Thurman Arnold: A Biography.

• Author: Fenster, Mark
• Position: Book review

THURMAN ARNOLD: A BIOGRAPHY. By Spencer Weber Waller. New York and London: New York University Press. 2005. Pp. xi, 273. $40.

INTRODUCTION

What types of lawyers are most worthy of a professional biography? The question requires one to pose a threshold for biographical worthiness, and here is mine: a legal professional whose practice or career path has resulted in a life that even non-family members would find interesting and important. Judging by a list of memorable legal biographies, the types of lawyers most eminently biographable are influential judges, (1) political lawyers (including those who become politicians), (2) great trial lawyers (especially criminal trial lawyers), (3) a few very significant government officials, (4) and the grand legal academics who define a generation's scholarship. (5)

The list is small for at least two reasons. First, lawyers are agents, rather than principals; (6) and second, they engage in specialized and highly repetitive work that is typically dull in its quotidian routines and difficult to represent in an engaging manner. (7) Even appellate judges, who appear to author final, binding versions of the law, lead mostly cloistered professional lives with which biographers must struggle mightily to create something more than a grim, dreary account. (8) But the small subset of lawyers and judges who make great biographical subjects forge influential careers that are lived in public. They provide engaging narrative arcs, frequently with great heights and calamitous falls, always punctuated by compelling passages and dramatic moments. The subjects of these biographies inspire and teach; they constitute models by which those of us who will never warrant our own biographies measure and lead our lives--perhaps with hopes that we will be like them, or perhaps in order to distinguish ourselves from them. And their lives constitute materials that biographers can use to construct arguments about the past and present, as well as about the value and nature of the biographical subject.

The career and life of Thurman Arnold (1891-1969) may not quite lend themselves to this kind of narrative treatment. From the time of his Harvard Law School graduation in 1914 until his death in 1969, Arnold lived a variety of lawyerly lives: a small-town attorney and politician, a Yale law professor, an assistant attorney general during the latter part of the Roosevelt era, a federal appellate court judge, and a founding partner of what is now known as Arnold & Porter, the powerful Washington firm. Three of these five incarnations--academic, trustbuster, and private attorney--were interesting, if not exactly riveting. His work in those roles was influential and well-regarded, though not world-defining or world-changing. Neither his professional nor his private life was stained by great adversity, defeat, or scandal; they were unmarked by grand triumphs as well. Rather, his varied career was steady, solid, and professional: He was a brilliant, if unfocused and undisciplined academic during the heyday of legal realism. As the leader of the Antitrust Division of the Justice Department, he was unquestionably productive and a vigorous enforcer, though his achievements there were as much bureaucratic and managerial as they were personal and dramatic. He was a beloved presence at his firm and did good while also doing very well. He was happily married for most of his adult life to the former Frances Logan, with whom he raised their two sons. And although he was a heavy social drinker, his drinking was neither debilitating nor significantly beyond the norms of his era. Viewed in sequence, these segments could constitute parts of an interesting life but do not naturally cohere into the kind of narrative one might expect or want from a biography--neither the content of Arnold's life nor the form of its trajectory immediately jumps out of the historical record.

Spencer Weber Waller's Thurman Arnold: A Biography (9) thus faces the problem of making this life stand out, and this Review seeks both to evaluate his rendering--which it does in Part II, after providing more details of the raw materials of Arnold's life in Part I--and to use Arnold's ideas to reflect on the endeavor of the legal biography. Although other works bearing on Arnold's life have been available, (10) Waller's competent, readable chronicle will provide an authoritative source of information and satisfy the desires of general readers interested in accomplished legal lives and seeking a straightforward account of Arnold's career. But Waller's book will also dissatisfy legal academics and historians, as well as general readers who want a more in-depth treatment of the man and his work. It does not develop and shape the raw materials of Arnold's life into a meaningful whole; nor does it fully connect Arnold's professional career over the final three decades of his life with the academic works that enabled his permanent move to the heights of legal practice in the federal government and private practice. The book falls short, ultimately, in making the case for why Arnold's career, unlike that of the vast majority of thoughtful, accomplished attorneys, deserves biographical treatment. The highlights of an excellent legal career are well-described in the book; absent, though, is a sense of Arnold as a person and of his place within the broader historical period in which he lived and worked.

