Learned Hand

Judge

• Born: January 27, 1872
• Birthplace: Albany, New York
• Died: August 18, 1961
• Place of death: New York, New York

American jurist

During a career on the federal bench spanning more than half a century, Hand became one of the most respected and honored jurists in the United States. His commitment to tolerance and rigorous thought helped transform and modernize American law in the twentieth century.

Area of achievement Law

Early Life

Learned Hand (LUR-nehd hand) was the second of two children born to Samuel Hand and Lydia Coit Hand. Learned Hand, who had dropped Billings from his name when he was thirty years old because it sounded too “pompous,” came from a distinguished legal family. His paternal grandfather, Augustus Cincinnatus, was a prominent New York attorney, active in the Democratic Party in the late nineteenth century. His older cousin, Augustus, was a lawyer and judge and served for many years on the same federal bench as Hand. Hand’s father served a term on the highest state court in New York, the Court of Appeals.

Hand received his early education at a small private school, the Albany Academy, in New York. In 1889, following his cousin Augustus by two years, he enrolled at Harvard College. There he studied philosophy under one of the most distinguished groups of scholars of that time George Santayana, Josiah Royce, and William James. His intellectual and literary gifts were evidenced by his election to Phi Beta Kappa and by his being chosen commencement orator at his baccalaureate in 1893. He stayed on at Harvard for another year, receiving a master’s degree in philosophy.

Though strongly attracted to an academic career in philosophy, Hand again followed his cousin, entering Harvard Law School in 1894. At this time the law school was in the middle of what has been described as its “Golden Age”: Teachers such as Christopher Langdell, James Bradley Thayer, and James Barr Ames were revolutionizing the study of law through their casebook approach, and in the process were laying the foundation for the transformation of many traditional legal doctrines. In this atmosphere of intellectual ferment, Hand flourished, becoming one of the first editors of the Harvard Law Review and being graduated with honors.

Following his admission to the New York bar, Hand practiced law in Albany for the next five years. In 1902 he moved to New York City, where he spent the next seven years in what he described as the “dull and petty” work of a New York law firm. His move to New York City was perhaps also motivated by the fact that he now had a family to support. On December 6, 1902, Hand married Frances Amelia Fincke, a graduate of Bryn Mawr College. They had three daughters: Mary Deshon, Frances Lydia, and Constance.

Hand’s lifelong love of the outdoors and hiking (including walking to work every day until his death) was reflected in his looks and physique. Of medium height and stockily built, he had a large, noble head highlighted by rugged features, bushy eyebrows, and dark, piercing eyes. On the bench, he was known for his quick temper, but appropriate apologies were made just as quickly. He did not suffer fools gladly, yet few jurists could be more tolerant. His demeanor was serious but not solemn, and while he craved company and good conversation, he would also have periods of melancholy and brooding. Hand also had a streak of playfulness he enjoyed dressing up as an Indian chief for his grandchildren’s amusement, expertly mimicking William Jennings Bryan, and singing ribald sea chanteys or Gilbert and Sullivan melodies.

Life’s Work

Hand began his judicial career in 1909. President William Howard Taft was eager to improve the quality of the federal judiciary, and on the recommendation of Attorney General George W. Wickersham and a number of prominent New York attorneys, Hand was appointed to the federal District Court for Southern District of New York, the lowest level of the court system. Five years later, Hand was joined on this court by his cousin Augustus. During his tenure on the district court, he became a skilled trial judge and an expert on the intricacies of commercial and corporate law.

In 1912, while serving on the federal bench, Hand ran for, and lost, the position of chief judge of the New York Court of Appeals. It was of dubious propriety for a sitting judge to seek an elective office, and Hand compounded this mistake by running as a Progressive (in the election that year, Hand supported Theodore Roosevelt’s unsuccessful bid for the presidency on the Progressive, or Bull Moose, Party ticket). In so doing he incurred the wrath of the regular Republicans and their leader, Taft. Taft never forgave Hand his political apostasy, and during the 1920’s Taft, as chief justice of the United States, used his considerable influence to prevent Hand’s elevation to the High Court.

