The Professions in America a Century Ago: Views of Louis Brandeis
Although this blog was launched because of my concerns about the “future” of the professions, it’s always useful to have a historical perspective. A few weeks ago, I reported my surprise that, five centuries ago, the French essayist Michel de Montaigne characterized the professions of his day in ways that are readily recognizable to our contemporary minds. Now I’d like to consider views and insights put forth a century ago by lawyer Louis Brandeis. These views highlight the ways in which today’s professional landscape resembles and differs from that in the early 20th century.
Louis Dembitz Brandeis is one of the great success stories of American history. The child of immigrants, raised in Louisville, Kentucky, in modest circumstances, Brandeis was an outstanding student at the Harvard Law School—receiving the highest grades ever achieved. He went on to become a highly successful attorney in Boston; and once he had established his own professional standing—often serving as attorney to wealthy businesspersons—he became a strong advocate for the rights of the less wealthy and less powerful. Indeed his decidedly progressive politics were a factor in President Woodrow Wilson’s decision to nominate Brandeis to the Supreme Court in 1916. Partly because of his political leanings and partly because he was the first Jewish person nominated to the Court, Brandeis’ confirmation hearings were unusually contentious. Brandeis went on to serve with distinction on the Court for over twenty years. He has now been honored in a variety of institutions—perhaps notably as the “patron saint” for the University in suburban Boston that bears his name.
As a student of legal history, Brandeis noted that the law held an especially important place in the United States. Not only was the United States heir to the English tradition of a government based on laws and not on men, with a long history of precedents and decisions on which to draw; but because the U.S. did not have a nobility or a rigid class system, and did have a written Constitution, lawyers were already recognized as especially important figures when Alexis de Toqueville visited the U.S. in the early 1830s. As Brandeis put it, “the lawyer has played so large a part in our political life in that his training fits him especially to grapple with the questions which are presented in a democracy.”
Brandeis went on to describe the traits for which lawyers were valued. Their training sharpened their memories and their reasoning faculties. But unlike pure logicians, the reasoning faculties of legal practitioners were always tested by experiences and invariably geared toward practical ends. Lawyers have to operate in real time—they cannot put off a decision until they have obtained “more data” or had more time to contemplate or consult.
Brandeis went on to describe the traits that were especially important—and especially desirable—for lawyers. They should be judicial in attitude, learn to see issues from various sides, and observe human beings even more keenly than they observe objects. Because of these skills and attitudes, they were best equipped to become advisers—and so naturally gravitated to positions of power and influence in their community and in the government. As he told a group of Harvard students in 1905, “It is as a rule …far more important how men (sic) pursue their occupation than what the occupation is.”
Brandeis came of age at the same time that America was becoming an industrial power on the world scene. Corporations and their leaders were assuming increasingly dominant roles in the society. Indeed, as a leading lawyer on the national scene, Brandeis knew many of these leaders personally, and this experience led Brandeis both to think about the risks to the role of the lawyer, and the opportunities that were afforded.
Having drawn on the insight of de Toqueville, an early visitor to America, Brandeis also cited James Bryce, an English observer who came to the United States in the 1880s and wrote an influential book called The American Commonwealth. Tracing de Toqueville’s own trajectory, Bryce noted, “Sixty years ago there were no great fortunes in America, few large portions, no poverty. Now there is some poverty… and a greater number of gigantic fortunes than in any other country of the world.” (p. 745) He went on to sound a warning: “Lawyers are now to a greater extent than formerly business men, as part of the great organized system of industrial and financial enterprise… And they do not seem to be so much of a distinct professional class.” Brandeis underscored this point: “Able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear too much of the ‘corporation lawyer’; and far too little of the ‘people’s lawyer.'”
Brandeis was clearly concerned by this state of affairs. But he also discerned an opportunity—both for business and for the law. As he described it, professions were characterized by three features: 1) the necessary training is intellectual in character, involving knowledge and learning, not just skill; 2) the work is pursued largely for others and not merely for oneself; and 3) amount of financial return is not the accepted measure of success. Brandeis called for a science of management, where the criterion for success is excellence in performance in the broadest sense—for employees, customers, and the broader surrounding community—not simply the making of money. And to make his case in a concrete manner, Brandeis describes an individual (shoe manufacturer William H. McElwain) and a family of merchants (the Filenes) who have “accepted and applied the principles of industrial democracy and of social justice.” Should these attitudes and behaviors become the norm, then “big business” will mean business
“big not in bulk of power, but great in service and grand in manner.”
Brandeis ended his analysis with a message to aspiring lawyers: “The next generation must witness a continuing and ever increasing contest between those who have and those who have not… Nothing can better fit you for taking part in the solution of these problems than the study and preeminently the practice of law.”
As is often the case when one turns to history, the themes put forth by Brandeis over a century ago have a surprisingly contemporary resonance. Our political system is filled with lawyers, but it is partly a revulsion against lawyers that has led to the election of a self-declared successful businessman. Donald Trump is highly dependent on the lawyers who have represented his personal and financial interests and yet he rarely misses an opportunity to castigate the judicial system. My friend Ben Heineman has written a timely and important book The Inside Counsel Revolution in which he describes the crucial position that is currently occupied by the lead lawyer(s) in global corporations.
Business still aspires to become a recognized profession, while the law struggles to retain its professional status. One cannot help wondering what form these discussions will take 600 years after Montaigne penned his insightful essay and 200 years after Brandeis delivered his trenchant and inspiring talks.
–The Opportunity in the Law, Phillip Brooks House, talk to Harvard Ethical Society, May 1905.
-Brown University Commencement Day, published in System, October 1912 .