The Ulysses Cases and What They Reveal About Lawyers and the Law

This essay discusses the ways in which the 1920 and 1933 obscenity cases involving Ulysses—the first banning the novel in America and the second liberating it—provide a window into the world of lawyers and judges that remains useful today. My perspective on the two cases as a former prosecutor and sitting judge is followed first by my lament that too many members of my profession are insufficiently comfortable in our lawyers’ skin, causing them to act like something they are not, with results ranging from the pathetic to the outright dangerous. Second, I explain how the Ulysses cases illustrate a troubling fact about judges in America: when they are equipped with indeterminate rules of decision that allow them to change the direction of the law, as a general matter, judges cannot be counted on to lead the way toward needed changes. Rather, their decisions tend to track and ratify public opinion at the time they are made. In other words, judges are more likely to follow than lead. As a result, when needed change eventually arrives, as it did with respect to government censorship of the written word, it usually arrives too late.