1 No one knows just how many Jewish lawyers there are, but a sense of the Jewish presence in American law can be gathered from the following. Jews made up about 12% of all law students and 22% of law professors in 1975; in the “top twenty law schools” they were about 30% of both students and faculty. These figures are derived from surveys conducted by the Carnegie Commission on Higher Education, reported in Auerbach, Carl A., “Legal Education and Some of Its Discontents,” 34 J. Legal Educ., 43, 50 (1984).Google Scholar

Explanations of this abundant participation in legal life, ranging from Jewish legalism and textualism to more diffuse and general traits of Jewish life, have foundered on the difficulty of establishing such connections. For some recent attempts, see Price, M., “Text and Intellect,” 33 Buffalo L. Rev. 562 (1984); Morris, J., “The American Jewish Judge: An Appraisal on the Occasion of the Bicentennial,” 35 Jewish Soc. Stud. 195 (1976); Artz, D., “The People's Lawyers: The Predominance of Jews in Public Interest Law,” 35(1) Judaism 47 (Winter 1986).Google Scholar

2 On participation in the legal side of the New Deal, see Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976) (“Auerbach, Unequal Justice”); on community defense agencies, see Pekelis, Alexander, “Full Equality in a Free Society: A Program for Jewish Action,” in Law and Social Action (Ithaca: Cornell University Press, 1950); Marshall Breger, “The Legal Tradition of Jewish Defense Agencies” (unpublished paper); on public interest law, see Artz, 35 Judaism (cited in note 1).Google Scholar

3 Here Burt is elaborating on a contrast that has engaged other commentators on these judges. See Konefsky, Alfred S., “Men of Great and Little Faith: Generations of Constitutional Scholars,” 30 Buffalo L. Rev. 365, 375–76 (1981).Google Scholar

4 At 2. Throughout, noun and adjectival forms of the terms outsider, outcast, alienated, and homeless are used as synonyms. Many examples will be found below. These terms are not defined not are they distinguished from one another. Burt's use of these terms is discussed at 522–23 below.Google Scholar

5 At 87. Repeatedly we are told of the “Brandeisian project of confounding social distinctions between insider and outsider” (at 109).Google Scholar

6 At 122; cf. “Brandeis acknowledged a basic identity with outcasts and consistently tried to dissolve the distinction between inside and outside” (at 128).Google Scholar

7 At 103, 104. Cf. his call for “an independent–that is to say, alienated, outcast–perspective on all exercise of authoritative power” (at 102).Google Scholar

8 Strum, Philippa, Louis, D. Brandeis: Justice for the People 226 (Cambridge: Harvard University Press, 1984) (“Strum, Brandeis”).CrossRefGoogle Scholar

9 At 125. Frankfurter, on the other hand, is equated with Aaron, whose critical failure in the incident of the Golden Calf stems from lack of Moses' robust confidence in himself and his people (id.).Google Scholar

10 “The basic distinction between Moses and Aaron was not in their beliefs… [T]he distinction was between Moses' confidence in his own rectitude and in his people's capacity for right conduct and Aaron's lack of confidence in himself and in them” (as displayed in the incident of the golden calf) (at 125). Prophets “trust the people's capacity to govern themselves in the pursuit of transcedent norms… [and] are prepared to risk social disorder because they give highest value to individual choice as the reliable road to salvation” (at 126). The plausibility of the prophetic characterization of Brandeis and other American Jewish lawyers is discussed in Galanter, “A Vocation for Law? Locating Our Antecedents” (unpublished paper, presented to the Conference on Jewish Law, Jewish History and Critical Legal Studies, Stanford University, Feb. 21–24, 1989).Google Scholar

11 He reports that Brandeis saw himself as “as always standing apart from others even though strongly attracted and attractive to them” (at 17). “Brandeis… was content, even eager, to remain at the margin–in effect, homeless” (at 39–40).Google Scholar

12 For a detailed account, see Murphy, Bruce Allen, The Brandeis/Frankfurter Connection (New York: Oxford University Press, 1982) (“Murphy, Brandeis/Frankfurter Connection”). For a refreshing antidote to the misplaced moralism of the foregoing, see Luban, D., “The Twice-told Tale of Mr. Fixit: Reflections on the Brandeis/Frankfurter Connection,” 91 Yale L. J. 1677 (1982).Google Scholar

