Brandeis as Public Interest Lawyer

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BRANDEIS AS PUBLIC INTEREST LAWYER

Had he never been appointed to the U.S. Supreme Court, louis d. brandeis's place in the history of American public law would nonetheless be secure. His reform work as the "people's attorney" inspired two generations of public interest lawyers and plays a continuing role in debates over the figure and function of the "good lawyer."

Brandeis gave little evidence of his intense interest in using law in the public arena until the 1890s, when he had been in practice in Boston for over a decade. During the 1880s, in partnership with his law school classmate Samuel Warren, Brandeis had developed a steady and lucrative clientele, largely small-to medium-sized manufacturers and entrepreneurs drawn to Brandeis's burgeoning reputation for energy, judgment, and financial acumen. His experience with this clientele—Brandeis, as a Jew and non-native of New England, was largely excluded from representation of Boston's wealthiest and most prestigious financial institutions—helped form Brandeis's hostility to concentrations of economic and political power.

Perhaps the most impressive of Brandeis's many lawyering skills was his remarkable understanding of the business as well as the legal aspects of his clients' enterprises. In one of his best-known letters, to a young lawyer at his firm, he wrote: "Your law may be perfect, your ability to apply it great, and yet you cannot be a successful adviser unless your advice is followed; it will not be followed unless you can satisfy clients, unless you impress them with your superior knowledge, and that you cannot do unless you know their affairs better than they do because you see them from a fullness of knowledge." Partly through his involvement in railroad reorganization matters in the 1890s, he developed an understanding of corporate finance far in advance of that held by most of his lawyer contemporaries.

It was Brandeis's discovery that "business corrupts politics," as well as his restless pursuit of a more publicly meaningful professional life, that led to his first forays into public interest lawyering. He became seriously involved in municipal politics when he opposed the efforts of the Boston Elevated Railway Company to obtain extensive franchise rights and, ultimately, monopoly control over transportation in the notoriously congested Boston area. In the course of fighting the Elevated, Brandeis breathed political life into two reform-minded but genteel citizens' groups, the Public Franchise League and the Associated Board of Trade. These same groups later combined to oppose the proposed capitalization of eight consolidated gas companies who had obtained major concessions from the Massachusetts legislature. With characteristic ingenuity and independence, Brandeis departed from the views of several of his erstwhile reform colleagues and pushed through a compromise plan, according to which the Consolidated Gas Company could increase dividends to shareholders only upon a corresponding reduction in rates charged to consumers.

Brandeis's services as a lawyer–reformer, many of them rendered to clients without fee, eventually spread to the state, regional, and national levels. In his 1905 speech "The Opportunity in the Law" he urged lawyers to take up a position between the corporations and the people, beholden to neither. Probably his most ambitious, and easily his most bitterly fought, battle involved the efforts of the New Haven Railroad, whose interests were controlled by J. P. Morgan, to obtain monopoly leverage over transportation in New England by merging with the Boston & Maine Railroad. In his nine years of jousting with the New Haven, Brandeis scored as many defeats as victories, and some historians now question the economic wisdom of his relentless assault on the merger. But his efforts at understanding and exposing the serpentine financial maneuverings of the New Haven—as he would do with respect to the "Money Trust" in his 1914 muckraking classic, Other People's Money, and How the Bankers Use It—justifiably made him a hero to fellow reformers.

Brandeis infused many of his nominally private legal representations with public purpose. His commitment to adjusting the disputes of labor and capital led him to counsel his business clients to avoid taking intransigent positions in their relations with their employees. Among his clients were the Filene brothers, with whom he collaborated in devising innovative plans for employee management and governance in their well-known Boston department store. His reputation for both creativity and fairmindedness led to his selection to mediate and broker the "Protocol of Peace" in the New York garment trades in 1910. Although the Protocol did not survive the continuing warfare between garment workers and employers, it remained a landmark in labor mediation that inspired advocates of industrial justice for many years.

Brandeis gave his name to one of the signal developments in constitutional advocacy in the 1908 Supreme Court case of muller v. oregon. He was asked by labor reformers to represent the state of Oregon in defense of its maximum-hours law for women, which had been assaulted as unconstitutional. Before a Court that had emphatically declared its hostility to such protective labor legislation in lochner v. new york (1905), Brandeis presented a brief consisting of two pages of legal argument followed by more than one hundred pages of excerpts from social science studies purporting to demonstrate the evil effects of overwork on women and, hence, on society. This " brandeis brief ", despite what now appear to be the gender paternalism of its arguments and the crudities of its social science, confirmed Brandeis's brilliance as a public law advocate. For he attained a victory for his client by giving the Court a means of distinguishing Lochner, and in the process helped establish a new form of legal argument informed by social realities. Brandeis's approach in Muller became one of the rallying cries of the new sociological jurisprudence that would ripen into the legal realism movement of the 1920s.

When Brandeis was nominated for the Supreme Court in 1916, his enemies, some of whom nursed wounds from old legal battles or who opposed the appointment on political grounds, claimed that Brandeis had acted unethically in a number of episodes from his law practice. Most of the accusations proved groundless. They did reveal, however, that Brandeis assumed some risks in his daring use of the lawyer–client relation as a medium for promoting the public good. More than most lawyers, Brandeis was directive rather than reactive in his representations; he took such cases as appealed to his sense of justice and policy, largely avoided the constraining hand of clients, and generally seemed to view himself as "counsel to the situation" (a phrase he made famous). At times, representation of a client became a formality that enabled him to advocate his preferred solution to a pressing question of public policy. This extraordinary autonomy strained the limits of traditional notions of representation and implicitly rejected their emphasis on unblinking loyalty to the client's goals. For this reason Brandeis remains a continuing inspiration for those who see in lawyering the possibilities for the exercise of "moral activism," in legal scholar David Luban's phrase. He also remains an apt symbol for the ambiguities and controversies that attend the role of the "public interest lawyer" in a changing world.

Clyde Spillenger
(2000)