Henry Friendly, Greatest Judge of His Era

Henry Friendly, Greatest Judge of His Era

DAVID M. DORSEN
Foreword by Richard A. Posner
Copyright Date: 2012
Published by: Harvard University Press
Pages: 512
https://www.jstor.org/stable/j.ctt2jbprd
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  • Book Info
    Henry Friendly, Greatest Judge of His Era
    Book Description:

    Henry Friendly is frequently grouped with Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and Learned Hand as the best American jurists of the twentieth century. In this first, comprehensive biography of Friendly, Dorsen opens a unique window onto how a judge of this caliber thinks and decides cases, and how Friendly lived his life.

    eISBN: 978-0-674-06493-5
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-xiv)
    Richard A. Posner

    I am on record as having expressed skepticism about judicial biographies. In an article published some years ago I listed a variety of obstacles to successful judicial biography—such as that only lawyers and law professors were likely to be able or inclined to write judicial biographies but that nothing in their training equipped them to be biographers, that most judges live outwardly dull lives, that judges tend to be secretive about their work, and above all that as with other “intellectual workers” the connection between judges’ accomplishments, on the one hand, and their upbringing, personal characteristics, psychology, and experiences...

  4. Introduction
    (pp. 1-4)

    Henry Friendly succeeded brilliantly at just about everything he did (athletics being an exception). Born in 1903 in Elmira, New York, he was the only child of a comfortably-off German-Jewish family. He went to public schools there before attending Harvard College and Law School; he graduated summa cum laude from both schools and was president of the Harvard Law Review. He had the highest numerical average at the law school since Louis Brandeis, Class of 1887.¹ He clerked for Brandeis in 1927–1928 and, turning down several offers to teach at Harvard Law School, became an associate, then a partner,...

  5. CHAPTER ONE Early Years
    (pp. 5-33)

    Henry Jacob Friendly’s ancestors were dairy farmers in Wittelshofen, Bavaria, in southern Germany, who, when Bavaria passed a law in the eighteenth century that required everyone to take a last name, adopted the name Freundlich (which translates to “Friendly”). While the extent of their religious devotion is unknown, the first Freundlichs in the nineteenth century had two seats at the local synagogue: one male seat and one female.¹ Friendly’s great-grandfather, Josef Myer Freundlich, was born in 1803, married Lena Rosenfeld, also of Bavaria, in 1829, and died in 1880. According to a contemporary account, their estate burned down in 1831,...

  6. CHAPTER TWO Private Practice
    (pp. 34-70)

    In September 1928 Friendly entered private practice, where he remained for thirty-one years. The firm planned for him to work exclusively for Grenville Clark, who had suffered a nervous breakdown and was constitutionally unable to delegate work. The partners felt that Clark might find it easier if one top-notch assistant was assigned to him, thinking that Friendly’s superb record at Harvard would break down Clark’s resistance. They were wrong. After Friendly spent a few months mostly reading the New York Times and engaging in other non-income-producing activities, Buckner released him from Clark. Nevertheless, over the years Friendly did considerable work...

  7. CHAPTER THREE Nomination and Confirmation
    (pp. 71-77)

    The years 1952 and 1953 were milestones for Friendly, the first marking the twenty-fifth anniversary of his graduation from Harvard Law School, and the second his fiftieth birthday. More important, Dwight D. Eisenhower was elected President of the United States, the first Republican in the White House in two decades. As Friendly later explained, it was time to think about the future, since the present was unsatisfying: “I was getting quite sick of what I was doing—I was leading this double life, being Vice President and General Counsel of Pan Am, and also a member of my firm. I...

  8. CHAPTER FOUR Getting Started
    (pp. 78-84)

    After Friendly’s name surfaced in early 1959 as the likely nominee for a seat on the Second Circuit, his clients assumed that his nomination would sail through without difficulty and they began consulting other lawyers, leaving him with almost nothing to do for weeks and then months. Uncertain of confirmation, he nevertheless decided to prepare for the day when he might be Judge Friendly. We know for certain only that he read the legendary casebook The Federal Courts and the Federal System by Henry M. Hart Jr., a Harvard professor, and Herbert Wechsler, a Columbia professor, which first appeared in...

