OLIVER WENDELL HOLMES proved a prophet when he said, "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." Louis D. Brandeis, the centenary of whose birth is being celebrated this year, was one of the first of those "men of the future." He never relied on the law alone. His mentor Holmes had also said, "It is revolting to have no better reason for a rule of law than that so it was laid down in Ithe time of Henry IV," and Brandeis went back of the law and legal prece- dents to "the logic of facts." This attitude to justice still bears vigorous fruit, as witness the Supreme Court decision of 1954 outlawing segregation in the public schools. Louis D. Brandeis was born in Louisville, Kentucky, on November 13, 1856. Two years after receiving his degree from Harvard Law School in 1887, he opened an office in Boston.

rT HE application of an existing prin- ciple to a new state of facts is not judicial legislation. To call it such is to assert that the existing body of law consists practically of the statutes and de- cided cases, and to deny that the principles (of which these cases are ordinarily said to be evidence) exist at all. It is not the appli- cation of an existing principle to new cases, but the introduction of a new principle which is properly termed judicial legislation. (From "The Right to Privacy," by Brandeis and Warren, in the Harvard Law Review, December 15, 1890.) Knowledge of the decided cases and of the rules of logic cannot alone make a great lawyer. He must know, must feel "in his bones," the facts to which they apply-must know, too, that if they do not stand the test 453 At thirty-five he was a rich and successful at- torney, a leader in civic reform (labor leaders and the liberal press called him "attorney for the people"), and a skilled arbitrator in labor disputes. In 1916 President Wilson appointed him an Associate Justice of the Supreme Court, over bitter opposition in the Senate. During his twenty-three years as Justice (he died in 1941) he wrote 528 opinions distinguished by their lucidity and their application of social and economic fact to the interpretation of the law of the land. The brief anthology from the legal wisdom of Louis Brandeis offered here shows the thread that urns unbroken through his life and thought; whether giving advice to a young lawyer or to a President, or pointing the way to new and beneficial legislation, or writing on rate-making, he practiced faithfully his belief that all judgment and social decision must have a firm basis in fact.-EDwARD J. BANDER.

of such application, the logical result will somehow or other be avoided. (Letter to William H. Dunbar, February, 1893.) Nine-tenths of the serious controversies which arise in life result from misunder- standing, result from one man not knowing the facts which to the other man seem im- portant, or otherwise failing to appreciate his point of view. (Address before the Boston Typothetae, April 22, 1904.) Many a man will give a false impression by stating one thing because he does not see at the same time its relation, to others. He states one thing without regard to the fact that other things, if not considered, will leave the situation presented in the wrong light. (As counsel for Collier’s Weekly in the investigation of the Department of the CEDARS OF LEBANONCOMMENTARY Interior [Ballinger-Pinchot Dispute], May 27, 1910.) An official of the New York Central: I know it [how railroads arrive at rate-making] the same way you know the things that make you such a clever lawyer.

Brandeis: I thank you for the compli- ments, but whatever knowledge I may have has come from the particular study of specific facts, and so I am seeking to find out from you what the specific facts are upon which you base your judgment in this matter. (As counsel for the Committee of Commercial Organizations during hearings before the In- terstate Commerce Commission, as reported in the New York Times, December 4, 1910.) I have no general philosophy. All my life I have thought only in connection with the facts that came before me. It is true, how- ever, in order to work intelligently with the facts, one must see the general direction. I think reason which leaps far ahead does very little in life. We need not so much to reason as to see and understand facts and condi- tions. Reason which deals with facts that may never be seems rather futile. (Inter- view to Hutchins Hapgood, New York Globe, January 8, 1912.) Improve the education of our lawyers.

