Adjudication in the Age of Disagreement
John Fabian Witt, Adjudication in the Age of Disagreement
Adjudication in the Age of Disagreement
John Fabian Witt 0
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It is a great honor to deliver the Hands Lecture on the 125th anniversary of
this great court.1 I would like to thank Judge Wesley for inviting me to be
here; Chief Judge Katzmann for presiding over these wonderful 125th
anniversary events; and all my mentors, teachers, and friends on the court, on
the federal district courts, and at the bar that practices in the Second Circuit.
Let me cut to the chase. This has been a great court for a very long time—
it has been a court of superlatives. I plan in fact to make this greatness the
core of my remarks here today. And what else could I do in a lecture
delivered here in the court’s own beautiful courtroom? And on its birthday
no less! It would be churlish to pursue any other course.
This is the court of the most influential lower federal court judge of the
twentieth century, Billings Learned Hand, who served on the Second Circuit
from 1924 to 1961 and on the Southern District of New York bench before
that.2 It is the court of Hand’s respected cousin, Augustus, who served from
1927 to 1954.3 For decades now, no lecture like this has been complete
without the recitation of the Circuit’s basic catechism: “[Q]uote Learned, but
follow Gus.”4 Together, the Hands made the Second Circuit first among its
This is a court of extraordinary characters. The iconoclast Jerome Frank
graced this bench, almost certainly the only federal judge in history to publish
a controversial Freudian interpretation of law before his confirmation.5 And
* Allen H. Duffy Class of 1960 Professor of Law, Yale Law School. Many thanks to Thomas
Scott-Railton for superb research assistance and intellectual inspiration.
this is the court of Henry Friendly, who sat on the bench from 1959 to 1986,6
for whom the great Thurgood Marshall coined a twist on the famous homily
about the Hands, “Quote Friendly, and follow Friendly!”7
Justice Marshall, who himself sat on the Second Circuit, asserted that this
court “stands out among all other courts of appeals” because of its “unrivaled
reputation for judicial craftsmanship.”8 One observer has asserted that the
Second Circuit is simply “a great appellate court” of the United States,
claiming pointedly (and perhaps impolitically) that it sits “not in Washington
but in New York.”9 Some well-informed lawyers went so far as to say that
the Second Circuit under Learned Hand was “the strongest tribunal in the
Overkill? A little much, I am sure you will agree.
Insiders here today will note that I am skipping over at least one discordant
note in the storied Second Circuit of the interwar and midcentury years. I
promised the honorable conveners of today’s lecture that I would not even so
much as mention Judge Martin Manton, the senior judge of the Second
Circuit in the 1920s and 1930s.11 I will not dwell on Judge Manton, nor on
the errors that led to his bribery conviction,12 nor even on the ongoing
mystery of Manton’s old portrait and whether some district judge still retains
it, apparently as a reminder of the fallibility of those who sit in review of
district court decisions. These matters would be inappropriate for an
occasion such as this.
But in truth, it is easy to pass over Manton. To praise this court is to take
a path well worn for over a century now by observers who knew what they
were talking about.
And that raises an interesting question. What explains all the praise for
this court? What makes a tribunal strong? What role do judges play in our
system of governance such that the Second Circuit’s particular virtues hold
such a distinctive place in the tradition of adjudication?
In the time I have here with you today I would like to offer the beginnings
of an answer. It does not lie in the distance between the court’s traditions
and Manton’s conduct. That would be too easy. At base, I think the answer
lies in something far more subtle and interesting: the relationship between a
central tradition of the Second Circuit and one of the great questions we face
as a society today. That question is how to deal with disagreement.
I. LAW AND DISAGREEMENT
Election years are perennial occasions for disagreement. This election
year, from Brexit to the American presidential campaign, the disagreements
seem more substantial than usual.
For two decades after the fall of the Berlin Wall, the scope of political
disagreement shrank. Triangulation was the political watchword of the day.
The end of history seemed to have arrived, or at least some thought so.13
Well, history is back. It is a signal feature of our politics today that the
policy space on economic and social questions seems to be growing once
again. Partisan polarization is at an all-time high.14 Criminal justice is once
again a subject of intense disagreement. College campuses are as rife with
dissent and turmoil as they have been in my lifetime. A new social movement
has pushed into our public life a set of claims about racial justice—and critics
have pushed back just as hard. The boundaries of the nation’s identity are
contested in ferocious disagreements over immigration politics. And the rise
of inequality has touched off a renewed debate about the distribution of
Of course, disagreement is essential in a dynamic society like ours. We
thrive off disagreement. It is the lifeblood of democratic politics. But it also
poses risks. Which brings us back to the Second Circuit and its traditions.
A society in which conflict among ideals is both a sign of health and a
persistent danger requires institutions capable of channeling disagreements
into constructive debate and provisional solutions.
