Learned Hand

Learned Hand
Judge of United States Court of Appeals for the Second Circuit
In office 1924 – 1951 (as active judge), 1961 (senior status)
Nominated by	Calvin Coolidge
Preceded by	Julius Marshuetz Mayer
Succeeded by	Harold Raymond Medina
Judge of United States District Court for the Southern District of New York
In office 1909–1924
Nominated by	William Howard Taft
Preceded by	(none, new seat)
Succeeded by	Thomas D. Thacher
Personal details
Spouse	Frances Amelia Fincke Hand

Billings Learned Hand (January 27, 1872 – August 18, 1961) was a famed American judge. Hand served for many years as Chief Judge and intellectual leader of the United States Court of Appeals for the Second Circuit, headquartered in Manhattan, after prior service on the United States District Court for the Southern District of New York.

Hand is remembered in connection with early cases construing the free speech clause of the First Amendment and as a pioneer in applying economic reasoning to American tort law. He is considered by many to be the most influential American judge never to have served on the Supreme Court of the United States; indeed, when asked who was the most outstanding among his colleagues, Supreme Court justice Benjamin Cardozo once replied, referring to Hand, that "The greatest living American jurist is not on the Supreme Court".

Early life

Billings Learned Hand was born on January 27, 1872 in Albany, New York, as the second and last child of Samuel and Lydia Hand (née Learned). His mother's family had a tradition of using surnames as given names; hence his unusual middle name. Hand struggled with his name during his childhood and adult life, as he believed the names "Billings" and "Learned" were not sufficiently masculine. At one point during his childhood he signed his name as "Billings Learned Hand", while in college and at law school, he signed papers as "B. Learned Hand", leading his classmates to speculate that the first initial stood for "Buck". Hand grew up in comfortable circumstances on Albany's main residential street. His family was not considered to be in the upper echelon of society, but they were at the brink of the town's upper class.

Samuel Hand was an appellate lawyer who came also from a family of lawyers. He quickly rose through the ranks of an Albany-based law firm in the 1860s, and by age 32, he was the firm's top lawyer. He became the leader of the appellate bar and argued appeals before the New York Court of Appeals in "greater number and importance than those argued by any other lawyer in New York during the same period". His father was a distant, fear-inducing figure, and Hand later described his relations with him as "not really intimate". He died from cancer when Hand was just fourteen, and Hand's mother promoted an idealized memory of her husband's intellectual abilities, professional success and parental perfection.

Hand's mother herself was an involved and protective mother and had been influenced by a Calvinist aunt as a child; she passed on a strong sense of duty and guilt to her only son. Eventually, he came to see these parental influences as formative. Hand was beset by anxieties and self-doubt throughout his life, including night terrors as a child. Hand later recalled that he was "very undecided, always have been—a very insecure person, very fearful; morbidly fearful." But especially after his father's death, he grew up surrounded by doting women: his mother, aunt, and his sister Lydia (Lily), eight years his senior, who called him "Bunny" or "B", the latter a nickname that was to last throughout his life.

Hand spent two years at a small primary school before transferring to The Albany Academy at the age of seven, which he would attend for the next 10 years. He did not enjoy the Academy's uninspired teaching or its narrow curriculum, which focused on Ancient Greek and Latin, with few courses in English, History, Science or Languages. After his father's death, Hand felt an increased pressure from his mother to excel academically. And that he did—Hand finished near the top of his class and was accepted into Harvard University, which his classmates—who opted to attend colleges like Williams and Yale—thought was a "stuckup, snobbish school". Socially, he considered himself an outsider, rarely enjoying recesses or the school's out-of-class military drills.

Vacations, spent in Elizabethtown, New York, were happier times. There, Hand developed a life-long friendship with his cousin (and future colleague) Augustus Noble Hand, two years his senior. The two were self-described "wild boys", camping and hiking in the woods and hills, and Hand developed a love of nature and the countryside. Moreover, many years later, when Hand was in his seventies, he recorded several songs and ballads he had learned as a boy in Elizabethtown for the Library of Congress.

Harvard

Learned Hand (seated, third from left) with other Phi Beta Kappa students at Harvard College in 1893.

Hand started at Harvard College in 1889, initially focusing on Classical Studies and Mathematics as advised by his late father. At the end of his sophomore year, however, he changed direction, embarking on courses in Philosophy and Economics, and studying under the prominent and inspirational philosophers William James, Josiah Royce and George Santayana.

At first, Harvard was a difficult social environment for Hand. He was not selected for any of the social clubs that dominated campus life, and felt this exclusion keenly. He was equally unsuccessful with the Glee Club and the football team, although for a time Hand rowed as a substitute for the rowing club. However, after a year, Hand gave up rowing to focus on his studies. He described himself as a "serious boy", a hard worker who did not smoke, drink or consort with the prostitutes in town. But in his sophomore and senior years, he did mix more: he became a member of the Hasty Pudding Club, appeared as a blond-wigged chorus girl in the 1892 student musical, and he was also elected president of The Harvard Advocate, a student literary magazine.

Hand's studious ways resulted in his election to Phi Beta Kappa and graduating summa cum laude, having earned a master's as well as a bachelor's degree. He was also chosen by his classmates to deliver the Class Day oration at the 1893 commencement. Family tradition and expectation suggested that he would study law after graduation, but he seriously considered post-graduate work in Philosophy. Receiving no encouragement from family or the philosophy professors who had inspired him, however, he lacked the confidence to follow his desires; as he put it, he then "drifted" towards Law.

