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America Needs Sagacious Judges like Learned Hand

 
Anonymous Coward
User ID: 48826810
Canada
10/25/2013 11:31 AM
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America Needs Sagacious Judges like Learned Hand
In 1893, Learned Hand "drifted" into Harvard Law School, turning his back on his desire to become a philosophy teacher. Coming from a family of lawyers, he attended law school for the same reason many others chose the profession - they didn't know what else to do.

By 1894, Learned Hand had become editor of the prestigious Harvard Law Review, his selection a tribute to his intellectual reputation. At Harvard, he became a trailblazer because he believed a case study was potentially as flawed as it was instructive. Like "Balaam's Ass", which was miraculously granted the power to criticize the unfair practices of its master, any result was essentially unrealistic without the "conscious intelligence in the being from whom they proceeded".

Learned Hand called this conscious assessment "adequate reality" because he perceived weaknesses and limitations, as well as strengths, which provided the necessary objectivity to infuse fairness and justice.

A dogmatic logician's practicality, he argued failed to temper theory with wisdom and judgment.

Hand eschewed the search for orderly systems and emphasized instead the historical and human dimensions too often ignored by his colleagues.

Skepticism about a court's ability to arbitrate social conflict was in part due to a confining, politically motivated "step by step" learning approach. In particular, Hand recalled "that most of constitutional law had been constructed out of circular propositions, which justified the predetermined attitudes of the judges."

In 1896, Learned Hand was twenty-four when he prepared to enter law practice.

In 1902, he left his hometown of Albany to work in New York City and in 1909, after 13 years of law practice, he obtained a federal judicial appointment. The Senate confirmed Learned Hand's nomination as United States district judge for the Southern District of New York and on April 30, 1909, Hand took his judicial oath and donned his robe.

The fairness that Learned Hand would bring during his fifty-two years on the federal bench was evident even before he got there.

In 1908, Hand wrote a fifteen-page essay entitled "Due Process of Law and the Eight-Hour Day" published in the Harvard Law Review. The article was a response to the 1905 landmark decision of the Supreme Court, Lochner v. New York, which prompted Hand to object to the fact that the Court had invalidated popularly supported laws

In Hand's view, Lochner initiated an inappropriate abuse of judicial power. The Bakeshop Act was a New York state labor law which prohibited bakery employees from working for more than sixty hours per week or ten hours per day, and the Supreme Court failed to observe the law in that regard. Lochner permitted an employee to work in his bakery for more than sixty hours in one week and was convicted of his second offense and fined. He appealed his conviction on the grounds that the law violated his freedom to contract under the Due Process Clause of the Fourteenth Amendment and he won.

Lochner is one of the most controversial decisions in the Supreme Court's history because it invalidated federal and state statutes that sought to regulate working conditions during the Progressive Era and the Great Depression. Hand championed the dissenting opinion penned by Justice Oliver Wendell Holmes, Jr., who claimed that the Lochner case was "decided upon an economic theory which a large part of the country does not entertain."

Lochner is sometimes used as shorthand for extreme right wing constitutional theory. Moderates like Hand condemned what appeared to be judicial abuse because the worker-protective measures that legislators were beginning to adopt were obstructed by judicial attitudes which ignored the popular will and acted like " a perpetual censor upon all legislation... with the authority to nullify such as did not approve." [Slaughter House Cases, 165 U.S. 36, 78 (1873)]

Lochner was the first Supreme Court decision invalidating a law aiding workers on the grounds that it violated due process. The risk that justices would abuse their power by allowing their political and economic biases to influence their decisions has consequently been a relevant and sometimes disturbing concern, ever since.

Justice Oliver Wendell Holmes, Jr. succinctly captured the essence of the general debate when he wrote, "...I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man would necessarily admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and the law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us." [198 U.S. 75-76 (1905)]
Anonymous Coward
User ID: 48914042
France
10/25/2013 12:51 PM
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Re: America Needs Sagacious Judges like Learned Hand
Did you make that up? Learned Hand?





Link Please.
Anonymous Coward
User ID: 48925297
Brazil
10/25/2013 05:12 PM
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Re: America Needs Sagacious Judges like Learned Hand
Good read for any lawyer, even in Brazil/
Anonymous Coward
User ID: 48923642
Canada
10/26/2013 11:37 PM
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Re: America Needs Sagacious Judges like Learned Hand
A very good man, that Learned Hand.





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