At its heart, this is what the law is. The law is a distinctive way of dealing
with disagreement. The Second Circuit’s reputation lies in its embodiment
of a particularly important tradition in the management of social conflict.
The modern Second Circuit has its beginnings in 1891, when Congress
enacted the Evarts Act and created the circuit courts of appeals.15 But a
different anniversary, somewhat deeper in the past, illustrates my point.
Exactly five hundred years ago, the English lawyer Thomas More published
his great work of fiction, Utopia.16 More had no lawyers in Utopia, where
disagreements were few and far between.17
Grant Gilmore, one of the great writers and thinkers on the law in the
twentieth century, captured the same idea when he wrote that “in Heaven
there will be no law”; “in Hell,” by contrast, “there will be nothing but law,
and due process will be meticulously observed.”18
What More and Gilmore had in mind was the idea that a perfect world does
not need law at all. Law is for our fallen world with its irreducible
disagreements over fact and value.
II. ADJUDICATION IN THE AGE OF ADMINISTRATION
But law is not the only such mechanism. The special role of the law as an
institution for managing disagreement comes into view when we start with a
seldom-made but important observation. From the historian’s point of view,
the federal courts of appeals arrive out of time.
In the era of the nation’s founding, the Judiciary Act of 1789 set in motion
the iconic era of court-building in the United States.19 For a century
thereafter, the American state in peacetime was principally a state of courts.20
Just think of the vital decisions of American statecraft in the nation’s first
century. Think of McCulloch v. Maryland21 upholding the national bank; the
Dartmouth College Case,22 which prevented the states from disrupting
vested private interests; or Charles River Bridge,23 which cut the other way
and established a new pattern for nineteenth-century economic development.
Think less happily of Prigg v. Pennsylvania,24 affirming the federal
government’s authority over fugitive slaves, and then the Dred Scott25
decision, in which the U.S. Supreme Court utterly failed in its effort to
resolve the problem of slavery for the nation.
The absence of powerful administrative institutions meant that in the
nineteenth century, courts were the infrastructure of American governance.
The powerful courts of the nineteenth century, however, were
emphatically not lower federal courts. Of the cases I have just reviewed, all
but one came to the Supreme Court from the state supreme courts. The
exception is Dred Scott, and that case probably ought to have been barred as
a collateral attack on a state court’s prior final judgment.26
The lower federal courts arrived as major players on the national stage only
at the end of the nineteenth century. They are modern institutions, not
ageold ones. Not until 1875 is there general federal question jurisdiction in the
federal district courts.27 And it is not until the Evarts Act of 1891 that we
have the circuit courts of appeals whose founding we mark this year.28
This timing presents a paradox. In the historical sweep of American
institutions, 1891 marks the advent of a new administrative way of managing
social problems. New immigrant populations from eastern and southern
Europe, combined with a massive transformation in the shape and scale of
the economy, produced new controversies and new grounds for dissent. In
response, American politics produced a new kind of institution: the
bureaucratic agency.29 Insurance commissions, railroad regulation bodies,
and public utility commissions sprang up in state governments after the Civil
War.30 At the federal level, Congress created the Interstate Commerce
Commission in 1887;31 the Federal Reserve in 1913;32 and the Federal Trade
Commission in 1914.33
Congress created the Office of the Superintendent of Immigration in
189134—the very same year it established the circuit courts of appeals. And
in the subsequent decades, Congress and the President cooperated to establish
an “alphabet soup” of agencies and offices.
The federal circuit courts of appeals, in short, arrived simultaneously with
the dawn of the administrative state. This is a crucial fact—perhaps the
crucial fact—for understanding the place of the Second Circuit and indeed
all federal circuit courts of appeals. Administration promised to deliver
technically superb decisions keeping with the cutting edge. Disputes would
be resolved not in the courtroom but in offices equipped with slide rules and
manned by mathematicians and engineers. As Hand’s idol, Oliver Wendell
Holmes Jr., said in 1897, “the man of the future” seemed to be not the judge
but “the man of statistics and the master of economics.”35
In the midst of this, Congress took the anomalous step of creating (and
then repeatedly expanding) a new set of federal courts in the common law
tradition set cheek by jowl with the institutions of the administrative state.
The Second Circuit became a principal carrier of the distinctive claims of
adjudication in the era of regulation.
