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Learned Hand - Judge Spotlight Series

Learned Hand - A Philosopher of the Law

Learned Hand was a federal Judge in the United States court system for over 50 years, and is one of the most well-known judges in American history. He possessed a gift for the English language that is documented not only in his writing but also in his spoken word. Likewise, he aggressively fought for the freedom of others to express their thoughts, and whether you agree with his philosophy, Learned Hand has undeniably cast layers into the structure of our democracy.

People view judicial clerkships and judgeships in such high regard because the judge is the one that "writes the story" of each case. They set precedent for future litigation of similar substance, and they must sort the cruft that is provided to them by the two attorneys to arrive at a singular picture of the substance in question. From there, the judge must identify the law that the case "turns on" (without the assistance of Emmanuel's Course Outlines, or that smart 3L's case briefs from last year). It's true, that we see these cases in mass quantities as we learn the law, and the case guides us through the reasoning that lead to the final judgement. To be the one applying the law requires a vast intellect of the law as well as a philosophical framework that they can apply to the law that represents what they believe to be American values.

Billings Learned Hand, born and raised in Albany, lived the juvenile life that one often hears about in the stories of history's brightest innovators. Bored by the pace of school, and a self-proclaimed outsider, Hand graduated with top honors and elected to go to Harvard. He eventually chose a path of philosophy, and was taught by one of the great American philosophers, George Santayana. Though he was looked down upon by his classmates for being a straight-edge, he was respected as an intellectual leader at the school.

"The mid-day sun is too much for most eyes; one is dazzled even with its reflection. Be careful that too broad and high an aim does not paralyze your effort and clog your springs of action."

- Class Day Oration, 1893

After graduating with unequivocal honors, and delivering the oration for the class in 1893, Learned Hand, like many others, felt the pull of law from his family ties and natural gifts. Though he knew that he was a gifted philosophical mind, he did not receive any encouragement from those close to him to pursue philosophical endeavors. Hand went back to Harvard for Law School and found it much more socially stimulating. He felt himself to be more like-minded with the student body, and eventually became an editor on the Law Review at the school.

Learned Hand packed up from Cambridge and headed back to Albany upon graduation in 1896. He began working as a lawyer and quickly rose to partner at a local firm by 1899. He found the work dull and longed for the appellate work he had become accustomed to during his time in moot court at school.

The start of the 1900s was a turning point for Learned Hand. He became a more active writer, met and married his wife, Frances Fincke, and eventually became one of the youngest federal judges ever appointed in 1909 at the age of 37. He had originally applied for a federal judgeship in Manhattan in 1907, but was denied. He spent time as an outspoken republican in the area in order to gain more support, and eventually pulled the strings to get the next available appointment from President Taft in April of '09.

Hand sat for the Souther District from 1909 through 1924. In the early days, he was nervous about some of the more complex specialties, and tried mostly cases relating to bankruptcies and patents. He found patent law to be fascinating, and found himself in the middle of a landmark decision regarding a "miracle drug" blood pressure stabilizer made of mostly the adrenaline of various animals. 

To give you an idea as to how slow patent applications can move, the original filing was in 1900 by a man named Jokichi Takamine, and was a refinement of previous work. The question became whether a naturally occurring substance could be the subject to a patent. Learned Hand eventually ruled that it could be as long as it was purified or refined in some way. He is famously quoted with the following. 

“I cannot stop without calling attention to the extraordinary condition of the law which makes it possible for a man without a knowledge of even the rudiments of chemistry to pass upon such questions as these.”

A Pioneer of Free Speech

Hand became well-renowned in large part because of his efforts in supporting free speech, and his landmark decision came in 1917 in Masses Publishing Co. v. Patten. The Masses was a by-mail antiwar journal at the time, and were immediately subject to violation of the Espionage Act of 1917, which prohibited speech that advised the reader to violate the law. Learned Hand ruled that while the journal promoted antiwar sentiment, and supported those who refused to serve, it did not tell anyone that they must break the law.

"To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government."

- Learned Hand, 1917

This was a monumental case for American politics because of the war-driven political climate of the time. Hand interjected the conversation that was dominated by government propaganda, and "with us or against us" sentiment to say, "hey, the freedom to dissent the government is a safeguard for freedom". And its true. You may not agree with those who protest the government, you may even strongly disagree with the moral fabric behind that protest. But freedom hinges on our acceptance of others' to speak their beliefs, as long as they stop at the point of inciting a violation of the law.

Later Years

Hand was revered as a judge, and after becoming a vocal anti-isolationist in 1939, applied for a vacancy in the Supreme Court in 1942. Sadly, he was not appointed by Roosevelt, and many think that there may have been bad blood that caused that to fall through.

On May 21, 1944 Hand gave a speech at an event in Central Park that became cemented in American History.

"What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest."

Like many of the great philosophers of history, Hand knew that it was impossible to define something as foundational as American Liberty, nevertheless, he spent his life fighting for the kingdom that he saw in liberty, and we are lucky to have him as a part of our legal history.


Ted Rand