Learned Hand
Overview
Billings Learned Hand was a United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 and judicial philosopher
Judicial philosophy
Judicial philosophy is the set of ideas and beliefs which dictate how Justices and judges of the United States federal courts may rule in many cases....

. He served on the United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

 for the Southern District of New York and later the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

. Hand has been quoted more often than any other lower-court judge by legal scholars and by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

.

Born and raised in Albany
Albany, New York
Albany is the capital city of the U.S. state of New York, the seat of Albany County, and the central city of New York's Capital District. Roughly north of New York City, Albany sits on the west bank of the Hudson River, about south of its confluence with the Mohawk River...

, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

, Hand majored in philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...

 at Harvard College
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...

 and graduated with honors from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

. After a short career as a lawyer in Albany and New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...

, he was appointed as a Federal District Judge in Manhattan
Manhattan
Manhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...

 in 1909 at the age of 37.
Quotations

Life is not a thing of knowing only — nay, mere knowledge has properly no place at all save as it becomes the handmaiden of feeling and emotion.

"Class-Day Oration" (1893).

We like rather to dream of a body of young men as a live thing, as a tree where all the branches are nourished by a single sap, and where each part is meaningless and incomplete except in connection with its fellows. You may lop away the dead branches, you may bend the trunk, you may dig about it and water it; but leave it to assume its own form, do not constrain the peculiar roots, or you will have a crippled, gnarled monster, and no tree.

"Class-Day Oration" (1893).

The mid-day sun is too much for most eyes; one is dazzled even with its reflection. Be careful that too broad and high an aim does not paralyze your effort and clog your springs of action.

"Class-Day Oration" (1893).

How long shall we blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some change.

Parke, Davis & Co. v. H. K. Mulford Co. (1911).

It is of course true that any kind of judicial legislation is objectionable on the score of the limited interests which a Court can represent, yet there are wrongs which in fact legislatures cannot be brought to take an interest in, at least not until the Courts have acted.

Letter to Louis D. Brandeis, dated (22 January 1919).

A wise man once said, "Convention is like the shell to the chick, a protection till he is strong enough to break it through."

"The Preservation of Personality" commencement address at Bryn Mawr College, Bryn Mawr, Pennsylvania (2 June 1927); also in The Spirit of Liberty: Papers and Addresses (1952), p. 32.

Our dangers, as it seems to me, are not from the outrageous but from the conforming; not from those who rarely and under the lurid glare of obloquy upset our moral complaisance, or shock us with unaccustomed conduct, but from those, the mass of us, who take their virtues and their tastes, like their shirts and their furniture, from the limited patterns which the market offers.

"The Preservation of Personality" (2 June 1927).

No doubt one may quote history to support any cause, as the devil quotes scripture; but modern history is not a very satisfactory side-arm in political polemics; it grows less and less so.

"Sources of Tolerance" (1930); also in The Spirit of Liberty: Papers and Addresses (1952), p. 79.

Encyclopedia
Billings Learned Hand was a United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 and judicial philosopher
Judicial philosophy
Judicial philosophy is the set of ideas and beliefs which dictate how Justices and judges of the United States federal courts may rule in many cases....

. He served on the United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

 for the Southern District of New York and later the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

. Hand has been quoted more often than any other lower-court judge by legal scholars and by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

.

Born and raised in Albany
Albany, New York
Albany is the capital city of the U.S. state of New York, the seat of Albany County, and the central city of New York's Capital District. Roughly north of New York City, Albany sits on the west bank of the Hudson River, about south of its confluence with the Mohawk River...

, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

, Hand majored in philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...

 at Harvard College
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...

 and graduated with honors from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

. After a short career as a lawyer in Albany and New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...

, he was appointed as a Federal District Judge in Manhattan
Manhattan
Manhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...

 in 1909 at the age of 37. The profession suited his detached and open-minded temperament, and his decisions soon won him a reputation for craftsmanship and authority. Between 1909 and 1914, under the influence of Herbert Croly
Herbert Croly
Herbert David Croly was an intellectual leader of the Progressive Movement as an editor, and political philosopher and a co-founder of the magazine The New Republic in early twentieth-century America...

's social theories, Hand supported New Nationalism
New Nationalism
New Nationalism was Theodore Roosevelt's Progressive political philosophy during the 1912 election.-Overview:Roosevelt made the case for what he called the New Nationalism in a speech in Osawatomie, Kansas, on August 31, 1910...

. He ran unsuccessfully as the Progressive Party
Progressive Party (United States, 1912)
The Progressive Party of 1912 was an American political party. It was formed after a split in the Republican Party between President William Howard Taft and former President Theodore Roosevelt....

's candidate for Chief Judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...

 of the New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...

 in 1913, but withdrew from active politics shortly afterwards. In 1924, President Calvin Coolidge
Calvin Coolidge
John Calvin Coolidge, Jr. was the 30th President of the United States . A Republican lawyer from Vermont, Coolidge worked his way up the ladder of Massachusetts state politics, eventually becoming governor of that state...

 promoted Hand to the Court of Appeals for the Second Circuit, which he went on to lead as the Senior Circuit Judge (later retitled Chief Judge) from 1939 until his semi-retirement in 1951. Scholars have recognized the Second Circuit under Hand as one of the finest appeals courts in the country's history. Friends and admirers often lobbied for Hand's promotion to the Supreme Court, but circumstances and his political past conspired against his appointment.

Hand possessed a gift for the English language, and his writings are admired as legal literature. He rose to fame outside the legal profession in 1944 after giving a short address in Central Park
Central Park
Central Park is a public park in the center of Manhattan in New York City, United States. The park initially opened in 1857, on of city-owned land. In 1858, Frederick Law Olmsted and Calvert Vaux won a design competition to improve and expand the park with a plan they entitled the Greensward Plan...

 that struck a popular chord in its appeal for tolerance. During a period when a hysterical fear of subversion
Subversion (politics)
Subversion refers to an attempt to transform the established social order, its structures of power, authority, and hierarchy; examples of such structures include the State. In this context, a "subversive" is sometimes called a "traitor" with respect to the government in-power. A subversive is...

 divided the nation, Hand was viewed as a liberal defender of civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

. A collection of Hand's papers and addresses, published in 1952 as The Spirit of Liberty, sold well and won him new admirers. Even after he criticized the civil-rights activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

 of the 1950s Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...

, Hand retained his popularity.

Hand is also remembered as a pioneer of modern approaches to statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

 interpretation. His decisions in specialist fields, such as patents
United States patent law
United States patent law was established "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" as provided by the United States Constitution. Congress implemented these...

, torts, admiralty law
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...

, and antitrust law, set lasting standards for craftsmanship and clarity. On constitutional matters, he was both a political progressive
Progressivism in the United States
Progressivism in the United States is a broadly based reform movement that reached its height early in the 20th century and is generally considered to be middle class and reformist in nature. It arose as a response to the vast changes brought by modernization, such as the growth of large...

 and an advocate of judicial restraint
Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...

. He believed in the protection of free speech and in bold legislation to address social and economic problems. He argued, however, that the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 does not empower courts to overrule the legislation of elected bodies, except in extreme circumstances. Instead, he advocated the "combination of toleration and imagination that to me is the epitome of all good government".

Early life

Billings Learned Hand was born on January 27, 1872, in Albany, New York
Albany, New York
Albany is the capital city of the U.S. state of New York, the seat of Albany County, and the central city of New York's Capital District. Roughly north of New York City, Albany sits on the west bank of the Hudson River, about south of its confluence with the Mohawk River...

, the second and last child of Samuel and Lydia Hand (née Learned). His mother's family traditionally used surnames as given names, and Hand was named for an uncle and a grandfather, both named Billings Peck Learned. The Hands were a prominent family with a tradition of activism in the Democratic Party
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

. Hand grew up in comfortable circumstances on Albany's main residential street. The family had an "almost hereditary" attachment to the legal profession, and has been described as "the most distinguished legal family in northern New York".

Samuel Hand was an appellate
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

 lawyer, who had risen rapidly through the ranks of an Albany-based law firm in the 1860s and by age 32 was the firm's leading lawyer. He became the leader of the appellate bar and argued cases before the New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...

, in 1878, he became the leader of the appellate bar and argued cases before the Court of Appeals in "greater number and importance than those argued by any other lawyer in New York during the same period". Samuel Hand was also a distant, intimidating figure, and Learned Hand later described his relations with his father as "not really intimate". Samuel Hand died from cancer when Hand was 14. Learned Hand's mother thereafter promoted an idealized memory of her husband's professional success, intellectual abilities, and parental perfection, placing considerable pressure on her son.

Lydia Hand was an involved and protective mother, who had been influenced by a Calvinist
Calvinism
Calvinism is a Protestant theological system and an approach to the Christian life...

 aunt as a child; and she passed on a strong sense of duty and guilt to her only son. Learned Hand eventually came to understand the influences of his parents as formative. After his father's death, he looked to religion to help him cope, writing to his cousin Augustus Noble Hand
Augustus Noble Hand
Augustus Noble Hand was an American judge who served on the United States District Court for the Southern District of New York and later on the United States Court of Appeals for the Second Circuit. His most notable rulings restricted the reach of obscenity statutes in the areas of literature and...

: "If you could imagine one half the comfort my religion has given to me in this terrible loss, you would see that Christ never forsakes those who cling to him." The depth of Hand's early religious convictions was in sharp contrast to his later agnosticism
Agnosticism
Agnosticism is the view that the truth value of certain claims—especially claims about the existence or non-existence of any deity, but also other religious and metaphysical claims—is unknown or unknowable....

.