13 One notable convergence was their overflowing admiration for Alfred Zimmern's The Greek Commonwealth. Philippa Strum describes it as “[t]he most important book Brandeis read….”“Brandeis urged Zimmern upon everyone-colleagues, family, friends, law clerks-throughout the remainder of his life. Brandeis would quote whole passages from Zimmern” (Strum, Brandeis, at 237, 242). Brandeis chose Zimmern, with whom he was previously unacquainted, as one of two companions on his 1919 journey to Palestine (id. at 242). The Greek Commonwealth was also “[o]ne of… [Frankfurter's] favorite books, which he expected his law clerks to read at their first opportunity.”Levinson, S., “The Democratic Faith of Felix Frankfurter,” 25 Stan. L. Rev. 430–31 (1973).CrossRefGoogle Scholar

14 This sense of “another inside” is fixed in a dramatic tableau by Hyam Maccoby, commenting on the meeting of Jacob with Pharaoh, arranged by Joseph after his family has joined him in Egypt:Google Scholar

H. Maccoby, “Freud and Moses,” 26(2) Midstream 9, 12 (Feb. 1980). The multiplicity of “insides” leads to the dizzying (but not unenjoyable) alternation depicted in Herman Wouk's Inside, Outside (Boston: Little, Brown & Co., 1985), whose protagonist's success within the secular American world consolidates his identity as a Jew, leaving it unclear finally which is inside and which is outside.Google Scholar

15 It is this absence of internal space within Jewishness that may explain why Burt passes by the aspect of Brandeis that gives most credibility to the “outsider” characterization while putting a different light on his Jewishness. Brandeis's centrality as an American was matched by his marginality as a Jew. His mother's family had been Frankists, followers of the antinomian Sabbatean sect founded by the charismatic Jacob Frank (1726–91). Frank's followers led double lives: outwardly they were Jews or Christians (Frank himself was baptized in 1759), but secretly they were “believers” who maintained a “hidden faith” in “Frank as the true Messiah and living God.”Scholem, G., “Jacob Frank and the Frankists,” 7 Encyclopedia Judaica 55, 59, 65 (1972). Frankism contained a strong utopian strain; it emphasized the Jewish mission among other nations to bring about the world's redemption. Allon Gal, Brandeis of Boston 68 (Cambridge: Harvard University Press, 1980).Google Scholar

Something of this filtered through to Louis Brandeis. At his request (he was 25 at the time), his mother wrote to him about the family's Frankist tradition: “I mentioned earlier the religious sect to which my parents belonged. I do not know what they believed and what Jewish doctrines they discarded, but I do know that they believed in goodness for its own sake and they had a lofty conception of morality with which they imbued us…. I saw that my parents were good Jews, and yet did not associate with Jews and were different from them and so there developed in me more affection for our race as a whole than for individuals.”Quoted in id. at 67.Google Scholar

Growing up in a home suffused with high-minded reformism but no specifically Jewish learning or observance, Brandeis's spiritual heritage was, in the words of an Israeli biographer “a dim sense of Jewish mission, tinged with Jewish dissent and family pride” (id. at 68). As he put it after he turned to Zionism at the age of 54: “During most of my life my contact with Jews and Judaism was slight.” Brandeis, “The Jewish Problem-How to Solve It” (address delivered to the Eastern Council of the Central Conference of Reform Rabbis, reprinted in Jacob De Haas, Louis D. Brandeis: A Biographical Sketch (New York: Bloch Publishing Co., 1929) (“De Haas, Brandeis”). When he did reconnect, it was to a Jewishness that had little content apart from being a container for the striving to reform, redeem, and perfect the world.Google Scholar

16 Sartre, Jean-Paul, Anti-Semite and Jew 69 (New York: Grove Press, 1960 [1946]). Curiously, Felix Frankfutter proffered the same definition to Walter Lippman almost 30 years earlier: “A Jew is a person who non-Jews regard as a Jew.”Quoted at Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years 129 (New York: Free Press 1982).Google Scholar

