I just picked up the Winter 2010 issue of the University of Louisville Law Review. The article by Melvin I. Urofsky, “Louis D. Brandeis and His Clerks,” was great fun to read. Take a look at the article when you have a moment, but I want to share some of the best tidbits here. As you might guess, many have a research connection.
When discussing the thorough work expected of the clerks, Urofsky writes:
“This research took place before the computer age; a legal researcher can now use Lexis-Nexis or Westlaw and instantly have all of the citations on the screen, or Google to get non-legal facts. His clerks had to to do it the old fashioned way–going to the law library and using the decennial digests for state and federal case citations and other tools for statutes. They called government offices to get reports or copies of hearings, kept track of articles appearing in law reviews, and when they spotted a title that might be relevant immediately sent for a copy. Some used typewriters and others wrote by hand, but their research memoranda often ran for dozens of pages.”
Brandeis expected work to be meticulous.
“When Brandeis came in, he put two volumes of state reports on the desk. “Did you read all of the cases cited in the footnotes?” he asked. Acheson [his clerk] said that he had. “Suppose you read these two again.” The cases had no bearing on the argument and had slipped in from digests that Acheson had used to organize the notes. He went on to apologize and Brandeis dismissed the matter with one sentence: “Please remember that your function is to correct my errors, not to introduce errors of your own.”
There would be as many as 20 drafts going back and forth between Brandeis and his clerk — each adding new citations and making corrections. Notably, Urofsky mentions, Brandeis was the first Supreme Court Justice to cite to a law review. [The journal was the American Labor Legislation Review and the case was Adams v. Tanner, 244 US 590 (1917).]
I will close with a very amusing passage that centers on his former clerk, James Landis, and his new appointment as the youngest dean in Harvard Law School’s history:
“You mean the Harvard Law School? [Brandeis] asked.
“Yes,” Landis replied.
“Why do you want to take that?”
“Well,” [Landis] stumbled for an answer, “it’s a great position.”
“Anybody can be a good Dean of the Harvard Law School,” Brandeis advised. “Why not take some smaller school and do something with it?”