What are these distinctive features of adjudication? In 1891, members of
Congress aimed to create an intermediate appellate body with multimember
panels in an effort to produce a particular kind of deliberative and reasoned
decision. An older body of circuit courts existed and had existed since the
Judiciary Act of 1789.36 Those circuit courts had the power, among others,
of appellate jurisdiction in cases coming out of the federal district courts.37
Only in 1869 did the circuit courts get judges of their own, when Congress
established one circuit judgeship for each of the nine federal judicial
circuits.38 Circuit judges sat in combination with the district judge from the
relevant district court, the relevant circuit justice from the Supreme Court, or
both.39 But as Supreme Court Justices began to serve on circuit duty less
frequently, critics worried that the existing circuit courts gave district court
judges too much power over their cases.40
The Evarts Act took over the old circuit courts’ appellate jurisdiction and
added an additional circuit judge to each circuit.41 The new circuit courts of
appeals would be staffed by generalist judges. They would take up
disagreements (we call them “cases and controversies”) and decide them on
the basis of general and prospective rules. Like common law courts since
time immemorial, they would—for the most part—operate after the fact of
disagreement, not in anticipation of it. The new courts, moreover, would
decide disagreements through the articulation of reasoned decisions whose
basic rationales would shape the law for subsequent cases. And they would
do all this under a distinctive legitimacy imperative—namely, that they
confine their decisions to those questions that needed to be decided to resolve
a live dispute with real stakes.
All of this was quite radically different from the vision of the emerging
administrative state. In the world of bureaucracies, expert rulemakers would
rely on specialized authority to formulate rules in advance of any particular
controversy. The operative logic would be the logic of the engineer or the
manager or the social worker. It would be rooted not in the traditional
wisdom of bar and bench but in the distinctive disciplinary claims of the new
sciences of modern management. James Landis, former dean of Harvard
Law School and chairman of the Securities and Exchange Commission
beginning in 1934, wrote that the administrative process was his
36. See Ch. 20, §§ 4–5, 1 Stat. 73, 74–75.
37. See id. at § 11, 1 Stat. at 79.
38. See Act of Apr. 10, ch. 22, § 2, 16 Stat. 44, 44–45 (1869).
39. See id. But see 28 U.S.C. § 42 (2012).
40. See Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to
the Function of Review and the National Law, 82 HARV. L. REV. 542, 550 (1969); Judith
Resnik, Tiers, 57 S. CAL. L. REV. 837, 851 & n.39 (1985); see also MORRIS, supra note 11, at
41. MORRIS, supra note 11, at 93.
“generation’s answer to the inadequacy of the judicial and the legislative
processes.”42 For Landis, judges were “jacks-of-all-trades and masters of
none”;43 they simply were not up to the work of managing modern social
These modern, rationalized forms of management had their effects on
adjudication in the Second Circuit. How could they not?
Consider a case that my students and I read just a few weeks ago, United
States v. Carroll Towing Co.,44 decided by the Second Circuit in 1947, and
one of Hand’s most famous decisions. In the midst of the Second World
War, New York Harbor was the busiest port in the world.45 Each day, 575
tugboats directed nearly as many oceangoing merchant ships and countless
barges along a waterfront of some 1800 docks, piers, and wharves.46 It was
said that on some of those days you could practically walk across the water
to Staten Island from Manhattan, or so it seemed anyway.47 And on one of
those days, one of the 575 tugs made a mistake. While moving barges in the
Hudson, a tug owned by the Carroll Towing Company accidentally dislodged
an entire line of barges, which then began to drift in the river’s notorious
currents.48 One of the barges, owned by the Conners Company and carrying
a load of grain belonging to the U.S. government, ran into the underwater
propeller of a nearby vessel.49 The barge took on water and sank.50 The
United States sued the Carroll Towing Company to recover the lost value of
the grain, but Carroll Towing had a defense. Carroll Towing said the Conners
Company ought to have had a man on board—a bargee in the language of the
waterfront.51 Had such a person been there on the barge, he would have been
able to identify the leak and rescue the barge and its cargo, or at least so said
Hand.52 This was contributory negligence, and Carroll Towing insisted this
meant it was not liable for the loss of the grain.53
Carroll Towing is the kind of case that made the Second Circuit famous.
Hand’s achievement, Judge Friendly later said, arose out of “the great way in
which he dealt with a multitude of little cases.”54 Hand saw in the ordinary
humdrum facts of Carroll Towing an occasion to make an important point
about how we might try to administer disagreements in the modern world.
Holmes once said of the law that in it one can sometimes catch a glimpse of
42. JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 46 (1938).
43. Id. at 31.
44. 159 F.2d 169 (2d Cir. 1947).
45. See RICHARD GOLDSTEIN, HELLUVA TOWN: THE STORY OF NEW YORK CITY DURING
WORLD WAR II 55 (2010); see also STEVEN H. JAFFE, NEW YORK AT WAR: FOUR CENTURIES
OF COMBAT, FEAR, AND INTRIGUE IN GOTHAM 240–41, 244 (2012).