Students outside Austin Hall at Harvard Law School. Hand is second from right in the front row. (from between 1894 and 1896)

Hand's three years at Harvard Law School were intellectually and socially stimulating. In his second year, he moved into a boardinghouse with a group of fellow law students, who were to become close friends. They worked and studied hard, but also enjoyed discussing philosophy and literature, as well telling bawdy tales. Hand's intellectual reputation proved less of a hindrance at Law School than it had as an undergraduate, and he was elected both to the Pow-Wow Club, in which law students practiced their skills in moot courts, and to the Harvard Law Review, although he resigned from the latter in 1894 because it took too much time from his studies.

During the 1890s, Harvard Law school was pioneering the casebook method of teaching introduced by Dean Christopher Langdell. Hand's professors included Jeremiah Smith, Joseph Beale, Samuel Williston, John Chipman Gray, James Barr Ames and Langdell himself. Hand preferred those teachers who did not rigidly adhere to the logic-based case-method format, and who emphasized common sense and notions of justice and fairness. Hand's favorite professor was James Bradley Thayer, who taught him Evidence during his second year, and Constitutional Law in his third. Thayer was a man of broad interests who dealt less in certainties and extremes, than in the Law's historical and human dimensions. Thayer stressed the need for courts to show judicial restraint in deciding social issues, and was to be a major influence on Hand's own jurisprudence.

Legal career in Albany

Graduating from Harvard Law at the age of 24 in 1896, Hand returned to Albany, living with his mother and aunt and starting work for the law firm in which his uncle was a partner. But this uncle's unexpected death a few months later obliged him to move to a new firm, where by 1899 he had become a partner. Hand's initial legal experiences were not satisfying: he spent much time researching and writing briefs, and opportunities for the appellate work he preferred were limited. Even when the chance came, his initial courtroom appearances were frequently difficult, further reducing his already limited self-confidence. At the same time, Hand had long been concerned about his given names, worried whether either "Billings" or "Learned" were adequately masculine, and in 1899 he decided to drop "Billings".

Hand found life and work in Albany constraining and depressing, and tried to expand his activities. He joined a lawyers' discussion group held monthly in New York City, returned to writing scholarly articles, taught part-time at Albany Law School, and developed an interest in politics. Hand came from a long line of loyal Democrats, but supported Republican Theodore Roosevelt in the 1898 New York gubernatorial election. Despite his abhorrence for Roosevelt's role in the "military imperialism" of the Spanish–American War, he liked the "amorphous mixture of socialism and laisser faire" in his campaign speeches. Hand caused further family controversy by registering as a Republican in the Presidential election of 1900, although his switch did not prove permanent, and over the course of the years he voted equally for Democratic and Republican candidates. Nevertheless, Hand continued to feel stifled professionally and intellectually, and began to apply for jobs in New York City, despite strong family pressure not to move.

Marriage, New York, and appointment to judgeship

By the age of 30, Hand had yet to have a serious interest in a woman, and considered himself destined for bachelorhood. However, during a 1901 summer holiday in the Québec resort of La Malbaie, he met 25 year old Frances Fincke, a graduate of Bryn Mawr College. Though indecisive in most matters, he waited only a few weeks before proposing, but the more cautious Frances postponed her answer for almost a year. In the intervening months, Hand began to look more seriously for work in New York City, while writing to and occasionally seeing Fincke. The next summer both Hand and Fincke returned to La Malbaie, and at the end of August 1902 they became engaged and kissed for the first time. Following the engagement, Hand accepted a post at the law firm of Zabriskie, Burrill & Murray, moved to New York, and the pair were married on December 6, 1902. The couple were to have three daughters, Mary Deshon (born 1905), Frances (born 1907) and Constance (born 1909). Hand proved an anxious husband and father, corresponding regularly with his doctor brother-in-law about difficulties conceiving, his offspring's childhood illnesses, and family planning issues. Hand himself survived pneumonia in February 1905, taking months to recover.

The family initially spent summers in Mount Kisco, with Hand commuting at the weekends, but after 1910 they rented summer homes in Cornish, New Hampshire, eventually buying a house there in 1919. Cornish was a nine-hour train journey from New York, however, and the couple were separated for long periods, with Hand able to join the family only for vacations. They made close friends with a Dartmouth College professor, Louis Dow. With tension in the marriage, Frances spent increasing amounts of time in Cornish with Dow in Hand's absence, but despite some speculation there is no evidence that they were lovers. Hand maintained a long friendship with Dow, while regretting Frances' long absences, and urging her to spend more time with him. He blamed himself for his lack of insight into her needs in the early years of the marriage, noting his "blindness and insensibility to what you wanted and to your right to go your own ways when they differed from mine". He came to accept Frances' desire to spend time in the country with another man, fearing that otherwise he might lose her altogether.

While staying in Cornish in 1908, Hand began a close friendship with Herbert Croly, a political commentator and philosopher. Croly was writing his influential The Promise of American Life, which examined American history and proposed a plan for political reform in which a stronger national government would be used to further democratic and egalitarian goals. When the book was published in November 1909, Hand was full of admiration for the work, and sent copies to friends and acquaintances, including one to former President Theodore Roosevelt as he was traveling in Europe. Croly's work influenced Roosevelt's politics including his advocacy of New Nationalism, and the development of Progressivism.

Hand continued to be disappointed in his progress at work, and a move to the firm of Gould & Wilkie in January 1904 brought neither the increased challenges nor the financial rewards he had hoped. He later said "I was never any good as a lawyer, I didn't have any success, any at all". In 1907, deciding that at the age of 35 that success as a lawyer was out of reach, Hand campaigned for a potential new federal judgeship that was not in fact created at that time. When it was finally created in 1909, he renewed his candidacy, and with the help of Charles C. Burlingham, a senior New York lawyer and close friend, he gained the support of Attorney General George Wickersham, and took his judicial oath in April 1909.

