Book Review: Newman’s The Yale Biographical Dictionary of American Law

Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (Yale University Press 2009)

The Yale Biographical Dictionary of American Law (The Yale Biographical Dictionary) attempts to “gather together for the first time in a single volume concise yet comprehensive biographical entries on the men and women who . . . are the most significant in the history of American law and have had a lasting impact and influence as judged by contemporaries or by history.”  Introduction, p. xii.

There are numerous entries in The Yale Biographical Dictionary which meet this goal.  The entries for recognized historical figures are sound.  Those for Chief Justice John Marshall,  Justice Louis Brandeis, Justice Felix Frankfurter, and Justice Oliver Wendell Holmes, Jr., for example, are succinct, clear, and accurate.  Flipping through the entries for lesser known historical personages can be revelatory.  The New York trial lawyer Emile Zola Berman, in 1964, successfully defended a 14-year-old African American boy in a rape case in Lafayette, Louisiana.  “They wanted the death penalty.  I was the Jew from New York, and he was a Negro kid.  It was tough, I can tell you.”  p.  41.  Myra Colby Braswell led a public campaign to get Mary Todd Lincoln released from involuntary committal at an insane asylum.  Fanny Holtzmann “persuaded Richard Rodgers and Oscar Hammerstein II to set Anna and the King of Siam to music.”  p. 273.

But while the idea behind The Yale Biographical Dictionary is sound, there are significant flaws in the execution.   As a result of these flaws, The Yale Biographical Dictionary could have been better than it actually is.  The flaws come from three sources: 1) a Yale Law School and law school faculty-centric focus on the biographical subjects; 2) problems in the selection of contributors; and 3) a failure, at times, to grapple with the complexities of the biographical subjects.

I.  Yale Law School Uber Ales

A true story:  Many years ago, while sitting in his third floor office, a former dean of The Yale Law School (YLS) said to me, apropos of nothing in particular, “Will, there’s enough hot air on this floor alone to lift a Zeppelin.”

The Yale Biographical Dictionary uses this tongue-in-cheek observation and transforms it into a critical organizing principle.  Every great, near great, and perhaps not-so-near great faculty member from YLS’s history is given his (generally it’s a man) biographical due. The same practice is applied to a lesser degree for Harvard’s faculty, Columbia’s faculty, Stanford’s faculty, Chicago’s faculty, Penn’s faculty, and Texas’s faculty. The result is that too often The Yale Biographical Dictionary becomes that of American law schools, rather than that of American law.  For example, the first four biographies under K are those of law professors.  The only biographies under Y are law professors.

There are several problems with this approach.  First, and foremost, the law professoriate is simply not as important to the history of U.S. law as inhabitants of the YLS faculty might want to believe.   I respect former Dean Guido Calabresi as much as the next YLS grad, but does he really deserve as much space in a biographical dictionary of U.S. law as Chief Justice William Rehnquist?   The question answers itself.

Second, the over-emphasis on ties to Yale and other leading law schools leads to an odd evaluation system.  Why is Dean Calabresi deserving of such a detailed biography? Because “Yale completely supplanted Harvard in stature as the preeminent institution preparing law students, and especially future law professors, during his tenure.”  p. 93.  What stands as a telling anecdote about Judge Henry Friendly?  That Harvard law school made “repeated appeals” to recruit him for the faculty and that then-Dean Erwin Griswold was “annoyed” that he rejected these appeals.  p. 209.

The preferences and prejudices also tend to have a distinctly New Haven bias.  Outside of Supreme Court justices, the judges discussed are principally from the Second Circuit and the Southern District of New York.   By and large, the law firm principals with biographical entries are those where YLS grads are most likely to settle: Thurman Arnold and Abe Fortas of Arnold & Porter; Edward Burling of Covington & Burling; Paul Cravath of Cravath, Swaine & Moore; William Nelson Cromwell of Sullivan & Cromwell; Eli Debevoise and Francis Plimpton of Debevoise & Plimpton; and on and on.  While some of these personages have merit in-and-of-themselves – Thurman Arnold or Abe Fortas, for example – too often others simply serve as placeholders for the firms they founded.

II.     Contributor Selection

As with any biographical compendium, The Yale Biographical Dictionary is only as strong as the individual biographical entries.  This means that the assignment of biographical subjects to contributors is critical to the success or failure of the project.  Alas, the Yale Biographical Dictionary relies too often on nepotism as the means of assignment.  The resulting entries range from the affectionate to the hagiographic.