46. GOLDSTEIN, supra note 45, at 55.
47. Id. at 58.
48. Carroll Towing, 159 F.2d at 170–71.
49. Id. at 171.
52. Id. at 172.
54. DAVID M. DORSEN, HENRY FRIENDLY: GREATEST JUDGE OF HIS ERA 123 (2012).
the universal truth, “an echo of the infinite.”55 And at the bottom of Carroll
Towing, through the murky waters of the North River, Hand saw something
deep. He saw the basic logic of a universal decision-making formula. Was
Connors negligent not to have had a bargee on board? The answer, Hand
reasoned, turned on a general formula of the relative costs and benefits of
having a man on the barge: it would be a function of (
) the probability of
loss absent the relevant precaution, (
) the gravity of any resulting injury, and
) the burden of the precaution at issue.56
The cost-benefit analysis that Hand articulated here is a core algorithm of
the modern administrative state. Hand’s formula imagines a decision-maker
resolving disagreement by reference to a panoptic policy judgment. The
ambition of his cost-benefit test is awesome in every sense of the word. The
judge in Hand’s formula must assemble the full array of social costs of an
action and compare them to the complete run of social benefits. The idea is
to master the tricky currents of the New York Harbor and to make an
allocation of liability that is most conducive to the management of the New
York waterfront—one in which cost-justified precautions, and only
costjustified precautions, are taken. A circuit judge applying such a formula acts
as a kind of heroic administrator, confident in her own expertise and capacity
to account for society’s welfare. The social-welfare perspective of modern
administrators becomes the measure of the dispute between the parties.
But there is a funny feature of the Carroll Towing decision. The opinion
contains passages that are awfully hard to see as part of an administrative
cost-benefit analysis. Hand notes, for example, that “the barge must not be
the bargee’s prison.”57 What does that mean? Surely if making the barge a
prison is cost-benefit justified, then according to the formula, a prison it
should be! Further, Hand says that if there was a custom about bargees on
the barges, then the custom should control.58 But why is that? What is it
about a custom that would override the judicial administrator’s cost-benefit
There is a reason to pause here on the waterfront of the New York Harbor.
When Friendly joined the court, maritime cases were at the core of the civil
caseload.59 Friendly bought and read the classic Black and Gilmore book on
admiralty law while his confirmation was pending, and for good reason.60
Eleven of his first one hundred opinions were in admiralty cases.61 This was
a classic field for working out the logic of adjudication in the
twentiethcentury Second Circuit. And if we look closely, it is clear that the caveats
and qualifications that Hand attached to cost-benefit administration in his
Carroll Towing opinion were not bugs but features. They were evidence of
the ways in which adjudication, even at the high tide of enthusiasm for the
55. Holmes, supra note 35, at 478.
56. Carroll Towing, 159 F.2d at 173.
59. See DORSEN, supra note 54, at 80–81.
60. Id. at 80.
61. Id. at 81.
administrative state, resisted the claims of administrative omnicompetence
and instead elaborated a more modest, eclectic common law tradition.
Consider Friendly’s opinion in the legendary In re Kinsman Transit Co.62
Kinsman Transit—and Friendly’s law clerk from the case is with us here
today—offers a nuanced picture of the common law tradition. The case
flowed from a freak accident on the Buffalo River in January 1959. The river
was a veritable Rube Goldberg machine of ice flows, with poorly moored
ships careening downriver and colliding with ill-tended drawbridges.63 By
the time the action was over, substantial swaths of the city of Buffalo lay
We should clear something up at the outset. Far and away the most
important part of the case is that the Kinsman Transit Company, whose vessel
touched off the mayhem, was owned by the Steinbrenner family, whose
rising star George Steinbrenner would several years later purchase the New
What this means is that the future of the world’s greatest baseball franchise
was at stake.
Fatefully, an obscure admiralty doctrine limited the Steinbrenner family’s
losses to the value of its vessel.66 Friendly’s opinion allocated most of the
losses to the City of Buffalo67 and thereby made possible the modern
Yankees. Billy Martin would never have been hired, fired, and rehired five
times.68 No Reggie Jackson, no Dave Winfield—no Ed Whitson, either. But
maybe no Derek Jeter and no Mariano Rivera! Perhaps the Subway Series
of 2000 would have come out the other way?69 Maybe Justice Sotomayor
would never have had the opportunity to save baseball!70
But we should not let these important Yankees questions distract us from
another key point. The Kinsman Transit case presented an extraordinarily
complex social problem with sharp disagreements over the proper resolution.
