BOOKS MARCH 22, 2012
by David M. Dorsen
Belknap, 512 pp., $35
HENRY FRIENDLY WAS a judge on the Second Circuit Court of Appeals, sitting in New York, and before that a highly regarded corporate lawyer. He ascended (if that is the right word) to the bench in 1959, and died in 1986. There is a puzzle about Friendly, a puzzle that David Dorsen’s clarifying biography poses in an acute form. By all accounts Friendly had a brilliant mind, and no judge in recent memory has had such an all-star cast of hagiographers and celebrants. Friendly’s former law clerks include some of the most prominent legal academics of their generation; and along with judges such as Richard Posner and Michael Boudin—the latter a Friendly clerk as well—they laud Friendly in terms not heard since Confucius’s disciples described their master as the eternal sage and uncrowned king. The puzzle is that it is actually a bit difficult to say what Friendly stood for, or what ideas of general and lasting significance he contributed to law and legal theory.
Friendly is most often compared to famous appellate judges such as Learned Hand and Benjamin Cardozo. But well-trained lawyers and legal academics can quickly name a half-dozen ideas that Hand and Cardozo bequeathed to the law. There is the “Hand Formula,” an early intuitive statement of cost-benefit analysis that has been profoundly influential in the law-and-economics movement; Hand’s critique of constitutional review by judges as amounting to government by “Platonic Guardians”; Cardozo’s analysis of the relationship between legal duty and causation in the famous Palsgraf decision; and the “Cardozo Theorem,” the idea (as Cardozo wrote in 1921) that “the eccentricities of judges balance one another. … out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements”—an idea whose statistical logic is closely related to the mechanisms that underpin “the wisdom of crowds,” and one that economists have elaborated into sophisticated models of common law decisionmaking.
Did Friendly make comparable contributions? Dorsen’s biography works through the enormous corpus of Friendly’s judicial opinions and extra-judicial writings in search of an answer. He sets the stage with understated sensitivity, sketching the judge’s pre-judicial career with a light hand and giving a compassionate account of Friendly’s aloof personality and obsessive-compulsive quirks. (His law clerks had to arrange the judge’s pencils and papers just so, according to an elaborate diagram.) But the heart of the book is the massive undertaking of examining Friendly’s writings in every area of law, with an eye to pinning down Friendly’s legacy. Dorsen details Friendly’s most famous judgments and arguments in and about law, including his withering criticisms of the Warren Court’s overly permissive criminal procedure decisions and habeas corpus decisions, his technical mastery of federal jurisdiction and procedure, and his eminently pragmatic rulings on contract law, corporate and commercial law, and intellectual property. Friendly’s major extrajudicial writings also get a full measure of attention—for example, his article “Some Kind of Hearing,” which argued that the constitutional law of due process in administrative hearings should balance the interests of claimants and government in particular cases.
The common feature of Friendly’s writings and judgments is their resolutely local character, and hence their lack of broader, generative implications. Whatever they are about is what they are about: they do not spark new ideas or new ways of looking at other settings. Friendly’s characteristic mode of analysis, as the article about hearing rights illustrates, was to show that some sweeping proposition of law was oversimplified, and that the issues and cases covered by the proposition were in fact complex and heterogeneous, requiring fact-sensitive judgment according to standards rather than rules. As Dorsen puts it, “Friendly had no agenda. … He preferred an incremental development and opposed extreme positions.” Having rejected the extremes, Friendly would then supply moderate judgments with an unchallengeable authority, stemming not only from his office but from his scrupulousness with facts and the detail of arguments, massive integrity, absolute command of legal technicalities, and above all temperate practical wisdom and common sense.
Seen in its best light, Friendly’s contribution was not to enrich the theory of the law but to provide a living model of lawyerly craft and good judgment. The so-called Legal Process approach to judging, developed at Friendly’s alma mater, Harvard Law School, celebrated such traits, and many of Friendly’s disciples continue to do so. One of the oldest disputes in legal theory is whether that sort of judging is higher or lower, more or less valuable for society, than the generative ideas that flowed from the likes of Hand and Cardozo. Just as Jeremy Bentham distrusted the claims of the common lawyers to possess a kind of mysterious wisdom, so too critics of Legal Process distrust claims about lawyerly craft, “tacit knowledge,” and the “artificial reason of the law”: such claims strike them as ineffable, even obscurantist, and as presupposing a false political and social consensus on law’s aims. The critics want judges to rest their decisions on articulable theories about the consequences of ruling one way or another, theories that should in principle be testable. So there is an eternal competition between different models of what counts as good judging. Each has its claims and champions.
Whatever the merits or demerits of the Legal Process approach, the reputations of judges such as Friendly generally have a shorter half-life than the reputations of judges who offer fertile theoretical ideas that can be distilled into formulas, theorems, and pithy aphorisms. It was doubtless inspiring for Friendly’s clerks and colleagues to observe the living model from close range—after reading Dorsen, one feels that whichever way Friendly ruled, justice would almost invariably have been done in the case at hand—but moderation elevated to the level of a principle is not the most gripping trait to hear about second-hand. Nor is it very illuminating in other settings. How exactly does one export Friendly’s traits of craft, integrity, and moderation to help other judges in other cases, judges not necessarily blessed with Friendly’s exceptional judicial character? A model of judging that cannot be standardized and widely reproduced is not much good to a large and increasingly bureaucratized federal judiciary, whereas the snappy ideas supplied by the Hands and Cardozos of this world are useful even to lesser lights.
When there arises a generation that knew not Friendly, when his law clerks and judicial colleagues have passed from the scene and there is no one left who observed the Master at first hand, the basis for his reputation will seem mysterious to the skeptical young, and his stock will suddenly decline. In that sense we are living through the final stages of a Friendly bubble in the market for judicial reputations—although it is in the nature of bubbles that no one can say exactly when they will deflate. Meanwhile the young will still be learning the Hand formula and reading Cardozo’s opinion in Palsgraf, so Friendly’s competitors will continue to flourish.
Perhaps this is bad from the social point of view. Perhaps epitomes of balanced judgment such as Friendly should receive greater reputational rewards than they do in the long run. On this view, one might see Friendly as a tragic figure who labored to get individual cases and problems right, while the theoretically inclined judges strayed beyond their core competence and spent too much time polishing their aphorisms. A great judge might be one who judges well, rather than one who writes with an eye always fixed on his legacy. On the other hand, the judge who pours out a wealth of ideas may create more value for future judges in future cases and for the law generally, and thus make a larger contribution overall and in the long run, even if any particular litigant’s case is hijacked to make a point.
In any event, whatever the net benefits of the different styles of judging from the social point of view, it is just the unalterable nature of things that craft and tacit knowledge are harder for future generations to understand and appreciate than theoretically grounded knowledge. The former can be transmitted only with difficulty, by practice and example, but the latter can be dehydrated and compressed into easily digestible packets. Among the forgotten judges whose portraits and statues litter the law schools and federal courtrooms, there were probably a dozen Friendlys; but space in the collective memory is precious, and in the long run it is reserved for those few judges with articulate and exportable ideas.
Adrian Vermeule is John H. Watson Professor of Law, Harvard Law School.