For example, the biographical entries for law professors are written primarily by the professors’ academic protégés or, for professors of more ancient vintage, are based on the fond remembrances found in the back of the Yale and other law journals.  For example, Professor Herbert Hovenkamp writes the biography of Professor Phillip Areeda; they co-authored a leading antitrust treatise.  Professor Joel Seligman writes the biography of Professor Louis Loss; they co-authored a leading securities law treatise.  Professor Mark Ascher writes the biography of Professor Austin Scott; he is the current author of the leading treatise Scott on Trusts. YLS Professor W. Michael Reisman, who writes the biography entry on Professor Myres S. McDougal, achieves the hat trick: He co-authored a casebook with Professor McDougal, edited a volume of essays published in honor of Professor McDougal, and is currently the “Myres S. McDougal Professor of International Law.”

The same type of nepotistic practice is followed with regard to other biographical subjects.  Former law clerks write entries on the judges they clerked for.  Harold Koh writes the biographical entry on Justice Harry Blackmun; he clerked for him.  Professor Michael Dorf writes the biographical entry for Supreme Court justice Anthony Kennedy; he clerked for him.  Professor Jim Chen and Minnesota Supreme Court Justice David Stras write the biographical entry for Justice Clarence Thomas; they both clerked for him.  Professor Steven Calabresi writes the biographical entries for Robert Bork and Antonin Scalia; he clerked for them both.

Partners at major law firms write essays about their firms’ worthies.  Warren Christopher, a partner at O’Melveny & Myers, writes the biographical entry on Henry O’Melveny.  James Goodale , a partner at Debevoise & Plimpton, writes the biographical entry on Francis Plimpton.  Peter Barton Hutt, a partner at Covington & Burling specializing in food and drug law issues, writes the biographical entry on H. Thomas Austern, who founded Covington’s food and drug practice.

There are plenty of people willing and able to write biographical entries on public figures. A better result obtains when the entries are not written by former colleagues and clerks.  For example, Michael Dorf’s entry on Justice Anthony Kennedy is not as good as his entry on Judge Richard Posner; perhaps because he clerked for the former, not the latter.  If done right, a biographical entry on Justice Harry Blackmun written by Stephen Calabresi  or a biographical entry written by Harold Koh on Justice Antonin Scalia would both make more interesting reading than the biographical entries they wrote on the judges they clerked for.

III.   People Aren’t Statues

The third flaw is a failure too often to grapple with the complexities of the biographical subjects.  Too often, the biographical subjects become public statuary: Granite figures depicted as paragons of civic virtue.  On some occasions, the comparison is implied:  For Justice Black’s funeral, the “American flag stood at half-staff.”  On others, the comparison is explicit.  For example, Charles Alan Wright was a “latter-day Cicero.”  Erwin Griswold was “inflexible in his conceptions of basic rectitude.”  Senator Howard Hefflin “fulfilled the image of the lawyer-statesman.”  This approach results in less than clear-eyed appraisals of the biographical subjects.

Robert Kennedy is described as “sympathetic to the goals of the Civil Rights movement,” and having “directed the [Kennedy] administration’s strong response” to various civil rights crises.  Yes, but Kennedy personally approved J. Edgar Hoover’s illegal bugging of Martin Luther King, Jr. – something not mentioned in the biographical entry.

Justice McReynolds was “frequently abusive and rude” to his colleagues on the Supreme Court.  Though unmentioned in the entry, he was also a vicious anti-Semite.  But McReynolds also was kind to the pages who worked for the Court and solicitous of children.  In this regard, in 1941, he personally sponsored thirty-three English children who were victims of the German Blitz.  These facts are not mentioned in the biographical entry.

Attorney General John Ashcroft spearheaded the Bush “administration’s domestic antiterrorism efforts,” and his critics “charged that some of his actions violated civil liberties.”  Yes, but it turns out that John Ashcroft was willing to resign his position as Attorney General rather than participate in what he perceived to be illegal conduct by the Bush Administration.  This goes unmentioned in the biographical entry.

More often than not, human beings are more complicated and more interesting than statues.   The Yale Biographical Dictionary would be better if more of the entries recognized this fact.

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William Shieber is an Assistant Attorney General with the Antitrust Division of the State of Texas’s Office of the Attorney General.  The views and opinions expressed in this comment are personal and do not reflect the views and opinions of the Texas Attorney General or the Texas Office of the Attorney General.

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4 Responses

  1. Lawrence Cunningham says:

    Well done.

  2. A.J. Sutter says:

    Ironic, then, that this review was assigned to a YLS grad. Might it have been less favorable if reviewed by someone who’d gone to another school? (couldn’t resist…)

  3. Dan Markel says:

    Indeed, nice job, William!

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