Professor Cochran is the director of the Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics and Louis D. Brandeis Professor of Law. He is the coauthor of Lawyers, Clients, and Moral Responsibility, 2nd ed. West (2009); Cases and Materials on the Legal Profession, 2nd ed. (1996); The Counselor-at-Law: A Collaborative Approach to Client Interviewing and Counseling, 2nd ed. Matthew Bender (2006); Christian Perspectives on Legal Thought, Yale University Press (2001); Law and Community: The Case of Torts, Rowman and Littlefield (2003); and Faith and Law: How Religious Traditions from Calvinism to Islam View American Law, NYU Press (2008). Cochran founded Pepperdine’s Herbert and Elinor Nootbaar Institute on Law, Religion, and Ethics. He teaches Torts, Legal Ethics, Religion and Law, and Family Law.
Brandeis in the MIT Lectures on:
The Nanny State: “If the cigarettes can be suppressed [by legislation], because some boys and men smoke too many, why not tobacco in all its forms, or mince pies? Why not bicycling or, notably, football. 1
Law and Public Morality: “[A] law has no vital force [if] public opinion will not enforce it, and in a free country no officials, however vigilant and faithful, can enforce a law which has not public support…” 2
In the early 1890s, Louis Brandeis was a successful young lawyer earning over $1 million a year in today’s dollars. He had graduated from Harvard Law School with the highest grades ever achieved and had published the Harvard Law Review “Privacy” article that was to become one of the most influential articles ever. He also taught a course on law at MIT. Several years later, he said, “Those talks at Tech marked an epoch in my own career.” 3
The lectures covered legal history, legal philosophy, civil procedure, evidence, and criminal law. In his introduction to the course, Brandeis stated that MIT required students to take the course both because business law is “an essential part of a liberal education” and because “such knowledge is of great practical value to men engaged in active life.”
A Conservative Brandeis?
In general, during his life Brandeis was more activist than theorist. As an attorney, he moved from cause to cause. With a few exceptions, his articles, speeches, and opinions focused on the particular legal issue at hand. During his Supreme Court career, Brandeis was generally silent about his underlying judicial philosophy. But in the MIT lectures, Brandeis presents a substantial discussion of the nature of law.
In contrast to John Austin’s notion that law is merely “a command emanating from a superior authority to an inferior, and enforced by a sanction,”4 Brandeis argued that “the great bulk of [law] consists not of commands, but of rules of human action, rules of justice sanctioned by authority.”5 Those rules, he argued, are more like the laws of physical science, political economy, ethics, and health than commands. Brandeis argued that “[judges] observe the transactions of men and arrange them in orders, families, genera, or species, according to their proper description, and the particular custom and feature which they exhibit.”6 For Brandeis, custom was the primary source of law, whether common law or legislation. One of the central purposes of legislation is to “give legal sanction to existing habits and customs.”7 Anticipating many in the law and economics movement, he stated that “very many of the rules of law are coincident with laws of political economy.”8 Though Brandeis took a laissez-faire approach to economics at the time of the MIT lectures, a recognition of the economic impact of laws led Brandeis in future years to support a variety of legal and political positions, some progressive, some conservative.
In the MIT lectures, Brandeis often identified “justice[,] morality and public convenience” as the basis of the common law, “a product of the sense of natural justice, experience, and cultivated reason.”9 In developing the common law, judges “reasoned from their ideas of justice, from their ideas of morality and of convenience.”10 Brandeis noted that common law courts overruled precedents that were unjust; and that equity trumped law when law failed to do justice. Brandeis’s emphasis on morality in law aligns him with natural law theory and against positivism. Judges find the law, rather than make it. Court opinions are not the law; in them, “lawyers and the judges find the evidence of what the law is.”11 Throughout his life, Brandeis continued to look to moral values as a foundation of law. Though the notion of a higher law can be used to merely uphold the status quo, in Brandeis’s hands it was a powerful tool for reform. He was the prophet, standing in judgment of existing law. His advocacy, driven by facts and shaped by his creativity, remained rooted in a conservative notion of moral law.
By one possible view, the MIT lectures present the conservative Brandeis who preceded the progressive Brandeis. And, of course, Brandeis became a progressive in many respects—Brandeis fought trusts and big business, advocated strong protections for criminal defendants, speech, and privacy. The fight by business conservatives against Brandeis’s Supreme Court nomination sealed this reputation as a progressive. But the truth is more complex. Brandeis was involved in several progressive causes before and during the MIT lectures. Brandeis’s conservatism was not merely a longing that things remain the same or that we return to some golden age. Brandeis later said, “[t]rue conservatism involves progress, and . . . unless our financial leaders are capable of progress, the institutions which they are trying to conserve will lose their foundation.”12
The Common Law and Legislation
One surprising aspect of the MIT lectures—given Brandeis’ statement to The Independent—is that there is little evidence in them of the social activist lawyer that was to come. To progressive readers, the lectures are disappointingly conservative. What then are we to make of this “epoch” in Brandeis’ career? Evidence suggests that his conversion concerned the roles of the common law and legislation. Brandeis originally intended the lectures to be “a routine defense of the adequacy of the common law to deal with industrial and commercial problems.”13 It is likely that the original plan was that the lectures would express a confidence in the common law that was similar to that expressed in his “Privacy” article: “Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.”14
In his MIT lectures, however, Brandeis was much more critical of the common law. He stated that “[t]he deference to custom and to precedent from which the law sprang, induced the court at times to deny relief in new cases, because there was no precedent for it, although the dictates of justice and morality demanded that relief in some form should be granted.”15 He also identified various means for correcting the common law, including legislation, equity, and referenda. The clearest example within the MIT notes of the impact of Brandeis’ pro-legislation conversion on a specific issue is his shift on the question of the constitutionality of legislation. In an early lecture Brandeis praised courts for finding social legislation to be unconstitutional, but in a later lecture he argued that, “Within the sphere assigned by the Constitution, the power of Congress and the power of the Legislature of each state is absolute. Whatever law it enacts, however unwise, however unjust, however unreasonable… is valid and binding.”16
As a public interest lawyer and a Supreme Court Justice, Brandeis was to become one of the foremost defenders of the constitutionality of legislation in the 20th century. Brandeis’ Supreme Court opinions presented detailed justifications for much of the legislation that was before the Court. He argued that “the legislature being familiar with local conditions, is primarily the judge of the necessity of such enactments”17 and that judges should exercise restraint in the face of legislation with which they might disagree.