Learned Hand

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Learned Hand
Learned Hand in 1910
Judge of United States Court of Appeals for the Second Circuit
In office 1924 – 1951 (as active judge), 1961 (senior status)
Nominated by	Calvin Coolidge
Preceded by	Julius Marshuetz Mayer
Succeeded by	Harold Raymond Medina
Judge of United States District Court for the Southern District of New York
In office 1909 – 1924
Nominated by	William Howard Taft
Preceded by	(none, new seat)
Succeeded by	Thomas D. Thacher
Born	January 27, 1872(1872-01-27) Albany, New York
Died	August 18, 1961[1] New York, New York
Spouse	Frances Amelia Fincke Hand

Billings Learned Hand (January 27, 1872 – August 18, 1961^[1]) was a famed American judge. Hand served for many years as Chief Judge and intellectual leader of the United States Court of Appeals for the Second Circuit, headquartered in Manhattan, after prior service on the United States District Court for the Southern District of New York.

Hand is remembered in connection with early cases construing the free speech clause of the First Amendment and as a pioneer in applying economic reasoning to American tort law. He is considered by many to be the most influential American judge never to have served on the Supreme Court of the United States; indeed, when asked who was the most outstanding among his colleagues, Supreme Court justice Benjamin Cardozo once replied, referring to Hand, that "The greatest living American jurist is not on the Supreme Court".^[2]

[edit] Early life

Billings Learned Hand was born on January 27, 1872 in Albany, New York, as the second and last child of Samuel and Lydia Hand (née Learned). His mother's family had a tradition of using surnames as given names; hence his unusual middle name.^[3] Hand struggled with his name during his childhood and adult life, as he believed the names "Billings" and "Learned" were not sufficiently masculine. At one point during his childhood he signed his name as "Billings Learned Hand", while in college and at law school, he signed papers as "B. Learned Hand", leading his classmates to speculate that the first initial stood for "Buck". Hand grew up in comfortable circumstances on its main residential street. His family was not considered to be in the upper echelon of society, but they were at the brink of Albany's upper class.^[4]

Samuel Hand was an appellate lawyer who came also from a family of lawyers. He quickly rose through the ranks of an Albany-based law firm in the 1860s, and by age 32, he was the firm's top lawyer. He became the leader of the appellate bar and argued appeals before the New York Court of Appeals in "greater number and importance than those argued by any other lawyer in New York during the same period".^[5] His father was distant, fear-inducing figure, and Hand later described his relations with him as "not really intimate".^[6] He died from cancer when Hand was just fourteen, and Hand's mother promoted an idealized memory of her husband's intellectual abilities, professional success and parental perfection.^[7]

Hand's mother herself was an involved and protective mother and had been influenced by a Calvinist aunt as a child; she passed on a strong sense of duty and guilt to her only son.^[8] Eventually, he came to see these parental influences as formative.^[9] Hand was beset by anxieties and self-doubt throughout his life, including night terrors as a child. Hand later recalled that he was "very undecided, always have been—a very insecure person, very fearful; morbidly fearful."^[10] But especially after his father's death, he grew up surrounded by doting women: his mother, aunt, and his sister Lydia (Lily), eight years his senior, who called him "Bunny" or "B", the latter a nickname that was to last throughout his life.^[11]

Hand spent two years at a small primary school before transferring to The Albany Academy at the age of seven, which he would attend for the next 10 years. He did not enjoy the Academy's uninspired teaching or its narrow curriculum, which focused on Ancient Greek and Latin, with few courses in English, History, Science or Languages. After his father's death, Hand felt an increased pressure from his mother to excel academically. And that he did—Hand finished near the top of his class and was accepted into Harvard University, which his classmates—who opted to attend colleges like Williams and Yale—thought was a "stuckup, snobbish school".^[12] Socially, he considered himself an outsider, rarely enjoying recesses or the school's out-of-class military drills.^[13]

Vacations, spent in Elizabethtown, New York, 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-described "wild boys", camping and hiking in the woods and hills, and Hand developed a love of nature and the countryside.^[14] Moreover, many years later, when Hand was in his seventies, he recorded several songs and ballads he had learned as a boy in Elizabethtown for the Library of Congress.^[15]

[edit] Harvard

Learned Hand (seated, third from left) with other Phi Beta Kappa students at Harvard College in 1893.