Hand was beset by anxieties and self-doubt throughout his life, including night terror
Night terror
A night terror, also known as a sleep terror, incubus attack, or pavor nocturnus, is a parasomnia disorder that predominantly affects children, causing feelings of terror or dread, typically occur in the first few hours of sleep during stage 3 or 4 NREM sleep...

s as a child. He later admitted he was "very undecided, always have been—a very insecure person, very fearful; morbidly fearful". Especially after his father's death, he grew up surrounded by doting women—his mother, his aunt, and his sister Lydia (Lily), eight years his elder. Hand struggled with his name during his childhood and adulthood, worried that "Billings" and "Learned" were not sufficiently masculine. While working as a lawyer in 1899, he ceased using the name "Billings"—calling it "pompous"—and ultimately took on the nickname "B".

Hand spent two years at a small primary school before transferring at the age of seven to The Albany Academy
The Albany Academy
The Albany Academy is an independent college preparatory day school for boys in Albany, New York, USA, enrolling students from Preschool to Grade 12. It was established in 1813 by a charter signed by Mayor Philip Schuyler Van Rensselaer and the city council of Albany...

, which he attended for the next 10 years. He never enjoyed the Academy's uninspired teaching or its narrow curriculum, which focused on Ancient Greek
Ancient Greek
Ancient Greek is the stage of the Greek language in the periods spanning the times c. 9th–6th centuries BC, , c. 5th–4th centuries BC , and the c. 3rd century BC – 6th century AD of ancient Greece and the ancient world; being predated in the 2nd millennium BC by Mycenaean Greek...

 and Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

, with few courses in English, history, science, or modern languages. Socially, he considered himself an outsider, rarely enjoying recesses or the school's military drills. Vacations, spent in Elizabethtown
Elizabethtown, New York
Elizabethtown is a town in Essex County, New York, United States. The population was 1,315 at the 2000 census. The county seat of Essex County is a hamlet also called Elizabethtown. The name is derived from Elizabeth Gilliland, the wife of an early settler....

, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

, 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-confessed "wild boys", camping and hiking in the woods and hills, where Hand developed a love of nature and the countryside. Many years later, when he was in his 70s, Hand recorded several songs for the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

 that he had learned as a boy from Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

 veterans in Elizabethtown. After his father's death, he felt an increased pressure from his mother to excel academically. He finished near the top of his class and was accepted into Harvard College
Harvard College
Harvard College, in Cambridge, Massachusetts, is one of two schools within Harvard University granting undergraduate degrees...

, which his classmates—who opted for places such as Williams
Williams College
Williams College is a private liberal arts college located in Williamstown, Massachusetts, United States. It was established in 1793 with funds from the estate of Ephraim Williams. Originally a men's college, Williams became co-educational in 1970. Fraternities were also phased out during this...

 and Yale
Yale University
Yale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States...

—thought a "stuckup, snobbish school".

Harvard

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. He embarked on courses in philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...

 and economics
Economics
Economics is the social science that analyzes the production, distribution, and consumption of goods and services. The term economics comes from the Ancient Greek from + , hence "rules of the house"...

, studying under the eminent and inspirational philosophers William James
William James
William James was a pioneering American psychologist and philosopher who was trained as a physician. He wrote influential books on the young science of psychology, educational psychology, psychology of religious experience and mysticism, and on the philosophy of pragmatism...

, Josiah Royce
Josiah Royce
Josiah Royce was an American objective idealist philosopher.-Life:Royce, born in Grass Valley, California, grew up in pioneer California very soon after the California Gold Rush. He received the B.A...

 and George Santayana
George Santayana
George Santayana was a philosopher, essayist, poet, and novelist. A lifelong Spanish citizen, Santayana was raised and educated in the United States and identified himself as an American. He wrote in English and is generally considered an American man of letters...

.

At first, Hand found Harvard a difficult social environment. He was not selected for any of the social clubs that dominated campus life, and he felt this exclusion keenly. He was equally unsuccessful with the Glee Club
Harvard Glee Club
The Harvard Glee Club is a 60-voice, all-male choral ensemble at Harvard University. Founded in 1858 in the tradition of English and American glee clubs, it is the oldest collegiate chorus in the US. The Glee Club is part of the Holden Choruses of Harvard University, which also include the...

 and the football team, although he rowed for a time as a substitute for the rowing club. He later described himself as a "serious boy", a hard worker who did not smoke, drink, or consort with prostitutes. He mixed more in his sophomore
Sophomore
Sophomore is a term used in the United States to describe a student in the second year of study at high school or university.The word is also used as a synonym for "second", for the second album or EP released by a musician or group, the second movie of a director, or the second season of a...

 and senior years. He became a member of the Hasty Pudding Club
Hasty Pudding Club
The Hasty Pudding Club is a social club for Harvard students. It was founded by Nymphus Hatch, a junior at Harvard College, in 1770. The club is named for the traditional American dish that the founding members ate at their first meeting...

 and appeared as a blond-wigged chorus girl in the 1892 student musical. He was also elected president of The Harvard Advocate
The Harvard Advocate
The Harvard Advocate, the literary magazine of Harvard College, is the oldest continuously published college literary magazine in the United States. The magazine was founded by Charles S. Gage and William G. Peckham in 1866 and, except for a hiatus during the last years of World War II, has...

, a student literary magazine.
Hand's studious ways resulted in his election to Phi Beta Kappa
Phi Beta Kappa Society
The Phi Beta Kappa Society is an academic honor society. Its mission is to "celebrate and advocate excellence in the liberal arts and sciences"; and induct "the most outstanding students of arts and sciences at America’s leading colleges and universities." Founded at The College of William and...

, an elite society of scholarly students. He graduated with highest honors, was awarded a master's as well as a bachelor's degree, and was 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. For a while, however, he seriously considered post-graduate work in philosophy, but he received no encouragement from his family or philosophy professors. Doubting himself, he then, as he put it, "drifted" towards law.

Hand's three years at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

 were intellectually and socially stimulating. In his second year, he moved into a boarding house with a group of fellow law students who were to become close friends. They studied hard and enjoyed discussing philosophy and literature and telling bawdy tales. Hand's intellectual reputation proved less of a hindrance at law school than it had as an undergraduate. He was elected to the Pow-Wow Club, in which law students practiced their skills in moot court
Moot court
A moot court is an extracurricular activity at many law schools in which participants take part in simulated court proceedings, usually to include drafting briefs and participating in oral argument. The term derives from Anglo Saxon times, when a moot was a gathering of prominent men in a...

s. He was also chosen as an editor of the Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...

, although he resigned in 1894 because it took too much time from his studies.

During the 1890s, Harvard Law School was pioneering the casebook method
Casebook method
The casebook method, also known as the case method, is the primary method of teaching law in law schools in the United States. It was pioneered at Harvard Law School by Christopher Columbus Langdell...

 of teaching introduced by Dean Christopher Langdell. Apart from Langdell, Hand's professors included Samuel Williston
Samuel Williston
Samuel Williston was an American lawyer and law professor.Early in Williston's career, from 1888 to 1889 he worked as the private secretary to U.S. Supreme Court Justice Horace Gray. In the summer of 1889, he helped to collate laws from various U.S...

, John Chipman Gray
John Chipman Gray
John Chipman Gray was an American scholar of property law and professor at Harvard Law School. He also co-founded one of the oldest and most prestigious law firms in the United States, the firm of Ropes & Gray, with law partner John Codman Ropes. He was half-brother to U.S...

, and James Barr Ames
James Barr Ames
James Barr Ames was a American law educator, who popularized the "case-study" method of teaching law developed by Christopher Columbus Langdell. Ames insisted that legal education should require the study of actual cases instead of abstract principles of law...

. Hand preferred those teachers who valued common sense and fairness and ventured beyond casebook study into the philosophy of law. His favorite professor was James Bradley Thayer
James Bradley Thayer
James Bradley Thayer American legal writer and educationist.Born at Haverhill, Massachusetts, he graduated at Harvard College in 1852, and at the Harvard Law School in 1856, in which year he was admitted to the bar of Suffolk County and began to practice in Boston...

, who taught him evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...

 in his second year and constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

 in his third. A man of broad interests, Thayer became a major influence on Hand's jurisprudence. He emphasized the law's historical and human dimensions rather than its certainties and extremes. He stressed the need for courts to exercise judicial restraint
Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...

 in deciding social issues.

Albany legal practice

Hand graduated from Harvard Law School in 1896 at the age of 24. He then returned to Albany to live with his mother and aunt, and started work for the law firm
Law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...

 in which an uncle, Matthew Hale, was a partner
Partner (business rank)
A partner in a law firm, accounting firm, consulting firm, or financial firm is a highly ranked position. Originally, these businesses were set up as legal partnerships in which the partners were entitled to a share of the profits of the enterprise. The name has remained even though many of these...

. Hale's unexpected death a few months later obliged Hand to move to a new firm, where by 1899 he had become a partner. He had difficulty attracting his own clients, however, and found the work trivial and dull. Much of his time was spent researching and writing briefs, with few opportunities for the appellate work he preferred. His early courtroom appearances, when they came, were frequently difficult, sapping his fragile self-confidence. He began to fear that he lacked the ability to think on his feet in court.

For two years, Hand tried to succeed as a lawyer by force of will, giving all his time to the practice. By 1900, he was deeply dissatisfied with his progress. For intellectual stimulation, he increasingly looked outside his daily work. He wrote scholarly articles, taught part-time at Albany Law School
Albany Law School
Albany Law School is an ABA accredited law school based in Albany, New York. It was founded in 1851 by Amos Dean , Amasa Parker, Ira Harris and others....

, and joined a lawyers' discussion group in New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...