17 Sartre, Anti-Semite and Jew 150. Cf. at 149.Google Scholar

18 Deutscher, Isaac, The Non-Jewish Jew and Other Essays 47 (London: Oxford University Press, 1968).Google Scholar

19 Id. at 26.Google Scholar

20 Id. Google Scholar

21 Id. at 27.Google Scholar

22 ”All of them had this in common, that the very conditions in which they lived and worked did not allow them to reconcile themselves to ideas which were nationally or religiously limited and induced them to strive for a universal Weltanschauung.” Id. at 30.Google Scholar

23 Id. at 58.Google Scholar

24 Cf. his observation, in a 1946 Economist article, that “[Napoleon's] purpose of disaccustoming the Jews from usury and illicit trade, of breaking down their separatism and making them submerge themselves in the gentile population was certainly sound; and–who knows?–if it had been consistently carried into effect all over Europe, the Jewish problem might have been forgotten long ago; and our generation would perhaps have been spared… murder of six million.”Id. at 86.Google Scholar

25 Deutscher's view of the relation of Jews to human emancipation is a gentler echo of Marx's brutal sneer that the emancipation of mankind from “huckstering and money” would “make the Jew impossible.” As the spiritual expression of capitalism, Judaism, for Marx, was “a universal antisocial element of the present time.” The goal was to emancipate mankind from this figurative Judaism. To that end the enlightened Jew “begins to deviate from his former path of development, works for general human emancipation and turns against the supreme practical expression of human self-estrangement.”“On the Jewish Question” in T. B. Bottomore, Karl Marx: Early Writings 34 (New York: McGraw-Hill Book Co., 1964 [1844]). For Marx, emancipation from the fetters of capitalism is simultaneously emancipation of the Jews from Jewishness–i. e., the end of the Jews.Google Scholar

26 See sec. 6 below.Google Scholar

27 E. g., Ex. 22:20; Ex. 23:9. The profusion of regulations concerning the stranger was remarked in the Talmud [Bava Mezia 59b]. Some later commentary is summarized by Nehama Leibowitz, 2 Studies in Shemot (The Book of Exodus) 380 (Jerusalem: World Zionism Organization, 1976).Google Scholar

28 The tenor of this learning is perhaps uncongenial to Burt, since we are instructed how to act in the presence of distinctions rather than how to dissolve them.Google Scholar

29 At 67. Brandeis himself had a very different reading of the Jewish experience in America, one that posited a deep affinity between American and Jewish ideals that enabled Jews to be uniquely at home in America:Google Scholar

Address at a conference of the Menorah Societies in 1916, subsequently reprinted in De Haas, Brandeis at 194. This “affinity” interpretation still commands a following today. E. g., Saul Touster “The View from the Hilltop,” 33 Buffalo L. Rev. 571–78 (1984).Google Scholar

30 At 3. Cf. W. H. Auden's remark that “the Jews have for a long time been placed in the position in which we are now all to be, of having no home.”Quoted in Daniel Bell's 1961 essay “Reflections on Jewish Identity,”The Winding Passage: Essays and Sociological Journeys 1960–1980 at 319 (New York: Basic Books, 1980). Where Auden extended the Jewish condition to all intellectuals, Burt democratically universalizes it.Google Scholar

31 At 77. “[T]oday in American society not simply to Jews but to everyone: only the roles of pariah and parvenu are available. [The parvenu-pariah polarity is taken from Hannah Arendt's The Origins of Totalitarianism (1951)]. There is no social role of assimilated insider for anyone; there is no such reliable, unquestioningly secure status in American social life.” At 67. Of course, such universal alienation has its comforts for excluded outsiders, erecting an unseen fellowship and providing assurance that they are after all just like others.Google Scholar

