It was Brandeis Day for the Louisville Courier-Journal yesterday (November 8th.) In anticipation of his birthday coming up this Friday, they ran three articles about him. First off, Mel Urofsky excerpted material from his new biography that featured Brandeis’ connection with Louisville. Then there was a book review of the Urofsky biography by Laura Rothstein. Since Laura is a professor (and former Dean) here at the Louis D. Brandeis School of Law, she emphasized the parts of the book that discussed how Brandeis used his positions as lawyer and judge to educate people about the law and their responsibilities as citizens.

The third article was particularly interesting. It was written by staff photographer Sam Upshaw, Jr. and it outlined a number of similarities between Brandeis and Obama.  There are, of course, the superficial ones: an intelligent wife/helpmate, two daughters, a degree from Harvard Law School, etc.  But there are also the careers as community activists, vilification from large portions of society and battles with the insurance industry (although Brandeis’ struggles were with the life insurance companies and not health insurance as Mr. Upshaw states.) No wonder Brandeis’ grandchildren endorsed Obama in the last election.

I feel like I’ve been neglecting Harlan in this blog lately. There’s actually a technological reason for that. When I started this blog I created 2 Westclip searches: one for Brandeis and another for Harlan.  My email inbox soon started filling up with notices about Brandeis. I wasn’t particularly disturbed by the fact that I wasn’t getting any messages about Harlan; I just assumed nobody was doing any research on him. Then the other day while logged onto West I decided to take another look at my Westclip searches. Sure enough, I had misconfigured the Harlan search. Once I corrected the search, a number of articles showed up. Most of them were either to old or marginal to hold my interest, but three recent ones stood out. Interestingly, they all turned out to be related to Clarence Thomas and Harlan’s famous line about the color-blind constitution from his Plessy dissent.

The first was a speech given Berkeley professor Goodwin Liu, which unfortunately is not currently available online: “The First Justice Harlan” (96 California Law Review 1383). Liu starts by noting the irony that Harlan’s dissent was quoted by both the majority and dissenting justices in Parents Involved in Community Schools v. Seattle School District No. 1.  Liu uses that apparent contradiction as an excuse to delve into the history of Harlan’s life and the eternal mystery of how the author of the dissents in Plessy and the Civil Rights Cases could also write the majority opinion in Cumming v. Richmond County Board of Education and concur in Fong Yue Ting V. US and the Chinese Exclusion Cases.

Recent Duke graduate Hannah L. Weiner also noted Clarence Thomas’ quoting Harlan in Parents Involved in Community Schools and has written two articles about it. The first, “The Next ‘Great Dissenter’?: How Clarence Thomas Is Using the Words and Principles of John Marshall Harlan to Craft a New Era of Civil Rights” (58 Duke Law Journal 139) discusses how Thomas has latched onto the phrase “color-blind constitution” and used it almost literally in a number of his opinions to support his view that preferential treatment of any race by the government is unconstitutional. In “The Subordinated Meaning of ‘Color-Blind’: How John Marshall Harlan’s Words Have Been Erroneously Commandeered” (11 Journal of Social Change 45 — not currently available online), Ms. Weiner takes a look at the phrase itself and how it is used by two different schools of legal thought: anti-subordination and anti-classification. The anti-subordinationists believe that the Fourteenth Amendment was created to protect minority groups from the majority while the anti-classificationists (like Justice Thomas) believe that the Fourteenth Amendment forbids any special treatment of minorities. Ms. Weiner then puts the phrase in perspective of Harlan’s life and judicial opinion and come to the conclusion that Harlan was an anti-subordinationist.

There is another, rather tenuous, connection between Harlan and Parents Involved in Community Schools. While the name of the decision reflects the case that came from Seattle, that case was combined with another case that originated here in Louisville, Kentucky, which is also where Harlan practiced law for many years. The law library here at the University of Louisville received a copy of the briefs in Parents Involved in Community Schools and we have them bound and waiting for any who want to see them.

Theodiosius Dobzhansky was one of the leading population geneticists of the twentieth century. Born in 1900 in a small town in the Ukraine, he came to the United States in 1927 on a fellowship to study with Thomas Hunt Morgan at Columbia University - another giant in genetics who is best known for his work with Drosophila melanogaster (fruit flies). Dobzhansky remained in the United States the rest of his life, researching, teaching, and writing about genetics. Dobzhansky's greatest, enduring c

Health care expenditure in the United States exceeds $2 trillion a year, and on a per capita basis far exceeds the expenditure of any other country. Much of this money is not well spent, as many studies have documented the inefficiency and waste in the public and private health care systems. Furthermore, despite the high cost of American health care, key measures of the nation’s health, such as infant mortality and life expectancy, lag well behind other developed countries.

