University of Louisville School of
Law Community.
Articles are invited from faculty members, students, and members of the
bar. Any proposed article should be cleared with the Editor as to topic and
length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville Kentucky 40292. Phone: (502)
588-6399.
Letter To The Editor:
With a ''PILF'', You Can Afford
To Work For the Public Interest
To the Editor:
Canon Two of the Code of
Professional Responsibility states that
we have a duty to make legal counsel
available. Since the rights of individuals
and institutions in our society depends
on effective representation before
government bodies, the availability of
that representation is a measure of
liberty in America.
However, 7511/o of the legal needs of
indigents go unmet by present legal aid
and pro bono efforts, according to a
noted legal statistician. The middle
class, struggling businesses and
community groups are also under­represented.
In the past few years, student­organized
Public Interest Law
Foundations (PILF's) have grown
rapidly to meet this need. A PILF can
take many forms, but basically it raises
money and serves as a local
clearinghouse for the placement of law
students in public interest organizations.
Some of these positions also provide for
loan forgiveness - the payment of
student loans while working for the
public interest.
If the idea of starting any new law
school organization, much less one that
requires fundraising, scares you - it
shouldn't. Last year, 35 law school
chapters of the National Association for
Public Interest Law (NAPIL) raised half
a million dollars to fund 250 summer
and one-year graduate fellowships.
If you would like to take the initiative
to start a PILF at the University of
Louisville, there are materials available
at the Placement Office and at the Law
Examiner office. Also, contact NAPIL
headquarters, (202) 546-4918, for
further information.
Kentucky is ripe for an organization
of this type to take root. The rest of the
nation's law schools challenge you to
help make the legal system meaningful
for all.
David Funke, JD.
9735 Timberbrook Drive
Louisville, Ky. 40223
Come Back,
Dan
Second-year student Dan White was
injured by a hit-and-run driver while
crossing Third Street on February 11.
Our best wishes to Dan for a swift and
complete recovery, and a quick return to
classes.
OOPS
We goofed. Professor Bennett's first
name is Geoffrey, despite anything in
our last issue to the contrary.
What I Learned
In Law School
By Todd Bolus, G.S.
Although most people refuse to
believe it, law school is sometimes an
educational experience. Take, for
example, your relatives. Remember that
uncle who used to speak to you at family
affairs only out of courtesy. He now
calls at least four times a week, trying to
suck legal advice from you despite your
feeble protests of "I don't have a license
to practice law." In the process you
learn of your dear uncle's lousy financial
situation and even lousier marriage. He
tells you enough about his sleazy
business deals to make you wonder who
in the Commonwealth Attorney's office
was paid to head off the indictment.
You wonder what the P.R. committee of
the bar assocation will think of your
mere relationship with the man, much
less your actual knowledge of his
dealings. This clear-thinking attitude
leads you to resolve never to represent
family members. Great. That's Lesson
Number 1.
Another terrific opportunity to learn
an important lesson is to talk with your
non-lawyer friends. After fifteen beers,
eight shots of tequila and an assorted
. range of chemicals, they will be certain
their legal acumen is far greater than
yours. Your paltry knowledge will be
overshadowed by the sage wisdom of
Judges Wapner and Keene, Kentucky
law be damned . For three straight hours
you will argue the mechanics of a DUI
prosecution, seeking in vain to explain
the effects of a statutory presumption . It
goes something like this:
Non-lawyer: Man, I know this dude
who got busted for DUI and he only
blew a . 9*! That just ain't right!
Law student: Well, .1 is just a statutory
presumption of intoxication . Cops have
discretion at lower levels. Did thi s guy
make him mad?
Non-lawyer: Nah, he's a mellow dude.
Besides, he'd already done two valiums
and he was really laid back.
Law student: Well, that explains it.
He ...
Non-lawyer (interrupting): Man, you
can't be right. I know this guy who blew
a .8*, and the cop said he couldn't run
him in.
* note that non-lawyers also don't know
where to place decimal points.
That's lesson number 2: Drinking and
talking to non-lawyers don't mix. Just
say no.
Though they doubt your legal
knowledge, your "friends" are eager to
bestow on you a license you don't have.
They invariably introduce you to their
acquaintences as "my friend the
attorney." As this is usually a great
icebreaker with the opposite sex, you
tend not to mind. You do mind when
you are introduced as an attorney to
thieves, thugs, dope dealers, pimps and
marketing executives. A desireable
response is to give a sickly smile, look
for telltale bulges which indicate the
presence of a weapon (or, in the case of
a marketing executive, an industrial­sized
business card case), and extend a
quivering, sweaty palm. You should
have no memory of this meeting. You
weren't there. You don't know the face
or the name. If you were handed a
business card, you drop it into the
giveaway jar at a downtown lunch
counter. You pledge your soul to the
devil in return for the sudden demise of
the individual you just met and, in true
lawyer fashion, you ask God to save you
from the devil as long as you never again
tell anyone that you plan to be an
attorney.