Federal judge

Hand served as a federal judge to the United States District Court for the Southern District of New York from 1909 to 1924, dealing with fields of common law including torts, contracts, as well as bankruptcy, copyright, admiralty and patent law. His lack of familiarity in some of these areas and limited courtroom experience caused some initial anxiety. Most of Hand's early cases were in bankrupcy and patent law, but he also gave important decisions in the area of free speech. A frequently cited 1913 decision, was United States v. Kennerley, an obscenity case, in which while allowing that case should go forward, he argued that obscenity should not have a sole purpose of protecting the most susceptible group and "be content to reduce our treatment of sex to the standard of a child's library" while preventing society from the "adequate portrayal of some of the most serious and beautiful sides of human nature."

Following his elevation to judgeship, Hand remained involved in politics and New Nationalism. He supported, though not unquestioningly, Theodore Roosevelt's return to national politics in 1911, approving of the former president's campaign against abuse of judicial power, his plan for laws to address the needs of underprivileged Americans, and his advocacy of regulation rather than trust-busting to control corporations. Hand sought to influence Roosevelt's views on these subjects in person and in print, and he wrote articles for Roosevelt's magazine The Outlook. However, Hand's hopes of swaying Roosevelt were frequently dashed, and Roosevelt's faulty grasp of legal issues often exasperated him.

As Roosevelt's campaign for the Republican nomination proceeded, Hand and other supporters of New Nationalism became increasingly disillusioned with the candidate and his speeches. "I wish he could be chloroformed for eight months and then elected," Hand confessed. Nevertheless, Hand did not desert the campaign, and encouraged by his friend Felix Frankfurter even participated in the drafting of Roosevelt's platform in May 1912, pressing for policies to improve working conditions, including minimum wages, minimum hours, and child labor prevention. When, despite overwhelming support for Roosevelt in the primaries and polls, the Republican nomination went to President Taft, a furious Roosevelt bolted from the party to form the Progressive Party, nicknamed the "Bull Moose" movement, along with most Republican progressives, including Hand. The splitting of the Republican vote between two candidates, combined with the Democratic Party's nomination of the progressive Woodrow Wilson, dimmed Roosevelt's chances of success.

As Hand anticipated, Roosevelt was defeated by Wilson in the November 1912 presidential election, though he polled more votes than Taft. Hand viewed the presidential vote merely as a first step in the national campaign for reform and "real national democracy". Though he had limited his public involvement in the Progressive campaign out of professional discretion, Hand now participated in the planning of a party structure, which incorporated Jane Addams's Progressive Service, an educational organization aimed at spreading the reformist agenda to the public and to the legislators. Despite growing misgivings about his public involvement in politics, Hand accepted the Progressive nomination for Judge of New York Court of Appeals in September 1913, on condition that as a sitting judge he would not campaign. His vow of silence affected his showing in the election and he was easily defeated, though he was privately pleased to receive 13 per cent of the votes. In later life, his concerns about the appropriateness of this candidacy only increased, and he commented "I ought to have lain off, as I now view it; I was a judge and a judge has no business to mess into such things".

By 1916, Hand was resigned to the fact that the Progressive Party was going nowhere. The progressive policies of the Democratic administration had rendered much of its program redundant, and Hand was disappointed by the party's dependence on Roosevelt playing a central role in the party. He strongly counseled Roosevelt not to stand in the 1916 Presidential election, but in the event Roosevelt's refusal to run dealt the party its death blow. Hand’s political views, however, did not change; and he had found an outlet for them in Herbert Croly's The New Republic, a liberal magazine that he had helped launch in 1914. Hand wrote a series of articles for the magazine, usually anonymously, on issues of social reform and judicial power, and often attended staff dinners and meetings, becoming a close friend of the gifted young editor Walter Lippmann. Hand’s only signed article was "The Hope of the Minimum Wage", published in November 1916, in which he argued for legislation to protect the underprivileged. The outbreak of World War I had coincided with the founding of the magazine, and events in Europe increasingly impinged on its content. The New Republic adopted a cautiously sympathetic stance towards the Allies, which Hand supported wholeheartedly. Following the 1917 entry of the United States into the war, Hand considered leaving the bench as several possible war-related positions presented themselves, though none came to fruition.

In the event, Hand contributed a bold and original legal judgment rather than more direct war service. After the U.S. had entered World War I, the Congress enacted an Espionage Act which made criticism of government policies a federal crime. The first test of the new law came two weeks later when the postmaster of New York City refused to deliver an issue of The Masses, a self-described "revolutionary journal" that contained drawings, cartoons, and articles criticizing the government's entry into the war.

Conscription, a drawing by Henry J. Glintenkamp published in The Masses in 1917 and deemed by the postmaster of New York City "to arouse discontent and disaffection"

The publishing company sought an injunction to prevent the ban, and the case came before Judge Learned Hand. In July 1917, he ruled that the journal should not be barred from distribution through the mail. Though The Masses opposed the war and supported those who refused to serve in the forces, the journal’s text did not, in Hand's view, tell readers that they must violate the law. Hand argued that material suspected of being seditious should be judged according to what he called an "incitement" test: only if its language directly urged readers to violate the law was it illegal—otherwise freedom of speech should be protected. Hand's focus on the words themselves, rather than on their effect, was novel and daring, but his decision was quickly blocked, and then overturned on appeal. Despite this judicial reversal, Hand always contended that his ruling had been correct. In 1919, Justice Oliver Wendell Holmes, with whom Hand had debated the issue, came to a similar conclusion in his dissent from the majority decision in Abrams v. United States, which convicted Russian-born activists of leafleting against American intervention in the Russian Revolution. Holmes argued that the law on seditious libel was at odds with rights guaranteed under the First Amendment. In the long-term, Hand’s decision proved a significant moment in the history of free speech in the country. Hand was eventually vindicated in the late 1960s when the Supreme Court announced a standard for protecting free speech that in effect recognized his Masses opinion as law.