Hand’s judicial accomplishments were, however, at last recognized in 1924, when President Calvin Coolidge appointed him to the U.S. Court of Appeals for the Second Circuit (including New York, Connecticut, and Vermont), replacing Judge Julius M. Mayer. During Hand’s tenure on the Second Circuit, he served with some of the most distinguished jurists in the nation. Thomas Walter Swan and Charles Edward Clark were both former deans of Yale Law School, and Jerome Frank headed the Securities and Exchange Commission during the New Deal. Clearly Hand’s greatest pleasure, though, was being joined once again by his cousin and closest friend, Augustus, on the same court in 1927.

Over the next twenty years, the Second Circuit Court of Appeals became one of the busiest and most respected federal tribunals in the nation. The measure of Hand’s influence was the fact that, by the 1930’s, the court was being referred to as “Learned Hand’s Court.” Unlike the U.S. Supreme Court, which could choose which cases to hear and therefore dealt with far fewer cases, the circuit court would handle an average of some four hundred appeals a year, involving a wide range of public (constitutional) and private law issues. The latter would involve questions concerning copyright law, patent law, antitrust regulation, admiralty law, contracts, torts, and trusts and estates (among others).

Given the relative obscurity of most of the work done by the federal judiciary below the Supreme Court level, it was not surprising that Hand’s leadership and legal influence were recognized mainly by the bar and bench. In May, 1944, however, he was invited to give an address at the annual “I am an American Day” celebration in Central Park. His short speech “The Spirit of Liberty” was greeted with tremendous enthusiasm. Reprints of the work appeared nationwide, and glowing articles in newspapers and magazines introduced Hand’s wisdom and style to the general public. During these years, he was also active in a number of professional organizations: He was one of the founders and early leaders of the American Law Institute. The institute was created to simplify segments of the vast body of American law by codifying and restating the thousands of state and federal court rulings, along with relevant legislation, to provide “model” codes of law for future legislative bodies and judges. Hand’s specific contributions to the institute included his work on the Model Penal Code and the Restatement of Conflicts of Law, Restatement of Torts.

Throughout his career, Hand was proposed and considered for elevation to the Supreme Court but never nominated. Why this was so will never be known with absolute certainty. He had the support of the nation’s bar, and at least three Supreme Court justices Oliver Wendell Holmes, Jr., Harlan Fiske Stone, and Felix Frankfurter all strongly thought that Hand should join them. Taft’s hostility probably accounts for the 1920’s. After that it seemed to be a combination of factors geography, politics, and age that prevented his appointment. In 1951, Hand officially retired from the Court of Appeals, though in fact he continued to sit on the court off and on for the next ten years. In 1952, a collection of his writings and speeches was published under the title of his 1944 address, The Spirit of Liberty. This and the publication of his 1958 Holmes lectures at Harvard University on the Bill of Rights helped spread his fame to the general public even further. Three years later, on August 18, 1961, Judge Hand died of heart failure in New York City.

Significance

It is difficult to assess fully a judicial career that lasted more than half a century. In large part, Hand’s achievement was his work: more than two thousand opinions, along with his articles and speeches. His role on the middle level of the federal judicial pyramid gave him the freedom and scope to apply his vast erudition and wisdom, but precluded as well any major impact on American constitutional development. However, from his work a number of themes emerge that reflect both the man and the times. Of immense importance was his contribution to the transformation of private law (contracts, torts, and so on) in the twentieth century. Like his friend Justice Holmes, Hand believed that the law did and should reflect changing social and economic conditions. Industrialization in America in the late nineteenth and early twentieth centuries brought with it not only increased business and commercial activity but also expanded governmental authority, as well as a host of social and economic problems. Hand’s opinions speak to the necessity of the law to adjust to these changes for the betterment of society. In this essentially optimistic vision, he shared many of the beliefs common to the Progressive reform movement that appeared during the first part of the twentieth century.