If you break this promise, upon
graduation you can plan to be set on by
hordes of golddiggers, sought out by
clients who would rather stab you than
pay you, or, if you become a prosecutor,
reminded that "I smoked a joint with
you, dude. You were pretty cool,
especially when you rolled around naked
in my old lady's flower bed. Now, what
kind of deal are you gonna give me?"
Lesson Number 3: Never admit that
you're a law student.
Take heed, boys and girsl! It's a rough
world out there, and the only ones who
make it are those who are able to 1)
actually bill for time spent on legal
matters, and 2) deny past indiscretions.
(Nah, man, couldn't be me. I was going
to law school, stayed clean.) The rest of
us may build a lot of good will. But good
will, if it pays at all, makes a partial
payment the day of trial and begs a
discount of the rest. Think about it.
Ciao.
CALL FOR
VOLUNTEERS
The Louisville Bar Association and the
University of Louisville School of Law is
preparing a trial practice program for
attorneys. This program will help teach
trial tactics by having all participants
perform a mock trial. The organizers of
this program need people to perform in
the capacity of witnesses and jurors. All
volunteers will be given complete in­structions
on what they are expected to
do and absolutely no knowledge of the
law, trial tactics, or previous experience
is necessary. This program will be con­ducted
on April 21, 22, 23, 1988.
Volunteers may participate during any
part or all of that time. For further in­formation
and sign up please contact:
RONALD W. EADES
PROFESSOR OF LAW
SCHOOL OF LAW
UNIVERSITY OF LOUISVILLE
LOUISVILLE, KY. 40292
PHONE - 588-5563
March, 1911 Louisvil~ Law Exa.illft'
Privacy Rights of Candidates
(Continued from Page 1)
has a legal right to disclose information
about the private lives of candidates and
public officials."
Apart from the legal issues, there
remain questions about the media's duty
to inform the public and the issue of
ethical restraint.
Becker defended the media's coverage
of political figures . She said that the
press has not only the right but also the
responsibility to the public to reveal as
much about the candidates as it can. In
fact, said Becker, "My job is to report
about their private lives; I do not write
about how they feel about the issues."
Health, finance and criminal
background were cited by
Judge/Executive Sloane as the only
three areas of legitimate public ·interest
in the private lives of candidates. As for
health reporting, Sloane said that it
should be limited to the . question of
whether the candidate is physically
capable of performing the duties of the
office.
"Whether the candidate had a
venereal disease that was cured fifteen
years ago - I'm not sure that is a
subject that the candidate has to
reveal," said Sloane.
In a reference to the recent attempt by
the New York Times to bring about the
disclosure of all the presidential
candidates' medical records, Sloane
said, "As a physician I think it is totally
inappropriate to have the medical
records of the candidates disclosed,
because there is so much opportunity for
misinformation." Sloane said that he
was particularly alarmed that the Times'
request for disclosure extended to the
medical records of the candidates'
families.
"The press has some responsibility,
moral if not legal," said Sloane.
Steinberg said that the fear of
personal intrusions brought about by the
new brand of political reporting has
prevented some qualified individuals
from entering the political arena. He
requested that the press think about
what effect a particular characteristic
would have on the candidate's ability to
perform his or her duties before going to
press.
Becker offered this advice to
candidates: "Reveal everything on your
own. For God's sake don't let the press
uncover it, because you'll be
slaughtered.''
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This comprehensive LL.M. program offers a singular
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Applications are now being accepted for full or part-time
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For a catalog containing detailed
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or call: 617/353-3023
ACLU Role in Bork
Defeat Criticised
by Chris Sanders
The politically liberal national
leadership of the American Civil
Liberties Union has distorted the
organization's unique purpose, says
Samuel H. Fritschner.
Fritschner, a member of the board of
the Kentucky Civil Liberties Union, was
the guest speaker at a meeting of the
ACLU's U of L stuoent chapter.
"The ACLU should defend the rights
of everybody,'' said the 1981 U of L law
graduate, an associate in the Louisville
firm of Taustine, Post, Sotsky, Berman,
Fineman and Kohn. "If we don't do it,
no one else will."
Fritschner said that in opposing the
nomination of Judge Robert Bork to the
U.S. Supreme Court, the ACLU took an
"argumentative" stance against a
candidate for only the second time in its
history, the first being its opposition to
the nomination of now-Chief Justice
William Rehnquist.
"I am distressed that the national
organization took a partisan position,
because the ACLU, as. an informational
organization, should only take an
advocacy stance in court on individual
cases," Fritschner said.
Fritschner noted that both the
national and state organizations have
represented right-wing groups and
individuals. "It is important that we
protect the freedom of speech of
everyone, in order to have, as Justice
Douglas said, an open 'marketplace of
ideas,' " Fritschner said.
Fritschner said that he has represented
a local police officer, unsuspected of any
crime, who is being pursued by an anti­Ku
Klux Klan organization wanting
access to his KKK membership list. The
case has gone to the Sixth Circuit Court of
Appeals, but Fritschner withdrew when
the KCLU voted it "too hot to handle."
The case also became cost-prohibitive.
Fritschner said that the KCLU budget is
$66,000 a year, which pays for little
more than the salaries of two staff .
members and office space. "The
national organization has plenty of
money,'' said Fritschner. "Join the
KCLU. We need you."
