Learned Hand: The Judge who consciously rejected bias.
By Louis Kakoutis


Learned Hand, the Judge

In 1893, Learned Hand "drifted" into Harvard Law School, turning his back on his desire to become a philosophy teacher. Coming from a family of lawyers, he attended law school for the same reason many others chose the profession - they didn't know what else to do.

By 1894, Learned Hand had become editor of the prestigious Harvard Law Review, a selection attributed to his intellectual ability and reputation. At Harvard, he became a trailblazer because he believed a case study was potentially as flawed as it was instructive. Like "Balaam's Ass", which was miraculously granted the power to criticize the unfair practices of its master, any result was essentially irrelevant or unrealistic without the "conscious intelligence in the being from whom they proceeded".

Learned Hand called this conscious assessment "adequate reality" because he perceived the weaknesses and limitations as well as the strengths of case law. Crafty lawyers and judges use case law to confirm their bias. The necessary objectivity to infuse fairness and justice without undue influence is clearly not as common as it should be. Consequently, misapplied imposition, or what people like psychologist, Jordan Peterson call "political correctness" is not appropriate.

A dogmatic and practical logician, Justice Learned Hand condemned those who failed to temper theory with wisdom and judgment.

Hand eschewed the search for orderly systems and emphasized instead the historical and human dimensions too often ignored by his colleagues.

Skepticism about a court's ability to arbitrate social conflict was in part due to a confining, politically motivated "step by step" learning approach. In particular, Hand recalled "that most of constitutional law had been constructed out of circular propositions which justified the predetermined attitudes of the judges."

Learned Hand was twenty-four when he prepared to enter law practice in 1896 and after 13 years of law practice he obtained a federal judicial appointment. The Senate confirmed Learned Hand's nomination as United States district judge for the Southern District of New York and on April 30, 1909, Hand took his judicial oath and donned his robe.

The propensity for fairness that Learned Hand would bring during his fifty-two years on the federal bench was cultivated in New York where he practiced law. In 1908, he wrote a fifteen-page essay entitled "Due Process of Law and the Eight-Hour Day" published in the Harvard Law Review. The article was a response to the 1905 landmark decision of the Supreme Court, Lochner v. New York, a case which prompted Hand to object to the Court practice of invalidating popularly supported laws.

In Hand's view, the Lochner verdict reflected an inappropriate abuse of judicial power. In particular, the Bakeshop Act was a New York state labor law which prohibited bakery employees from working for more than sixty hours per week or ten hours per day. Lochner permitted an employee to work in his bakery for more than sixty hours in one week and was convicted of his second offense and fined. He appealed his conviction on the grounds that the law violated his freedom to contract under the Due Process Clause of the Fourteenth Amendment and he won essentially because the Supreme Court did not observe the law which was responsible for his conviction in the first place.

Lochner is one of the most controversial decisions in the Supreme Court's history because it invalidated federal and state statutes that sought to regulate working conditions during the Progressive Era and the Great Depression. Hand championed the dissenting opinion penned by Justice Oliver Wendell Holmes, Jr., who claimed that the Lochner case was "decided upon an economic theory which a large part of the country does not entertain."

Lochner was the first Supreme Court decision invalidating a law which aided workers on the grounds that it violated due process and highlighted the poor judgement of justices who abused their power by allowing their political and economic biases to influence their decisions.

Justice Oliver Wendell Holmes, Jr. succinctly captured the essence of the general debate when he wrote, "...I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man would necessarily admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and the law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us." [198 U.S. 75-76 (1905)]

Justice Oliver Wendell Holmes, Jr., served on the Supreme Court of the United States from 1902 to 1932 and is the third most cited American legal scholar of the 20th century. The lesser known, Learned Hand deserves comparable recognition because he is the authority whose judicial determinations were quoted more often in Supreme Court opinions and by legal scholars than those of any other lower-court judge, a rather fine tribute to his detached and open-minded temperament. His insights, sharper and deeper than most, illuminated problems more clearly and his analyses offered authoritative remedies. His greatest challenge as a district court judge was the routine duty of supervising ordinary lawsuits. Trials frequently frustrated by obfuscations and delays occupied much of his time and energy and he repeatedly voiced irritation about the tactics of attorneys who imposed needless obstacles.

Justice Hand was particularly admirable because he protested the artificial and irrational technicalities that grounded the admissibility of evidence and arguesd that the rules failed to pick out the types of information that ordinary people would consider in making important decisions. He believed the accuracy of a judge's evidentiary rulings should be assessed by the standards not of "a learned lawyer but of a sensible man" because "much of the delay and bickering which does more than deface a court room would be avoided by a recognition that the rules of evidence are practical and discretionary."

Hand thought that in America by contrast to Great Britain, a trial judge tended to be "straightjaketted and gagged and told to walk this slack rope to-day and climb that pinaccle to-morrow."

The trial judge was by no means perfect, Hand insisted, and the effort to restrain him was unwise because, "With all his sins upon him, his self importance, his ignorance, his bad manners, his impatience, he is all you have got, and I believe he will produce better results if you give him a little more room to roam about." Frustrated by legal delays and chicanery, Hand sought efficiency, rationality and greater focus in the resolution of factual disputes. A penetrating and comprehensive thinker, his singular motivation was the desire to obtain the best possible resolution and he opposed anything that interfered with that process

In 1926, reflecting on his experience as a trial judge, Learned Hand remarked: "After now some dozen years of experience I must say that as a litigant I should dread a law suit beyond almost anything short of sickness and death." A sagacious Judge who knew there was no room for smug satisfaction with the administration of justice, Hand detested the outcome when juries were prone to believe a well rehearsed, crafty perjurer over a nervous or impatient truth-teller. A fact-finding process overwhelmed by lawyers who employ wiles and stratagems frustrated him because it prevented the trial judge or jury from getting as close as possible to the actual facts of a case.

Justice Hand was a discriminating and exceptional truth-seeker who stripped every case to the bare bones in effort to eradicate the consequnce of prevarication, and that made his rulings a model of good sense and good judgment.

The timeless battles continue. Judges like Justice Hand, who make the pursuit of truth a priority, still stand in opposition to the sophistry of those who act like justice is about promoting the interests of the strongest. Special interests use influential advocates to turn law into an orthodoxy that replaces objective and dispassionate reason with the predictable outcomes that spin and agenda produce and that is not acceptable. spin. This pressure to manipulate or to dictate a predictable agenda is clear and predictable.

If you are a judge who is pressured by special interests, remember this; it is worth repeating. "The judiciary is completely independent. The courts are the guardians of individual rights and they are independent of legislative constraints that interfere with the interests of justice." Consequently, despite everything, justice is always possible and it should never be compromised.


Next: The historical consequence of megalomania.