  9. CHAPTER FIVE Judge Friendly
    (pp. 85-102)

    After Justice John Marshall Harlan swore in Friendly as a circuit judge in the U.S. Courthouse in Lower Manhattan on September 29, 1959, Friendly went to work. An appellate judge does most of his work in his chambers, and Friendly’s was on the twenty-third floor of the courthouse. He had a private office in the chambers, and there he worked with the door closed, bent over a desk or a long table, depending on what he was doing. Whether because of frugalness or indifference to his surroundings, his office contained government-issue furniture along with some favored books and mementos.¹ His...

  10. CHAPTER SIX Law Clerks
    (pp. 103-113)

    Third-year law students competed intensely for a clerkship with Friendly. Aside from clerking for a Supreme Court Justice (and not all of them), no other clerkship was so attractive, at least in the Northeast, and the student with the highest average in his class at Harvard Law School could not count on being selected. Friendly hired his clerks after interviewing them. At first, Harvard Law School professor David Cavers screened candidates and sent him a few each year, from whom he would choose one.¹ Until his eighth year all the clerks came from Harvard, but then he started taking clerks...

  11. CHAPTER SEVEN Judges and Justices
    (pp. 114-126)

    When Friendly became Judge Friendly in 1959, the Second Circuit had only four active judges: Chief Judge Charles E. Clark and Circuit Judges J. Edward Lumbard, Sterry R. Waterman, and Leonard P. Moore.¹ Near the end of 1959 Lumbard replaced Clark as Chief Judge, and the court became more congenial and efficient. Although it was a competent court, it no longer received the same plaudits as a decade earlier, when the Second Circuit consisted of Chief Judge Learned Hand and Circuit Judges Thomas W. Swan, Augustus N. Hand, Harrie Brigham Chase, Charles E. Clark, and Jerome Frank.²

    The active judges...

  12. CHAPTER EIGHT Away from the Courthouse
    (pp. 127-138)

    The year 1959 was busy for Friendly in respects other than his change in career. Two of his children married, and the third got engaged. Joan, his older daughter, married Frank Goodman, a lawyer who had been graduated from Harvard Law School, where he was an editor of the Harvard Law Review. He later became a professor at the University of Pennsylvania Law School. Ellen married Stephen Simon, a symphony orchestra conductor who was the nephew of Walter Annenberg, the wealthy publisher, diplomat, and philanthropist. David became engaged to Irene Baer in November, and they married a year later. Friendly...

  13. CHAPTER NINE First Amendment
    (pp. 139-163)

    Friendly was given virtually no instruction at Harvard Law School regarding the constitutional-law issues prominent in the past half century. Instead, the focus was on the Constitution’s Commerce Clause, which is reflected in his only surviving Harvard Law School examination.¹ During his year with Brandeis, he worked on a few important Bill of Rights cases, including wiretapping in Olmstead v. United States. His private practice was virtually bereft of constitutional questions.

    Although he wrote a number of opinions, most of Friendly’s contribution to constitutional law was in his extrajudicial writings. His guide on what to write about was simple: “It...

  14. CHAPTER TEN Fifth Amendment
    (pp. 164-180)

    The Fifth Amendment established important procedural rights:

    No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    From a perspective of nearly five...

  15. CHAPTER ELEVEN Other Bill of Rights Amendments
    (pp. 181-193)

    Friendly did not hesitate to criticize Supreme Court decisions that he found unduly handcuffed law enforcement and imposed excessive burdens on attempts to convict the guilty. The latter, after all, was an important goal of the criminal justice system. His position on the Fourth Amendment included hostility to the rule announced in Mapp v. Ohio,¹ which suppressed reliable evidence of a defendant’s guilt even when there was no violation of his fundamental rights. He rejected imposition of the drastic remedy of excluding crucial and reliable evidence when, years after a crime, a narrow majority of an appellate court concluded that...

  16. CHAPTER TWELVE Other Constitutional Provisions
    (pp. 194-209)

    This chapter deals with four other constitutional provisions. First is the Fourteenth Amendment’s elusive concept of state action: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” Second is the Equal Protection Clause of the Fourteenth Amendment. Third is the relatively dormant provision that protects the “privileges and immunities of United States citizens.” That language appears in...