U of L Chapter President Ruby
Fenton agreed. "There's work to be
done while you're in law school. The
KCLU has some fairly narrow research
projects designed for a student's
schedule,'' she said. .------------------------------------· I ~ Remember - Db :rollin wednesday is 11 Spin-The-Wheel Night ~
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Page4 Louisville Law Examiner March, 1988
Brandeis Brief:
Justice Louis Dembitz Brandeis: His Louisville Connection,
By Gene Teitelbaum
Professor Gene Teitelbaum served as
Head Law Librarian at the University
of Louisville School of Law from
January 1975 to June 1986. His teaching
assignment is now in the areas of Ad­ministrative
and Constitutional Law. He
worked in the Rutgers University Law
Library, practised law, both civil and
criminal, in New York City, and was
Associate Law Librarian at Duke
University before coming to the Univer­sity
of Louisville. In conjunction with
his current project, "Justice Brandeis
and His Law Clerks, ,, Professor
Teitelbaum has compiled a 128 page
. bibliography of writings and other
materials on the Justice that was just
published in book form by the Fred B.
Rothman Company.
Louis D. Brandeis had his roots in
Louisville, Kentucky. He was born on
November 13, 1856, a short distance
from the law school. He left Louisville
at the age of 16 to attend high school in
Germany, never again to live in
Louisville. However, he remained a
loyal supporter of the City, the
University of Louisville, and the law
school. It is fitting that Brandeis is
buried on the portico of the Law School
building, juxtaposed to his wife of fifty
years, Alice Goldmark Brandeis.
Brandeis had four successful careers:
he was a skilled practising attorney; he
was a leader in the late nineteenth
century and early twentieth century
American reform movement for the
social and economic betterment of the
working class; he was the most visible
and famous American Jew and the
leader of the American Zionist
movement for many years; and Brandeis
served as an Associate Justice of the
Supreme Court of the United States.
His gifts to
the University
and the
Law School
took many
forms
While Brandeis amassed a fortune
through his law practice, during his
lifetime he donated almost one million,
five hundred thousand dollars to various
charities and individuals. His gifts to the
University and the law school took
several forms. Brandeis gave funds to
both the Law School and the University
Library. He contributed money to
purchase for the Law Library various
sets of federal materials. For example,
the set of United States Reports shelved
on the first floor contains book plates
indicating that the volumes were
purchased in honor of the Kentuckians
who served as District Judges of the
United States. Eleven Kentuckians have
served as Supreme Court justices, a large
number considering the small
population of the Commonwealth.
While on the Supreme Court,
Brandeis caused the Law Library to
become a depository for the briefs and
records of all cases filed with the High
Court. Only forty copies of each brief
are filed with the Court. Thus we are one
of few academic law libraries in the na­tion
to receive this valuable source of
legal history and information. Our col­lection
begins with the October 1924
term.
In addition, a unique source of
information, Brandeis' personal papers
before he joined the Supreme Court in
1916, are in the Law Library. (The post
1916 papers are stored in 'the Harvard
Law School Library.) They are kept in a
special furnished room on the second
floor. To better preserve them, the
contents have been placed in acid free
folders and boxes. To make the Brandeis
Papers more accessible, in the late 1970s
the University Archives received a grant
from the National Historical
Publications and Records Commission
to film them on 144 reels of microfilm .
Thus thru this miracle of modern
technology, scholars may use the
Brandeis Papers without traveling to the·
University.
The interest in Brandeis' life and
career has not lessened. Every year or so
a new full length biography of the
Justice is published. Regularly, articles
appear in law reviews and other
scholarly periodicals investigating
specific aspects of Brandeis' career.
At the age of sixty, when many people
would be thinking about slowing down,
retiring from law practice, reading the
books put aside over the years, and
enjoying one's grandchildren (The
Brandeis' had two daughters), Brandeis
embarked on a new career - being an.
Associate Justice of the Supreme Court.
Previously, he had served as an adviser
to President Woodrow Wilson, who
nominated him in 1916 to fill the
vacancy on the High Court caused by
the death of Joseph R. Lamar. Brandeis
was never a practising Jew, yet his
religion was one, if not the main cause
for the opposition to his appointment.
The controversy over·his "fitness to be a
justice" raged both in the United States
Senate and in the newspapers and
periodicals of the day. Finally, after
almost five months of acrimonious
quarreling, the Senate confirmed his
appointment by the vote of 47 to 22,
with 29 senators abstaining. In
comparison, the recent Bork and
Ginsburg nomination battles seem like
tea parties. In January 1966, the Law
School's Student Bar Association held a
convocation honoring the fifieth
anniversary of Brandeis' appointment to
the Supreme Court. Professor Louis
Jaffe, of Harvard University Law
School and a former Brandeis law clerk,
was the main speaker.
Brandeis served twenty-three years as
Justice, retiring in 1939. Many people
erroneously believe he was succeeded by
Felix Frankfurter. In fact, William 0.
Douglas was Brandeis' successor.