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, embarking on courses in Philosophy and Economics, and studying under the prominent and inspirational philosophers William James, Josiah Royce and George Santayana.^[16]

At first, Harvard was a difficult social environment for Hand. He was not selected for any of the social clubs that dominated campus life, and felt this exclusion keenly. He was equally unsuccessful with the Glee Club and the football team, although for a time Hand rowed as a substitute for the rowing club. However, after a year, Hand gave up rowing to focus on his studies. He described himself as a "serious boy", a hard worker who did not smoke, drink or consort with the prostitutes in town.^[17] But in his sophomore and senior years, he did mix more: he became a member of the Hasty Pudding Club, appeared as a blond-wigged chorus girl in the 1892 student musical, and he was also elected president of The Harvard Advocate, a student literary magazine.^[18]

Hand's studious ways resulted in his election to Phi Beta Kappa^[19] and graduating summa cum laude, having earned a master's as well as a bachelor's degree.^[20] He was also 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, but he seriously considered post-graduate work Philosophy. Receiving no encouragement from family or the philosophy professors who had inspired him, however, he lacked the confidence to follow his desires; as he put it, he then "drifted" towards Law.^[21]

Students outside Austin Hall at Harvard Law School. Hand is second from right in the front row. (from between 1894 and 1896)

Hand's three years at Harvard Law School were intellectually and socially stimulating. In his second year, he moved into a boardinghouse with a group of fellow law students, who were to become close friends. They worked and studied hard, but also enjoyed discussing philosophy and literature, as well telling bawdy tales. Hand's intellectual reputation proved less of a hindrance at Law School than it had as an undergraduate, and he was elected both to the Pow-Wow Club, in which law students practiced their skills in moot courts, and to the Harvard Law Review, although he resigned from the latter in 1894 because it took too much time from his studies.^[22]

During the 1890s, Harvard Law school was pioneering the casebook method of teaching introduced by Dean Christopher Langdell. Hand's professors included Jeremiah Smith, Joseph Beale, Samuel Williston, John Chipman Gray, James Barr Ames and Langdell himself. Hand preferred those teachers who did not rigidly adhere to the logic-based case-method format, and who emphasized common sense and notions of justice and fairness.^[23] Hand's favorite professor was James Bradley Thayer, who taught him Evidence during his second year, and Constitutional Law in his third. Thayer was a man of broad interests who dealt less in certainties and extremes, than in the Law's historical and human dimensions. Thayer stressed the need for courts to show judicial restraint in deciding social issues, and was to be a major influence on Hand's own jurisprudence.^[24]

[edit] Legal career in Albany

Graduating from Harvard Law at the age of 24 in 1896, Hand returned to Albany, living with his mother and aunt and starting work for the law firm in which his uncle was a partner. But this uncle's unexpected death a few months later obliged him to move to a new firm, where by 1899 he had become a partner.^[25] Hand's initial legal experiences were not satisfying: he spent much time researching and writing briefs, and opportunities for the appellate work he preferred were limited. Even when the chance came, his initial courtroom appearances were frequently difficult, further reducing his already limited self-confidence.^[26] At the same time, Hand had long been concerned about his given names, worried whether either "Billings" or "Learned" were adequately masculine, and in 1899 he decided to drop "Billings".^[27]

Hand found life and work in Albany constraining and depressing, and tried to expand his activities. He joined a lawyers' discussion group held monthly in New York City, returned to writing scholarly articles, taught part-time at Albany Law School, and developed an interest in politics.^[28] Hand came from a long line of loyal Democrats, but supported Republican Theodore Roosevelt in the 1898 New York gubernatorial election. Despite his abhorrence for Roosevelt's role in the "military imperialism" of the Spanish–American War, he liked the "amorphous mixture of socialism and laisser faire" in his campaign speeches.^[29] Hand caused further family controversy by registering as a Republican in the Presidential election of 1900, although his switch did not prove permanent, and over the course of the years he voted equally for Democratic and Republican candidates.^[30] Nevertheless, Hand continued to feel stifled professionally and intellectually, and began to apply for jobs in New York City, despite strong family pressure not to move.^[31]