Hand knew very well that going against the government in the Masses case would probably harm his prospects of promotion, but he had resolved, as always, to judge the issue on the facts alone. By the time of the case, he was already the senior judge of his district. Such was his standing that the United States Court of Appeals for the Second Circuit increasingly summoned him to hear appeals, a task he found more stimulating than his routine work as a district judge. In 1917, he was lobbying for promotion to the Second Circuit, but the unpopularity of his Masses decision and his reputation as a liberal stood against him, and he was passed over in favor of Martin T. Manton.

In August 1918, Hand received the opportunity to serve his country when he chaired a State Department committee on intellectual property issues in preparation for the upcoming Paris Peace Conference. Planning to take a leave of absence from the bench, Hand also accepted a position as "Delegate for Patents and Trademarks" to the conference itself, but in December 1918 he was disappointed to learn that he would not be traveling to France as the delegation had been trimmed in size.

In the final months of the war, Hand had become increasingly supportive of President Wilson's post-war foreign policy objectives. In November 1918, he publicly signed the statement of principles of the newly formed League of Free Nations Association, which declared that Wilson's proposal of League of Nations was key to "a sounder future international order". Hand's support for the League of Nations and for American ratification of the Treaty of Versailles, which, despite serious flaws, he regarded as essential, led to his estrangement from Croly and other friends from the The New Republic who in May 1919 declared vehement opposition to both. Alienated both from his old circle on the magazine and from the reactionary and isolationist mood of the country, Hand found himself politically homeless.

Between the wars

When the next Second Circuit vacancy arose in 1921, with the reactionary Warren G. Harding administration in power, Hand did not enter the race. In 1924, however, Harding's successor, Calvin Coolidge, seeking to refresh a senior judiciary noted for inefficiency and corruption, gladly appointed Hand to the Second Circuit, where he was to serve for the remainder of his career. It was a tribute to Hand’s increased stature that conservative figures such as Coolidge and Chief Justice William Howard Taft, who had once dismissed him as "a wild Roosevelt man and a Progressive", were now prepared to support him, despite his supposed radical views. By 1927, the Second Circuit was to be further strengthened by the appointments of Hand's cousin Augustus Hand and Thomas Swan and for the next quarter century, in Gunther’s words, "symbolized the highest judicial quality of the nation."

After the demise of the Progressive Party, Hand had become less willing to identify himself publicly with partisan causes. He committed himself to judicial objectivity, despite his strong views on political issues such as the anti-radical hysteria stoked by fear of the Russian Revolution and the growth of antisemitism. He remained, however, a passionate supporter of freedom of speech, and any sign of the "merry sport of Red-baiting" alarmed him. In 1920, for example, he wrote in support of New York mayor Al Smith, who had vetoed the anti-sedition Lusk Bills approved by the New York Assembly in moves to bar five elected Socialist Party legislators from taking their seats. In 1922, he privately opposed a proposal to limit the number of Jewish students admitted to Harvard College. He insisted that students be selected on academic merit alone: "If we are to have in this country racial divisions like those in Europe, let us close up shop now."

During the 1920s, Hand became concerned that the "due process" clauses in the Fifth and Fourteenth Amendment were being used to restrict legislative freedoms, for example in the Adkins v. Children's Hospital case of 1923, where the Supreme Court overruled a District of Columbia law guaranteeing minimum wages to women. Hand was no less unhappy when the same reasoning resulted in liberal verdicts, as in the Meyer v. Nebraska case of 1923, where the Supreme Court invalidated a local law prohibiting the teaching of foreign languages in primary schools. Hand wrote to Frankfurter that such rulings on due process issues turned the Supreme Court into a "revisory legislative body": "that kind of confinement of the activity of our legislatures shrinks their responsibility and the sense of responsibility of our voters much beyond what is healthy for our ultimate securities." On the same principle, Hand disapproved of the strategy used by liberals to challenge a Tennessee law banning the teaching of Darwinian theories of evolution in schools, even though he found the law obnoxious. In the event, the liberals, who encouraged a young science teacher, John T. Scopes, to stand trial in 1925 in Tennessee to force the issue, failed to have his conviction referred to the Supreme Court under due process. Hand debated the principles at stake in the Scopes trial with his friend, the journalist and commentator Walter Lippmann, a strong advocate of judicial intervention to promote liberal causes. Hand believed that such interventions encroached on the democratic rights of those who had elected their local legislators. In matters of civil liberties, Hand's liberalism was always in tension with his scepticism. He did not support the mass protests over the Sacco and Vanzetti case, for example, which polarised liberals and reactionaries in the 1920s, because he considered public opinion and lobbying to be irrelevant to judgement. Nor did Hand support moves in 1927 to exclude two senators from the United States Senate for excessive campaign spending. Though he disapproved of the part played by money in elections, he knew no constitutional grounds for removing the senators, and he feared that a power to exclude could be used against liberals in the future.

In public, Hand spoke only in general terms about issues of democracy, free speech, and toleration. This restraint, plus a series of well-prepared speaking engagements, won him a growing reputation among legal scholars and journalists, and by 1930 he was regarded as a serious candidate for a seat on the Supreme Court. Although Hand’s suitability was argued enthusiastically by his friend Felix Frankfurter and others, President Herbert Hoover chose to overlook him, possibly for political reasons.