Brandeis and Frankfurter sat together
on the Supreme Court for only a few
weeks. The two Brandeis judicial
opinions we are most familiar with are
his concurrence (which reads like a
dissent) in Whitney v. California, 274
U.S. 357,372 (1927), a free speech case,
and the majority opinion in Erie
Railroad Co. v. Tompkins, 304 U.S. 64
(1938) .
The names of
the Brandeis
law clerks read
like a roster of
legal hall
of famers
Brandeis' role in the development of
the concept of recent law school
graduates serving as clerks to Supreme
Court justices, and the men who served
as his law clerks, has fascinated me for
years. Twenty-one men served as his law
clerks. Two men, Dean Acheson and
William Sutherland, each served two
terms, because of World War I. All were
selected to be Brandeis' law clerks by
Felix Frankfurter, then a professor of
law at Harvard. All twenty-one had
several factors in commoh; all were
white, male, and a graduate of Harvard
Law School. All but one man had his
bachelor of laws degree from Harvard
University. The other man (Yale
University graduate) received his master
of laws degree from Harvard. They were
of different religions, and from different
geographic regions. Yet above all else,
the clerks were "the best and brightest"
of their class at Harvard Law School.
Until Brandeis came to Washington,
Supreme Court justices did not have law
clerks to assist them. Brandeis took the
idea from the late nineteenth century
Supreme Court Justice Horace Gray,
who paid the salary of a law clerk out of
his own pocket. The concept was not
accepted by the other justices. Brandeis
used the position and salary of the
secretary assigned to him by the Court
and instead hired a law school graduate
as his clerk. The early clerks listed
themselves in their biographical sketches
as "Secretary to Justice Brandeis."
Other justices began to use law clerks.
Finally the concept was accepted by the
Court, and the position was made
permanent and funded by Congress.
The names of the twenty-one Brandeis
law clerks read like a roster of legal hall
of famers. Two were federal judges,
Calvert Magruder, and Henry
Friendly. Ten were law school teachers,
Henry Hart, Harry Shulman, Nathaniel
Nathanson, David Reisman (THE
LONELY CROWD), James Landis,
William Rice, Louis Jaffe, Paul Freund,
William Hurst, and William McCurdy.
Nine were practising attorneys, Thomas
Austern, Graham Claytor, Robert Page,
Warren Ege, William Sutherland,
Samuel Maslon, Irving Goldsmith,
Adrian Fisher, and Dean Acheson. Most
men also did a fair share of public
service on the national level.
The Brandeis-clerk relationship was
similar to a partnership with Brandeis
the senior partner, obviously. Brandeis
got along better with some clerks than
others. Only one or two men were not I
succ,essful as his clerk. Of the twenty- s
one former clerks, Dean Acheson
probably is the most famous and most
Justice Louis D. I
,aminer March, 1988 March, 1988
eis: His Louisville Connection, His Clerks ...
Jaffe, of Harvard University Law
School and a former Brandeis law clerk,
was the main speaker.
Brandeis served twenty-three years as
Justice, retiring in 1939. Many people
erroneously believe he was succeeded by
Felix Frankfurter. In fact, William 0.
Douglas was Brandeis' successor.
Brandeis and Frankfurter sat together
on the Supreme Court for only a few
weeks. The two Brandeis judicial
opinions we are most familiar with are
his concurrence (which reads like a
dissent) in Whitney v. California, 274
U.S. 357,372 (1927), a free speech case,
and the majority opinion in Erie
Railroad Co. v. Tompkins, 304 U.S. 64
(1938).
The names of
the Brandeis
law clerks read
like a roster of
legal hall
of famers
Brandeis' role in the development of
the concept of recent law school
graduates serving as clerks to Supreme
Court justices, and the men who served
as his law clerks, has fascinated me for
years. Twenty-one men served as his law
clerks. Two men, Dean Acheson and
William Sutherland, each served two
terms, because of World War I. All were
selected to be Brandeis' law clerks by
Felix Frankfurter, then a professor of
law at Harvard. All twenty-one had
several factors in common; all were
white, male, and a graduate of Harvard
Law School. All but one man had his
bachelor of laws degree from Harvard
University. The other man (Yale
University graduate) received his master
of laws degree from Harvard. They were
of different religions, and from different
geographic regions. Yet above all else,
the clerks were "the best and brightest"
of their class at Harvard Law School.
Until Brandeis came to Washington,
Supreme Court justices did not have law
clerks to assist them. Brandeis took the
idea from the late nineteenth century
Supreme Court Justice Horace Gray,
who paid the salary of a law clerk out of
his own pocket. The concept was not
accepted by the other justices. Brandeis
used the position and salary of the
secretary assigned to him by the Court
and instead hired a law school graduate
as his clerk . The early clerks listed
themselves in their biographical sketches
as "Secretary to Justice Brandeis."
Other justices began to use law clerks.
Finally the concept was accepted by the
Court, and the position was made
permanent and funded by Congress.
