Two Great Liberal Judges

...Konefsky draws deftly upon bis wide knowledge of the secondary literature to offer varied explanations for their conduct, accepting some, rejecting most, and not infrequently advancing fresh interpretations of his own...

...And even if a statute were, Holmes did not balk at interpreting statutory language, regardless of legislative intent, in accordance with its traditional meaning at common law...

...45 pages are spent in reproducing sections of a tedious piece prepared by Felix Frankfurter twenty-five years ago for the Harvard Law Review...

...Surely Justice Brandeis deserves better...

...Inevitably, as Konefsky well realizes, greater exception will be taken to his treatment of Holmes than of Brandeis, for Holmes somehow means something different to everyone...

...Once called to the highest bench, Holmes, in dissents "touched with fire," castigated his brethren for invalidating statutes passed by liberal-minded legislatures...

...Throughout Mr...

...But legislatures, as direct reflections of community balance of power and consensus, held a higher claim than the judiciary as reformulators of the law...

...With grace and skill he discusses many of the major cases in which one or both participated...

...As long as a legislature stayed within the framework of the powers delegated lo it—and these Holmes read with generosity—the proper course for the judge was self-restraint...

...Nor is there mystery in the cooperation of a creative common lawyer and a humanitarian (though not sentimental) social scientist in using the Court's power to bring the administration of criminal justice more in line with actuality...

...No judge had any business invoking due process, liberty of contract or similar doctrine for the purpose, real if inarticulate, of substituting his own view of what the law should be for that of a legislature...

...In addition, the index is hopelessly inadequate, and the size of type varies capriciously...

...Of its 256 pages, 28 are consumed by the original footnotes from several of the articles reprinted from legal periodicals...

...and where relevant consider...

...The monumental briefs he presented as counsel sought to convince the judiciary that facts and figures clearly showed the reasonability, even desirability, of various economic and social reforms...

...To account for the tendency of Holmes and Brandeis to vote together is the task Samuel Konefskv has set for himself...

...The fifteen years Holmes and Brandeis shared on the Court saw them nearly always voting together, frequently as dissenters...

...Justice Brandeis he prepared long and carefully researched opinions to the same end...

...His mastery of the social sciences and bis many years as advocate for the people had convinced him that if only the facts could be mastered workable solutions to seemingly insoluble problems could be found...

...For Holmes it was enough to say that a statute was not arbitrary because "a reasonable man might think it proper...

...25 more, virtually the entire section entitled "Mr...

...In contrast to Konefsky's able essay, The Brandeis Reader is a disappointing volume...

...Brandeis held a substantially different outlook...

...In three decades as editor, author and judge, he had outlined his Weltanschauung in what he liked to call the "sanctity" of print...

...Not only is much of the material included in The Brandeis Reader ill-chosen, but many of the editorial notes are unsatisfactory...

...Life, thought Holmes, was a continuous struggle for survival, and law the complex of legally enforceable rules of conduct which prevented the struggle from degenerating into a Hobbesian civil war...

...Reviewed by Joseph Tanenhaus Assistant professor of government...

...v. Tompkins do not tell the reader enough to make these selections as meaningful as they might otherwise be...

...Other areas of agreement have related explanations...

...In what remains there are some items of interest, particularly Edmond Cahn's delightful address before the American Jewish Congress last year...

...New York University No list of great American jurists would grow very long before including the names of Oliver Wendell Holmes and Louis Dembitz Brandeis...

...At any stage of a community's development, the law ought to reflect contemporary realities, and the task of the creative common-law judge was to recast any rule of common law whose lack of utility had become patent...

...As Mr...

...Justice Brandeis Evaluated," contain five eulogies prepared shortly after the Justice's death...

...but Brandeis would not be satisfied without considering economic, political and social conditions, past and current, in an effort to evaluate "the evils sought to be remedied and the possible effects of the remedy proposed...

...To this reviewer Konefsky, though to a lesser extent than most commentators, underrates the impact of the common law on Holmes, and overemphasizes the naivete of his understanding of economic phenomena...

...For example, a goodly portion of the comments introducing New Slate Ice Co...

...He had little faith in the workability of most of the social and economic reforms es sayed, but he did not think this ade quate justification for a judge's seek ing to prevent less skeptical legislators from experimenting with them If no statute were involved, he did not hesitate to strike boldly in an effort to reshape the law...

...the direction in which the Court has moved since they departed from it...

...That one who believed legislatures ought to be allowed full rein should find himself in agreement with the conclusions, if not all the reasoning, of a crusading reformer when the issue at stake was the constitutionality of minimum-wage legislation or statutory limitations on the enjoining of peaceful picketing is no cause for wonder...

...When Holmes came to the United States Supreme Court in December 1902, he was already an internationally celebrated legal craftsman...

...v. Liebmann and Louisville Joint Stock Land Bank v. Radford consists of quotations from the opinions which follow, while the comments preceding an article by Brandeis on competition, his statement on the menace of trusts to a Senate committee, and his opinion in the important case of Erie Railroad Co...