. He also developed an interest in politics. Hand came from a line of loyal Democrats
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

, but in 1898 he voted for Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

 Theodore Roosevelt
Theodore Roosevelt
Theodore "Teddy" Roosevelt was the 26th President of the United States . He is noted for his exuberant personality, range of interests and achievements, and his leadership of the Progressive Movement, as well as his "cowboy" persona and robust masculinity...

 as governor of New York. Though he deplored Roosevelt's role in the "militant imperialism" of the Spanish–American War, he approved of the "amorphous mixture of socialism and laisser faire [sic]" in Roosevelt's campaign speeches. Hand caused further family controversy by registering as a Republican for the presidential election of 1900
United States presidential election, 1900
The United States presidential election of 1900 was a re-match of the 1896 race between Republican President William McKinley and his Democratic challenger, William Jennings Bryan. The return of economic prosperity and recent victory in the Spanish–American War helped McKinley to score a decisive...

. Life and work in Albany no longer fulfilled him; he began applying for jobs in New York City, despite family pressure not to move.

Marriage and New York

After reaching the age of 30 without developing a serious interest in a woman, Hand considered himself destined for bachelorhood. However, during a 1901 summer holiday in the Québec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....

 resort of La Malbaie
La Malbaie, Quebec
La Malbaie is a municipality in the Charlevoix-Est Regional County Municipality in the province of Quebec, Canada, situated on the north shore of the Saint Lawrence River, at the mouth of the Malbaie River...

, he met 25-year-old Frances Fincke, a graduate of Bryn Mawr College
Bryn Mawr College
Bryn Mawr College is a women's liberal arts college located in Bryn Mawr, a community in Lower Merion Township, Pennsylvania, ten miles west of Philadelphia. The name "Bryn Mawr" means "big hill" in Welsh....

. Though indecisive in most matters, he waited only a few weeks before proposing. The more cautious Fincke postponed her answer for almost a year, while Hand wrote to and occasionally saw her. He also began to look more seriously for work in New York City. 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. They married on December 6, 1902, shortly after Hand had accepted a post with the Manhattan
Manhattan
Manhattan is the oldest and the most densely populated of the five boroughs of New York City. Located primarily on the island of Manhattan at the mouth of the Hudson River, the boundaries of the borough are identical to those of New York County, an original county of the state of New York...

 law firm of Zabriskie, Burrill & Murray. The couple had three daughters, Mary Deshon (born 1905), Frances (born 1907), and Constance (born 1909). Hand proved an anxious husband and father. He corresponded regularly with his doctor brother-in-law about initial difficulties in conceiving and about his children's illnesses. He himself survived pneumonia
Pneumonia
Pneumonia is an inflammatory condition of the lung—especially affecting the microscopic air sacs —associated with fever, chest symptoms, and a lack of air space on a chest X-ray. Pneumonia is typically caused by an infection but there are a number of other causes...

 in February 1905, taking months to recover.
The family at first spent summers in Mount Kisco, with Hand commuting
Commuting
Commuting is regular travel between one's place of residence and place of work or full time study. It sometimes refers to any regular or often repeated traveling between locations when not work related.- History :...

 at the weekends. After 1910, they rented summer homes in Cornish, New Hampshire
Cornish, New Hampshire
Cornish is a town in Sullivan County, New Hampshire, United States. The population was 1,640 at the 2010 census. Cornish has three covered bridges. Each August, it is home to the Cornish Fair.-History:...

, a writers' and artists' colony with a stimulating social scene. The Hands bought a house there in 1919, which they called "Low Court". Cornish was a nine-hour train journey from New York, and the couple were separated for long periods, with Hand able to join the family only for vacations. The Hands became friends with the noted artist Maxfield Parrish
Maxfield Parrish
Maxfield Parrish was an American painter and illustrator active in the first half of the twentieth century. He is known for his distinctive saturated hues and idealized neo-classical imagery.-Life:...

, who lived in nearby Plainfield, and the Misses Hand posed for some of his famous paintings. The Hands also became close friends with Cornish resident Louis Dow, a Dartmouth College
Dartmouth College
Dartmouth College is a private, Ivy League university in Hanover, New Hampshire, United States. The institution comprises a liberal arts college, Dartmouth Medical School, Thayer School of Engineering, and the Tuck School of Business, as well as 19 graduate programs in the arts and sciences...

 professor. Frances Hand spent increasing amounts of time with Dow while her husband was in New York, and tension crept into the marriage. Despite speculation, however, there is no evidence that she and Dow were lovers. Hand regretted Frances' long absences and urged her to spend more time with him, but he maintained an enduring friendship with Dow. He blamed himself for a lack of insight into his wife's needs in the early years of the marriage, confessing his "blindness and insensibility to what you wanted and to your right to your own ways when they differed from mine". Fearing he might otherwise lose her altogether, Hand came to accept Frances' desire to spend time in the country with another man.

While staying in Cornish in 1908, Hand began a close friendship with the political commentator and philosopher Herbert Croly
Herbert Croly
Herbert David Croly was an intellectual leader of the Progressive Movement as an editor, and political philosopher and a co-founder of the magazine The New Republic in early twentieth-century America...

. At the time, Croly was writing his influential book The Promise of American Life
The Promise of American Life
The Promises of American Life is a book published by Herbert Croly, founder of The New Republic, in 1909. This book opposed aggressive unionization and supported economic planning to raise general quality of life...

, in which he advocated a program of democratic and egalitarian reform under a national government with increased powers. When the book was published in November 1909, Hand sent copies to friends and acquaintances, including former president Theodore Roosevelt
Theodore Roosevelt
Theodore "Teddy" Roosevelt was the 26th President of the United States . He is noted for his exuberant personality, range of interests and achievements, and his leadership of the Progressive Movement, as well as his "cowboy" persona and robust masculinity...

. Croly's ideas had a powerful effect on Roosevelt's politics, influencing his advocacy of New Nationalism
New Nationalism
New Nationalism was Theodore Roosevelt's Progressive political philosophy during the 1912 election.-Overview:Roosevelt made the case for what he called the New Nationalism in a speech in Osawatomie, Kansas, on August 31, 1910...

 and the development of Progressivism
Progressivism
Progressivism is an umbrella term for a political ideology advocating or favoring social, political, and economic reform or changes. Progressivism is often viewed by some conservatives, constitutionalists, and libertarians to be in opposition to conservative or reactionary ideologies.The...

.

Hand remained disappointed in his progress at work. A move to the firm of Gould & Wilkie in January 1904 brought neither the challenges nor the financial rewards for which he had hoped. "I was never any good as a lawyer," he later admitted. "I didn't have any success, any at all." In 1907, deciding that at the age of 35 success as a Wall Street lawyer was out of reach, he lobbied for a potential new federal judgeship in the United States District Court for the Southern District of New York, the federal court headquartered in Manhattan, and involved himself briefly in local Republican politics to strengthen his political base. In the event, Congress did not create the new judgeship in 1907, but when the post was finally created in 1909, Hand renewed his candidacy. With the help of the influential Charles C. Burlingham, a senior New York lawyer and close friend, he gained the backing of Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...

 George W. Wickersham
George W. Wickersham
George Woodward Wickersham was an American lawyer and Presidential Cabinet Secretary.-Biography:Born in Pittsburgh, Pennsylvania, he graduated from the University of Pennsylvania...

, who urged President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

 William Howard Taft
William Howard Taft
William Howard Taft was the 27th President of the United States and later the tenth Chief Justice of the United States...

 to appoint Hand. One of the youngest federal judges ever appointed, Hand took his judicial oath in April 1909.

Federal judge

Hand served as a federal judge
United States federal judge
In the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....

 in the Southern District of New York from 1909 to 1924. He dealt with fields of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, including tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

s, contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

s, and copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

, and admiralty law
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...

. His initial unfamiliarity with some of these specialties, along with his limited courtroom experience, caused him anxiety at first. Most of Hand's early cases concerned bankruptcy
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....

 issues, which he found tiresome, and patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

 law, which fascinated him.
Hand also made some important decisions in the area of free speech. A frequently cited 1913 decision was United States v. Kennerley, an obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...

 case concerning Daniel Carson Goodman
Daniel Carson Goodman
Daniel Carson Goodman was an American screenwriter, who wrote the storyline for 28 silent films – the first of them was Sapho . He worked as miscellaneous crew in three films, produced two films and directed one film, Thoughtless Women .He was engaged to marry the actress Florence La Badie...

's Hagar Revelly, a social-hygiene novel about the "wiles of vice" that had caught the attention of the New York Society for the Suppression of Vice
New York Society for the Suppression of Vice
The New York Society for the Suppression of Vice was an institution dedicated to supervising the morality of the public, founded in 1873. Its specific mission was to monitor compliance with state laws and work with the courts and district attorneys in bringing offenders to justice. It and its...

. Hand allowed the case to go forward on the basis of the Hicklin test
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...

, which stemmed back to a seminal English decision of 1868, Regina v. Hicklin. In his opinion, Hand recommended updating the law, arguing that the obscenity rule should not simply protect the most susceptible readers but should reflect community standards:

It seems hardly likely that we are even to-day so lukewarm in our interest in letters or serious discussion as to be content to reduce our treatment of sex to the standard of a child's library in the supposed interest of a salacious few, or that shame will for long prevent us from adequate portrayal of some of the most serious and beautiful sides of human nature.


Following his appointment as a judge, Hand became politically active in the cause of New Nationalism
New Nationalism
New Nationalism was Theodore Roosevelt's Progressive political philosophy during the 1912 election.-Overview:Roosevelt made the case for what he called the New Nationalism in a speech in Osawatomie, Kansas, on August 31, 1910...

. With reservations, he supported Theodore Roosevelt
Theodore Roosevelt
Theodore "Teddy" Roosevelt was the 26th President of the United States . He is noted for his exuberant personality, range of interests and achievements, and his leadership of the Progressive Movement, as well as his "cowboy" persona and robust masculinity...

