Henry Friendly, Greatest Judge of His Era.

• Author: Brecher, Aaron P.
• Position: Book review

HENRY FRIENDLY, GREATEST JUDGE OF HIS ERA. By David M. Dorsen. Foreword by Richard A. Posner. Cambridge and London: The Belknap Press of Harvard University Press. 2012. Pp. xiii, 498. $35.

INTRODUCTION

Uberfans of the federal judiciary owe a lot to David Dorsen. (1) His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, (2) and most authors choose to focus on Supreme Court justices. (3) But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly's life and, far more important, his views on the law and his relationships with some of the most fascinating figures in twentieth-century legal history.

Dorsen not only provides a detailed study of Friendly's life and career but he also uses the biography as a vehicle to explore the ways judges decide cases, the work of intermediate appellate courts, and Friendly's particular influence across many legal fields (p. 2). Dorsen devotes much of the book to demonstrating that Friendly was a "great" judge along a number of dimensions: his intelligence, productivity, professional accomplishments, approach to legal questions, and influence on the law (pp. 2-3). Dorsen contends that the "influence of a circuit judge on the development of federal law depends largely on whether other federal judges view his work as worth emulating. On that criterion, as well as others, Friendly demands attention" (p. 2).

Part I of this Notice briefly summarizes Dorsen's work, recounting the key facts of Friendly's life, his approach to judging, and those areas of the law most affected by Friendly's ideas. It concludes that Dorsen has indeed demonstrated Friendly's "greatness" to a certain degree. Part II explores Dorsen's notion of influence on the law by examining Friendly's impact on an area of law in which he was widely considered expert: federal jurisdiction. It expands Dorsen's conception of influence to include not only the extent to which subsequent judges have emulated Friendly but also the extent to which Friendly was a clear and forceful expounder of ideas that shaped the terms of the debate on issues of federal jurisdiction, even if his vision did not ultimately carry the day. Moreover, the relevant evaluators of influence should include Congress and academics in addition to other judges.

1. "MAN FOR ALL SEASONS IN THE LAW" (4)

   Henry Jacob Friendly was born in 1903 to a comfortably middle-class Jewish family in Elmira, New York (p. 6). In New York City in 1986, losing his sight and still mourning his wife Sophie's death a year earlier, he committed suicide (p. 343). The years between these two events were marked by superlative academic and professional achievements juxtaposed against chronic bouts of melancholy, difficult relationships in his family life, and the cultivation of a famously gruff demeanor with subordinates and the lawyers who appeared before him. This Part focuses on Friendly's academic life and work as a judge.

   Friendly's pre-judicial career would have been something to be proud of even if he had never ascended to the bench. After studying history at Harvard College, he attended Harvard Law School where he compiled one of the best, possibly the best, academic records in the school's history (5) and served as president of the Harvard Law Review (pp. 12-27). Afterward, Friendly worked for Justice Brandeis as a clerk--a position for which Friendly's teacher Felix Frankfurter had selected him (pp. 26-27). Upon completing his clerkship, Friendly practiced law at Root, Clark, Buckner & Ballantine before leaving to found his own firm in 1946 with a number of other partners (pp. 1, 31-33, 50-51). That firm evolved into Cleary, Gottlieb, Steen & Hamilton, which remains a Wall Street powerhouse today. (6) Friendly's successful practice prompted his ascent as one of the most respected lawyers in the country as he developed an impressive portfolio of clients. This portfolio included Pan American Global Airways, for which he served as a vice president and general counsel while in practice (p. 60).

   Dorsen covers all of this in fewer than eighty pages. The heart of the biography describes Friendly's contributions as a judge on the U.S. Court of Appeals for the Second Circuit. President Eisenhower appointed Friendly to the bench in 1959, and over the next twenty-seven years, Friendly wrote over 1,000 opinions, as well as dozens of book reviews and scholarly articles (pp. 1-3). Dorsen devotes chapters to specific time periods or themes, describing, for example, Friendly's relationships with his fellow judges (Chapter Seven) and his clerks (Chapter Six), and he later covers Friendly's death (Chapter Twenty-four) and legacy (Chapter Twenty-five). But Dorsen organizes the bulk of the book by area of law rather than chronologically, detailing Friendly's most significant opinions and other writings in a number of fields. Friendly was particularly famous for his contributions to administrative law, (7) federal jurisdiction, (8) securities law, (9) and criminal procedure. (10)