Hand had supported Hoover for the presidency in 1928, and he did so again in 1932; but in 1936, he voted for the Democrats and Franklin D. Roosevelt. His change in allegiance was a consequence of the economic and social turmoil that followed the Wall Street Crash of 1929. As the country fell deeper into the economic slump that became the Great Depression, Hand supported a policy of government intervention to improve the lot of the people, accepting Frankfurter’s view that redistribution of wealth had become necessary for economic recovery. Hoover resisted this approach, owing to his party’s belief in individualism and free enterprise; but Roosevelt promised the people a New Deal and was elected on a platform of strong executive leadership and radical economic reform, to be paid for by deficit spending. Hand voted for Roosevelt again in 1940 and 1944, but he always remained wary of the constitutional dangers of big government and central decisions that overrode local legislation. Like others, including Walter Lippmann, he saw the dictatorial potential of New Deal policies; and he was particularly critical when in 1937 Roosevelt attempted to expand the Supreme Court in order to pack it with his supporters. By then, Roosevelt was frustrated by the court's repeated striking down of his New Deal laws. Though Hand disapproved of Roosevelt’s tactics, he too believed that the Supreme Court had become inappropriately obstructionist.

Hand was increasingly called upon to judge cases arising from the flood of New Deal legislation; and the line between central government’s authority and local legislation frequently tested his powers of judgement. In 1935, the case of United States v. Schechter came before the Second Circuit. Faced with deciding whether a New York poultry firm had contravened New Deal legislation on unfair trade practices, Hand and his two fellow judges ruled that the National Industrial Recovery Act did not apply to the Schechter Poultry Corporation because its trade did not directly operate outside the state and congressional authority extended only to interstate commerce. "The line is no doubt in the end arbitrary," Hand wrote in a memorandum, "but we have got to draw it, because without it Congress can take over all the government." The Second Circuit’s decision was repeated in a Supreme Court review that went further by declaring the act unconstitutional and striking it down. Roosevelt was furious: "Does this decision mean that the United States Government has no control over any national economic problem?" Unlike his Supreme Court counterparts, Hand was always reluctant to strike down legislative acts. He did not believe it was the job of judges to invalidate laws, however unreasonable, since they were passed by elected bodies. Nevertheless, in the case of Seelig v. Baldwin in 1934, he overruled a New York law that protected New York dairy farmers against out-of-state competition.

Hand became an acknowledged expert in judging cases arising from New Deal statutes. He relished the challenge of interpreting statutory legislation, calling it "an act of creative imagination". In a 1933 broadcast he summed up the balancing act required from a judge when interpreting statutes:

On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed.

Hand also developed a sophisticated expertise in the complex fields of maritime law and patent law, where legal principles often seemed imprecise in the face of complicated facts. He opposed the idea of specialized courts for such cases, believing they would lead to a narrowing of judges’ skills. Hand’s exhaustive research in these areas afforded him crucial insights, for example into the technicalities of ship-collision cases. He would create his own diagrams and even mock ups of collisions. In patent cases, he took pains to familiarize himself with the workings of the various inventions and contraptions at issue. On such points, he was more thorough than his fellow judges on the Second Circuit panels. According to Gunther, Hand's "intense absorption in the factual tangles and his untiring effort to make sense out of the legal rules quickly became legendary". Hand also became known for his analytical approach to plagiarism cases. In a famous opinion in the case of Sheldon v. Metro-Goldwyn Picture Corp., he ruled that the 1932 movie Letty Lynton had plagiarised the play Dishonored Lady by Edward Sheldon and Margaret Ayer Barnes. In order to disprove the moviemakers' claim that the screenplay was based not on the stage play but on the novel Letty Lynton, Hand narrated the tale in four versions: the true story of a Scottish court case of 1857 from which these works derived; the story of the movie; the story of the novel; and the story of the play. Crucial similarities between the play and the movie emerged that proved the latter to have been based on the former.

In 1934, the famous lawsuit over James Joyce's novel Ulysses found its way into Learned Hand’s court when the government appealed a judgement that the book was not obscene. For Hand, the charge of obscenity raised similar issues to that of sedition. When the U.S. attorney Martin Conboy persisted in reading out long extracts in court, Hand interrupted, "Are you going to read the whole book?" Hand’s cousin Augustus Noble Hand wrote the opinion that judged the book not obscene, but memoranda reveal that Learned Hand was the chief influence behind the decision; the Hands had been forced to unite against the third panel judge, Martin Manton, who wrote a strongly worded dissent. Learned Hand expressed his view of the obscenity issue most influentially in his opinion on the United States v. Levine case of 1936, which reversed an obscenity conviction against semi-pornographic books of a much inferior literary quality to Ulysses. Hand's discussion of the precedents normally cited in obscenity cases effectively established a new precedent, which was eventually endorsed by the Supreme Court. A seminal element of his opinion judged that "the work must be taken as a whole, its merits weighed against its defects; if it is old, its accepted place in the arts must be regarded; if new, the opinions of competent critics and published reviews or the like may be considered; what counts is its effect not upon any particular class, but upon those whom it is likely to reach".

World War II

When war broke out in Europe in 1939, Learned Hand took an anti-isolationist approach, though he rarely spoke out publicly, not only because of his position but because he thought fighting talk unseemly in an old man. In February 1939, Hand became the Chief Judge of his court, taking over by right of seniority from Martin Manton, who resigned after corruption allegations. Hand was no admirer of Manton, but he testified at Manton's trial that he had never noticed any corrupt behaviour in his predecessor. For years afterwards, Hand, who had sat in two cases in which Manton accepted bribes, worried that he should have detected his colleague's corruption. As chief judge, Hand refused to become distracted by administrative tasks and instead concentrated on relations with his judges and on cleansing the court of the odour of corruption. He still regarded his main job as judging and sought to free his judges from too great an administrative burden. Despite the Manton case and constant friction between two judges, Charles Edward Clark and Jerome Frank, the court's reputation was enhanced under Hand's leadership. Frank often questioned Hand's procedures, but Hand admired Frank's energetic mind and enjoyed the challenge. Hand's friends lobbied for his promotion to the Supreme Court when a vacancy arose in 1942, but Roosevelt overlooked him, ostensibly because of his age but possibly because of philosophical differences with Hand. Hand was deeply disappointed but came to regret his ambition: "It was the importance, the power, the trappings of the God damn thing that really drew me on".