Part III identifies and briefly explores an irony underlying any attempt to offer a biography of Thurman Arnold. Arnold's academic and popular writings during the 1930s--which not only critiqued what he saw as the foolishness and ill effects of legal formalism and political conservatism, but also recognized the symbolic authority of legal forms and conservative beliefs and the need for any reform movement to respect and appropriate them--force us to reconsider the entire project of "legal biography." Arnold's life and work reveal the ways in which the forces of modernity--forces that Arnold celebrated in his work and helped unleash in the New Deal and at Arnold & Porter--call into question the "rugged individual" that biography requires. Arnold's critical realist project sought to uncover the historically contingent and ideological nature of the classical liberal conception of the subject who authors his own individual life; but at the same time, the culturalist side of Arnold's work explains why this conception remains necessary, given the symbolic nature of a legal system and the deeply felt needs we have in residual concepts like the historically transcendent individual.

1. THE OUTLINE OF A LEGAL LIFE

   Arnold's life, like his career, neatly divides itself into fairly discrete, chronologically organized segments that track his rise from the small-town, turn-of-the-century West to national prominence. (11) Born in Laramie, Wyoming, to a prominent local attorney, Arnold ventured east to college (graduating, ultimately, from Princeton) and remained away for law school. He practiced law in Chicago without much success, enlisted in World War I, and then returned to Laramie, where he went into practice with his father and entered local and state politics with varying success (as a Democrat in a state that was overwhelmingly Republican). Accepting an offer from a client and law school acquaintance to become dean at the West Virginia University Law School, Arnold found his niche and breathed life into the law school, its faculty, and the state bar.

   While in West Virginia, Arnold quickly caught the eye of Ivy League talent scouts by engaging in research on the hot topic of the moment and by using the hottest methodology of the day--civil procedure, as it was practiced on the ground by state courts and as it was studied by academics through basic quantitative empirical studies. He soon accepted an offer from Yale (in the process turning down offers from Harvard and Wisconsin, the latter for another decanal position), where he joined like-minded legal realists. Arnold's writings during this period, first in academic articles and then in two books (the first of which pieced together the threads of his articles, the second of which reiterated the first book using new examples), (12) were the basis of his academic reputation and, later, his minor fame as a public intellectual of the New Deal. While at Yale, Arnold spent his summers from 1933-36 and then the full academic year in 1937-38 working in various capacities for the Roosevelt administration as an attorney for New Deal agencies and in the Philippines advising Governor General (later Supreme Court Justice) Frank Murphy.

   He moved permanently from New Haven to Washington in 1938 to head the Antitrust Division in the Department of Justice, leading the division to unprecedented levels of enforcement activity. In that position, Arnold used public speeches and popular articles to advance his vision of antitrust law as a weapon to protect consumers from the anticompetitive actions of what he characterized as the "bottlenecks of business." (13) He lasted in the job until 1943, when he wore out his welcome in the Roosevelt administration by antagonizing two groups whose influence in the White House proved too much even for Arnold's political and bureaucratic capital: labor unions, whom he tried vainly to prosecute for antitrust violations, and war suppliers, whose business associations with the cartelized industries of Nazi Germany he tried to expose and to use as the basis for antitrust enforcement. The President offered, and he accepted, a seat on the D.C. Circuit Court of Appeals as consolation for his sacking. But after two unmemorable years, he abandoned the deliberative quiet and life tenure of the federal bench for the influence and excitement of private practice.

   Despite some initial fits and starts, his departure from government service proved to be an exceptionally good move for Arnold. He partnered with Abe...