Louis D. Brandeis and the Formation of a Positive Professional Identity.

• Author: Baker, R. Lisle

1. Introduction

   We are fortunate to live in a country where political liberty and economic opportunity are both possible, though many injustices remain. But we sometimes forget that it is the rule of law that provides the essential foundation for a free society. Our laws, however, are not self-executing. Without lawyers, the courts and the administrative agencies before they practice, contracts would not be binding, harms could be inflicted without remedy, and officials who would abuse their power would be unchecked. But we need more than competent representation from our attorneys--we need them to have a positive professional identity that enables them to serve both their clients and the public interest with distinction.

   Our communities are fraying. Those binding institutions on which we used to rely to knit our communities together, such as local media, nonprofit organizations, and religious congregations, are shrinking or even disappearing. (4) To respond, we need to find ways to build new frameworks and ways to help us preserve and protect the public health and welfare. Like the piers and girders in the bridges make safe travel possible, new or revitalized public or nonprofit institutions require a strong legal structure to work.

   For good policy to become good practice, we need good lawyers in both senses of the word--not only professionally skilled, but also people of principle as committed to their community as they are to their clients. In short, we want our lawyers not only to know the law but also to shape it for the better, and to be at their best when we need their help. That means we all have a stake in how lawyers are educated, as law school is the place where our lawyers form their professional identities. (5)

   The American Bar Association (ABA), which accredits American law schools, has recently adopted a new requirement that American law schools include "substantial opportunities for the development of a professional identity." (6) In the Interpretation, adopted at the same time, the ABA elaborated on the requirement:

   Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities for such development during each year of law school and in a variety of courses and co-curricular and professional development activities. (7) One way to undertake such an "intentional exploration" is to look at lawyers whose life and work can offer law students law positive "values, guiding principles, and well-being practices" which they might emulate. (8) This article is intended to offer students one such lawyer, Louis D. Brandeis.

   For those who do not know him, Louis D. Brandeis was both an eminent Boston lawyer and Supreme Court Justice. But he was born and grew up in Louisville, Kentucky. (9) The Brandeis School of Law at the University of Louisville recently celebrated its twenty-nfth anniversary of renaming itself after him. (10) In light of that anniversary, it may be valuable to review what his legacy might mean for today's law students in light of this new ABA standard. Indeed, the standard implies that to develop a professional identity, it is important to understand what it means to be part of a profession rather than just an occupation. Here is what Brandeis had to say in that regard:

   The peculiar characteristics of a profession as distinguished from other occupations, I take to be these: First. A profession is an occupation for which the necessary preliminary training is intellectual in character, involving knowledge and to some extent learning, as distinguished from mere skill. Second. It is an occupation which is pursued largely for others and not merely for one's self. Third. It is an occupation in which the amount of financial return is not the accepted measure of success. Is not each of these characteristics found today in business worthily pursued? (11) Louis D. Brandeis was a lawyer who exemplified his own definition. After his early education and youth in Louisville, and studying abroad, he came to law school in Massachusetts and ultimately settled in Boston. (12) He became known as "the people's lawyer" for his unpaid advocacy for those in need. (13) He also pioneered the use of social science research to influence courts toward a more just decision, ultimately serving on the U.S. Supreme Court. (14) His legal scholarship effectively created the right to privacy. (15)

   As a lawyer, Louis Brandeis is considered to have been one of the most successful attorneys of his time. (16) His mastery of corporate law led him to become one of the most sought-after business lawyers in Boston and the firm he cofounded, Brandeis and Warren, later Nutter, McClennen & Fish, maintains a thriving practice to this day. (17) During this time, he also devoted much of his energy to performing public service, such as fighting transportation monopolies, creating savings bank life insurance for working families, and arbitrating strikes in the garment industry. (18) In 1916, he was appointed to the U.S. Supreme Court, where he spent the next twenty-three years writing some of the most influential opinions in American legal history. (19) He was unusual in having achieved eminence in two legal roles: practicing attorney and judge.

   [I]f justices were to be ranked, three names would appear on the top of most lists: Chief Justice John Marshall, Justice Oliver Wendell Holmes and Justice Louis D. Brandeis. Similarly, if practicing lawyers were to be ranked, nearly every list would include John Adams, Daniel Webster, Abraham Lincoln, Clarence Darrow and Brandeis. Notably, the only person on both lists is Brandeis. (20) And Brandeis did all this while maintaining a healthy work and home life balance. While he lived most of his life in Boston and Washington D.C., he never forgot his Kentucky roots. He and his wife, Alice Goldmark, are buried under the University of Louisville Brandeis School of Law portico. (21) While on the Court, he was instrumental in aiding the construction of the Brandeis School of Law building. (22) He gave his papers to the School of Law, which contains an extensive collection of writings by and about him. (23)

   The legal profession today is much different than it was when Brandeis practiced law in Boston. There are, however, themes that emerge from Brandeis's life that may be useful for both law students and lawyers seeking a role model to emulate.

   But before we proceed further, we need to acknowledge that while, as explained below, Louis Brandeis was a powerful advocate for those working people who often had no champion, he was not as forceful, either as lawyer or as a Justice, in advocating specifically for equal justice for Black Americans. (24) He suffers by comparison with his fellow native Kentuckian, Justice John Marshall Harlan, who authored the celebrated dissent from the separate but equal doctrine upheld in Plessy v. Ferguson (25) Brandeis did, however, speak in favor of equal opportunity. (26) Before being appointed to the Court, Brandeis worked on a case to challenge racially separate passenger rail cars at the Interstate Commerce Commission. (27) But his actions like these are not at the same scale or vigor as his other work for which he became highly regarded. At the same time, even his critics in this regard point out that his pathfinding briefs using social science research to help make his case enabled others to follow his lead, with the most important example being Brown v. Board of Education (28) where a unanimous Court reversed Plessy to hold that separate but equal public education was inherently unequal. (29) As one of the commentators said:

   [W]e ought to be clear on exactly who and what we purport to celebrate. One can begin to accomplish this by focusing less on contrived images of heroism, and more on heroic virtues. There is tremendous value in idealizing certain heroic attributes--intelligence courage, compassion, integrity, steadfastness--many of which Brandeis undoubtedly possessed. But to do so, we must first acknowledge and adhere to what we already know to be true--that real heroes are rarely heroic all the time. Only then can we freely admire persons such as Louis Brandeis, who exude heroic attributes, without compromising either the dignity of our subject or the legacy of our past. (30) We suggest that, in accordance with this recommendation, it may be helpful for law students to revisit Brandeis as a positive exemplar through a lens that focuses less on his accomplishments and more on the positive attributes of how he lived his life as a lawyer. Even if we might not celebrate all of who he was and what he did, we can still learn useful lessons from his example. Specifically, to return to the new ABA Standard, what was Brandeis's own professional identity, and what did being a lawyer mean to him and his sense of the special obligation lawyers have to their clients and society? (31) How can exploring the values, guiding principles, and well-being practices of his life as a lawyer help guide aspiring lawyers in shaping their own professional identities in a positive way? (32) Here it may be helpful to look at these aspects of his life through two lenses which young law students will themselves be evaluated to become members of the Bar. In addition to passing an examination about their legal knowledge and skills, to become a member of the Bar in Massachusetts and most other jurisdictions--including Kentucky where Brandeis was born--applicants must also demonstrate the requisite "character and fitness" to practice law. (33)

   While character and fitness are framed as minimum...