[edit] Marriage, New York, and appointment to judgeship

By the age of 30, Hand had yet to have a serious interest in a woman, and considered himself destined for bachelorhood. However, during a 1901 summer holiday in the Québec resort of La Malbaie, he met 25 year old Frances Fincke, a graduate of Bryn Mawr College.^[32] Though indecisive in most matters, he waited only a few weeks before proposing, but the more cautious Frances postponed her answer for almost a year. In the intervening months, Hand began to look more seriously for work in New York City, while writing to and occasionally seeing Fincke.^[33] 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.^[34] Following the engagement, Hand accepted a post at the law firm of Zabriskie, Burrill & Murray, moved to New York, and the pair were married on December 6, 1902.^[35] The couple were to have three daughters, Mary Deshon (born 1905), Frances (born 1907) and Constance (born 1909). Hand proved an anxious husband and father, corresponding regularly with his doctor brother-in-law about difficulties conceiving, his offspring's childhood illnesses, and family planning issues. Hand himself survived pneumonia in February 1905, taking months to recover.^[36]

The family initially spent summers in Mount Kisco, with Hand commuting at the weekends, but after 1910 they rented summer homes in Cornish, New Hampshire, eventually buying a house there in 1919. Cornish was a nine-hour train journey from New York, however, and the couple were separated for long periods, with Hand able to join the family only for vacations.^[37] They made close friends with a Dartmouth College professor, Louis Dow. With tension in the marriage, Frances spent increasing amounts of time in Cornish with Dow in Hand's absence, but despite some speculation there is no evidence that they were lovers. Hand maintained a long friendship with Dow, while regretting Frances' long absences, and urging her to spend more time with him.^[38] He blamed himself for his lack of insight into her needs in the early years of the marriage, noting his "blindness and insensibility to what you wanted and to your right to go your own ways when they differed from mine". He came to accept Frances' desire to spend time in the country with another man, fearing that otherwise he might lose her altogether.^[39]

While staying in Cornish in 1908, Hand began a close friendship with Herbert Croly, a political commentator and philosopher. Croly was writing his influential The Promise of American Life, which examined American history and proposed a plan for political reform in which a stronger national government would be used to further democratic and egalitarian goals.^[40] When the book was published in November 1909, Hand was full of admiration for the work, and sent copies to friends and acquaintances, including one to former President Theodore Roosevelt as he was traveling in Europe. Croly's work influenced Roosevelt's politics including his advocacy of New Nationalism, and the development of Progressivism.^[41]

Hand continued to be disappointed in his progress at work, and a move to the firm of Gould & Wilkie in January 1904 brought neither the increased challenges nor the financial rewards he had hoped.^[42] He later said "I was never any good as a lawyer, I didn't have any success, any at all". In 1907, deciding that at the age of 35 that success as a lawyer was out of reach, Hand campaigned for a potential new federal judgeship that was not in fact created at that time. When it was finally created in 1909, he renewed his candidacy, and with the help of Charles C. Burlingham, a senior New York lawyer and close friend, he gained the support of Attorney General George Wickersham, and took his judicial oath in April 1909.^[43]

[edit] Federal judge

Hand served as a federal judge to the United States District Court for the Southern District of New York from 1909 to 1924, dealing with fields of common law including torts, contracts, as well as bankruptcy, copyright, admiralty and patent law. His lack of familiarity in some of these areas and limited courtroom experience caused some initial anxiety.^[44] Most of Hand's early cases were in bankrupcy and patent law,^[45] but he also gave two important decisions in the area of free speech. The first, a frequently cited 1913 decision, was United States v. Kennerley, an obscenity case, in which while allowing that case should go forward, he argued that obscenity should not have a sole purpose of protecting the most susceptible group and "be content to reduce our treatment of sex to the standard of a child's library" while preventing society from the "adequate portrayal of some of the most serious and beautiful sides of human nature."^[46] The second was the influential Masses Publishing Co. v. Patten decision. In 1917, with the entry of the United States into World War One, the Congress enacted an Espionage Act in which criticism of government policies became a federal crime. The Masses, a radical monthly magazine, fell afoul of the law when the postmaster of New York City prohibited the journal from mailing its forthcoming issue due to drawings, cartoons and articles which criticized the government's entry into the war.^[47][48]