The names of the twenty-one Brandeis
law clerks read like a roster of legal hall
of famers. Two were federal judges,
Calvert Magruder, and Henry
Friendly. Ten were law school teachers,
Henry Hart, Harry Shulman, Nathaniel
Nathanson, David Reisman (THE
LONELY CROWD), James Landis,
William Rice, Louis Jaffe, Paul Freund,
William Hurst, and William McCurdy.
Nine were practising attorneys, Thomas
Austern, Graham Claytor, Robert Page,
Warren Ege, William Sutherland,
Samuel Maslon, Irving Goldsmith,
Adrian Fisher, and Dean Acheson. Most
men also did a fair share of public
service on the national level.
The Brandeis-clerk relationship was
similar to a partnership with Brandeis
the senior partner, obviously. Brandeis
got along better with some clerks than
others. Only one or two men were not
succ,essful as his clerk. Of the twenty­one
former clerks, Dean Acheson
probably is the most famous and most
celebrated one. He was described by
another Brandeis law clerk as "Son of
an Episcopal Bishop, his mother was
from a wealthy whiskey family.
Thoroughly versed in the Bible, talented
beyond redemption, handsome, urbane,
beneath the urbanity was sheer granite."
After clerking for Brandeis, Acheson
joined the distinguished Washington
D.C. law firm of Covington & Burling.
He served in varous positions in the
federal government throughout his legal
career, most notably Secretary of State
from 1949 to 1953 for President Harry
Truman. In his book MORNING AND
NOON, Acheson furnishes us with a
marvelous description of his two years
as Brandeis' law clerk. He sums up
Brandeis' work in these words: "Justice
Brandeis' standard for our work was
perfection as a norm, to be bettered on
special occasions. Hard work he took
for granted ... " What a wonderful
standard to follow in our lives.
Louisville Law Examiner PageS
... And His Mind
By William Read
Professor Read retired last year as
Professor of Law at the University of
Louisville School of Law. This article
was delivered as a speech at the 1987
Brandeis Society Alumni Dinner.
The most interesting thing about a
lawyer is her or his mind. And the mind
of a lawyer as unique as Louis
Brandeis is very interesting. Melvin
Urofsky describes it in the title of his
book as "A Mind of One Piece." He
said it this way because it was a mind
held together
by its passion for facts and results,
often at the expense of general
principles;
by its extraordinary diligence and
clarity in mastering factual detail;
by vigorous self-confidence in its
conclusions, buoyed by natural
optimism and cheerfulness; and
by its life-long focus on the goal of
bettering ordinary people.
A good place to start an account of
this mind is Prague in 1848- then a city
of high culture, but unstable politics,
especially for Jews. A group of well-to­do
and well educated Jewish families
sent one of the best and brightest of their
young men, Adolph Brandeis, father-to­be
of Louis, to America to find farm
land where they might settle. Adolph
quickly figured out that farming in
America would be very hard and very
dull work, and that the grocery business
made more sense. A group from Prague
of about 25 came first to Cincinnati,
then to Madison, Indiana, and finally to
Louisville, where Louis was born in
1856. He had a warm and stimulating
family life and got an education of sorts
in Louisville. But it was not good
enough to get him into the gymnasium in
Vienna in 1872, when his father took the
family to Europe for an extended stay.
A year later he did manage to get into a
school in Dresden, where he says that he
learned to think. He discovered, in
preparing an essay about something he
knew nothing, that he could evolve ideas
by reflecting on his material. Here we
have the essential key to this mind: The
gathering and mastering of facts, and
then, but only then, drawing
conclusions. And, as we will see, once
conclusions were drawn they were likely
to become crusades.
His struggle in Dresden to educate
himself seems to have worked. In 1875
The Brandeis
mind thrived on
the case
method of
learning law
he was admitted to Havard Law School
and was soon making grades that were
still begin talked about by students there
over 60 years later. He arrived at
Harvard at just the right moment -
shortly after Christopher Columbus
Langdell discovered the case method.
The Brandeis mind thrived on this way
of learning law, which starts students
with the facts of actual cases rather thari
with legal rules. And he continued to
attack legal problems by way of their
facts as he progressed through his
career: as an advocate for private
clients, when he made his fortune; the
early years of the century - before he
went on the Supreme Court in 1916 -
when he made his name as a reformer
and as "the people's lawyer"; and 23
years he was a Supreme Court justice.
Throughout, it was his practice to read
and digest an abundance of material
before reaching a conclusion.
Max Lerner, writing in the Yale Law
Journal in 1931 in commemoration of
Brandeis' 75th birthday, compared the
minds of Justices Holmes and Brandeis.
Holmes had a philosopher's mind that
liked to start from abstract principles.
He spent his life seeking major premises
to think from. In contrast, Brandeis said
that it was only after he had found
himself confronted with a specific set of
facts and had thought his way through
to a conclusion that he found that his
conclusion happened to coincide with
some "principle." Lerner suggests that
for Brandeis principles were nine-tenths
submerged preconceptions that cropped
out only as approaches to contemporary
issues.
Among Brandeis' books that our
library has inherited are several from the
teens on using time and motion studies
to reduce fatigue for industrial workers.
