Judge Learned Hand and the Role of the Federal Judiciary, and: Hugo Black and the Judicial Revolution (review)

80 biography Vol. 3, No. 1 ous role that Trotsky played in the suppression of the militant mass movement of the anarchists in the Ukraine. This was centered on Nestor Makhno's peasant horde, the Revolutionary Insurrectionary Army ; if, as Howe asserts, Trotsky and his Red Army finally defeated the Whites, they did so only because Makhno's highly mobile columns intervened on certain crucial occasions, which did not prevent the Revolutionary Insurrectionary Army's being attacked and destroyed at Trotsky's orders once its usefulness had ended. The Makhno incident places Trotsky in an extremely bad light as an opportunist leader hardly less ruthless and amoral than Stalin, and this may be why Howe has chosen to ignore the whole difficult question. Yet, almost alone among the major Marxists, Trotsky was a complex and subtle man who recognized that the world of the arts had freedoms and inner rewards to offer that did not come to the most successful revolutionary. Indeed, perhaps his best writings—the books that will be read longest—are those in which he turned with great flair and originality to criticism (e.g., Literature and Revolution) or used his considerable literary art with less than his usual polemic intent, as in My Life. It is when he writes on this other Trotsky that Howe seems happiest . Here he does not have to face that final question, which Trotsky's defeat and exile left forever unanswered, whether in a position of authority in Bolshevik Russia he could ever have performed the unique alchemy of producing freedom out of revolution. As Howe remarks in a moment of pessimistic candor: "In the light of distance, revolution and counter-revolution come to seem all but inseparable ." George Woodcock Vancouver, B.C. Kathryn Griffith, Judge Learned Hand and the Role of the Federal Judiciary. Norman: University of Oklahoma Press, 1978. 251 pp. $5.95. Gerald T. Dunne, Hugo Black and the Judicial Revolution. New York: Simon and Schuster, 1977. 492 pp. $6.95. A century ago, the notion of judicial biography had no secure place in legal scholarship. The classical declaratory theory of law left little room for the biographical study of judges' lives. Judges didn't make REVIEWS 81 law, they "discovered" it amid some "brooding omnipresence in the sky," in Holmes's sardonic description. The personal experiences, values and predilections of individual judges were thus irrelevant to American legal scholars of the classical mold. Besides, to assert that society was ruled by remote, black-robed patricians was blasphemy to democratic thinkers. This nineteenth-century belief maintained its durability until challenged by a school known as Legal Realists in the 1920's and 1930's, but even now its effects have not entirely dissipated . Among the targets of the Realists' attack on legal formalism was the myth of the judge as super-human oracle. In a landmark 1935 essay, "Transcendental Nonsense and the Functional Approach," Felix Cohen called for a study of the motivating forces which mold legal decisions through an investigation of the political, economic and professional background of judges. Jerome Frank went further, insisting that "psychological factors" such as personal prejudices interfere with judicial objectivity and must be accounted for by students of legal decision-making. Yet, despite the importance of such factors to practitioners and scholars alike, the profession was uninterested, for "according to the classical theory," Cohen recognized, "these things have nothing to do with the way courts decide cases." Today the pertinence of these judicial attributes is seldom disputed. And yet the Realists' insight remains substantially unexecuted. Law schools, which teach the century-old "case method," inundate students with appellate opinion upon appellate opinion, with but rare reference to the corporal authors of those writings. (Holmes, Brandeis and Frankfurter are three who may indeed find their day in class, but the reception is limited to reverence, not analysis.) Law reviews occasionally give extended treatment to the decisions of one justice, but not in the systematic manner that Cohen and Frank suggested. The fact that many outstanding judicial biographies have not been written by law professors may be a further sign of the indifference of the profession . Witness: Leonard Levy on Lemuel Shaw, Albert Beveridge...