's return to national politics in 1911. He approved of the former president's plans to legislate on behalf of the underprivileged and to control corporations, as well as of his campaign against the abuse of judicial power. Hand sought to influence Roosevelt's views on these subjects, both in person and in print, and wrote articles for Roosevelt's magazine The Outlook. His hopes of swaying Roosevelt were nonetheless often dashed. Roosevelt's poor grasp of legal issues particularly exasperated Hand.

Despite overwhelming support for Roosevelt in the primaries
United States presidential primary
The series of presidential primary elections and caucuses is one of the first steps in the process of electing the President of the United States of America. The primary elections are run by state and local governments, while caucuses are private events run by the political parties...

 and polls, the Republicans renominated the incumbent President Taft. A furious Roosevelt bolted from the party to form the Progressive Party
Progressive Party (United States, 1912)
The Progressive Party of 1912 was an American political party. It was formed after a split in the Republican Party between President William Howard Taft and former President Theodore Roosevelt....

, nicknamed the "Bull Moose" movement. Most Republican progressives followed suit, including Hand. The splitting of the Republican vote, however, harmed both Roosevelt's and Taft's chances of winning the November 1912 presidential election
United States presidential election, 1912
The United States presidential election of 1912 was a rare four-way contest. Incumbent President William Howard Taft was renominated by the Republican Party with the support of its conservative wing. After former President Theodore Roosevelt failed to receive the Republican nomination, he called...

. As Hand expected, Roosevelt lost to the Democratic Party's
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

 Woodrow Wilson
Woodrow Wilson
Thomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...

, though he polled more votes than Taft.

Hand took the defeat in his stride. He saw the election merely as a first step in a reform campaign for "real national democracy". Though he had limited his public involvement in the election campaign, he now took part in planning a party structure. He also accepted the Progressive nomination for chief judge of New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...

, then an elective position, in September 1913. He refused to campaign, however, and later admitted that "the thought of harassing the electorate was more than I could bear". His vow of silence affected his showing, and he received only 13% of the votes. Hand came to regret his candidacy: "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 realized that the Progressive Party had no future, as the liberal policies of the Democratic government were making much of its program redundant. Roosevelt's decision not to stand in the 1916 presidential election
United States presidential election, 1916
The United States presidential election of 1916 took place while Europe was embroiled in World War I. Public sentiment in the still neutral United States leaned towards the British and French forces, due to the harsh treatment of civilians by the German Army, which had invaded and occupied large...

 dealt the party its death blow. Hand had already turned to an alternative political outlet in Herbert Croly's The New Republic
The New Republic
The magazine has also published two articles concerning income inequality, largely criticizing conservative economists for their attempts to deny the existence or negative effect increasing income inequality is having on the United States...

, a liberal magazine he had helped launch in 1914. He wrote a series of unsigned articles for the magazine on issues of social reform and judicial power; his only signed article was "The Hope of the Minimum Wage", published in November 1916, which called for laws to protect the underprivileged. Hand often attended staff dinners and meetings and became a close friend of the gifted young editor Walter Lippmann
Walter Lippmann
Walter Lippmann was an American intellectual, writer, reporter, and political commentator famous for being among the first to introduce the concept of Cold War...

. The outbreak of World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

 had coincided with the founding of the magazine, whose pages often debated the events in Europe. The New Republic adopted a cautiously sympathetic stance towards the Allies
Allies of World War I
The Entente Powers were the countries at war with the Central Powers during World War I. The members of the Triple Entente were the United Kingdom, France, and the Russian Empire; Italy entered the war on their side in 1915...

 which Hand supported wholeheartedly. After the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 entered the war in 1917, Hand considered leaving the bench to assist the war effort. Several possible war-related positions presented themselves. However, nothing came of them, aside from the chairing of a committee on intellectual property law that suggested treaty amendments for the Paris Peace Conference
Paris Peace Conference, 1919
The Paris Peace Conference was the meeting of the Allied victors following the end of World War I to set the peace terms for the defeated Central Powers following the armistices of 1918. It took place in Paris in 1919 and involved diplomats from more than 32 countries and nationalities...

.
Hand made his most memorable decision of the war in 1917 in Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.-Background:...

. After the country joined the war, Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 had enacted an Espionage Act
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

 that made it a federal crime
Federal crime
In the United States, a federal crime or federal offense is a crime that is made illegal by U.S. federal legislation. In the United States, criminal law and prosecution happen at both the federal and the state levels; thus a “federal crime” is one that is prosecuted under federal criminal law, and...

 to hinder the war effort. The first test of the new law came two weeks later when the postmaster of New York City refused to deliver the August issue of The Masses
The Masses
The Masses was a graphically innovative magazine of socialist politics published monthly in the U.S. from 1911 until 1917, when Federal prosecutors brought charges against its editors for conspiring to obstruct conscription. It was succeeded by The Liberator and then later The New Masses...

, a self-described "revolutionary journal". The edition contained drawings, cartoons, and articles criticizing the government's decision to go to war.

The publishing company sought an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

 to prevent the ban, and the case came before Judge Hand. In July 1917, he ruled that the journal should not be barred from distribution through the mail. Though The Masses supported those who refused to serve in the forces, its text did not, in Hand's view, tell readers that they must violate the law. Hand argued that suspect material should be judged on what he called an "incitement test": only if its language directly urged readers to violate the law was it seditious—otherwise freedom of speech should be protected. This focus on the words themselves, rather than on their effect, was novel and daring; but Hand's decision was promptly stayed, and later overturned on appeal. He always maintained that his ruling had been correct. Between 1918 and 1919, he attempted to convince Supreme Court Justice Oliver Wendell Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, a man he greatly admired, of his argument. His efforts at first appeared fruitless, but Holmes' dissenting opinion in Abrams v. United States
Abrams v. United States
Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

in November 1919 urged greater protection of political speech. Scholars have credited the critiques of Hand, Ernst Freund
Ernst Freund
Ernst Freund was a noted American legal scholar. He received a Dr. Jur. from the University of Heidelberg ; a Ph. D. in political science from Columbia University He was professor of political science at the University of Chicago and professor of law at Chicago . He was John P...

, Louis Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...

, and Zechariah Chafee
Zechariah Chafee
Zechariah Chafee, Jr. was an American judicial philosopher and civil libertarian. An advocate for free speech, he was described by Senator Joseph McCarthy as "dangerous" to the United States...

 for the change in Holmes's views. In the long-term, Hand's decision proved a landmark in the history of free speech in the country. In the late 1960s, the Supreme Court announced a standard for protecting free speech that in effect recognized his Masses opinion as law.
Hand had known that ruling against the government might harm his prospects of promotion. By the time of the case, he was already the most senior judge of his district. The United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

 often summoned him to sit with that court to hear appeals, a task he found stimulating. In 1917, he lobbied for promotion to the Second Circuit, but the unpopularity of his Masses decision and his reputation as a liberal stood against him. He was passed over in favor of Martin T. Manton.

In the final months of the war, Hand increasingly supported President Woodrow Wilson's post-war foreign policy objectives. He believed the United States should endorse the League of Nations
League of Nations
The League of Nations was an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace...

 and the Treaty of Versailles
Treaty of Versailles
The Treaty of Versailles was one of the peace treaties at the end of World War I. It ended the state of war between Germany and the Allied Powers. It was signed on 28 June 1919, exactly five years after the assassination of Archduke Franz Ferdinand. The other Central Powers on the German side of...

, despite their flaws. This position estranged him from Croly and others at The New Republic, who vehemently rejected both. Alienated from his old circle on the magazine and by the reactionary and isolationist mood of the country, Hand found himself politically homeless.

Between the wars

The next Second Circuit vacancy arose in 1921, but with the conservative Warren G. Harding
Warren G. Harding
Warren Gamaliel Harding was the 29th President of the United States . A Republican from Ohio, Harding was an influential self-made newspaper publisher. He served in the Ohio Senate , as the 28th Lieutenant Governor of Ohio and as a U.S. Senator...

 administration in power, Hand did not put himself forward. Hand's reputation was such that by 1923, Supreme Court Justice Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

 wanted him on the Supreme Court, and in 1924 Harding's successor, Calvin Coolidge
Calvin Coolidge
John Calvin Coolidge, Jr. was the 30th President of the United States . A Republican lawyer from Vermont, Coolidge worked his way up the ladder of Massachusetts state politics, eventually becoming governor of that state...

, appointed Hand to the Second Circuit. It was a sign of Hand's increased stature that figures such as Coolidge and Chief Justice William Howard Taft now endorsed him. Coolidge sought to add new blood to a senior judiciary that was seen as corrupt and inefficient. In 1926 and 1927, the Second Circuit was strengthened by the appointments of Thomas Walter Swan and Hand's cousin Augustus Noble Hand
Augustus Noble Hand
Augustus Noble Hand was an American judge who served on the United States District Court for the Southern District of New York and later on the United States Court of Appeals for the Second Circuit. His most notable rulings restricted the reach of obscenity statutes in the areas of literature and...

.

After the demise of the Progressive Party, Hand had withdrawn from party politics. He committed himself to public impartiality, despite his strong views on political issues. He remained, however, a strong supporter of freedom of speech, and any sign of the "merry sport of Red-baiting" troubled him. In 1920, for example, he wrote in support of New York Governor Al Smith
Al Smith
Alfred Emanuel Smith. , known in private and public life as Al Smith, was an American statesman who was elected the 42nd Governor of New York three times, and was the Democratic U.S. presidential candidate in 1928...