For thousands of years, civilized societies have attempted to prevent the spread of communicable diseases by preventing those already afflicted from having contact with those who were still well.The term quarantine is derived from the Italian words quarantina and quaranta giorni, which were used in the fourteenth and fifteenth centuries and referred to a forty-day period in which certain ships entering the port of Venice were obliged to wait in isolation before any persons or goods were permitte

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Mel Urofsky visited Brandeis University on September 29 and gave a speech about his new biography Louis D. Brandeis: A Life. He doesn’t read from the book, but he does do a good job covering all of the themes of the book, while throwing in some good anecdotes.  The speech is included in its entirety (with Q&A) online. It makes for a pretty good introduction to the book.

Now if only someone can raise the money to bring him to Louisville.

The expansion in the use of arbitration means that many people, including lawyers, are somehow involved in the process of settling a dispute through arbitration. Persons who establish the procedures governing an arbitration, handle an arbitration, or teach a course about it often have questions about what the best practices for an arbitration hearing are. This article suggests that one important source of best practices for arbitration, which the literature too often ignores, is litigation and

Scholars generally agree that the law in the United States fails to adequately protect employees from technological monitoring by their employers. And groups as diverse as the ACLU and a coalition of multi-national businesses are calling for legislation to address privacy concerns stemming from the rise of new technologies. Yet, few, if any, academic articles have proposed an actual draft of legislation designed to protect employees from technological monitoring by their employers. If recent

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Grounded in framing theory and the analyses of judges and commentators, this article examines issue statements in a sample of recent briefs from six states. The data cover various aspects of issue statements, including sentence structure, length, and the most common beginning words. Issue statements from recent briefs provide examples throughout the discussion. The article concludes with recommendations for framing effective issue statements.

The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decisionmaking processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on t

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The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decisionmaking processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures can explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief

In spite of recent legislation, tougher laws are needed to prevent insurers and employers from discriminating on the basis of genetic tests.

Barbara Kingsolver's Animal, Vegetable, Miracle: A Year of Food Life is a must-read for lawyers and legal scholars in the areas of food law, environmental law, agricultural law, and education law. Indeed, I recommend it to anyone interested in the future of the planet or our children. The over-arching point of Kingsolver's book is that Americans should eat more locally-grown food. Kingsolver's position is that eating locally-grown food promises to be part of the solution to several of the maj

As the nineteenth century drew to a close, Samuel Warren & Louis D. Brandeis proclaimed that technological change necessitated new protections for the right to privacy. Today, new protections for the right to privacy are called for once again because, in the American workplace, technological change continues unabated and little privacy is afforded employees from employer monitoring using the technology. Moreover, employers are disciplining and terminating employees based on information uncover

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Scholars generally agree that the law in the United States fails to adequately protect employees from technological monitoring by their employers. And groups as diverse as the ACLU and a coalition of multi-national businesses are calling for legislation to address privacy concerns stemming from the rise of new technologies. Yet, few, if any, academic articles have proposed an actual draft of legislation designed to protect employees from technological monitoring by their employers. If recent

I just finished the chapter in Melvin Urofsky’s biography of Brandeis on Brandeis’ creation of Savings Bank Life Insurance.  What I thought would be a dry chapter instead had a number of interesting parallels to today’s fight over health insurance.  Near the start of the 20th century abuses in the life insurance industry were exposed in the press, which spurred activists to reform the industry. What particularly appalled Brandeis was the industry’s exploitation of the poor and working class.  In a time of one income families, insurance agents played upon fears of the death of  the breadwinner, to get people to buy insurance that often ended up  being more expensive than the insurance bought by the upper classes.  Also, because of the vagaries of employment at the time, many families had difficulty making regular payments, which the insurance companies would use as an excuse to cancel the policies and keep all the premiums made.

Brandeis’ solution (in Massachusetts at least) to these abuses was create a state wide system where the poor could buy insurance from local banks. Of course, key to the plan’s implementation was getting the idea passed by the state legislature. Naturally, insurance companies did not like the idea of a rival system and spent vast sums of money trying to defeat the measure.  In their hysteria, they accused Brandeis of being a socialist (sound familiar?) which is ironic because one of Brandeis’ hopes was that the competition from the new system would force the companies to offer fairer and more inexpensive policies — which is exactly what happened.

There is another interesting parallel in this story and one that politicians pushing for heath insurance reform could learn from. Once Brandeis came up with the idea, he did not immediately start trying to get the idea passed by the legislature. Instead he started a pr campaign to get the public enthused about the idea, and then had them start lobbying the politicians. It’s worth quoting the book directly:

“Even if [Brandeis] could have secured passage of the bill immediately, it would not, he believed, be the right way to do it. It was more important to get the education of  ‘those persons who are now savings bank trustees and the wage earners as to the inequity of the present system and the necessity of developing insurance on savings banks lines, than it is to get the necessary legislation. If we should get the tomorrow the necessary legislation, without having achieved that process of education, we could not make a practical working success of the plan.’ “

In other words, he came up with the plan first, marshaled his support and then brought it all down on the politicians. If only Team Obama would have taken a play from the Brandeis playbook.

BTW, the Savings Bank Life Insurance in Massachusetts is still going strong. They recently celebrated their 100th anniversary by producing the documentary on Brandeis that I have blogged about earlier.