AMST188B
LOUIS BRANDEIS: LAW, BUSINESS, POLITICS
Spring 2016
About Louis Brandeis:
Mr. Breen
The public career of Louis Dembitz Brandeis (the portion of his life between 1880 and
1940) offers a rich commentary on six decades of intense social change in America. This was an era of technological revolutions, rising corporate capital, strong demographic shifts, and national political development. Out of this tumult emerged a new alliance of American law, democratic ideals, and social reform, guided by Brandeis and his contemporaries. It included a positive role for business in furthering the “public interest.” This progressive vision mixed with others in a powerful dialogue reaching far into the twentieth century, but with uncertain implications for the present age.
The progressive conception of social justice was influenced by Brandeis’ ideas, but even more by his actions as a public-interest lawyer, business consultant and critic, political advisor, and Supreme Court Justice. Over the past 60 years, even as the progressive tradition came under repeated attack, the prestige of Louis Brandeis has miraculously soared. Understanding his achievements in historical context may clarify his relevance for today’s political and economic debates.
This course focuses on three central topics linking the Brandeis era to our own day: regulating corporate power, protecting civil liberties within a democratic order, and defining the balance between judicial and political authority. The semester starts with Brandeis’ pioneering advocacy work, and will then survey his engagement with business regulation, his theory of industrial democracy, his Zionist leadership, and his appointment to the Supreme Court, leading to the normative and political crises of the New Deal. It will conclude by weighing his importance for our own future, as we look for new permutations of law, business, and politics.
About this course:
During the course of the semester, you will be asked to write three extended essays, each on some important aspect of Brandeis’ life and career. The first two of these essays will be based on your reaction to readings included on LATTE and discussed during class meetings. The third, due near the end of the semester, will involve some original research at the Brandeis library on a topic of particular interest to you. For this essay, you will have the option of choosing from a list of topics
I will provide for you, or formulating a topic of your own.
Required text (available at the Brandeis bookstore):
Nancy Woloch, ed., Muller v. Oregon: A Brief History with Documents

AMST188b, Louis Brandeis: Law, Business and Politics, Spring 2011
2
All additional readings will available on the course Latte site.
Course requirements :
Three Essays (5-7 pages each)--45%
Final Examination—35%
Class Participation—20%
Learning objectives for this course:
Among the stated goals of a Brandeis education, the University has stipulated that “our graduates should follow the example of Justice Brandeis by contributing to the creation of a just society.”
This course encourages you to develop your own critical assessment of this educational goal, based on a close examination of Louis Brandeis’ diverse career as a social advocate. You will need to develop basic critical skills like those applied by Brandeis to his own distinctive work in law, business and politics, blending an appeal to facts with the subtle revision of organizing concepts.
You will acquire knowledge of the repeated challenges faced by Brandeis throughout his career, which shaped his style of advocacy. And you will compare your own notions of social justice to the range of public actions taken by Brandeis to help resolve the complex problems of his day.
Success in this 4 credit hour course is based on the expectation that students will spend a minimum of 9 hours of study time per week in preparation for class (readings, papers, discussion sections, preparation for exams, etc.).
Office hours and contact information:
Monday through Thursday, 10-2, or by appointment, in Brown 324 (x63024)
Email: dbreen91@brandeis.edu
Topics and reading assignments (updates may be posted on the Latte site):
Week 1
January 13-15 Introduction: Louis Brandeis’ Early Life; the Progressive Agenda in
Law, Business and Politics
Week 2
January 20 Controversies about Brandeis as an Advocate.
Readings:
Landis, “Mr. Justice Brandeis and the Harvard Law School”
Spillenger, “Elusive Advocate,” pp. 1447-51

AMST188b, Louis Brandeis: Law, Business and Politics, Spring 2011
3
Luban, “The Noblesse Oblige Tradition in the Practice of Law”
Week 3
January 25 The political critique of property rights.
Readings: Pennsylvania Coal Co. v. Mahon (1922)
Miller v. Schoene (1928)
January 27
Week 4
Advocacy in the shadow of politics
Readings: Spillenger, “Elusive Advocate” (pp. 1451-70)
Woloch, 3-45 (for background)
Lochner v. New York (1905)
February 1-3 The Muller case and the “Brandeis Brief”
Readings: Woloch, 109-33
Muller v. Oregon (1908)
Jay Burns Baking Co. v. Bryan (1924) (focus on dissent)
Week 4
February 8-10 Brandeis on Industrial Justice
Readings: Brandeis, Other People’s Money , 3-15; 49-79
Spillenger, “Elusive Advocate,” (pp. 1470-87)
First Essay Due: Friday, February 12.
Feb. 15-19—Brandeis Vacation
Week 5
February 22-24
Brandeis, Progressive Reform and the “Curse of Bigness”
Readings:
Levy, “The Lawyer as Judge”
Brandeis, “Injured in the Course of Duty”
“Other People’s Money,” pp. 15-35; 139-49

AMST188b, Louis Brandeis: Law, Business and Politics, Spring 2011
4
Week 6
Feb. 29-March 2 Criticisms of Brandeis: Then and Now
Senate Hearings on Brandeis’ Nomination to the Supreme Court
Spillenger, “Elusive Advocate” (pp. 1487-1522 only)
Davis, “How Justice Brandeis Almost Ruined the Country”
Berk, “Learning from Railroad Regulation”
Week 7
March 7-9 Zionist Causes—Political utopias
Reading:
Sarna, “The Greatest Jew in the World Since Jesus Christ”
Week 8
March 14-16 Emergence of speech as a fundamental right
Readings: Fox v. Washington (1915)
Schenck v. United States (1919)
Abrams v. United States (1919)
Schaefer v. U.S. [1920],
Whitney v. California (1927)
Second Essay Due: March 18
Week 8
March 21-23 The Early Essay on Privacy
Readings:
Warren and Brandeis, “The Right to Privacy” (1890)
Olmstead v. United States (1928)
March 25-28: Brandeis Vacation
Week 9
March 30 Ultimate principles for a pragmatic jurist.
Readings:
Blasi, “The First Amendment and the Ideal of Civic Courage”
White, “The Canonization of Holmes and Brandeis”
Wexler, “’The Prophet Stumbles’

AMST188b, Louis Brandeis: Law, Business and Politics, Spring 2011
5
April 4
Week 10
April 6-13
The Brandeis judicial style
Readings: Hutchinson Ice Cream Co. v. Iowa (1916)
Adams v. Tanner (1917)
Dorchy v. Kansas (1924)
Legal Realism meets New Deal Politics
Readings: Woloch, 47-73
Truax v. Corrigan (1921)
New State Ice Co. v. Liebmann (1932)
Liggett Co. v. Lee (1932)
Ashwander v. TVA (1935)
Frank, Law and the Modern Mind, 32
Week 11
April 18-20 Brandeis as Judicial Craftsman
Readings: Erie RR Co. v. Tompkins (1938)
Jaffe, “Was Brandeis an Activist”
Third Essay Due: April 20
May 2 Brandeis in Historical Context: a Summing Up
FINAL EXAM: Date and Time TBA
The University requires all course syllabi to include the following admonitions:
You are expected to be honest in all your academic work. The University policy on academic honesty is section 5 of the Rights and Responsibilities handbook. Instances of alleged dishonesty will be forwarded to the Office of Campus Life for possible referral to the Student Judicial System. Potential sanctions include failure in the course and suspension from the University. If you have any questions about my expectations, please ask.
If you are a student with a documented disability on record at Brandeis University and wish to have a reasonable accommodation made for you in this class, please see me immediately.