's veto of the anti-sedition Lusk Bills. The New York Assembly had approved these bills in a move to bar five elected Socialist Party
Socialist Party of America
The Socialist Party of America was a multi-tendency democratic-socialist political party in the United States, formed in 1901 by a merger between the three-year-old Social Democratic Party of America and disaffected elements of the Socialist Labor Party which had split from the main organization...

 legislators from taking their seats. In 1922, Hand privately objected to a proposed limit on the number of Jewish students admitted to Harvard College. "If we are to have in this country racial divisions like those in Europe," he wrote, "let us close up shop now".

In public, Hand discussed issues of democracy, free speech, and toleration only in general terms. This discretion, plus a series of impressive speaking engagements, won him the respect of legal scholars and journalists, and by 1930 he was viewed as a serious candidate for a seat on the Supreme Court. His friend Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...

, then a Harvard Law School professor, was among those lobbying hard for Hand's appointment. President Herbert Hoover
Herbert Hoover
Herbert Clark Hoover was the 31st President of the United States . Hoover was originally a professional mining engineer and author. As the United States Secretary of Commerce in the 1920s under Presidents Warren Harding and Calvin Coolidge, he promoted partnerships between government and business...

 chose to bypass him, possibly for political reasons, and appointed Charles Evans Hughes
Charles Evans Hughes
Charles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...

, who had previously served on the Court for six years before resigning to become the Republican candidate for President in 1916, as Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...

. With Hughes and another New Yorker, Harlan Fiske Stone
Harlan Fiske Stone
Harlan Fiske Stone was an American lawyer and jurist. A native of New Hampshire, he served as the dean of Columbia Law School, his alma mater, in the early 20th century. As a member of the Republican Party, he was appointed as the 52nd Attorney General of the United States before becoming an...

, on the Court, the promotion of a third New Yorker was then seen as impossible.

Hand had voted for Hoover in 1928, and he did so again in 1932; but in 1936, he voted for the Democrats and Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

, as a reaction to the economic and social turmoil that followed the Wall Street Crash of 1929. With the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...

 setting in, Hand favored a policy of interventionist
Interventionism (politics)
Interventionism is a term for a policy of non-defensive activity undertaken by a nation-state, or other geo-political jurisdiction of a lesser or greater nature, to manipulate an economy or society...

 central government. He came to accept Frankfurter's view that redistribution of wealth was essential for economic recovery. Hoover resisted this approach, favoring individualism and free enterprise. Roosevelt, on the other hand, promised the voters a New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

. They elected him on a platform of strong executive leadership and radical economic reform. Hand voted for Roosevelt again in 1940 and 1944, but he remained vigilant on the constitutional dangers of big government. Like others, including Walter Lippmann
Walter Lippmann
Walter Lippmann was an American intellectual, writer, reporter, and political commentator famous for being among the first to introduce the concept of Cold War...

, he sensed the dictatorial potential of New Deal policies. He had no hesitation in condemning Roosevelt's 1937 bill to expand the Supreme Court
Judiciary Reorganization Bill of 1937
The Judicial Procedures Reform Bill of 1937, frequently called the court-packing plan, was a legislative initiative proposed by U.S. President Franklin Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt's purpose was to obtain favorable rulings regarding New Deal legislation that...

 and pack it with New Dealers.

Hand was increasingly called upon to judge cases arising from the flood of New Deal legislation. The line between central government authority and local legislation particularly tested his powers of judgment. In 1935, the case of United States v. Schechter
Schechter Poultry Corp. v. United States
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress's power under the commerce clause...

came before the Second Circuit. Hand and his two colleagues had to judge whether a New York poultry firm had contravened New Deal legislation on unfair trade practices. They ruled that the National Industrial Recovery Act
National Industrial Recovery Act
The National Industrial Recovery Act , officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 (Ch. 90, 48 Stat. 195, formerly...

 did not apply to the Schechter Poultry Corporation, which traded solely within the state. "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 Supreme Court later affirmed Hand's decision.

Hand became an acknowledged expert on New Deal statutes. He relished the challenge of interpreting such legislation, calling it "an act of creative imagination". In a 1933 broadcast, he explained the balancing act required of a judge in 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.

World War II

When war broke out in Europe in 1939, Learned Hand adopted an anti-isolationist stance. He rarely spoke out publicly, not only because of his position but because he thought bellicosity unseemly in an old man. In February 1939, he became his court's senior circuit leader (in effect, chief judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...

, although the title was not created until 1948). In this post, Hand succeeded Martin Manton
Martin Manton
Martin Thomas Manton was a prominent United States federal Judge in New York City, sometimes remembered for having resigned and served time in prison for accepting bribes while in office. In 1916 he was the youngest federal judge in the United States.-Biography:He was born on August 2, 1880...

, who had resigned after corruption allegations that later led to Manton's criminal conviction for bribery
Bribery
Bribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...

. Not an admirer of Manton, Hand nonetheless testified at his trial that he had never noticed any corrupt behavior in his predecessor. Having sat in two cases in which Manton accepted bribes, Hand worried for years afterward that he should have detected his colleague's corruption.

Hand still regarded his main job as judging. As circuit leader, he sought to free himself and his judges from too great an administrative burden. He concentrated on maintaining good relations with his fellow judges and on cleansing the court of patronage appointments. Despite the Manton case and constant friction between two of the court's judges, Charles Edward Clark
Charles Edward Clark
Charles Edward Clark was a federal judge on the United States Court of Appeals for the Second Circuit from 1939 to 1963. A native of Connecticut, Clark attended Yale College and Yale Law School...

 and Jerome Frank, the Second Circuit under Hand earned a reputation as one of the best appeal courts in the country's history.

In 1942, Hand's friends once again lobbied for him to fill a Supreme Court vacancy, but Roosevelt did not appoint him. The president gave age as the reason, but philosophical differences with Hand may also have played a part. In the end, Wiley Rutledge, who took the seat, died in 1949, while Hand lived until 1961. Deeply disappointed at the time, Hand later regretted 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. He felt free to participate in organizations and initiatives connected with the war effort, and was particularly committed to programs in support of Greece and Russia. He backed Roosevelt for the 1944 election
United States presidential election, 1944
The United States presidential election of 1944 took place while the United States was preoccupied with fighting World War II. President Franklin D. Roosevelt had been in office longer than any other president, but remained popular. Unlike 1940, there was little doubt that Roosevelt would run for...

, partly because he feared a return to isolationism and the prolonging of the wartime erosion of civil liberties. In 1943, the House Un-American Activities Committee
House Un-American Activities Committee
The House Committee on Un-American Activities or House Un-American Activities Committee was an investigative committee of the United States House of Representatives. In 1969, the House changed the committee's name to "House Committee on Internal Security"...

 or "Dies Committee", for example, had aroused his fears with an investigation into "subversive activities" by government workers. Hand's contemporary at Harvard College, Robert Morss Lovett
Robert Morss Lovett
Robert Morss Lovett was an American academic, writer, editor, political activist, and government official....

, was one of those accused, and Hand spoke out on his behalf. As the end of the war approached, there was much talk of international peace organizations and courts to prevent future conflict, but Hand was skeptical. He also condemned the Nuremberg war-crimes trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....

, which he saw as motivated by vengeance; 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 had never been well known to the general public, but a short speech he made in 1944 won him fame and a national reputation for wisdom that lasted until the end of his life. On May 21, 1944, he addressed almost one and a half million people in Central Park
Central Park
Central Park is a public park in the center of Manhattan in New York City, United States. The park initially opened in 1857, on of city-owned land. In 1858, Frederick Law Olmsted and Calvert Vaux won a design competition to improve and expand the park with a plan they entitled the Greensward Plan...

, New York, at the annual "I Am an American Day" event, where newly naturalized citizens swore the Pledge of Allegiance
Pledge of Allegiance
The Pledge of Allegiance of the United States is an expression of loyalty to the federal flag and the republic of the United States of America, originally composed by Christian Socialist Francis Bellamy in 1892 and formally adopted by Congress as the pledge in 1942...

. He stated that all Americans were immigrants who had come to America in search of liberty. Liberty, he said, was not located in America's constitutions, laws, and courts, but in the hearts of the people. In what would become the speech's most quoted passage, 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.


Extracts of the speech appeared in The New Yorker
The New Yorker
The New Yorker is an American magazine of reportage, commentary, criticism, essays, fiction, satire, cartoons and poetry published by Condé Nast...

on June 10. Several weeks later, The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...

printed the whole text, quickly followed by Life
Life (magazine)
Life generally refers to three American magazines:*A humor and general interest magazine published from 1883 to 1936. Time founder Henry Luce bought the magazine in 1936 solely so that he could acquire the rights to its name....

magazine and Reader's Digest
Reader's Digest
Reader's Digest is a general interest family magazine, published ten times annually. Formerly based in Chappaqua, New York, its headquarters is now in New York City. It was founded in 1922, by DeWitt Wallace and Lila Bell Wallace...

. Hand's message that liberty is safeguarded by everyday Americans struck a popular chord, and he suddenly found himself a folk hero
Folk hero
A folk hero is a type of hero, real, fictional, or mythological. The single salient characteristic which makes a character a folk hero is the imprinting of the name, personality and deeds of the character in the popular consciousness. This presence in the popular consciousness is evidenced by...

. Though he enjoyed the acclaim, he thought it unmerited. His biographer Gerald Gunther, noting the paradox of the agnostic Hand's use of religious overtones, suggests that the most challenging aspect of the speech was that the spirit of liberty must entertain doubt.

Postwar years

Learned Hand's 75th birthday in 1947 was much celebrated in the press and in legal circles. C. C. Burlingham, Hand's former sponsor, for example, called him "now unquestionably the first among American judges". Hand remained modest in the face of such acclaim. He continued to work as before, combining his role as presiding judge of the Second Circuit with his engagement in political issues. In 1947, he voiced his opposition to a proposed "group libel" statute that would have banned defamation of racial or minority groups. He argued that such a law would imply that intolerance could base itself upon evidence. The effect of the proposed prosecutions, he said, 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
Stalinism
Stalinism refers to the ideology that Joseph Stalin conceived and implemented in the Soviet Union, and is generally considered a branch of Marxist–Leninist ideology but considered by some historians to be a significant deviation from this philosophy...

 and the onset of the Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...