The social policy question was who should pay. In an internal memorandum
to his colleagues, Friendly wondered whether there was “any way in which
the doctrine could be manipulated so as to correspond with probable
insurance.”71 The goal here was to find a way to spread the losses as widely
When it came to actually resolving the question, however, Friendly did not
treat it as a question of social policy at all, but as one of legal doctrine. He
pointed to a U.S. Army Corps of Engineers’ regulation on drawbridges and
engaged the arcane doctrine of “last clear chance.”72 He observed that the
requirement from the classic case of Palsgraf v. Long Island Railroad73 had
been met: the plaintiffs were foreseeable victims.74 He took up the doctrine
on liability for unforeseeable harm.75 Ultimately, Friendly’s Kinsman
Transit opinion bore one of the hallmarks of common law adjudication—it
cabined its significance to the facts of the case.
“Other fact situations,” he wrote, “can be dealt with when they arise.”76
And therein lies a distinctive feature of the common law. Not that it offers
ready-made answers for all disputes that might arise. Not that it has handed
down ageless principles. But that it constrains the kinds of answers judges
can give, insisting on the value of restraint.
The theme that runs through these classic Second Circuit cases is a kind of
moral modesty. Hand flirted with the God’s-eye view of the judge as
allseeing administrator. But he stopped short of it. And in Friendly’s approach
we see a way of resolving disagreement without the pretense of access to
Perfect Truth. Adjudication can resolve disputes without pretending to
resolve social problems once and for all.
III. ADJUDICATION IN THE AGE OF POLITICS
Of course, the administrative and judicial modes are not the only ones we
rely on to resolve disagreements. A core feature on which our system is based
is voting, something that is not hard to remember this fall.
Like administration and adjudication, voting has its own internal logic as
a dispute-resolution mechanism. It adopts the headcount as the measure of
its verdicts. When a headcount decides a question, it does so essentially as a
matter of biomass. It need not purport to resolve arguments as a matter of
Imagine for example three people debating the question whether the sun
revolves around the earth or vice versa. A lonely soul righteously contends
that the earth is in orbit, not the sun, and insists that if only she had time she
could produce evidence to support her contention. When the remaining two
cut off debate and call a vote, they may win the headcount. But the frustrated
Copernican will hardly think the truth of the matter resolved.
And that points us to an unexpected virtue of voting in a free society. After
a vote, the losing value is in the position of our irked follower of Copernicus.
71. DORSEN, supra note 54, at 309.
72. Kinsman Transit, 338 F.2d at 719–21.
73. 162 N.E. 99 (N.Y. 1928).
74. Kinsman Transit, 338 F.2d at 721–22.
75. Id. at 722–26.
76. Id. at 726.
The argument remains intact. It has not been disrespected for its content. It
has simply lost as a matter of votes. A legislature is free to reverse itself
without undue embarrassment. This is what New York University Professor
Jeremy Waldron calls “the dignity of legislation”—it leaves the values of
members of a free society untouched.77 In this sense, it respects those values,
even as it (contingently) rejects them.78
Waldron insists that adjudication does otherwise—its commitment to
reasoned argument and values entails a weighing of the arguments and a
principled (not contingent) rejection of some arguments for others.79 This,
he contends, is in tension with a free society’s collective obligations of
respect for the different views that go into our disagreements.80
This circuit’s midcentury maritime cases give us reason to think that
Waldron’s account misapprehends one of the central virtues of the
adjudicatory tradition. Adjudication in a system of law need not make value
judgments on its own, at least not in the first instance. Instead, it resolves
disagreements by reference not to values but to rules—not to cost-benefit
analysis or loss spreading but to custom, last clear chance, foreseeability, and
precedent. Rules hold out the promise of application without recourse to the
underlying value conflict that produced the rule in the first place.81 Law often
proceeds, in other words, in the same nonevaluative fashion that Waldron
ascribes to voting.
Adjudication’s narrow virtues fit the very image of the free society that
Hand held dear—not one forced into a unitary common will but one open to
the raucous cacophony of disagreement and debate. 82 The judge’s job in this
approach is not to deliver a general resolution of that disagreement, at least
not in the first instance. The tumult itself is a great virtue of our system.83
Preserving it is essential to freedom and equality.84
Hand meant to say something like this, I think, when on a Sunday
afternoon in May 1944, he spoke at a ceremony in Central Park where
150,000 newly naturalized citizens swore oaths of allegiance.85 Hand’s
speech was piped through loudspeakers to more than a million residents who
had flocked to the park on that mild summer day.86 Hand said, “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 . . . .”87
This speech may be among the most famous moments in the history of the
But I would be remiss if I ended here. To be candid, the virtues of the
adjudicatory tradition in the Second Circuit have broken down in the face of
some kinds of disagreements. On one famous occasion, the methods of
creative modesty failed Friendly entirely.
On June 13, 1971, the Sunday New York Times published a first installment
of the top secret study of U.S. involvement in Vietnam that would come to
be known as the Pentagon Papers.88 The report and its associated documents
detailed how American administrations had misled the public on the nature
and purpose of U.S. involvement in Vietnam.89 The Nixon administration
sued to enjoin further publication.90
District Judge Murray Gurfein, later a judge on the circuit bench, refused
to grant the government’s injunction.91 Amazingly, it was Gurfein’s very
first case after being appointed by President Nixon.92 The government
appealed, and Chief Judge Friendly decided that the case would be heard en
banc by all eight active judges.93 Some first day at work for Gurfein!