Hand was relieved when the United States entered the war in December 1941, and he felt free to participate in various organizations and initiatives connected with the war effort. He became particularly committed to programmes in support of Greece and Russia. He backed Roosevelt's campaign for the 1944 election, partly because he feared a return to isolationism and the long-term effects of the wartime erosion of civil liberties. In 1943, the Dies Committee had aroused Hand's fears by launching a crusade against "subversive activities", and he had protested on behalf of a contemporary at Harvard College, Robert Morss Lovett, who was accused of subversion by the committee. As the end of the war approached, there was much talk of international peace organizations and courts to prevent future conflict, but Hand was sceptical. After the war, he was also out of step in condemning the Nuremburg war-crimes trials, which he saw as motivated by vengeance, because he did not believe that "aggressive war" could be construed as a crime. "The difference between vengeance and justice," he wrote later, "is that justice must apply to all".

Hand was not well-known to the general public, but a short speech he made in 1944 won him fame and a national repution for wisdom that lasted for the rest of his life. On 21 May 1944, he spoke in Central Park, New York, at the annual "I Am an American Day" event, where newly naturalized citizens swore the Pledge of Allegiance. He stated that all Americans were immigrants, and that they had come to America in search of liberty. Liberty, he said, was not located in constitutions, laws, and courts, but in the hearts of the people. In the most often quoted passage of his speech, Hand asked:

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

The speech was not immediately noticed, but extracts appeared in The New Yorker on 10 June, and several weeks later The New York Times printed the whole text, quickly followed by Life magazine and Reader's Digest. Hand suddenly found himself a folk hero. He enjoyed the acclaim but thought it unmerited. Gunther, who notes the paradox of the agnostic Hand's use of religious overtones, suggests that the most challenging aspect of the speech was the notion that the spirit of liberty is a spirit of doubt.

Postwar years

Learned Hand's seventy-fifth birthday in 1947 was much celebrated in the press and in legal circles. C. C. Burlingham, Hand's former sponsor, for example, rated him as "now unquestionably the first among American judges". Hand remained modest in the face of such acclaim and continued to work much as before, combining his role as presiding judge of the Second Circuit with an engagement in political issues. In 1947, he voiced his objections to a proposed "group libel" that would ban defamation of racial or minority groups. Despite his hatred of intolerance, he believed that because its roots had no basis in evidence, the effect of the proposed prosecutions would be "rather to exacerbate than to assuage the feelings which lie behind the defamation of groups".

In the postwar period, Hand shared the dismay of his compatriots about Stalinism and the onset of the Cold War, but he was conscious of the domestic problems that arose from an increasingly obsessive fear of international Communism. Already in 1947, he noted that "the frantic witch hunters are given free rein to set up a sort of Inquisition, detecting heresy wherever non-conformity appears". Hand quickly found himself opposed to the crusade against domestic subversion that became part of American public life, particularly to the House Un-American Activities Committee, of which senator Joseph McCarthy became the figurehead in 1950. From this time, with the US fighting Communists in Korea, the committee's increasingly extremist campaign to expose subversives in American society became known as McCarthyism. Though Hand expressed his horror of McCarthyism privately, he never did so publicly, on the grounds that it was "very undesirable for a judge to take public positions on matters that were likely to come before him". For the same reason, he even refused to publicly support lawyers attacked for defending those charged with disloyalty. Nor did he speak out on Cold War issues.

Learned Hand, ca. 1910

During this period, Hand took part in three notable cases that presented a particular challenge to his impartiality on Cold War issues: United States v. Coplon, United States v. Dennis, and United States v. Remington. Department of Justice worker Judith Coplon had been convicted of stealing and attempting to pass on defense information and sentenced to fifteen years in prison. Coplon's appeal, which came before a Second Circuit panel that included Learned Hand, rested on her claim that her rights under the Fourth Amendment had been infringed by a warrantless search and that details of illegal wiretaps had not been fully disclosed at her trial. Hand noted that Coplon was plainly guilty of the charges, but he rejected the trial judge's conclusion that a warrantless arrest had been justified and ruled that the package of papers seized during the arrest had therefore been inadmissable as evidence. He further ruled that the trial judge's failure to disclose all the wiretap records made a reversal of Coplon's conviction necessary, since her Sixth Amendment right "to be confronted with the witnesses against [her]" had been violated. In his written opinion, he observed that "[F]ew weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens". Many followers of the trial sent Hand hate mail for his decision. In the 1950 case of United States v. Dennis, in which Hand affirmed the convictions under the 1940 Smith Act of eleven leaders of the Communist Party of the United States for subversive activities, he was attacked from the opposite political direction, for appearing to side with McCarthyism.