. At the same time, he was sensitive to the domestic problems created by what he saw as an hysterical fear of international Communism
Communism
Communism is a social, political and economic ideology that aims at the establishment of a classless, moneyless, revolutionary and stateless socialist society structured upon common ownership of the means of production...

. 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 was distressed by the crusade against domestic subversion
Subversion (politics)
Subversion refers to an attempt to transform the established social order, its structures of power, authority, and hierarchy; examples of such structures include the State. In this context, a "subversive" is sometimes called a "traitor" with respect to the government in-power. A subversive is...

 that became part of American public life after the war. He particularly despised the anti-Communist campaign of Senator Joseph McCarthy
Joseph McCarthy
Joseph Raymond "Joe" McCarthy was an American politician who served as a Republican U.S. Senator from the state of Wisconsin from 1947 until his death in 1957...

 that began in 1950 and which became known as McCarthyism
McCarthyism
McCarthyism is the practice of making accusations of disloyalty, subversion, or treason without proper regard for evidence. The term has its origins in the period in the United States known as the Second Red Scare, lasting roughly from the late 1940s to the late 1950s and characterized by...

. Though Hand expressed his horror of McCarthyism privately, he hesitated to do so publicly because cases arising from it were likely to come before his court.

During this period, Hand took part in three notable cases that posed a particular challenge to his impartiality on Cold War issues: United States v. Coplon, United States v. Dennis
Dennis v. United States
Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

, and United States v. Remington. Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

 worker Judith Coplon
Judith Coplon
Judith Coplon Socolov was one of the first major figures tried in the United States for spying for the former Soviet Union; problems in her trials in 1949–50 had a profound influence on espionage prosecutions during the McCarthy era.-Work and arrest:Coplon obtained a job in the Department of...

 had been sentenced to 15 years in prison for stealing and attempting to pass on defense
Defense (military)
Defense has several uses in the sphere of military application.Personal defense implies measures taken by individual soldiers in protecting themselves whether by use of protective materials such as armor, or field construction of trenches or a bunker, or by using weapons that prevent the enemy...

 information. In 1950, her appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

 came before a Second Circuit panel that included Learned Hand. It rested on her claim that her rights under the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

 had been infringed by a warrantless search
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....

, and that details of illegal wiretaps had not been fully disclosed at her trial. Hand made it clear that Coplon was guilty of the charges. However, he rejected the trial judge's conclusion that a warrantless arrest had been justified. He ruled therefore that papers seized during the arrest had been inadmissible as evidence. The trial judge's failure to disclose all the wiretap records, Hand concluded, made a reversal of Coplon's conviction necessary. In his written opinion
Legal opinion
In law, an opinion is usually a written explanation by a judge or group of judges that accompanies an order or ruling in a case, laying out the rationale and legal principles for the ruling....

, Hand stated 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
Hate mail
Hate mail is a form of harassment, usually consisting of invective and potentially intimidating or threatening comments towards the recipient...

 for his decision. By contrast, in the 1950 case United States v. Dennis, Hand affirmed the convictions under the 1940 Smith Act
Smith Act
The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

 of eleven leaders of the Communist Party of the United States for subversion. He ruled that calls for the violent overthrow of the American government posed enough of a "probable danger" to justify the invasion of free speech. After the case, he was attacked from the opposite political direction for appearing to side with McCarthyism.

In 1953, Hand wrote a scathing dissent from a Second Circuit decision to affirm the perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...

 conviction of William Remington
William Remington
William Walter Remington was an economist employed in various federal government positions until his career was interrupted by accusations of espionage made by the Soviet spy and defector Elizabeth Bentley. He was convicted of perjury in connection with these charges in 1953, and murdered in...

, a government economist accused of Communist sympathies and activities. In 1951, the same panel had overturned Remington's previous conviction for perjury, but in the appeal of the later case Hand was outvoted two to one. The prosecution produced stronger evidence against Remington this time, much of it obtained from his wife. 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 Hand's biographer Gunther, "The image of Remington being bludgeoned to death in prison haunted Hand for the rest of his life."

Only after stepping down as a full-time judge in 1951 did Hand join the public debate on McCarthyism. Shortly after announcing his semi-retirement, he gave an unscripted speech that was published in The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...

, 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 rumor. 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 an address to the Board of Regents
Board of governors
Board of governors is a term sometimes applied to the board of directors of a public entity or non-profit organization.Many public institutions, such as public universities, are government-owned corporations. The British Broadcasting Corporation was managed by a board of governors, though this role...

 of the University of the State of New York
University of the State of New York
The University of the State of New York is the State of New York's governmental umbrella organization responsible for most institutions and people in any way connected with formal educational functions, public and private, in New York State...

 the next year. Once again, his attack on McCarthyism won approval from many liberals. Asked to send a copy of his views to McCarthy, Hand replied that he had Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...

 in mind as well. Despite his concerns about Nixon as vice president
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...

, Hand voted for Dwight Eisenhower in the 1952 election
United States presidential election, 1952
The United States presidential election of 1952 took place in an era when Cold War tension between the United States and the Soviet Union was escalating rapidly. In the United States Senate, Republican Senator Joseph McCarthy of Wisconsin had become a national figure after chairing congressional...

, later crediting Eisenhower with bringing about McCarthy's downfall in 1954.

Semi-retirement and death

In 1951, Hand retired from "regular active service" as a federal judge. He assumed senior status
Senior status
Senior status is a form of semi-retirement for United States federal judges, and judges in some state court systems. After federal judges have reached a certain combination of age and years of service on the federal courts, they are allowed to assume senior status...

, a form of semi-retirement, and continued to sit on the bench, with a considerable workload. The following year, he published The Spirit of Liberty, a collection of papers and addresses that neither he nor publisher Alfred A. Knopf
Alfred A. Knopf
Alfred A. Knopf, Inc. is a New York publishing house, founded by Alfred A. Knopf, Sr. in 1915. It was acquired by Random House in 1960 and is now part of the Knopf Doubleday Publishing Group at Random House. The publishing house is known for its borzoi trademark , which was designed by co-founder...

 expected to make a profit. In fact, the book earned admiring reviews, sold well, and made Hand more widely known. A 1958 paperback edition sold even better, though Hand always refused royalties from material he never intended for publication.

Louis Dow had died in 1944, with Frances Hand at his side. The Hands' marriage then entered its final, happiest phase, in which they rediscovered their first love. Former law clerks have provided intimate details of Hand's character during the last decade of his life. Legal philosopher Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

 recalls that Hand, scrupulous about public economy, used to turn out the lights in all the offices at the end of each day. For the same reason, he refused Dworkin the customary month's paid vacation at the end of his service. Shortly afterward, to Dworkin's surprise, Hand wrote him a personal check for an extra month's pay as a wedding present. Hand was known for his explosive temper. Gunther remembers him throwing a paperweight in his direction which narrowly missed. Hand had a habit of turning his seat 180° on lawyers whose arguments annoyed him, and he could be bitingly sarcastic. In a typical memo, he wrote, "This is the most miserable of cases, but we must dispose of it as though it had been presented by actual lawyers." Despite such outbursts, Hand was deeply insecure throughout his life, as he fully recognized. In his 80s, he still fretted about his rejection by the elite social clubs at Harvard College. He was convinced that his wife had rescued him from a life as a "melancholic, a failure [because] I should have thought myself so, and probably single and hopelessly hypochondriac".
Learned Hand remained in good physical and mental condition for most of the last decade of his life. In 1958, he gave the Holmes Lectures at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...

. These lectures proved to be Hand's last major critique of judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

, a position he had first taken up in 1908 with his attack on the Lochner ruling
Lochner v. New York
Lochner vs. New York, , was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the...

. They included a controversial attack on the Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...

's 1954 decision in Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...

, which in Hand's opinion had exceeded its powers by overruling Jim Crow segregation laws
Jim Crow laws
The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities, with a supposedly "separate but equal" status for black Americans...

. His views were widely criticized as reactionary and unfortunate, with most deploring the fact that they might encourage segregationists who opposed libertarian judicial rulings. Published as The Bill of Rights, the lectures nevertheless became a national bestseller.

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
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma 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. In 1960, he worked briefly on President Dwight Eisenhower
Dwight D. Eisenhower
Dwight David "Ike" Eisenhower was the 34th President of the United States, from 1953 until 1961. He was a five-star general in the United States Army...

'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".

By June 1961, Hand was in a wheelchair. He joked that he felt idle because he had taken part in no more than about 25 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
Cornish, New Hampshire
Cornish is a town in Sullivan County, New Hampshire, United States. The population was 1,640 at the 2010 census. Cornish has three covered bridges. Each August, it is home to the Cornish Fair.-History:...

. He was taken to St Luke's Hospital
St. Luke's-Roosevelt Hospital Center
St. Luke's-Roosevelt Hospital Center, an academic affiliate of Columbia University College of Physicians and Surgeons, is a 1,076-bed, full-service community and tertiary care hospital serving New York City’s Midtown West, Upper West Side and parts of Harlem....

 in New York City, where he died peacefully on August 18, 1961. The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...

ran a front-page obituary. The Times
The Times
The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...

of London wrote: "There are many who will feel that with the death of Learned Hand the golden age of the American judiciary has come to an end."