32 At 68. “Illuminating figures” seems a nice contemporary rendition of the notion of Israel as “a light unto the nations.” Cf. Isaiah 42:6, 49:6. A more general version of the theme of Jewish outsider become guiding light is Thorstein Veblen's 1919 explanation of “The Intellectual Pre-eminence of Jews in Modern Europe.” In Veblen's view the “clay vessel of Jewish archaism” is shattered by the “iron pots” of modernity; the gifted Jew who is released by the decay of “[t]he idols of his own tribe” does not put in their place the “conventional principles” of the gentiles. Instead he is a renegade and skeptic, “in a peculiar degree exposed to the unmediated facts of the current situation” and this “is in line to become a guide and leader of men in that intellectual enterprise….” T. Veblen, Essays in Our Changing Order (L. Ardzrooni, ed.) 229–30 (New York: Viking Press, 1934) Where Burt seems to connect Jewish luminosity to the enhanced moral sensitivity of the outsider, Veblen credits it to the outsider's cognitive liberation from conventional presuppositions.Google Scholar

33 Or is “constructing” to be taken in the weaker sense of “construing” rather than in the stronger sense of building or creating?Google Scholar

34 Burt offers no evidence of such activity. There is some evidence of high productivity of Jewish academics: 20 years ago Jewish professors were found to be more intellectual, more interested in research, and inclined to write and publish considerably more than their non-Jewish peers. Lipset, S. M. & Ladd, E. C. Jr., “Jewish Academics in the United States: Their Achievements, Culture and Politics,” 72 Am. Jewish Y. B. 89, 101, 104 (1971). The data presented there are for all fields, but presumably would hold for law professors. But from writing articles to constructing social rules is a daunting if not impossible leap.Google Scholar

35 Id. at 90–93; generally Charles Silberman, A Certain People 1 (New York: Summit Books, 1985). On the continuing absence of Jews in corporate management, see Korman, Abraham K., The Outsiders: Jews and Corporate America (Lexington, Mass.: Lexington Books, 1988).Google Scholar

36 By the early 1960s, the earlier rigid exclusion of Jews from Wall Street firms had been tempered into concern about having “too many” Jews. Smigel, Erwin O., The Wall Street Lawyer 44 (Bloomington: Indiana University Press, 1969); Comment, ”The Jewish Law Student and New York Jobs–Discriminatory Effects in Law Firm Hiring Practices,” 73 Yale L. J. 625, 650 (1964). In his Epilogue (apparently written in 1968) Smigel reports the “tremendous lessening of discrimination–especially toward Jews” since he gathered data a decade earlier. Discrimination against Jews in hiring was “essentially gone” in Wall Street firms. Smigel, Wall Street Lawyer 370. Auerbach, C. J., “From Rags to Robes: The Legal Profession, Social Mobility and the American Jewish Experience,” 66 Am. Jewish Hist. Q. 249, 273–74 (1976).Google Scholar

37 At 67. Since he does not specify how these dispositions are produced by this experience, it is not surprising that he never addresses the question of why other groups with deep and extended experience of exclusion and oppression have not manifested comparable capacities for illumination. Apparently occupying an outsider position does not provide a sufficient account for the presence of these qualities. The invocation of these special but unexplained qualities may arouse our suspicion of being in the presence of what Robert Alter calls the “sentimental myth” of “the Jew as Mysterious Stranger… a man with a luminous past and a great if desperate dream for the future, his heritage of suffering and survival providing him with a unique adeptness in the ultimate science of knowing how to be.” R. Alter, “Sentimentalizing the Jews,”Commentary, Sept. 1965, at 71, 73.Google Scholar

38 Cf. the difficulties that attend attempts to explain the purported Jewish vocation for law, note 33 supra.Google Scholar

39 In contrast, recent accounts of Jewish participation in other areas of American life focused on the distinctive character imparted by preponderant Jewish participation. Thus, Stanley Rothman and S. Robert Lichter argue that much of the tone of student radical movements was set by Jewish students who were quite different in background, attitudes, and behavior from their non-Jewish colleagues. Stanley Rothman & S. Robert Lichter, Roots of Radicalism: Jews, Christians and the New Left (New York: Oxford University Press, 1982). Neal Gabler portrays the effect on Hollywood and on American popular culture of the preponderance of Jews in the formation of the movie industry. Neal Gabler, An Empire of Their Oum: How the Jews Invented Hollywood (New York: Crown Publishers, 1988) (“Gabler, An Empire of Their Own”).Google Scholar

40 A most un-Brandeisian posture. See Murphy, Brandeis/Frankfurter Connection, and Luban, Yale L. J. (both cited in note 12).Google Scholar