The reference to the entire court was unprecedented.94 But the methods
that Friendly brought to bear were a classic effort to find narrow rules of
The Pentagon Papers controversy raised some of the gravest problems a
constitutional democracy can confront. The executive’s rightful authority
over national security seemed at loggerheads with the rights of a free press
and the rights of citizens to the information that self-governance requires.
In a memo or draft opinion that seems never actually to have been
circulated, Friendly tried out a view that would have reversed Gurfein and
enjoined the Times while avoiding the biggest questions.95 Friendly
proposed to enjoin the Times on the narrow ground that it had obtained the
documents unlawfully; the “grave constitutional issues,” as Friendly wrote,
would not be reached.96 Instead, the Times might be enjoined simply as a
matter of the law of property and theft.97 Few of Friendly’s colleagues seem
to have found his creative solution appealing.98 And so Friendly tried to
shepherd the Second Circuit to a different disposition, one that would be
87. HAND, The Spirit of Liberty, in THE SPIRIT OF LIBERTY, supra note 82, at 189, 190.
88. DORSEN, supra note 54, at 151.
89. TIM WEINER, ONE MAN AGAINST THE WORLD: THE TRAGEDY OF RICHARD NIXON 121
90. DORSEN, supra note 54, at 151.
91. United States v. N.Y. Times Co., 328 F. Supp. 324, 331 (S.D.N.Y.), aff’d per curiam,
403 U.S. 713 (1971).
92. DORSEN, supra note 54, at 151.
93. Id. at 153.
95. Id. at 158.
98. See id. at 160–61.
narrower still.99 In a split decision, the court aimed for a careful lawyer’s
compromise: a 5–3 per curiam order to enjoin further publication pending a
determination by Gurfein, in camera, as to whether the documents posed a
“grave and immediate danger” to the security of the United States.100
The order adopted an understated approach: it consisted of only a single
sentence.101 It asked Gurfein for a redo without identifying an error in what
he had already done or specifying a new standard he ought to apply.102 The
order implicitly decided certain issues in favor of the Times.103 For example,
it gave no weight to the fact that the documents were classified, it omitted
any discussion of the theft of the documents, and it made no mention of
deference to the executive branch on matters of national security.104 Even
so, the order delivered the government a victory by delaying further release
of the documents.105
The Pentagon Papers decision flowed from the main currents of the
tradition that judges like Hand had set in motion. It was narrow and
provisional and modest. In a moment of great social controversy, it called
for a process rather than an outcome—a hard second look at the issues at
hand. In a different moment, the strategy of process might have worked.
After more time, perhaps, the Nixon administration might have relented.
Some in the White House advocated releasing the documents themselves on
the ground that they were embarrassing to the administrations of John F.
Kennedy and Lyndon Johnson.106 Extra time might have revealed some new
facet of the case or allowed the elected branches to work out a solution of one
sort or another.
But in 1971, the passive virtues of narrow adjudication were insufficient
to the moment. Seven days after this court’s order, the Supreme Court
reversed it.107 The Supreme Court found that the government had not met
the First Amendment’s “heavy presumption” against prior restraints on
expression.108 The New York Times would proceed to publish the
documents.109 Other papers, led by the Washington Post, would join in
too.110 Within months, men working for Nixon would break into the office
of Daniel Ellsberg’s psychiatrist.111 Revelations of their conduct at
99. Id. at 157–59.
100. United States v. N.Y. Times Co., 444 F.2d 544, 544 (2d Cir.) (per curiam), rev’d per
curiam, 403 U.S. 713 (1971).
102. Id.; DORSEN, supra note 54, at 158.
103. DORSEN, supra note 54, at 157–58.
104. N.Y. Times, 444 F.2d at 544.
105. DORSEN, supra note 54, at 157–58.
106. Id. at 155–56.
107. N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).
109. STEVE SHEINKIN, MOST DANGEROUS: DANIEL ELLSBERG AND THE SECRET HISTORY OF
THE VIETNAM WAR 251 (2015).
111. WEINER, supra note 89, at 132.
Ellsberg’s trial in 1973 would help reveal the Watergate scandal and end
Given the stakes, the social controversy at issue was simply too
institutionally complex, with too many moving parts and too many social
constituencies, for adjudication in the narrow fashion to resolve it effectively.
Adjudication has virtues—distinctive virtues—as a mechanism for resolving
disagreement. It also has distinctive limits.