Philosophy

Hand's study of philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...

 at Harvard left a lasting imprint on his thought. As a student, he lost his faith in God, and from that point on he became a skeptic
Skepticism
Skepticism has many definitions, but generally refers to any questioning attitude towards knowledge, facts, or opinions/beliefs stated as facts, or doubt regarding claims that are taken for granted elsewhere...

. Hand's view of the world has been identified as relativistic
Moral relativism
Moral relativism may be any of several descriptive, meta-ethical, or normative positions. Each of them is concerned with the differences in moral judgments across different people and cultures:...

; in the words of scholar Kathryn Griffith, "[i]t was his devotion to a concept of relative values that prompted him to question opinions of the Supreme Court which appeared to place one value absolutely above the others, whether the value was that of individual freedom or equality or the protection of young people from obscene literature." Hand instead sought objective standards in constitutional law, most famously in obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...

 and civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

 cases. He saw the Constitution and the law as compromises to resolve conflicting interests, possessing no moral force of their own. This denial that any divine or natural rights
Natural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable...

 are embodied in the Constitution led Hand to a positivistic
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

 view of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

. In this approach, provisions of the Constitution, such as freedom of press, freedom of speech, and equal protection, should be interpreted through their wording and in the light of historical analysis rather than as "guides on concrete occasions". For Hand, moral values were a product of their times and a matter of taste.

Hand's civil instincts were at odds with the duty of a judge to stay aloof from politics. As a judge he respected even bad laws; as a member of society he felt free to question the decisions behind legislation. In his opinion, members of a democratic society should be involved in legislative decision-making. He therefore regarded toleration as a prerequisite of civil liberty. In practice, this even meant that those who wish to promote ideas repugnant to the majority should be free to do so, within broad limits.

Hand's skepticism extended to his political philosophy
Political philosophy
Political philosophy is the study of such topics as liberty, justice, property, rights, law, and the enforcement of a legal code by authority: what they are, why they are needed, what, if anything, makes a government legitimate, what rights and freedoms it should protect and why, what form it...

: he once described himself as "a conservative among liberals, and a liberal among conservatives". As early as 1898, he rejected his family's Jeffersonian Democratic tradition
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

. His thoughts on liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...

, collected in The Spirit of Liberty (1952), began by recalling the political philosophies of Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...

 and Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

. Jefferson believed that each individual has a right to freedom, and that government, though necessary, threatens that freedom. In contrast, Hamilton argued that freedom depends on government: too much freedom leads to anarchy
Anarchy
Anarchy , has more than one colloquial definition. In the United States, the term "anarchy" typically is meant to refer to a society which lacks publicly recognized government or violently enforced political authority...

 and the tyranny of the mob
Ochlocracy
Ochlocracy or mob rule is government by mob or a mass of people, or the intimidation of legitimate authorities.As a pejorative for majoritarianism, it is akin to the Latin phrase mobile vulgus meaning "the fickle crowd", from which the English term "mob" was originally derived in the...

. Hand, who believed, following Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...

, that the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

 is the only alternative to the rule of brutality, leaned towards Hamilton. Since the freedom granted to the American pioneer
American pioneer
American pioneers are any of the people in American history who migrated west to join in settling and developing new areas. The term especially refers to those who were going to settle any territory which had previously not been settled or developed by European or American society, although the...

s was no longer feasible, he accepted that individual liberty should be moderated by society's norms. He nevertheless saw the liberty to create and to choose as vital to peoples' humanity and entitled to legal protection. He assumed the goal of human beings to be the "good life", defined as each individual chooses.

Between 1910 and 1916, Hand tried to translate his political philosophy into political action. Having read Croly's The Promise of American Life
The Promise of American Life
The Promises of American Life is a book published by Herbert Croly, founder of The New Republic, in 1909. This book opposed aggressive unionization and supported economic planning to raise general quality of life...

and its anti-Jeffersonian plea for government intervention in economic and social issues, he joined the Progressive Party
Progressive Party (United States, 1912)
The Progressive Party of 1912 was an American political party. It was formed after a split in the Republican Party between President William Howard Taft and former President Theodore Roosevelt....

. However, he discovered that party politicking was incompatible not only with his role as a judge but with his philosophical objectivity. The pragmatic
Pragmatism
Pragmatism is a philosophical tradition centered on the linking of practice and theory. It describes a process where theory is extracted from practice, and applied back to practice to form what is called intelligent practice...

 philosophy Hand had imbibed from William James
William James
William James was a pioneering American psychologist and philosopher who was trained as a physician. He wrote influential books on the young science of psychology, educational psychology, psychology of religious experience and mysticism, and on the philosophy of pragmatism...

 at Harvard required each issue to be individually judged on its merits, without partiality. In contrast, political action required partisanship and a choice between values. After 1916, Hand preferred to retreat from party politics into a detached skepticism. His belief in central planning
Planned economy
A planned economy is an economic system in which decisions regarding production and investment are embodied in a plan formulated by a central authority, usually by a government agency...

 resurfaced during the 1930s in his growing approval of Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

's New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

, as he once again—though this time as an observer—endorsed a program of government intervention. Hand was also an interventionist
Interventionism (politics)
Interventionism is a term for a policy of non-defensive activity undertaken by a nation-state, or other geo-political jurisdiction of a lesser or greater nature, to manipulate an economy or society...

 on foreign policy, supporting U.S. involvement in both world war
World war
A world war is a war affecting the majority of the world's most powerful and populous nations. World wars span multiple countries on multiple continents, with battles fought in multiple theaters....

s, and disdained isolationism
Non-interventionism
Nonintervention or non-interventionism is a foreign policy which holds that political rulers should avoid alliances with other nations, but still retain diplomacy, and avoid all wars not related to direct self-defense...

.

Jurisprudence

Hand has been called one of the United States' most significant judicial philosophers. A leading advocate of judicial restraint
Judicial restraint
Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...

, he took seriously Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

's formulation that "the judiciary ... may truly be said to have neither force nor will, but merely judgement." Any judicial ruling that had the effect of legislating from the bench troubled Hand. In 1908, in his article "Due Process of Law and the Eight-Hour Day", he attacked the 1905 Supreme Court ruling in Lochner v. New York
Lochner v. New York
Lochner vs. New York, , was a landmark United States Supreme Court case that held a "liberty of contract" was implicit in the due process clause of the Fourteenth Amendment. The case involved a New York law that limited the number of hours that a baker could work each day to ten, and limited the...

, which had struck down a law prohibiting bakery staff from working more than ten hours a day. The Supreme Court went on to strike down a series of similar worker-protective laws on the grounds that they restricted freedom of contract
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...

. Hand regarded this principle as undemocratic. "For the state to intervene", he argued, "to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior force."

The issue concerned Hand again during the New Deal period, when the Supreme Court repeatedly overturned or blocked Franklin D. Roosevelt's legislation. As an instinctive democrat, Hand was appalled that an elected government should have its laws struck down in this way. He viewed it as a judicial "usurpation
Usurper
Usurper is a derogatory term used to describe either an illegitimate or controversial claimant to the power; often, but not always in a monarchy, or a person who succeeds in establishing himself as a monarch without inheriting the throne, or any other person exercising authority unconstitutionally...

" for the Supreme Court to assume the role of a third chamber in these cases. As far as he was concerned, the Constitution already provided a full set of checks and balances on legislation. Nevertheless, Hand did not hesitate to condemn Roosevelt's frustrated attempt to pack the Supreme Court in 1937
Judiciary Reorganization Bill of 1937
The Judicial Procedures Reform Bill of 1937, frequently called the court-packing plan, was a legislative initiative proposed by U.S. President Franklin Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt's purpose was to obtain favorable rulings regarding New Deal legislation that...

, which led commentators to warn of totalitarianism
Totalitarianism
Totalitarianism is a political system where the state recognizes no limits to its authority and strives to regulate every aspect of public and private life wherever feasible...

. The answer, for Hand, lay in the separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

: courts should be independent and act on the legislation of elected governments.

Hand's democratic respect for legislation meant that he hardly ever struck down a law. Whenever his decisions went against the government, he based them only on the boundaries of law in particular cases. He adhered to the doctrine of presumptive validity, which assumes that legislators know what they are doing when they pass a law. Even when a law was uncongenial to him, or when it seemed contradictory, Hand set himself to interpret the legislative intent
Legislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...

. Sometimes, however, he was obliged to draw the line between federal and state laws, as in United States v. Schechter Poultry. In this important case, he ruled that a New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

 law on working conditions did not apply to a New York poultry firm that conducted its business only within the state. Hand wrote in his opinion: "It is always a serious thing to declare any act of Congress unconstitutional, and especially in a case where it is part of a comprehensive plan for the rehabilitation of the nation as a whole. With the wisdom of that plan we have nothing whatever to do ..."
Hand also occasionally went against the government in the area of free speech. He believed that courts should protect the right to free speech even against the majority will. In Hand's view, judges must remain detached at times when public opinion is hostile to minorities and governments issue laws to repress those minorities. Hand was the first judge to rule on a case arising from the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

, which sought to silence opposition to the war effort. In his decision on Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.-Background:...

, he defined his position on political incitement:

Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard for free government. The distinction is not scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.


In the case of United States v. Dennis
Dennis v. United States
Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

in 1950, Hand made a ruling that appeared to contradict his Masses
Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.-Background:...

decision. By then, a series of precedents had intervened, often based on Oliver Wendell Holmes's "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" test, leaving him less room for maneuver. Hand felt he had "no choice" but to agree that threats against the government by a group of Communists were illegal under the repressive Smith Act
Smith Act
The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

 of 1940. In order to do so, he interpreted the "clear and present danger" in a new way. "In each case," he wrote, "[courts] must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." This formula allowed more scope for curbing free speech in cases where, as the government believed with Communism, the danger was grave, whether it was immediate or not. Critics and disappointed liberals accused Hand of placing his concern for judicial restraint ahead of freedom of speech. Hand confided to a friend that, if it had been up to him, he would "never have prosecuted those birds".

