Learned Hand: The Man and the Judge.

• Author: Wertheimer, John

Like countless other students, I got my first serious exposure to the intricacies of American constitutionalism through the pages of Gerald Gunther's Constitutional Law, the leading casebook in the field. At the time, I thought it strange that, amid the unending parade of precedent-setting Supreme Court opinions (they appear in my memory, furiously underlined and maddeningly dense), the book included a First Amendment decision that, besides coming from a lowly federal district court, appeared to set no precedent whatsoever, for superior tribunals immediately rejected its speech-protective reasoning. The decision in question was Masses Publishing Co. v. Patten;3 its author was a federal judge memorably named Learned Hand.

Today, Professor Gunther's decision to include Masses in his casebook seems less mysterious. For one thing, Hand's elegant First Amendment reasoning blazed a trail that, though not followed at the time, was picked up decades later by the Warren Court. For another thing, it happens that Gunther, in 1953-54, served as Learned Hand's law clerk. By including Masses in his casebook, thus, Gunther was at once mourning a legal path not soon enough taken and celebrating the memory of his mentor, Learned Hand, one of the greatest judges in American history. In Learned Hand.. The Man and the Judge, Gunther's masterful biography, this celebration continues.

Gunther's weighty book follows its subject from cradle to grave, leaving few stones unturned along the way. It begins in 1872, the year of Billings Learned Hand's birth to a respectable Albany family. At fourteen, young Learned experienced the death of his father, a successful appellate lawyer; for the rest of his life, Hand would despair of ever approaching his father's professional stature -- even after he had far surpassed it. Gunther traces both Hand's admirable humility and his sometimes paralyzing self-doubt to this source.

Learned Hand attended Harvard College, which affected him both personally and intellectually. His exclusion from Harvard's elite social clubs reinforced feelings of insecurity. (One productive byproduct of this exclusion, Gunther suggests, may have been Hand's lifelong opposition to discrimination, including that practiced by his alma mater against Jews.) Meanwhile, Harvard's brilliant philosophy faculty, above all George Santayana, William James, and Josiah Royce, validated Learned's emerging intellectual skepticism and inspired in him a spirit of inquiry and open-mindedness that would stay with him for the rest of his life.

So inspired was Learned by his philosophy professors that he seriously considered graduate study and a career in that field. His continued lack of confidence, however, left him vulnerable to family pressures to abandon his dream and, like his father, grandfather, and two uncles before him, study law. In his twenty-first fall, therefore, Hand turned his back on philosophy and, somewhat grudgingly, entered the Harvard Law School.

To his surprise, Hand took readily to legal study. As always, he excelled in his classes. Less expectedly, he found actual inspiration in the teachings of his best instructors, especially Professor James Bradley Thayer, an impressive thinker whose staunch opposition to judicial activism became a torch that Hand himself would carry long after Thayer's death in 1902.

Graduation from law school in 1896 sent Learned out into the world for the first time. He did not fare well. Hand's reflective nature, so well matched to legal study, was utterly unsuited to legal practice. He tried hard to establish himself as a lawyer, first in Albany and then in New York City, but so...