From the markings in these books,
Brandeis read them carefully. And you
can see their appeal to his kind of mind:
they are about facts that require detailed
measurement and correlation; and they
promise results that benefit large
numbers of ordinary people, both
employers and workers. I can picture
Brandeis trying, unsuccessfully, to
induce Holmes to take books like these
home to New England for summer
reading.
A sense of the difference between the
Holmes and Brandeis minds can be
gained from the opinions in the 1918
case where Associated Press was trying
to stop International News Service from
copying, without attribution, news
published in early editions of AP papers.
Justice Pitney, for the majority, said
that news is property and must by
protected against piracy. Holmes
concurred in the result, but on the basis
of tort rather than property: he saw the
INS conduct as deception, making it a
kind of unfair competition. Brandeis
dissented. While he agreed that INS had
acted shabbily, he saw the case as
presenting a regulatory question for
Congress to investigate; and he believed
the court should not "establish a new
rule of law." Holmes worked from a
general torts principle that he found in
the common law. Brandeis wanted more
facts. The Brandeis antipathy to
generalizations is also apparent in his
Erie decision, 20 years later, where he
says that the Constitution does not
empower the federal courts to make
general federal common law.
Both Holmes and Lerner refer to the
Brandeis optimism and cheerfulness. In
a letter to Harold Laski, Holmes
speculates that it might have something
to do with having a Jewish upbringing.
Brandeis had a knack for facing up to
obstacles and overcoming them. When
he was in law school the trainer at the
Harvard gym told him he was so frail
An incident at
his Dresden
school illustrates
both his
cheerfulness and
his individualism
that unless he got some regular exercise
he would be in big trouble. So, he began
an exercise program that he followed up
to shortly before he died at age 85.
While at law school he also began having
trouble with his eyes and his doctor told
him to give up the law. This was asking
too much. Instead he worked out a
schedule that permitted him to do his
reading and writing during the daylight
hours. Stories are told from his years on
the Court of law clerks pushing drafts of
opinions under his door at six o'clock in
the morning and watching them
disappear as the Justice pulled them in
from the other side of the door.
Lerner speaks of how the influences
on Brandeis of 19th century European
romantic liberalism, inherited from his
parents, mixed with the primitive
Americanism of his childhood in semi­frontier
Kentucky to make him an
individualist. One night returning to his
room he war reprimanded for whistling.
This made him furious - he saw the
reprimand as an invasion of his
individual rights. About 15 years later
the scholarly work for which he is best
known, the 1890 Harvard Law Review
article on the right of privacy, starts with
the assertion that the legal right to life
includes the right to enjoy life and to be
left alone. And he came to include the
telephone among the enemies of privacy.
In the late 1930s his law clerk received a
telephone call in person from President
Roosevelt asking to speak to the Justice.
(Continued on Page 8)
Paae6 Louisville Law ~alllhter March, 1988
Soviet Law, Soviet Reality
A Student's View of the Soviet Union
By Jimmy L. Hom
Not with the mind is Russia
comprehended,
The common yardstick will deceive
In guaging her: so singular her nature­In
Russia you must just believe.
- Fyodor Tyutchev
(1866)
Phil Rush, a fellow student from
Golden Gate, and I arrived at
Sheremetyevo-2 airport in Moscow on
June 1 of this year. Off to the right of
the runway was a beautiful grove of
birch trees, the symbol of Russia for
hundreds of years. Phil and I were part
of a summer study program in the USSR
sponsored by the University of San
Diego, Institute of International and
Comparative Law. Our itinerary took us
from Moscow to Leningrad and then on
to Poland. (In July, I returned to the
Soviet Union for two more weeks to
travel on my own.)
Professor Henry Dahl, an expert on
comparative law with a specialty in
human rights, and Professor Chris
Osakwe from Tulane University led our
studies in East-West trade and Socialist
law. Our group of 23 consisted mainly
of students from law schools nationwide
in addition to a few practicing attorneys
and a journalist, each of whom paid
$2,500 for an interesting way to earn 4
units of credit.
This summer, the male-female ratio
was about even. Last year, as a result of
the Chernobyl accident, there were only
three women in the program. The major
effects of that nuclear accident have
worn off, although one Russian woman
told me that she had never seen
Ukrainian apples so big before as they
were this year!
LAW AND LA WYERS IN SOVIET
SOCIETY
One of the first things that struck me
about Soviet society was the minor role
that lawyers play in governing the
system. Although General Secretary
Mikhail Gorbachev was trained as a
lawyer, he is more the exception than the
rule.
Legal assistance is guaranteed in the
Soviet constitution. Nevertheless,
private litigation between citizens in the
U.S.S.R. is fairly rare in most
situations. I was reminded of this in the
port city of Odessa on the Black Sea
when I saw an old woman knocked
down on the street by a trolleybus. As I
watched, the driver rushed out and,
instead of helping her, began yelling at
her for "stupidly" walking in front of
him. She picked herself up, dusted
herself off, and then yelled out a few
words in response that I didn't quite
catch before she walked away. Contrast
this with an incident in Oakland three
years ago when a truck rear-ended an
AC Transit bus. The six passengers got
off the bus and were told to wait inside a
nearby post office. When the police
finally arrived and went inside the post
office, they found eight people lying on
the ground - all claiming to have been
passengers injured in the accident.