  17. CHAPTER THIRTEEN Habeas Corpus
    (pp. 210-220)

    While the right to habeas corpus is established in Article I of the Constitution,¹ its content and application have been left to Congress and the courts. Until 1953 habeas corpus provided little relief, especially to state prisoners who sought postconviction relief in federal court for constitutional violations. “[F]or purposes of habeas corpus a detention was not to be deemed ‘unlawful’ if based upon the judgment of a competent state court which had afforded full corrective process for the litigation of questions touching on federal rights.”² With very few exceptions federal habeas corpus relief was circumscribed by a raft of technical...

  18. CHAPTER FOURTEEN Nonconstitutional Criminal Procedure
    (pp. 221-235)

    Friendly showed considerable concern for a defendant’s rights on direct appeal. In United States v. Panico¹ he dissented from his colleagues’ affirming a conviction for criminal contempt, arguing that the defendant’s capacity was in doubt and that the trial judge, who ruled without a hearing, relied on facts not within his personal knowledge. Friendly observed that “procedural safeguards in the administration of criminal justice do not exist for the sole benefit of nice people.”²

    Friendly challenged a variety of pro-prosecution procedures, including some long-standing ones: “I am no friend of the rule allowing the credibility of a defendant who takes...

  19. CHAPTER FIFTEEN Specific Crimes
    (pp. 236-248)

    Friendly usually read statutes creating crimes narrowly and with common sense so as not to unduly expand their reach, which is evident in his opinions on international narcotics conspiracies and prosecutions of young men for evading the draft during the Vietnam War, discussed in this chapter. Two other cases demonstrated his concern that statutes creating crimes be read precisely. In United States v. Cioffi,¹ a prosecution for the unlawful “use” of counterfeit stamps, the trial judge defined “use” to include employing the stamps to induce the purchase of similar stamps. Friendly reversed the conviction: “Both the context and the history...

  20. CHAPTER SIXTEEN Business Law
    (pp. 249-271)

    Friendly’s three decades practicing law were instructive, and what he said about Brandeis largely also applied to himself: “To have said that Brandeis was not afraid of a balance sheet was a considerable understatement; he positively reveled in them, and in statistics of all sorts.”¹ For his part, Friendly understood, and understood the importance of, balance sheets, but he did not revel in them. His experience had taught him the importance of providing decisions that were rational, consistent, clear, and workable; he did not want others to endure the irrationality and unpredictability that he experienced before the Civil Aeronautics Board....

  21. CHAPTER SEVENTEEN Intellectual Property
    (pp. 272-278)

    Friendly’s intellectual-property decisions in copyright and trademarks favored those who were creative over those who, for example, applied ingenuity to “inch as close to the plaintiff’s [trade]mark as he believes he safely can,”¹ reminiscent of his extolling artists as opposed to craftsmen. He was, however, not interested in patent law and did not feel qualified to write opinions on the scientific and engineering issues raised. In a memorandum to his colleagues he wrote, “Applying the test, almost infallible, even though, in Doolingese, ‘solipsistic,’ that if I can understand a mechanism it must have been obvious, I penetrate the patina and...

  22. CHAPTER EIGHTEEN Management and Labor
    (pp. 279-284)

    Pro-management in labor disputes, Friendly’s opinions tended to favor employers over workers and workers over unions and, unsurprisingly, employers over unions. In close cases, when the panel was not unanimous, Friendly sided with the employer in fourteen out of twenty-one of these cases. From his personal experience in private practice, he was conscious of what he called “business realities,”¹ and superseded any tutelage by Felix Frankfurter and Louis D. Brandeis, who were both experienced in labor law and were pro-worker and pro-union.² As discussed at the end of the chapter, there was one exception to Friendly’s pro-management bent: he sided...

  23. CHAPTER NINETEEN Railroad Reorganization
    (pp. 285-293)

    Massive bankruptcies of eight major railroads in the Northeast and Midwest prompted many proposed solutions and much controversy in the executive and legislative branches of the government as well as among such interested persons as railroad executives, investors, creditors, and unions, along with scholars and commentators.¹ A U.S. Senate staff report, dated December 1972, concluded that railroads in the Northeast suffered from

    (steadily) declining freight volume, particularly in traditionally rail-carried bulk commodities such as coal, steel and forest products; outdated terminals that could not efficiently handle current volume, let alone any hoped-for increased volume; service problems, including an unbelievably high...