Conscription, a drawing by Henry J. Glintenkamp published in The Masses in 1917 and deemed by the postmaster of New York City "to arouse discontent and disaffection"

The magazine appealed to the federal court to block the ban, and the case, the first to interpret the new law, came before Hand.^[49] In July 1917, Hand ruled that the publication should not be banned from distribution through the mail, deciding that though The Masses opposed the war and showed admiration for those who resisted service in it, it did not tell readers that they must violate the law. In his view, allegedly seditious material should be judged on an "incitement test": if words directly stated that it was the listener's duty or interest to violate the law then they should be forbidden, but that otherwise free speech should be protected. This focus on the speaker's words, rather than their probable consequences was original and daring, but his decision was quickly reversed on appeal.^[50] Even before giving his ruling, Hand was aware that a bold opinion against the government would affect his chances of promotion to the Second Circuit, and indeed a vacancy in 1918 went to a different judge.^[51] Despite the judicial reversal Hand maintained his view, and attempted to convince Supreme Court Justice Oliver Wendell Holmes of his argument in an exchange of letters in 1918 and 1919. Holmes did not accept Hand's views at the time, but Holmes' dissenting opinion in Abrams v. United States in November 1919 was to urge greater protection of political speech, even during wartime.^[52]

Hand participated with Herbert Croly and Walter Lippman in founding The New Republic in 1913, and would often write for the magazine in the years to come, sometimes anonymously.^[53] But he split bitterly with Croly over The New Republic's decision to oppose the Treaty of Versailles, and in the 1920s largely withdrew from political activism. In 1922, Hand was one of only a handful of federal judges invited to participate in the founding of the American Law Institute.

In 1924, President Calvin Coolidge elevated Hand to an appellate position on the United States Court of Appeals for the Second Circuit, which was to be where he served for the remainder of his career. Hand's promotion was urged upon Coolidge by Taft, who by then was Chief Justice of the United States, even though Taft had previously opposed the suggestion that Hand be elevated to the Supreme Court. From 1939, Hand was the Second Circuit's Chief Judge (the position was known as "Senior Circuit Judge" until 1948), succeeding Martin Manton. Hand's most famous opinion from this period is United States v. Carroll Towing Co. (1947), a Tort case in which he introduced the famous "Hand Formula" (aka "the BPL Formula"). Hand's cousin, Augustus Noble Hand, was also a judge and also served on both the Southern District of New York court as well as the Second Circuit court. For many years, Second Circuit panels frequently included both Hands.

In 1944, Judge Hand delivered an address at a patriotic rally in New York City's Central Park, to thousands of attendees. The address, entitled "The Spirit of Liberty", is one of Hand's most famous utterances. He describes the spirit of liberty as "the spirit which is not too sure that it is right". He also affirms his pragmatism with the observation that "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it".^[54] The address was so well-received that it was quickly published, and soon anthologized; Hand was invited back to speak to a similar event the following year.^[54]

[edit] Postwar years

Learned Hand's seventy-fifth birthday in 1947 was much celebrated in the press and in legal circles. C. C. Burlingham, Hand's former sponsor, for example, rated him as "now unquestionably the first among American judges".^[55] Hand remained modest in the face of such acclaim and continued to work much as before, combining his role as presiding judge of the Second Circuit with an engagement in political issues. In 1947, he voiced his objections to a proposed "group libel" that would ban defamation of racial or minority groups. Despite his hatred of intolerance, he believed that because its roots had no basis in evidence, the effect of the proposed prosecutions would be "rather to exacerbate than to assuage the feelings which lie behind the defamation of groups".^[56]

In the postwar period, Hand shared the dismay of his compatriots about Stalinism and the onset of the Cold War, but he was conscious of the domestic problems that arose from an increasingly obsessive fear of international Communism. 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".^[57] Hand quickly found himself opposed to the crusade against domestic subversion that became part of American public life, particularly to the House Un-American Activities Committee, of which senator Joseph McCarthy became the figurehead in 1950. From this time, with the US fighting Communists in Korea, the committee's increasingly extremist campaign to expose subversives in American society became known as McCarthyism. Though Hand expressed his horror of McCarthyism privately, he never did so publicly, on the grounds that it was "very undesirable for a judge to take public positions on matters that were likely to come before him".^[58] For the same reason, he even refused to publicly support lawyers attacked for defending those charged with disloyalty.^[59] Nor did he speak out on Cold War issues.