I began with the question of what makes a tribunal strong. I have offered,
I hope, a description of how, in the age of administration, the Second Circuit
Court of Appeals has been a principal carrier of a delicate but vital tradition
The promise of adjudication as a way of resolving differences is that it
relies on rules that aim to be independent of the conflict at hand. In that
simple but heroic idea lies a blueprint for how we might get along with one
another in an era of disagreement.
Today our society is buffeted by discord in ways that show no signs of
letting up. I hope that as we look out to this uncertain horizon, we take some
modest measure of comfort in the fact that we have institutions designed to
weather such storms. The Second Circuit is just such an institution—a
glorious one. May it flourish and thrive for another century and a quarter.
We will all be the lucky beneficiaries.
1. This lecture was given on October 26 , 2016 , at the Thurgood Marshall United States Courthouse as part of the Second Circuit's 125th Anniversary celebration. For a discussion of the anniversary, see Robert A. Katzmann, One Hundred Twenty-Five Years of the U.S. Court of Appeals for the Second Circuit: A Brief Project Overview, 85 FORDHAM L . REV. 1 ( 2016 ).
2. Hand , Learned, FED. JUD. CTR., https://www.fjc.gov/history/judges/hand-learned [https://perma.cc/36AH-EM83] (last visited Sept . 21 , 2017 ).
3. Hand , Augustus Noble, FED. JUD. CTR., https://www.fjc.gov/history/judges/handaugustus-noble [https://perma.cc/U637-XXKX] (last visited Sept . 21 , 2017 ).
4. GERALD GUNTHER , LEARNED HAND : THE MAN AND THE JUDGE 558 ( 2011 ).
5. See generally JEROME N. FRANK, LAW AND THE MODERN MIND ( 1930 ).
6. See Friendly , Henry Jacob, FED. JUD. CTR., https://www.fjc.gov/history/judges/ friendly-henry-jacob [https://perma.cc/9CRD-NRGM] (last visited Sept . 21 , 2017 ).
7. Pierre N. Leval , Remarks on Henry Friendly: On the Award of the Henry Friendly Medal to Justice Sandra Day O'Connor, 15 GREEN BAG 2D 257 , 259 ( 2012 ) (quoting Justice Thurgood Marshall , In Memoriam: Honorable Henry J. Friendly , Remarks at the Extraordinary Session of the Court of Appeals for the Second Circuit (June 9, 1986 ), in 805 F.2d LXXXI , LXXXVIII ( 1986 )).
8. Thurgood Marshall , Introductory Remarks: Celebrating the Second Circuit Centennial, 65 ST. JOHN'S L. REV . 645 , 645 ( 1991 ).
9. Philip B. Kurland , Jerome N. Frank: Some Reflections and Recollections of a Law Clerk , 24 U. CHI. L. REV . 661 , 661 ( 1957 ).
10. Edward McWhinney , A Legal Realist and a Humanist-Cross-Currents in the Legal Philosophy of Judge Jerome Frank , 33 IND. L.J. 111 , 115 ( 1957 ) (reviewing JUDGE JEROME FRANK & BARABARA FRANK , NOT GUILTY ( 1957 )).
11. See JEFFREY B. MORRIS , FEDERAL JUSTICE IN THE SECOND CIRCUIT 131 ( 1987 ).
12. See id.
13. See generally FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN ( 1992 ).
14. See generally Jean M. Twenge et al., More Polarized But More Independent: Political Party Identification and Ideological Self-Categorization Among U.S. Adults , College Students, and Late Adolescents, 1970 - 2015 , 42 PERSONALITY & SOC. PSYCHOL. BULL . 1364 ( 2016 ) ; Partisanship and Political Animosity in 2016, PEW RES . CTR. (June 22 , 2016 ), http://www.people-press.org/ 2016 /06/22/partisanship-and - political - animosity-in-2016/ [https://perma.cc/ZM7W-H9XM] ; Political Polarization in the American Public , PEW RES. CTR. (June 12 , 2014 ), http://www.people-press.org/ 2014 /06/12/political-polarization-in - theamerican-public/ [https://perma.cc/KW2D-BNUQ].
15. Circuit Court of Appeals Act, ch. 517 , 26 Stat . 826 ( 1891 ).
16. George M. Logan & Robert M. Adams , Introduction to THOMAS MORE, UTOPIA xi (George M. Logan & Robert M. Adams eds., rev. ed. 2002 ) (“The word 'utopia' entered the world with the publication of More's little book in December 1516 .”).
17. MORE, supra note 16, at 82 (“ As for lawyers, a class of men whose trade it is to manipulate cases and multiply quibbles, they exclude them entirely .”).
18. GRANT GILMORE , THE AGES OF AMERICAN LAW 99 (2d ed. Yale Univ. Press 2015 ) ( 1977 ).
19. See , e.g., Wythe Holt , “To Establish Justice” : Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 DUKE L .J. 1421 , 1478 .