Phil and I visited Juris Consultazia
No. 21 in Moscow, a law firm that
boasts as its most famous client former
Jewish dissident Anatoly Sharansky.
Before Sharanky's 1978 trial for
treason, his family was turned down by
20 to 30 advocates who would not take
his case bacause Sharansky had refused
to plead guilty. (Attorneys who work in
law firms are called "advocates.")
Unfortunately, the advocate who
handled Sharansky's case declined to
discuss it, citing client confidentiality.
Inside Juris Consultatzia No. 21 was a
large sign listing the fee schedule
established by the government. The
permissable fees charged clients are
relatively low. For example, an oral
consultation is typically one ruble (about
$1.60) and drafting a complicated
document costs six rubles ($9.60). A day
of a criminal trial that lasts less than
three days costs twenty rubles ($32.00);
each subsequent day will earn an
advocate twelve rubles ($19.20). Some
legal services are provided free of
charge, such as work involving workers'
compensation or alimony.
Although an advocate's salary is subject
to a formal ceiling of 350 rubles ($560) a
month, advocates routinely expect
additional compensation (known as
mikst) from clients beyond the official
rates. As Ivan Fyodorovich, Honored
Jurist of the Russian Soviet Federated
Socialist Republic, described the
workings of his office, Phil and 1 could
not resist asking him if mikst was as
common as American scholars of Soviet
law claim it to be. "Absolutely not,"
answered Mr. Fyodorovich. "Anyone
who took money under the table at this
law firm would be fired."
A month later I asked the same
question of Anna, who had been
practicing law m Odessa for eleven
years, as we drove to pick up one of her
clients for a meeting at the Ministry of
Internal Affairs (equivalent to a police
station).
"Absolutely," she laughed.
A SOVIET TRIAL
In Leningrad, Joanne, an assistant
district attorney from San Diego, and I
attended a trial of an alcoholic on a
petty offense at the People's District
Court on Krasnoarmenskaya (Red
Army) Street. As is common with many
minor matters, the procurator
(prosecutor) did not even take part in the
trial. The questioning was conducted by
the people's judge, who is elected by the
citizens of the local district to the bench
for a five-year term. Joining her on the
three-judge panel were two lay judges
call assessors, elected for 2 Y2 year terms
and who theoretically have power equal
to their professional counterpart in the
courtroom. Traditionally, however, they
defer to the people's judge. For the most
part, the assessors in the trial sat quietly.
The defendent had already pleaded
guilty, but a guilty plea does not stop a
criminal trial from taking place. A
Soviet court is required to independently
corroborate a defendant's guilt. Here,
the defense attorney called two
witnesses, including the defendant's
weeping wife. In her closing argument,
the advocate concluded by telling the
court that her client was a good
husband, a hard worker, and had
stopped drinking. The three judges then
adjourned to a back room to reach their
decision. After waiting twenty minutes,
Joanne and I left without ever finding
out the court's verdict to catch a plane to
Warsaw.
SOVIET ENCOUNTERS
Soviets and Americans have
interesting conceptions about each
other. American visitors believe that
they will be followed everywhere they go
by the KGB, the Soviet secret police.
The only time I knew I was followed was
after I helped an American tourist who
wanted to exchange American T-shirts
for Russian T-shirts with a Leningrad
black-marketeer in front of the Gostiny
Dvor department store. Since the black­marketeer
did not speak very good
English, an essential requirement in his
illegal profession, I conducted
negotiations in Russian. This caught the
interest of somone nearby who decided
to follow us. We eventually lost him by
... ducking into the subway and then
jumping on and off a couple of subway
trains.
Many Soviets, on the other hand,
seem to think that the United States is
rampant with crime. "Tell me, Jimmy,"
asked Vladmir, a Soviet Jew who had
been thinking about emigrating for the
last ten years, "do the Clint Eastwood
and Chuck Norris movies represent real
life in America?"
Vladimir and his wife took part in an
illegal video ring that acquired tapes of
western movies, transcribed the dialogue
into Russian, and then passed them
around. Last year, the communist party
newspaper Pravda reported that six
people were sent to prison for showing
"Rambo" and "Rocky IV," both of
which Vladimir had seen and disliked.
"No plot," he complained.
There are over one hundred different
nationalities in the Soviet Union. At the
Alexander Nevsky Monastry in
Leningrad, I struck up a conversation
with a woman from Kazakhstan, located
in Soviet Central Asia. She was curious
about me because she and I shared
similar Asian facial features. I was
curious about her because a few days
earlier, a Lithuanian friend had gotten
me past a passport checkpoint at a radio
tower /revolving restaurant in Vilnius by
telling the guard that I was her friend
from Kazakhstan. (I had forgotten my
American passport at my hotel.)
I asked the woman in Leningrad what
life was like in Kazakhstan. "Good,"
she said, "very good." I then expected
her to ask what life was like in the
United States. Instead, she continued,
"and I understand that you have a lot of
unemployment in America and that
blacks don't like it there."