This involves primarily the socialization of legal education, and that in turn requires that lawyers should not merely learn rules of law, but their purposes and effect when applied to the affairs of men. In other words -a study of facts, human, industrial, social, to which they are to be applied. (Letter to Norman Hapgood, July 30, 1912.) In order to determine results you must be able not only to get at facts, but to get at facts comparatively, and you cannot get at any possible basis of comparison, without a most enormous investigation in each indi- vidual case unless you establish a standard of accounting. .. .. The first essential of wise and just action is knowledge. (As witness on anti-trust legislation during hearings be- fore the House Committee on Interstate and Foreign Commerce, January 30, 1914.) What we must do in America, is not to attack our judges but to educate them. All judges should be made to feel, as many judges already do, that the things needed to protect liberty are radically different from what they were fifty years back…. In the past the courts have reached their conclu- sions largely deductively, from preconceived notions and precedents. The method I have tried to employ in arguing cases before them has been inductive, reasoning from the facts. (From Business a Profession, pub- lished in 1914.) What is fair and reasonable, all things and all interests considered, is something which, in the absence of specific agreement between the parties, must be left to the judgment of men familiar with the particu- lar facts, and the facts will vary in particular cases. (In arbitration proceedings, New York Cloak Industry, January 21, 1915.) There is no logic that is properly ap- plicable to any of these laws except the logic of facts…. The earlier attitude of judges was due to their theorizing on the subject instead of drawing inferences from the existing facts. (Statement before the New York State Factory Investigating Com- mission, January 22, 1915.) The difficulty in deciding any question that comes up is really the difficulty in get- ting at the facts. Most men can decide any problem correctly if all of the facts be properly set between them…. No state- ment of facts, no matter how honest your people may be, can be relied upon until it has been subjected to the careful study and criticism of people who have a different point of view. (Statement before the Federal Trade Commission, April 30, 1915.) Differences of opinion are not only natural but desirable where the question is difficult; for only through such differences do we secure that light and fuller understanding which are necessary to a wise decision. (Ad- dress in Baltimore, September 27, 1915.) Whether a measure relating to the public welfare is arbitrary or unreasonable, whether it has no substantial relation to the end proposed, is obviously not to be determined by assumptions or by a priori reasoning. The judgment should be based upon a consid- 454THE JUSTICE OF LOUIS DEMBITZ BRANDEIS eration of relevant facts, actual or possible- ex facto jus oritur [out of the facts arises the law]. That ancient rule must prevail in order that we may have a system of living law. (Dissent in Adams v. Tanner, 1917.) Whether a law enacted in the exercise of the police power is justly subject to the charge of being unreasonable or arbitrary can ordinarily be determined only by a consideration of the contemporary condi- tions, social, individual, and political, of the community to be affected thereby. Resort to such facts is necessary, among other things, in order to appreciate the evils sought to be remedied and the possible effects of the remedy proposed. (Dissent in Truax v. Cor- rigan, 1921.) Seek for betterment within the broad lines of existing institutions. Do so by at- tacking evil in situ, and proceed from the individual to the general. Remember that progress is necessarily slow; that remedies are necessarily tentative, that because of varying conditions there must be much and constant inquiry into facts . . . and much experimentation; and that always and every- where the intellectual, moral, and spiritual development of those concerned will remain an essential-and the main factor-in real betterment. (Letter to Robert W. Bruere, February 25, 1922.) Unless we know the facts on which the legislators may have acted, we cannot proper- ly decide whether they were (or whether their measures are) unreasonable, arbitrary, or capricious. Knowledge is essential to un- derstanding, and understanding should pre- cede judging…. Put at its highest, our func- tion is to determine, in the light of all facts which may enrich our knowledge, and enlarge our understanding, whether the measure, enacted in the exercise of an un- questioned police power and of a character inherently unobjectionable, transcends the bounds of reason, that is whether the pro- vision as applied is so clearly arbitrary or capricious that legislators acting reasonably could not have believed it to be necessary or appropriate for the public welfare. (Dis- sent in Jay Burns Baking Co. v. Bryan, 1924.) It is a peculiar virtue of our system of law that the process of inclusion and ex- clusion, so often employed in developing a rule, is not allowed to end with its enuncia- tion and that an expression in an opinion yields later to the impact of facts unforeseen.

(Dissent in Jaybird Mining Co. v. Weir, 1926.) The human experience embodied in the doctrine of stare decisis . . . does not com- mand that we err again when we have occa- sion to pass upon a different statute. In the search for truth through the slow process of inclusion and exclusion, involving trial and error, it behooves us to reject, as guides, the decisions upon such questions which prove to have been mistaken … the logic of words should yield to the logic of realities. (Dissent in DiSanto v. Commonwealth v. Pennsyl- vania, 1927.) The court bows to the lessons of experi- ence and the force of better reasoning, rec- ognizing that the process of trial and error, so fruitful in the physical sciences, is ap- propriate also in the judicial function. (Dis- sent in Burnet v. Coronado Oil and Gas Co., 1932.) I would require of everyone who wished to pursue any one of the professions, arts, or sciences, an eight-year college course, which would familiarize him with the major outlines of civilization, so that the speciali- ties not his own might not be altogether alien to him. (The Words of Justice Bran- deis, edited by Solomon Goldman, 1953.)

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