Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis (review)

The body of Brandeis literature grows, and as one of my colleagues has noted, Brandeis study has become an academic cottage industry. We now have several biographies of the justice, a number of interpretive works directed at particular aspects of his career, a new collection sampling his writings, and a new edition of his classic Other People’s Money will appeared in 1995. Alpheus T. Mason, the first of the important Brandeis biographers, recognized how complex a subject he had tackled, but writing as he did in the early forties he suffered from a lack of sources other than those of Brandeis himself and from a body of critical writing about the man. The modern student of Brandeis has a wealth of material, both primary and secondary, on which to draw.

Stephen Baskerville has not, as he explains, attempted to write a full-scale biography of Brandeis, but rather an intellectual study, trying to chart the development of his ideas both as a reformer and as a jurisprude. In the course of that work, he must, of course, fill in at least a rough sketch of Brandeis’s career in order to have a historical skeleton upon which to mount the intellectual flesh. The problem is that Brandeis had such an enormously rich and varied career that it becomes difficult to limit the skeleton in order to retain sufficient space for the exploration of ideas. As a result, this book will be most useful and most interesting to those who already have a fair knowledge of Louis Brandeis and his work. To them this will be an interesting albeit at times a frustrating book; to those with little or no knowledge of Brandeis, take this as a warning: This is not the book with which to begin your exploration.

For those of us who have studied Brandeis Baskerville presents analyses that are at time familiar and at other times quite insightful and stimulating, even if he does not always succeed in convincing us that his interpretation is correct. His basic thesis is that:

it was the law and its principles that provided Brandeis with his most enduring frame of reference within which to analyze and interpret the fabric of American life. As attorney and subsequently as judge, he used its precepts and logical modes of reasoning as a surgeon might use a scalpel: to cleave truth from obscurity; to cut with delicacy and precision between several fine shades of meaning, and with as much acuity between their divergent though attendant consequences.

(pp. 227–28)

This is more than merely “thinking like a lawyer.” Brandeis used the law not just in his practice, but in his life, and Baskerville does a fine job in exploring the state of the law and its basic principles as Brandeis learned them at the Harvard Law School and as he practiced them in the late nineteenth century. It is not a novel thesis, since every other biographer of Brandeis has noted his deep devotion to the law, but none of them has gone as far as Baskerville into exploring what that meant in terms of his reform career and his approach to life and its problems.

Baskerville also questions some of the accepted “myths” about his subject. Brandeis claimed that he changed his mind about the law of labor and about labor relations altogether because of the Homestead strike. He was, as he told the story, preparing a series of lectures at the Massachusetts Institute of Technology, when the Homestead strike took place, and the pitched battles between the workers and the Pinkertons hired by management appalled him. He threw away his notes and started all over.

Not so, says Baskerville, and proves it by analyzing the notes for those lectures which show very little change between Brandeis’s views before and after the strike. If Homestead had any impact on him at all, it came later, and the Homestead story is one of those self...