In 1953, Hand wrote a strong dissent from a Second Circuit decision to affirm the conviction for perjury of William Remington, a government economist accused of Communist sympathies and activities. In 1951, the same panel had overturned Remington's previous conviction for perjury, but Hand was outvoted two to one in the appeal of the later case, for which the prosecution had produced stronger evidence against Remington, much of it obtained from his wife. Hand believed that this evidence was rendered invalid by coercive procedures used during the interrogation of Mrs Remington. He also argued that Remington's perjury had been provoked during his trials to a degree that amounted to entrapment. Sentenced to three years imprisonment, Remington was murdered in November 1954 by three fellow inmates, who beat him over the head with a brick wrapped in a sock. According to biographer Gerald Gunther, "The image of Remington being bludgeoned to death in prison haunted Hand for the rest of his life".

Only after he stepped down as a full-time judge in 1951 did Hand add his voice to the public debate on McCarthyism. Shortly after announcing his semi-retirement, he gave an unscripted speech that was recorded by a stenographer and published in The Washington Post, an anti-McCarthy newspaper:

[M]y friends, will you not agree that any society which begins to be doubtful of itself, in which one man looks at another and says: "He may be a traitor," in which that spirit has disappeared which says: "I will not accept that, I will not believe that—I will demand proof. I will not say of my brother that he may be a traitor," but I will say, "Produce what you have. I will judge it fairly, and if he is, he shall pay the penalties; but I will not take it on rumour. I will not take it on hearsay. I will remember that what has brought us up from savagery is a loyalty to truth, and truth cannot emerge unless it is subjected to the utmost scrutiny."—will you not agree that a society which has lost sight of that, cannot survive?

Hand followed this up with a carefully scripted speech to the Board of Regents of the University of the State of New York the following year. Once again, his condemnation of traitor-hunting won approval from many liberals. When he was asked to send a copy of his views to McCarthy, he replied that he had Richard Nixon, the Republican vice-presidential nominee for the 1952 election, in mind as well. Despite his concerns about Nixon, Hand voted for Dwight Eisenhower, whom he later credited with bringing about McCarthy's downfall in 1954. In 1955, Hand gave a speech to the American Jewish Committee in which he emphasized that his opposition to McCarthyism and its continuing influence arose from his lifelong belief in the "principles of civil liberties and human rights". He argued that these reside naturally in a society that tolerates dissent and free-thinking.

Semi-retirement and death

In 1951, Hand retired from "regular active service" as a federal judge. He assumed senior status, a form of semi-retirement, and continued to sit on the Second Circuit. The following year, he published The Spirit of Liberty, a collection of essays and speeches that neither he nor the publisher, Alfred A. Knopf, expected to make a profit. In fact, the book earned admiring reviews, sold well, and made Hand more widely known. A paperback edition in 1958 sold even better, though Hand always refused royalties for material he never intended for publication.

Augustus Noble Hand died in October 1954, but Learned Hand himself remained in good physical and mental condition. He continued to voice concerns about political influence on judicial appointments and decisions, but he also warned against judicial rulings on constitutional matters, which he saw as a potential encroachment on the democratic process. In 1958, he pursued this theme in the Oliver Wendell Holmes, Jr. Lectures at Harvard Law School. These lectures proved to be the last major critique of judicial activism from a Progressive and included a sustained attack on the Warren Court's 1954 decision in Brown v. Board of Education, which, in Hand's opinion, had exceeded its powers by overruling "legislated judgement". He contended, for example, that the Supreme Court had no authority to afford more protection to the First Amendment than to other elements of the Bill of Rights, thereby disrupting its balance of constitutional values. On the other hand, he did not rule out the need for an effective "third chamber" to block any legislative repression of liberties, and he raised the question "whether the courts should be that chamber". Published as The Bill of Rights, the lectures became a national bestseller. Their many critics deplored the fact that Hand's views gave sustenance to reactionaries who opposed libertarian judicial rulings. Most critics overlooked Hand's concession that the arguments for a "third chamber" were worth considering for the future.

By 1958, Hand was suffering from intense pain in his back and faced difficulty in walking. "I can just manage, with not infrequent pauses, to walk about a third of a mile," he wrote to Felix Frankfurter. "My feet get very numb and my back painful. The truth is that 86 is too long". Soon, he was obliged to use crutches, but he remained mentally sharp and continued to hear cases. For a brief period in 1960, Hand worked on President Eisenhower's "Commission on National Goals", but he resigned because "it involved more work than in the present state of my health I care to add to the judicial work that I am still trying to do".

In June 1961, by which time he was in a wheelchair, Hand joked that he felt idle, having taken part in no more than 25 or 26 cases that year, and that he would start another job if he could find one. The following month, he suffered a heart attack at Cornish, New Hampshire, and was taken to St Luke's Hospital in New York City, where he died peacefully on 18 August 1961. A front-page obituary in the New York Times called Hand "the greatest jurist of his time". The Times of London wrote: "[T]here are many who will feel that with the death of Learned Hand the golden age of the American judiciary has come to an end".

Influence

Hand's judicial opinions are frequently considered classic formative statements of American contract and tort law. One of his most famous tools, commonly referred to as the calculus of negligence, first appeared in United States v. Carroll Towing. This was concerned with civil tort liability in a case alleging damage after a boat-owner's failure to secure his vessel adequately at harbor. The calculus, also sometimes referred to as the "Hand Test" or "Hand Formula", is notable for its economic approach to a legal rule, an approach that is the foundation of the law and economics school of legal thought. The Hand Test requires that financial liability should be imposed for a negligent tort only if the burden of preventing the injury does not exceed the magnitude of the injury multiplied by its likelihood of occurring; it finds negligence when the actor's burden (B) is less than the probability (p) of harm, multiplied by the degree of loss (L), which can be expressed as the formula B < p × L.