Learned Hand, ca. 1910

During this period, Hand took part in three notable cases that presented a particular challenge to his impartiality on Cold War issues: United States v. Coplon, United States v. Dennis, and United States v. Remington. Department of Justice worker Judith Coplon had been convicted of stealing and attempting to pass on defense information and sentenced to fifteen years in prison. Coplon's appeal, which came before a Second Circuit panel that included Learned Hand, rested on her claim that her rights under the Fourth Amendment had been infringed by a warrantless search and that details of illegal wiretaps had not been fully disclosed at her trial. Hand noted that Coplon was plainly guilty of the charges, but he rejected the trial judge's conclusion that a warrantless arrest had been justified and ruled that the package of papers seized during the arrest had therefore been inadmissable as evidence.^[60] He further ruled that the trial judge's failure to disclose all the wiretap records made a reversal of Coplon's conviction necessary, since her Sixth Amendment right "to be confronted with the witnesses against [her]" had been violated.^[61] In his written opinion, he observed 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".^[62] Many followers of the trial sent Hand hate mail for his decision. In the 1950 case of United States v. Dennis, in which Hand affirmed the convictions under the 1940 Smith Act of eleven leaders of the Communist Party of the United States for subversive activities, he was attacked from the opposite political direction, for appearing to side with McCarthyism.^[63]

In 1953, Hand wrote a strong dissent from a Second Circuit decision to affirm the conviction for perjury of William Remington, a government economist accused of Communist sympathies and activities. In 1951, the same panel had overturned Remington's previous conviction for perjury, but Hand was outvoted two to one in the appeal of the later case, for which the prosecution had produced stronger evidence against Remington, much of it obtained from his wife. Hand believed that this evidence was rendered invalid by coercive procedures used during the interrogation of Mrs Remington. He also argued that Remington's perjury had been provoked during his trials to a degree that amounted to entrapment.^[64] 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 biographer Gerald Gunther, "The image of Remington being bludgeoned to death in prison haunted Hand for the rest of his life".^[65]

Only after he stepped down as a full-time judge in 1951 did Hand add his voice to the public debate on McCarthyism. Shortly after announcing his semi-retirement, he gave an unscripted speech that was recorded by a stenographer and published in The Washington Post, 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 rumour. 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?^[66]

Hand followed this up with a carefully scripted speech to the Board of Regents of the University of the State of New York the following year. Once again, his condemnation of traitor-hunting won approval from many liberals. When he was asked to send a copy of his views to McCarthy, he replied that he had Richard Nixon, the Republican vice-presidential nominee for the 1952 election, in mind as well.^[67] Despite his concerns about Nixon, Hand voted for Dwight Eisenhower, whom he later credited with bringing about McCarthy's downfall in 1954. In 1955, Hand gave a speech to the American Jewish Committee in which he emphasized that his opposition to McCarthyism and its continuing influence arose from his lifelong belief in the "principles of civil liberties and human rights". He argued that these resided naturally in a society that tolerates dissent and free-thinking.^[68]

[edit] Semi-retirement and death

In 1951, Hand retired from "regular active service" as a federal judge.^[69] He assumed senior status, a form of semi-retirement, and continued to sit on the Second Circuit. The following year, he published The Spirit of Liberty, a collection of essays and speeches that neither he nor the publisher, Alfred A. Knopf, expected to make a profit. In fact, the book earned admiring reviews, sold well, and made Hand more widely known. A paperback edition in 1958 sold even better, though Hand always refused royalties for material he never intended for publication.^[70]