   Readers less concerned with particular doctrinal areas might be interested in Dorsen's description of the judge's interactions with some of the most important people in American legal history. In addition to formative encounters with Frankfurter and Brandeis early in his career, Friendly also worked closely with John Marshall Harlan II, who was a partner at Root, Clark (pp. 38-41) and later became the great dissenter of the Warren Court. And Learned Hand was among those who urged Eisenhower to appoint Friendly to the Second Circuit. (11)

   During his career, Friendly won the respect of colleagues, academics, and Supreme Court justices for his judicial work (pp. 354-57). Friendly's opinions demonstrated excellent writing, command of the facts, moderation, and creativity in advancing the law while still respecting statutory and constitutional language and controlling precedents. (12) The judge was certainly more restrained and respectful of precedent than some of his famous judicial contemporaries. (13) This approach apparently earned him many admirers, evidenced by the accolades that poured in from many quarters of the legal world when he died (pp. 344, 354-56).

   Dorsen's book as a whole highlights Friendly's ability to succeed as a private attorney, a judge, and a scholar (14)--three fields that are rarely all mastered by one person. In recent decades, a number of federal judges have lamented "the alienation of the elite law professor from legal practice, including judging." (15) Friendly was an exception. The academy took his articles and opinions seriously, and Friendly displayed an appreciation for academic contributions to legal thought. (16)

   Dorsen contends that Friendly's greatest legacy might be the accomplishments of his law clerks (p. 357). Although Friendly was notoriously demanding of his clerks (indeed, he was often remarkably insensitive), (17) there is little doubt that the clerkship experience deeply enriched many of his clerks' professional lives. (18) An appendix to Dorsen's book contains a complete list of Friendly's former clerks, and their credentials are impressive to say the least. Many, including Bruce Ackerman, Philip Bobbitt, and Larry Kramer, entered the legal academy. (19) Seven became federal judges, including Chief Justice John Roberts (p. 357).

   Dorsen successfully makes his case that Friendly was a great judge-- whether measured in terms of intellectual ability, accomplishments, or the evaluation of mentors, peers, and capable law clerks. But he also explores Friendly's influence, suggesting that it rests in large part on the extent to which other judges have emulated him. The next Part looks at this issue more closely, examining Friendly's influence on the law of federal courts.

2. "MASTER OF THIS SUBJECT" (20)

   Friendly was renowned for his expertise on the law of federal jurisdiction, (21) an interest that may have been sparked by early mentors like Frankfurter (22) and Brandeis. (23) Dorsen devotes a chapter to Friendly's views on each of the following subjects: jurisdiction, federal common law, and habeas corpus. This Part looks at these three areas through a different lens to propose a broader view of Friendly's influence that is measured less in emulation by other judges and more in the respect that judges and legislators give to Friendly's ideas, even when they disagree. With this expanded conception, Friendly appears even more influential than Dorsen suggests. This Part begins with a discussion of federal common law in Section II.A. Section II. B considers the reception to Friendly's thoughts on the role of federal courts in collateral review of state criminal convictions. Finally, Section II.C discusses Friendly's lack of success in advocating for the virtual elimination of diversity as a source of federal jurisdiction.

   1. Federal Common Law

      In 1938, the Supreme Court held in Erie Railroad Co. v. Tompkins that federal courts must apply the substantive decisional law of state courts when deciding issues of state law. (24) Brandeis's opinion famously concluded that "[t]here is no federal general common law." (25) In a lecture defending Brandeis's decision, Friendly "craft [ed] the template for the modern view of federal common law. (26) In Praise of Erie--And of the New Federal Common Law, (27) Friendly's lecture, which was subsequently published as an article by the New York University Law Review, is one of the most cited (28) and most important law review articles ever written. (29) Friendly claimed that in addition to its generally sound legal reasoning, Erie had usefully paved the way for specialized pockets of federal common law that would be binding on the states via the Supremacy Clause. (30)

      Friendly's lecture provided a vigorous defense of...