41 Cf. pp. 511–12 supra.Google Scholar

42 At 108. “Outcast,” like “homeless,”“outsider,” and so forth, is a metaphor and its application is never examined. Are death row convicts similar to Hindus excluded from caste fellowship? Why are the similarities, which would seem to apply with equal force to all those confined in prison, so compelling?Google Scholar

43 There is no indication that there are any consistent distinctions between these and they are often conflated: e. g., alienation = homelessness (at 124); the text slips from outsider to outcast and back (at 116–17); they are completely conflated where Burt talks of a “boundary between insider and outcast status” (at 129).Google Scholar

44 Thus, alienation is equated with self-determination (at 82) and with independence (at 102).Google Scholar

45 It was first employed in Muller v. Oregon, 208 U. S. 412 (1908). For a discussion of the Brandeis brief technique, see Wallace D. Loh, Social Research in the Judicial Process 88–90 (New York: Russell Sage Foundation, 1984).Google Scholar

46 An admiring contemporary observed that “[t]he emphasis on the institutional context of a case is so characteristic an item in Mr. Justice Brandeis‘ method that ‘institutionalism’ or ‘contextualism' might serve as readily as ‘realism’ to describe the method.” Max Lerner, “The Social Thought of Mr. Justice Brandeis,”in Frankfurter, F., ed., Mr. Justice Brandeis 26 (New Haven, Conn.: Yale University Press, 1932).Google Scholar

47 Brandeis to Roscoe Pound, July 20, 1914, 3 Letters of Louis D. Brandeis, ed. M. I. Urofsky and D. W. Levy, 287 (Albany: State University of New York Press, 1973). The visit never took place, because Ehrlich was interned in Vienna due to his opposition to the war. Brandeis interceded unsuccessfully to secure a safe-conduct for him. Brandeis to Roscoe Pound, Dec. 10, 1914, 3 Letters 382. Ehrlich was thus unable to make his scheduled address to the December 1914 meeting of the Association of American Law Schools. A substitute presentation by Prof. William Herbert Page, then of Ohio State, presented Ehrlich's views. W. H. Page, “Professor Ehrlich's Czernowitz Seminat of Living Law,”Proceedings… of the Association of American Law Schools 46 (1914).Google Scholar

48 ”The Living Law,” 10 Ill. L. Rev. 461 (1916).CrossRefGoogle Scholar

49 Id. at 467, 470.Google Scholar

50 Strum, Brandeis 309–10 (cited in note 8).Google Scholar

51 Id. at 310.Google Scholar

52 On the weakness of legal scholarship in dealing with states of fact. See Shuchman, P., Problems of Knowledge in Legal Scholarship 105, A-12 (West Hartford, Conn.: University of Connecticut Law School Press, 1979); Macaulay, S., “Law Schools and the World Outside Their Doors,” 54 Va. L. Rev. 617 (1968); Gordon, R., “Historicism in Legal Scholarship,” 90 Yale L. J. 1017 (1981); Posner, R., “The Present Situation in Legal Scholarship,” 90 Yale L. J. 1113 (1981); on the marginal position of empirical research in the law schools, see Schlegel, J., “American Legal Realism and Empirical Social Science: From the Yale Experience,” 28 Buffalo L. Rev. 459 (1979); Friedman, L., “The Law and Society Movement,” 38 Stan. L. Rev. 763 (1986).Google Scholar

53 The endorsement of Brandeis seems to be claimed in an approving if cryptic observation that Brandeis did not “accept the continued existence of the social status of outsider, as a thoroughgoing pariah would do” (at 87).Google Scholar

54 See Auerbach, Unequal Justice, chs. 4, 6 (cited in note 2).Google Scholar

55 Minow, M., “Foreword: Justice Engendered,” 101 Harv. L. Rev. 10, 12 (1987).Google Scholar

56 These fantasies have their counterparts in other fields. Thus Neal Gabler describes the way that Jewish movie moguls, driven by “utter and absolute rejection of their pasts,” who managed to “reinvent themselves… as new men,” produced “assimilationist fable[s],” and sought to “become attached to something larger and distinctively non-Jewish.” Gabler, An Empire of Their Own 4, 2, 141, 333 (cited in note 39).Google Scholar