Augustus Noble Hand died in October 1954, but Learned Hand himself remained in good physical and mental condition. He continued to voice concerns about political influence on judicial appointments and decisions, but he also warned against judicial rulings on constitutional matters, which he saw as a potential encroachment on the democratic process.^[71] In 1958, he pursued this theme in the Oliver Wendell Holmes, Jr. Lectures at Harvard Law School. These lectures proved to be the last major critique of judicial activism from a Progressive and included a sustained attack on the Warren Court's 1954 decision in Brown v. Board of Education, which, in Hand's opinion, had exceeded its powers by overruling "legislated judgement".^[72] He contended, for example, that the Supreme Court had no authority to afford more protection to the First Amendment than to other elements of the Bill of Rights, thereby disrupting its balance of constitutional values. On the other hand, he did not rule out the need for an effective "third chamber" to block any legislative repression of liberties, and he raised the question "whether the courts should be that chamber".^[73] Published as The Bill of Rights, the lectures became a national bestseller. Their many critics deplored the fact that Hand's views gave sustenance to reactionaries who opposed libertarian judicial rulings. Most critics overlooked Hand's concession that the arguments for a "third chamber" were worth considering for the future.^[74]

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. "My feet get very numb and my back painful. The truth is that 86 is too long".^[75] Soon, he was obliged to use crutches, but he remained mentally sharp and continued to hear cases. For a brief period in 1960, Hand worked on President Eisenhower'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".^[76]

In June 1961, by which time he was in a wheelchair, Hand joked that he felt idle, having taken part in no more than 25 or 26 cases that year, and that he would start another job if he could find one.^[77] The following month, he suffered a heart attack at Cornish, New Hampshire, and was taken to St Luke's Hospital in New York City, where he died peacefully on 18 August 1961. A front-page obituary in the New York Times called Hand "the greatest jurist of his time". The Times of London wrote: "[T]here are many who will feel that with the death of Learned Hand the golden age of the American judiciary has come to an end".^[78]

[edit] Influence

Hand's judicial opinions are frequently considered classic formative statements of American contract and tort law. One of his most famous tools, commonly referred to as the calculus of negligence, first appeared in United States v. Carroll Towing.^[79] This was concerned with civil tort liability in a case alleging damage after a boat-owner's failure to secure his vessel adequately at harbor. The calculus, also sometimes referred to as the "Hand Test" or "Hand Formula", is notable for its economic approach to a legal rule, an approach that is the foundation of the law and economics school of legal thought. The Hand Test requires that financial liability should be imposed for a negligent tort only if the burden of preventing the injury does not exceed the magnitude of the injury multiplied by its likelihood of occurring; it finds negligence when the actor's burden (B) is less than the probability (p) of harm, multiplied by the degree of loss (L), which can be expressed as the formula B < p × L.^{[citation needed]}

Like many others in the law and economics school, most notably Judge Richard Posner, Hand was also influenced by philosophical pragmatism. One of the most famous quotations for which Judge Hand is known for is his declaration that "[t]here is nothing sinister in so arranging one's affairs as to keep taxes as low as possible" in the case Commissioner v. Newman.^[80] In another famous opinion regarding the U.S. income tax law, Judge Hand wrote: "Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes".^[81] Despite this, the case (Gregory v. Helvering), involving the transfer of assets between three companies owned by one individual for the purpose of reducing her own tax liability, was decided in favor of the IRS Commissioner. It became the basis for the doctrines of "business purpose" and "substance over form".

Judge Hand also played a part in developing First Amendment law in the early 20th century, most notably in Masses Publishing Co. v. Patten, in which he equated advocating radical actions against the United States government with actually perpetrating those same acts. This opinion was later taken into account by the Supreme Court in cases such as Brandenburg v. Ohio.^[82]

Among those who served as law clerks for Hand were Archibald Cox, the Watergate Scandal's special prosecutor; Elliot Richardson, also involved in the Watergate Scandal; and legal theorist Ronald Dworkin. Other clerks included Hugh Calkins, Vincent L. McKusick, and John J. Cound.