Another element of Hand’s legacy was his passion for tolerance and his commitment to the protection of the human liberties embodied in the Bill of Rights. He believed that freedom to express different thoughts and ideas, even unpopular ones, and respect for all persons were both essential to the preservation of democracy. In this, Hand mirrored (and led, to the extent possible for a lower federal court judge) the growing concern by the judiciary for civil liberties and civil rights issues that began in the 1920’s and reached its zenith with the landmark decisions of the Supreme Court under Chief Justice Earl Warren in the 1950’s and 1960’s.

Finally, Hand’s opinions and writings reflected the ambivalence within both the legal community and American society concerning the role and function of judges. The dilemma, simply put, was how to balance on one hand the recognition that judges can, and possibly should, actually make law, and on the other the necessity for a judiciary that is independent yet responsive to the citizenry. While Hand accepted the necessity and freedom of judges to adapt the law to fit changing times and circumstances, he spoke for that school of thought that first appeared in the early part of the twentieth century (and that became more popular in the 1970’s) that urged judicial “restraint,” especially when dealing with some legislative action or constitutional interpretation. In so doing, he was embraced by liberals and conservatives, judicial activists and “restraintists,” alike. That he could be so many things to so many people is a mark of his greatness.

Bibliography

Blasi, Vincent. Ideas of the First Amendment. St. Paul, Minn.: Thomson/West, 2006. Provides information about how leading constitutional thinkers, including Hand, have interpreted the First Amendment.

Carrington, Paul D. Stewards of Democracy: Law as a Public Profession. Boulder, Colo.: Westview Press, 1999. Focuses on the role of lawyers, including Hand, in American political history.

Gilmore, Grant. The Ages of American Law. New Haven, Conn.: Yale University Press, 1977. A brief and extremely readable survey of the development of American law. A useful introduction to the context of legal thought and practice within which Hand worked.

Griffith, Kathryn P. Judge Learned Hand and the Role of the Federal Judiciary. Norman: University of Oklahoma Press, 1973. A detailed and critical analysis of Hand’s judicial and legal philosophy. Griffith’s early chapters on Hand’s life and his world are probably the best introduction to these aspects.

Hand, Learned. The Bill of Rights. Cambridge, Mass.: Harvard University Press, 1958. The Oliver Wendell Holmes, Jr., Lectures delivered by Hand at Harvard in 1958. Constitutes Hand’s most complete statement of his view of the judicial process and the necessity for judges to exercise restraint in their role as guardians of individual and human rights. One of the classic statements of the “judicial restraint” philosophy.

‗‗‗‗‗‗‗. The Spirit of Liberty. Edited by Irving Dillard. New York: Alfred A. Knopf, 1952. A collection of Hand’s extrajudicial writings and speeches, including his famous speech “The Spirit of Liberty.” The introduction by Dillard is indeed a “personal appreciation” rather uncritical, indeed almost worshipful.

Schick, Marvin. Learned Hand’s Court. Baltimore: Johns Hopkins University Press, 1970. A detailed and brilliant study of the Court of Appeals for the Second Circuit during the years that Hand sat on the court. Focuses on the work of the court, the relationships among the judges, the impact of the CA2, as it came to be known, other federal courts, and most important, how Hand’s brilliance was able to influence the other judges.

Shanks, Hershel, ed. The Art and Craft of Judging: The Decisions of Judge Learned Hand. New York: Macmillan, 1968. A collection of forty-three decisions taken from Hand’s almost two thousand opinions written on the bench. Most of the forty-three deal with public law issues. The introduction by Shanks is interesting because it includes details not generally known about Hand (for example, that his close friends called him “B,” not for the Billings name that he dropped, but for “Bunny”).

White, G. Edward. “Cardozo, Learned Hand, and Frank: The Dialectic of Freedom and Constraint.” In The American Judicial Tradition. 3d ed. New York: Oxford University Press, 2007. This chapter is part of a larger study of important American judges and is especially interesting in linking Hand with his friend Benjamin Cardozo.

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