In the opinion of Kathryn Griffith, "The importance of Learned Hand's philosophy in terms of practical application to the courts lies generally in his view of the pragmatic
Pragmaticism
Pragmaticism is a term used by Charles Sanders Peirce for his pragmatic philosophy starting in 1905, in order to distance himself and it from pragmatism, the original name, which had been used in a manner he did not approve of in the "literary journals"...

 origin of all law, but most specifically in his unique interpretation of the Bill of Rights." Hand proposed that the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

 was not law at all but a set of "admonitory" principles to ensure the fair exercise of constitutional powers. He therefore opposed the use of its "due process of law" clauses as a pretext for national intervention in state legislation. He even advocated the removal of those clauses from the Constitution. In Hand's analysis, "due process" is no more than a stock phrase to cover a long tradition of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 procedure. He contended that the term had inflated in scope beyond the meaning intended in the Bill of Rights. The result was the misuse of due process to invade rights that the Constitution was designed to protect. For Hand, a law passed by an elected body should be presumed to meet the test of due process. A court that decides otherwise and strikes down such a law is acting undemocratically. Hand maintained this stance even when the Supreme Court struck down anti-liberal laws that he detested. His reasoning has never been widely accepted. Critics of his position included his colleague on the Second Circuit, Jerome Frank, who wrote: "[I]t seems to me that here, most uncharacteristically, Judge Hand indulges in a judgement far too sweeping, one which rests on a too-sharp either-or, all or nothing, dichotomy. ... Obviously the courts cannot do the whole job. But just as obviously, they can sometimes help to arrest evil popular trends at their inception."

Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...

, an influential appellate judge reviewing a biography of Hand, asserts that Hand "displayed a positive antipathy toward constitutional law. To exaggerate only a little, he didn't think judges should have anything to do with it." Posner suggests that although Hand is remembered today as one of the three greatest judges in American history, his status as a truly "great judge" was not based on his "slight" contributions to First Amendment jurisprudence or other fields of constitutional law, but rather on his decisions in other areas such as antitrust, intellectual property, and tort law.

Influence

Learned Hand wrote approximately four thousand judicial opinions during his career. Admired for their clarity and analytic precision, they have been quoted more often in Supreme Court opinions and by legal scholars than those of any other lower-court judge. Hand's dissent in United States v. Kennerley and his ruling in United States v. Levine have often been cited in obscenity cases. Hand's view that literary works should be judged as a whole and in relation to their intended readership is now accepted in American law. His use of historical data to gauge legislative intent
Legislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...

 has become a widespread practice. According to Archibald Cox
Archibald Cox
Archibald Cox, Jr., was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy. He became known as the first special prosecutor for the Watergate scandal. During his career, he was a pioneering expert on labor law and also an authority on...

: "The opinions of Judge Hand have had significant influence both in breaking down the restrictions imposed by the dry literalism of conservative tradition and in showing how to use with sympathetic understanding the information afforded by the legislative and administrative processes." Hand's decision in the 1917 Masses case influenced Zechariah Chafee
Zechariah Chafee
Zechariah Chafee, Jr. was an American judicial philosopher and civil libertarian. An advocate for free speech, he was described by Senator Joseph McCarthy as "dangerous" to the United States...

's widely read book, Freedom of Speech (1920). In his dedication, Chafee wrote, "[Hand] during the turmoil of war courageously maintained the traditions of English-speaking freedom and gave it new clearness and strength for the wiser years to come."

Learned Hand played a key role in the interpretation of new federal crime
Federal crime
In the United States, a federal crime or federal offense is a crime that is made illegal by U.S. federal legislation. In the United States, criminal law and prosecution happen at both the federal and the state levels; thus a “federal crime” is one that is prosecuted under federal criminal law, and...

 laws in the period following the passing of the U.S. Criminal Code in 1909. In a series of judicial opinions and speeches, he opposed excessive concern for criminal defendants, and wrote "Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. ... What we need to fear is the archaic formalism and watery sentiment that obstructs, delays and defeats the prosecution of crime." He insisted that harmless trial errors
Harmless error
A harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context...

 should not automatically lead to a reversal on appeal. Hand balanced these views with important decisions to protect a defendant's constitutional rights concerning unreasonable searches, forced confessions and cumulative sentences.

His opinions have also proved lasting in fields of commercial law
Commercial law
Commercial law is the body of law that governs business and commercial transactions...

. Law students studying torts often encounter Hand's 1947 decision for United States v. Carroll Towing Co.
United States v. Carroll Towing Co.
United States v. Carroll Towing Co. 159 F.2d 169 is a decision from the 2nd Circuit Court of Appeals that proposed a test to determine the standard of care for the tort of negligence...

, which gave a formula for determining liability in cases of negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...

. Hand's interpretations of complex Internal Revenue Code
Internal Revenue Code
The Internal Revenue Code is the domestic portion of Federal statutory tax law in the United States, published in various volumes of the United States Statutes at Large, and separately as Title 26 of the United States Code...

s, which he called "a thicket of verbiage", have been used as guides in the gray area between individual and corporate tax
Corporate tax
Many countries impose corporate tax or company tax on the income or capital of some types of legal entities. A similar tax may be imposed at state or lower levels. The taxes may also be referred to as income tax or capital tax. Entities treated as partnerships are generally not taxed at the...

es. In an opinion sometimes seen as condoning tax avoidance, Hand stated in 1947 that "there is nothing sinister in so arranging one's affairs as to keep taxes as low as possible". He was referring to reporting of individual income through corporate tax forms
Tax forms in the United States
IRS tax forms are used for taxpayers and tax-exempt organizations to report financial information to the Internal Revenue Service of the United States. They are used to report income, calculate taxes to be paid to the federal government of the United States, and disclose other information as...

 for legitimate business reasons. In tax decisions, as in all statutory cases, Hand studied the intent of the original legislation. His opinions became a valuable guide to tax administrators. Hand's landmark decision in United States v. Aluminum Company of America in 1945 influenced the development of antitrust law
Competition law
Competition law, known in the United States as antitrust law, is law that promotes or maintains market competition by regulating anti-competitive conduct by companies....

. His decisions in patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

, copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

, and admiralty
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...

 cases have contributed to the development of law in those fields.

Hand was also a founding member of the American Law Institute
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...

, where he helped develop the influential Restatements of the Law serving as models for refining and improving state codes in various fields. One American Law Institute recommendation was to decriminalize sexual conduct such as adultery and homosexuality, for which reason the July-August 1955 issue of the Mattachine Society Review
Mattachine Society
The Mattachine Society, founded in 1950, was one of the earliest homophile organizations in the United States, probably second only to Chicago’s Society for Human Rights . Harry Hay and a group of Los Angeles male friends formed the group to protect and improve the rights of homosexuals...

, the magazine of the country's first nation-wide homosexual organization, published a salute to Judge Hand featuring his photograph on the cover.

After Hand's lectures and publications became widely known, his influence reached courts throughout the country. On the occasion of his 75th birthday on January 27, 1947, The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...

reported: "He has won recognition as a judges' judge. His opinions command respect wherever our law extends, not because of his standing in the judicial hierarchy, but because of the clarity of thought and the cogency of reasoning that shape them."

To the wider public, who knew little of his legal work, Hand was by then a folk hero. Social scientist
Social Scientist
Social Scientist is a New Delhi based journal in social sciences and humanities published since 1972....

 Marvin Schick has pointed out that this mythic status is a paradox
Paradox
Similar to Circular reasoning, A paradox is a seemingly true statement or group of statements that lead to a contradiction or a situation which seems to defy logic or intuition...

. Because Hand never served on the Supreme Court, the majority of his cases were routine and his judgments rooted in precedent. On Hand's retirement in 1951, Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...

 predicted that his "actual decisions will be all deader than the Dodo before long, as at least many of them are already". Working for a lower court, however, saved Hand from the taint of political influence that often hung over the Supreme Court. Hand's eloquence as a writer played a larger part in the spread of his influence than the substance of his decisions; and Schick believes that the Hand myth brushes over contradictions in his legal philosophy. Hand's reputation as a libertarian obscures the fact that he was cautious as a judge. Though a liberal, he argued for judicial restraint in interpreting the Constitution, and regarded the advancement of civil liberties as a task for the legislature, not the courts. In his 1958 Holmes Lectures, for example, he voiced doubts about the constitutionality of the Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...

's civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

 rulings. This philosophy of judicial restraint failed to influence the decisions of the Supreme Court during Hand's lifetime and afterwards.

Finally, in an essay called Origin of a Hero discussing his novel the Rector of Justin, author Louis Auchincloss
Louis Auchincloss
Louis Stanton Auchincloss was an American lawyer, novelist, historian, and essayist. He is best known as a prolific novelist who parlayed his firsthand knowledge into dozens of finely wrought books exploring the private lives of America's East Coast patrician class...

 says the main character was not based on a headmaster; certainly not as was often speculated Groton's
Groton School
Groton School is a private, Episcopal, college preparatory boarding school located in Groton, Massachusetts, U.S. It enrolls approximately 375 boys and girls, from the eighth through twelfth grades...

 famous Endicott Peabody
Endicott Peabody
Endicott "Chub" Peabody was the 62nd Governor of Massachusetts from January 3, 1963 to January 7, 1965.-Early life:...

. "If you want to disguise a real life character," Auchincloss advised fellow novelists, “just change his profession.” His actual model for the Rector of Justin was “the greatest man it has been my good luck to know--” Judge Learned Hand.

External links

. Retrieved on July 27, 2008. Includes excerpts of Learned Hand's recordings of folksongs for the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

, part of a commercially released disc of American folksongs.
The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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