Hand's youngest daughter, Constance, married the U.S. lawyer and politician Newbold Morris.^[83]

[edit] List of selected works

• Hand, Learned (1941), Liberty, Stamford, CT: Overbrook, OCLC 2413475 .
• Hand, Learned (1952), Irving Dillard, ed., The Spirit of Liberty: Papers and Addresses of Learned Hand, New York: Knopf, OCLC 513793 .
• Hand, Learned (1958), The Bill of Rights, Cambridge, MA: Harvard University Press, OCLC 418364 . (Oliver Wendell Holmes Lectures)
• Hand, Learned (1968), Hershel Shanks, ed., The Art and Craft of Judging: The Decisions of Judge Learned Hand, New York: Macmillan, OCLC 436539 .

[edit] Notes

[edit] References

• Gormley, Ken (2003), “Hand, Learned: 1872-1961”, in Vile, John R., Great American Judges: An Encyclopedia, Santa Barbara, CA: ABC-CLIO, pp. 319-329??, ISBN 978-1576079904 .
• Gunther, Gerald (1994), Learned Hand: The Man and the Judge, New York: Knopf, ISBN 0-394-58807-X LCCN 93-22868 LCC KF373.H29 G76 1994 .

[edit] Further reading

• Boudin, Michael (January, 1995), “The Master Craftsman”, Stanford Law Review 47 (2): 363-386, <http://www.jstor.org/stable/1229231>. Retrieved on 18 May 2008 . (JSTOR subscription required for online access.)
• Chirelstein, Marvin (1968), “Learned Hand’s Contribution to the Law of Tax Avoidance”, Yale Law Journal 77 (3): 440–474, ISSN 0044-0094 LCCN 29-10103, <http://www.jstor.org/stable/794940> . (JSTOR subscription required for online access.)
• Griffith, Kathryn (1973), Judge Learned Hand and the Federal Judiciary, Norman: Oklahoma University Press, ISBN 0806110716 .
• Gunther, Gerald (1991), “Judge Learned Hand: The Choices and Satisfactions of a Biographer”, Proceedings, American Philosophical Society 3 (2): 231-236 .
• “Why Learned Hand Would Never Consult Legislative History Today”, Harvard Law Review (The Harvard Law Review Association) 105 (5): 1005-1024, <http://www.jstor.org/stable/1341518> . (JSTOR subscription required for online access.)
• Kahn, Michael A. (Jan., 1973). "The Politics of the Appointment Process: An Analysis of Why Learned Hand Was Never Appointed to the Supreme Court". Stanford Law Review 25 (2): pp. 251-285. 
• Landauer, Carl (December, 1996), “Scholar, Craftsman, and Priest: Learned Hand's Self-Imaging”, Yale Journal of Law and the Humanities 140 (4): 451-458 
• Nelson, Marcia (1983), The Remarkable Hands: An Affectionate Portrait, New York: Foundation of the Federal Bar Council, OCLC 10370755 .
• Oakes, James (Jan., 1995), “Personal Reflections on Learned Hand and the Second Circuit”, Stanford Law Review 47 (2): 387-394, <http://www.jstor.org/stable/1229232>. Retrieved on 18 May 2008 . (JSTOR subscription required for online access.)
• Polenberg, Richard (June 1995). ""A Conservative among Liberals, and a Liberal among Conservatives": The Life of Learned Hand". Reviews in American History, Vol. 23 23 (2): pp. 296-301. The Johns Hopkins University Press. 
• Posner, Richard (November, 1994), “The Hand Biography and the Question of Judicial Greatness”, Yale Law Journal 104 (2): 511-540, <http://www.jstor.org/stable/797010>. Retrieved on 18 May 2008 . (JSTOR subscription required for online access.)
• Schick, Marvin (1970), Learned Hand's Court, Baltimore: Johns Hopkins Press, ISBN 978-0801812149 .
• Stone, Geoffrey R. (2003), “Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled”, The University of Chicago Law Review 70 (1): 335-358, <http://www.jstor.org/stable/1600562> . (JSTOR subscription required for online access.)

[edit] External links

• Wade, Stephen (October 5, 1999), “Learned Hand”, All Things Considered, NPR, <http://www.npr.org/templates/story/story.php?storyId=1064953>. Retrieved on 3 May 2008 

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Learned Hand