Article 36 of the Soviet Constitution
outlaws racism in the U.S.S.R. At least
until Gorbachev's glastnost campaign,
racism did not officially exist.
Nevertheless, there is probably a lot
more racism in the U.S.S.R. than the
Soviets will admit and probably a lot less
racism that they think exists in the
United States.
Generally, the only blacks in the
Soviet Union are students from third­world
and "socialist brother" countries,
along with an occasional tourist. I met
Steven, who was black, in Kiev at the
"Monument Commemorating the
Reunification of Ukrainians with
Russia." He was learning how to use his
new Russian Zenit camera and had
already ruined two rolls of his East
German film that day. He had just
finished the first year of study in the
Russian language,as well as his
introductory political courses (Marxism­Leninism,
dialectic materialism, history
of the Soviet communist party) and was
preparing to go back to Chad for part of
the summer. Next year, he would begin
five years of study at Kiev State
University.
GLASTNOST AND PERESTROIKA
This summer was an exciting time to
be in the Soviet Union. Every official we
met spoke of glastnost and perestroika,
the buzzwords of Gorbachev's campaign
to reform the Soviet political and
economic system.
Although some of the Soviet citizens I
spoke with felt that the reforms were
overrated and had not yet affected the
average person in any substantial way,
the beginnings of change could still be
seen. For example, at the Institute of
State and Law of the U.S.S.R. Academy
of Sciences in Moscow, a leading legal
think-tank, the legal scholars openly
discussed with us some of the proposed
revisions to the 30-year old Soviet
criminal code. All of this took place five
months before the Soviet press agency,
Tass, officially announced in early
November that the criminal code was
being rewritten.
FAREWELL
Most of us found in the Soviet Union
what we expected to find. Those who
expected to find corruption were able to
meet black-marketeers willing to show
them the seamier side of the Soviet
system. Those who wanted to find night
life were able to locate tourist-filled
discotheques. For me, I expected to find
a beautiful country populated wtih a
wondrous people. I found it.
Jimmy L. Hom is a student at Golden
Gate University Law School in San
Francisco.
March, 1988 Louisville Law Examiner Page7
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PageS Louisville Law Examiner
The Mind Of
Brandeis
(Continued from Page 5)
His clerk dutifully told the President
that the Justice does not use the
telephone. The President took this in
good grace and asked the clerk to
arrange to have the Justice come to see
him.
Lerner describes Brandeis as a
"terrifying opponent to encounter." He
inspired terror by his preparation and
grasp of the facts, his fervor and self
confidence, and his sureness that he was
right - qualities that led Harold Lasky
to write to Holmes that he saw Brandeis
as more of a prophet than a judge. These
strengths as an advocate made many
powerful people fear and dislike him -
and to oppose his appointment to the
Court in 1916. Four years earlier he had
suffered one of his few disappointments:
the failure of President Wilson to name
him attorney general in reward for
master-minding Wilson's 1912
presidential campaign. It was shortly
after this let down that he affiliated
himself with Zionism - some said to
give himself a political base.
His relationship with Zionism was a
stormy one. Brandeis saw himself as an
American, and he saw a Jewish state as
simply an option for those who might
choose it. This was not enough for the
European Zionist leaders. For much the
same reasons that Brandeis lacked
interest in philosophy and general
principles, he lacked interest in religion.
His concern was the here and now and
how it could be made better. In 1914,
when he accepted the chairmanship of
the American Zionist Organization, he
said: "The Jewish people has something
which should be saved for the world .... It
is our duty to pursue that method of
saving which most promises success ."
As an unhypenated American,
Brandeis was convinced that our greatest
national resource is the undeveloped
talents of our ordinary people. And his
mind was dedicated to developing that
resource. Products of this dedication
were his interest in the Louisville law
school and the things he did to make it
better: getting us on the list to receive .
Supreme Court briefs, persuading the
Harlan family to give us some of the
first Justice Harlan's papers, leaving us
a substantial part of his own papers.
And his instructions about his burial at
our law school reveal much about his
mind. He was pragmatist. He thought
his remains would do the most good if
they were at a place where they could
remind law students, and law teachers,
I..ouisville Law Examiner
School of Law
University of I..ouisville
l..ouisville, Kentucky 40292
March, 1988
of him and inspire them to work hard -
the way he did.
In conclusion I offer a little story I
believe to be true: When his former law
clerks - who included such people as
Dean Acheson, Paul Fruend, David
Riesman, and Henry Friendly - were
planning a pilgrimage to visit him on his
80th birthday, he let the word go out
that, instead of a visit, he would rather
get a letter from each of them telling him
what public service they had done
recently.
John M. Harlan Louis D. Brandtis '
·~ . .
Louisville~-----
Law Examiner Volume 13
Dean Lewis
on Women
in Law
Page 1
Candidates'
Right to
Privacy
Page 1
Insights on
Brandeis
Page 4
An American
Law Student
in Russia
Page 6
March, 1988 Number 2
T
1
1.·1 '
~~ {j
Photo by Todd Bolus