  24. CHAPTER TWENTY Administrative Law
    (pp. 294-301)

    Friendly was expert in administrative law when he ascended to the bench, although he was not an architect of administrative law like Brandeis, Frankfurter, and James Landis, who helped create administrative agencies and administrative law.¹ Although he complained, with some justification, that the District of Columbia Circuit got all the good administrativelaw cases,² the eminent authority Professor Kenneth Culp Davis wrote, Probably no one can speak with more authority than Judge Friendly on this subject.”³ Others agreed.⁴ Friendly had confidence in the independent administrative agencies and usually deferred to their decisions, both on ground of expertise and for reasons of...

  25. CHAPTER TWENTY-ONE Common Law and Federal Common Law
    (pp. 302-317)

    Of the Supreme Court cases in the past century, perhaps none has generated more interest among legal scholars than a simple suit for negligence against a railroad by a person injured by a passing freight train on a railroad right of way, Erie R. R. v. Tompkins,¹ decided in 1938 with Brandeis writing the majority opinion. Despite the fact that the issue had not been briefed, Brandeis took the occasion to write an opinion that overruled the 1842 decision by Justice Joseph Story in Swift v. Tyson. That decision had given federal courts the power to apply their own version...

  26. CHAPTER TWENTY-TWO Federal Court Jurisdiction
    (pp. 318-325)

    The concept of jurisdiction—“a court’s power to decide a case or issue a decree”—is not easy for a layman or even a judge to comprehend. Jurisdiction is at issue in federal litigation because a federal court has jurisdiction to decide a case only when the Constitution or an act of Congress gives it that power.¹ Virtually all cases come to the federal courts by one of two routes: diversity-of-citizenship jurisdiction or the complaint raises a federal question. In 1972 Friendly presented the Carpentier Lectures at the Columbia Law School, which he entitled “Federal Jurisdiction: A General View,”² where...

  27. CHAPTER TWENTY-THREE Other Procedural Issues
    (pp. 326-338)

    Friendly regarded procedure as an integral part of an effective legal system and he paid close attention to its many manifestations, as he demonstrated in an article he wrote in 1978 entitled “The Courts and Social Policy: Substance and Procedure.”¹ After a detailed criticism of the Supreme Court’s opinions—as opposed to outcomes—in Brown v. Board of Education and Roe v. Wade, Friendly stated, “However, the main lesson I wish to draw from the abortion case relates to procedure—the use of social data offered by appellants and amici curiae for the first time in the Supreme Court itself”...

  28. CHAPTER TWENTY-FOUR At the End
    (pp. 339-345)

    Sophie’s relative longevity seemed assured; five years younger than her spouse, she was healthy, vigorous, optimistic, and a woman whose parents had lived into their nineties, while Friendly was in middling health (he had suffered a heart attack during the 1979–1980 term),¹ rather sedentary, pessimistic, and a man whose father had died at seventy-six. Certain that he would die first, Friendly prepared a detailed account of his finances and related matters so that Sophie, who had not paid attention to them, would have the full picture after he was gone.² He not only expected to die first; he wanted...

  29. CHAPTER TWENTY-FIVE Friendly’s Legacy
    (pp. 346-360)

    Friendly seemed to know what was required to make the law better, and he influenced the law in an astonishing number of areas. His articles contained insights on the interaction of the Fifth and Sixth Amendments, the proper scope of the Fifth Amendment, the role of guilt in evaluating petitions for habeas corpus, the concept of state action, the proper scope of hearings, and the reform of both federal courts and administrative agencies, to name some of the more prominent.¹ Less obvious are Friendly’s contributions contained in his judicial opinions, especially his opinions on business law, which were in part...

  30. APPENDIX A: Friendly’s Clerks
    (pp. 361-366)
  31. APPENDIX B: Friendly’s Published Nonjudicial Writings
    (pp. 367-370)
  32. Notes
    (pp. 371-486)
  33. Acknowledgments
    (pp. 487-490)
  34. Index
    (pp. 491-498)