4 minute read
My Education: Postscript
(April 29, 2021)
If I mIght try to summarIze my vIew of the thrust of my Brandeis education, it was designed to help brighten and improve, with knowledge, truth, and human endeavor, the very imperfect world with which my cohort was presented. The Hebrew term tikkun olam, meaning “repair the world,” sums up the Judaic concept that holds that we Jews bear responsibility for not merely our own moral, spiritual, and material welfare, but also for advancing the welfare of society as a whole. And indeed, for my generation, coming out of the Holocaust and World War II periods, there was much we needed, and still need, to “overcome” and repair.
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On the heels of this orientation, I arrived at the University of Chicago Law School, where seeking truth through very skeptical eyes was detached from the idea of seeking societal and human improvement . The study of law seemed more a matter of trying to keep society functioning fairly and cohesively in the face of its natural tendencies toward disruption and incoherence. Thus it was a
difficult transition for me. I think of my very dear contracts professor, Malcolm Sharp, whose favorite exclamation in response to any student’s comment in class was “dubious.” For Sharp the task was always trying to unravel the most difficult legal puzzles in the face of the most intractable difficulties. At the same time I was surprised to learn that Sharp had been a volunteer lawyer on the appeals in the Julius and Ethel Rosenberg espionage case.46
Another thing I did not know when I decided to attend the U of C Law School was that it was then in the midst of becoming the center of an emerging “law and economics” movement, whose major herald was Aaron Director, a non-lawyer economist. The intellectual thrust of the movement was to test legal precepts and concepts against what the movement’s sages deemed economic principles and realities. Director was a Russian-Jewish immigrant who came to the United States at age thirteen with his family, in 1914, and settled in Portland, Oregon. He excelled as a student, and along with his childhood friend and, later, artist Mark Rothko[witz], he received a scholarship to Yale.
After college, Director gravitated to a lifetime in academia at the University of Chicago. His younger sister, Rose, was an economist as well, and was married to U of C free-market economist Milton Friedman. Director is credited with persuading the U of C Press to publish economist Friedrich Hayek’s antisocialist tract The Road to Serfdom in 1944. I had read it at Brandeis in an effort to learn how another side saw the world. By 2020 it had sold over two million copies. A central thesis of the book is that it was socialism that was responsible for the emergence of Hitler, and that government intervention in the economy was a prescription for disaster and tyranny. Somewhat ironically, in 1974 Hayek received the Nobel Prize
46. See Sharp,Was Justice Done? The Rosenberg-Sobel Case (1956); Krash, “Malcolm Sharp and the Rosenberg Case: Remembrance of Things Past,” University of Chicago Law Review, Vol. 33: Iss. 2, Article 4 (1966).
in Economics at the same time as did his polar opposite, Swedish economist Gunnar Myrdal, who had a social democratic governmental interventionist perspective regarding national economies. In 1958 Myrdal published Beyond the Welfare State, in which he argued in favor of the development of a “welfare world,” where there would be a redistribution of wealth on a global scale.
As for Director, he was involved in the establishment of the Journal of Law and Economics at Chicago and mentored many conservative judges and economists during his lifetime. He lived to be 102.
As for me, just as I had pondered whether I attended the “wrong” summer camp (see page 191), I wondered whether I chose the wrong law school. For example, at that time, Yale had a progressive left-wing bent. But on reflection, I concluded that in both cases I was better off being where my assumptions were challenged rather than taken for granted, so that I could then better defend them, and also be prepared to modify them in the face of compelling evidence.
The situation might be better understood from what occurred in my first-year class in criminal law, with the great Francis Allen presiding. The first case assigned was Regina (the Queen) v. Dudley and Stevens, 1884, involving a shipwreck of a British boat that resulted in the captain, his mate, and a seventeen-year-old cabin boy being set adrift in a rowboat. They were starving, and at some point, the captain and mate killed and ate the cabin boy. After their rescue, the two survivors were tried for murder and were defended on the basis of precedent, arising under the law of the sea described as “necessity.” In the end, the defendants were convicted, but they served only six months in prison. Relatedly, they had the weight of public opinion on their side.
While the case has both teaching and learning value, it also starkly presented to us the abominable choices that life might present, and that life in the law was not designed to improve the world but at best it dealt with the aftermath of its horrors. And often it served to make matters worse. See, for example, Dickens’s Bleak House.
Indeed, my wife, Linda, with whom I have practiced law and lived most happily for more than forty years, suggested to me that studying the case also gave law students an insight into who our classmates (boatmates?) might be. “Woe unto you, lawyers!” (Luke 11:52).
