'Brandeis': A great lawmaker who left his mark

By Jeffrey Rosen

Yale University Press. 256 pp. $25.

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Reviewed by

Chris Mondics

Louis D. Brandeis was born and raised in Louisville, Ky., but the turning point in his life may have come in a German school. Because of the economic panic of 1873, his father, Adolph, saw his tobacco and textile business collapse, and he took the family back to Europe. (They had come to the United States 20 years earlier from Prague by way of Germany.)

The family settled in Dresden. There, Louis was admitted to a realschule, essentially a trade school. Focused on readying students for the workplace, the school nonetheless was steeped in German pedagogy, which emphasized rigorous research and airtight logic. It must have worked, because Brandeis went straight to Harvard Law School (at 18) when his family returned to the U.S.

He became one of Harvard's most accomplished students and went on to a storied career in private practice and later on the Supreme Court. There, he wrote prescient opinions that shaped contemporary legal doctrine on free speech, corporate regulation, and federalism, with broad impacts today.

In his tightly crafted book, Louis D. Brandeis: American Prophet, Jeffrey Rosen, president and CEO of the National Constitution Center, argues that Brandeis brought Jefferson's faith in limited government and small business, as well as his abhorrence of corporate monopoly, into the 20th century.

In his book Other People's Money and How the Bankers Use It, Brandeis described the excesses of investment bankers, famously remarking that "sunlight is the best disinfectant." He proposed that relentless media exposure would help build public consensus against these practices. He also was a fierce advocate for government measures to break up corporate trusts. His ideas helped drive the creation of the Federal Reserve, the Clayton Antitrust Act, and the Federal Trade Commission.

Rosen says that in a concurring opinion in Whitney v. California, Brandeis laid down the basic principles for our modern conception of free speech. Though not unlimited, Brandeis' idea that speech must pose a threat of imminent harm before it could be restricted has become a powerful protection.

After the recession of 2008 and 2009, critics of Wall Street argued for the breakup of big banks. Former Treasury Secretary Timothy Geithner and others in the Obama administration urged more regulation and won the day. Yet Brandeis' skepticism of big government and big business endures and continues to influence contemporary politics and legal scholarship.

Staff writer Chris Mondics covers legal affairs.