Like many others in the law and economics school, most notably Judge Richard Posner, Hand was also influenced by philosophical pragmatism. One of the most famous quotations for which Judge Hand is known for is his declaration that "[t]here is nothing sinister in so arranging one's affairs as to keep taxes as low as possible" in the case Commissioner v. Newman. In another famous opinion regarding the U.S. income tax law, Judge Hand wrote: "Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes". Despite this, the case (Gregory v. Helvering), involving the transfer of assets between three companies owned by one individual for the purpose of reducing her own tax liability, was decided in favor of the IRS Commissioner. It became the basis for the doctrines of "business purpose" and "substance over form".

Judge Hand also played a part in developing First Amendment law in the early 20th century, most notably in Masses Publishing Co. v. Patten, in which he equated advocating radical actions against the United States government with actually perpetrating those same acts. This opinion was later taken into account by the Supreme Court in cases such as Brandenburg v. Ohio.

Among those who served as law clerks for Hand were Archibald Cox, the Watergate Scandal's special prosecutor; Elliot Richardson, also involved in the Watergate Scandal; and legal theorist Ronald Dworkin. Other clerks included Hugh Calkins, Vincent L. McKusick, and John J. Cound.

Hand's youngest daughter, Constance, married the U.S. lawyer and politician Newbold Morris.

List of selected works

• Hand, Learned (1941), Liberty, Stamford, CT: Overbrook, OCLC 2413475.
• Hand, Learned (1952), The Spirit of Liberty: Papers and Addresses of Learned Hand, New York: Knopf, OCLC 513793 {{citation}}: Unknown parameter |editors= ignored (|editor= suggested) (help).
• Hand, Learned (1958), The Bill of Rights, Cambridge, MA: Harvard University Press, OCLC 418364. (Oliver Wendell Holmes Lectures)
• Hand, Learned (1968), The Art and Craft of Judging: The Decisions of Judge Learned Hand, New York: Macmillan, OCLC 436539 {{citation}}: Unknown parameter |editors= ignored (|editor= suggested) (help).

References

• Gormley, Ken (2003), "Hand, Learned: 1872-1961", in Vile, John R. (ed.), Great American Judges: An Encyclopedia, Santa Barbara, CA: ABC-CLIO, pp. 319–329??, ISBN 978-1576079904.
• Gunther, Gerald (1994), Learned Hand: The Man and the Judge, New York: Knopf, ISBN 0-394-58807-X LCCN 93-0 – 0 LCC KF373.H29 G76 1994.

Further reading

• Boudin, Michael (January, 1995), "The Master Craftsman", Stanford Law Review, 47 (2): 363–386, doi:10.2307/1229231, retrieved 2008-05-18 {{citation}}: Check date values in: |date= (help)CS1 maint: date and year (link). (JSTOR subscription required for online access.)
• Chirelstein, Marvin (1968), "Learned Hand's Contribution to the Law of Tax Avoidance", Yale Law Journal, 77 (3): 440–474, doi:10.2307/794940, ISSN 0044-0094 LCCN 29-0 – 0 {{citation}}: Unknown parameter |month= ignored (help). (JSTOR subscription required for online access.)
• Griffith, Kathryn (1973), Judge Learned Hand and the Federal Judiciary, Norman: Oklahoma University Press, ISBN 0806110716.
• Gunther, Gerald (1991), "Judge Learned Hand: The Choices and Satisfactions of a Biographer", Proceedings, American Philosophical Society, 3 (2): 231–236.
• "Why Learned Hand Would Never Consult Legislative History Today", Harvard Law Review, 105 (5), The Harvard Law Review Association: 1005–1024, 1992, doi:10.2307/1341518. (JSTOR subscription required for online access.)
• Kahn, Michael A. (Jan., 1973). "The Politics of the Appointment Process: An Analysis of Why Learned Hand Was Never Appointed to the Supreme Court". Stanford Law Review. 25 (2): pp. 251–85. doi:10.2307/1227968. {{cite journal}}: |pages= has extra text (help); Check date values in: |date= (help)
• Landauer, Carl (December, 1996), "Scholar, Craftsman, and Priest: Learned Hand's Self-Imaging", Yale Journal of Law and the Humanities, 140 (4): 451–458 {{citation}}: Check date values in: |date= (help)CS1 maint: date and year (link)
• Nelson, Marcia (1983), The Remarkable Hands: An Affectionate Portrait, New York: Foundation of the Federal Bar Council, OCLC 10370755.
• Oakes, James (Jan., 1995), "Personal Reflections on Learned Hand and the Second Circuit", Stanford Law Review, 47 (2): 387–394, doi:10.2307/1229232, retrieved 2008-05-18 {{citation}}: Check date values in: |date= (help)CS1 maint: date and year (link). (JSTOR subscription required for online access.)
• Polenberg, Richard (June 1995). ""A Conservative among Liberals, and a Liberal among Conservatives": The Life of Learned Hand". Reviews in American History, Vol. 23. 23 (2). The Johns Hopkins University Press: pp. 296–301. doi:10.1353/rah.1995.0051. {{cite journal}}: |pages= has extra text (help)
• Posner, Richard (November, 1994), "The Hand Biography and the Question of Judicial Greatness", Yale Law Journal, 104 (2): 511–540, doi:10.2307/797010, retrieved 2008-05-18 {{citation}}: Check date values in: |date= (help)CS1 maint: date and year (link). (JSTOR subscription required for online access.)
• Schick, Marvin (1970), Learned Hand's Court, Baltimore: Johns Hopkins Press, ISBN 978-0801812149.
• Stone, Geoffrey R. (2003), "Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled", The University of Chicago Law Review, 70 (1): 335–358, doi:10.2307/1600562. (JSTOR subscription required for online access.)

External links

• Wade, Stephen (October 5, 1999), "Learned Hand", All Things Considered, NPR, retrieved 2008-05-03 {{citation}}: Check date values in: |date= (help)