20. See generally MORTON J. HORWITZ , THE TRANSFORMATION OF AMERICAN LAW , 1780 - 1860 ( 1977 ) ; STEPHEN SKOWRONIK, BUILDING A NEW AMERICAN STATE ( 1979 ).
21. 17 U.S. 316 ( 1819 ).
22. Trs. of Dartmouth Coll. v. Woodward, 17 U.S. 518 ( 1819 ).
23. Charles River Bridge v. Warren Bridge , 36 U.S. 420 ( 1837 ).
24. 41 U.S. 539 ( 1842 ).
25. Dred Scott v . Sandford , 60 U.S. 393 ( 1857 ).
26. See id. at 518- 19 (Catron, J., dissenting); id. at 529- 32 ( McLean , J. , dissenting); see also DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 327 ( 1978 ).
27. See Act of Mar. 3 , 1875 , ch. 137 , § 1 , 18 Stat . 470 , 470; see also 28 U.S.C. § 1331 ( 2012 ).
28. See Circuit Court of Appeals Act, ch. 517 , 26 Stat . 826 ( 1891 ) ; see also MORRIS , supra note 11 , at 93.
29. JERRY MASHAW , CREATING THE ADMINISTRATIVE CONSTITUTION 228-31 ( 2012 ).
30. See THOMAS MCCRAW , PROPHETS OF REGULATION 1-56 ( 1984 ) ; I. Leo Sharfman, Commission Regulation of Public Utilities: A Survey of Legislation, 53 ANNALS AM . ACAD. POL. & SOC. SCI. 1 , 1 - 2 ( 1914 ).
31. Act of Feb. 4 , 1887 , ch. 104 , § 11 , 24 Stat. 379 , 383 (codified as amended in scattered sections of 47 U .S.C.).
32. Federal Reserve Act, ch. 6 , 38 Stat . 251 ( 1913 ) (codified as amended in scattered section of 12 U .S.C.).
33. Federal Trade Commission Act, ch. 311 , 38 Stat . 717 ( 1914 ) (codified as amended at 15 U .S.C. §§ 41 - 58 ( 2012 )).
34. Immigration Act, ch. 551 , 26 Stat . 1084 ( 1891 ) (repealed 1943 ).
35. Oliver Wendell Holmes , The Path of the Law , 10 HARV. L. REV. 457 , 469 ( 1897 ).
62. 338 F.2d 708 ( 2d Cir . 1964 ).
63. Id . at 711-13.
64. Id . at 713.
65. Id . at 714; N.Y. TIMES, NEW YORK TIMES STORY OF THE YANKEES 1903-PRESENT: 390 ARTICLES, PROFILES & ESSAYS 310 (Dave Anderson ed ., 2012 ).
66. Kinsman Transit, 338 F.2d at 715 -16.
67. Id . at 719 , 725 - 27 .
68. Michael Martinez , Martin Is Named Yankees' Manager for 5th Time , N.Y. TIMES (Oct. 20 , 1987 ), http://www.nytimes.com/ 1987 /10/20/sports/martin -is-named-yankees-managerfor-5th-time .html [https://perma.cc/U5MD-ARFK].
69. Buster Olney , BASEBALL: SUBWAY SERIES; In 5 Games , a Third Straight World Series Trophy, N.Y. TIMES (Oct. 27 , 2000 ), http://www.nytimes.com/ 2000 /10/27/sports/ baseball-subway -series-in-5-games-a-third-straight-world-series-trophy .html [https://perma.cc/P2UD-6VRL].
70. Richard Sandomir, Sotomayor's Baseball Ruling Lingers , 14 Years Later, N.Y. TIMES (May 26 , 2009 ), http://www.nytimes.com/ 2009 /05/27/sports/baseball/27sandomir.html [https://perma.cc/P8L6-UP79] (quoting President Obama as saying, “Some say that Judge Sotomayor saved baseball”).
77. See generally JEREMY WALDRON, THE DIGNITY OF LEGISLATION ( 1999 ).
78. Jeremy Waldron , The Core of the Case Against Judicial Review , 115 YALE L.J. 1346 , 1384 ( 2006 ).
79. Id . at 1369-1406.
80. Id .
81. See generally SCOTT J. SHAPIRO , LEGALITY ( 2011 ).
82. LEARNED HAND , Democracy: Its Presumptions and Realities , in THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED HAND 90 , 96 - 102 (Irving Dilliard ed., 3d ed. 1963 ) ; HAND, The Contribution of an Independent Judiciary to Civilization, in THE SPIRIT OF LIBERTY, supra , at 155 , 156 - 57 ; see also Archibald Cox, Judge Learned Hand and the Interpretation of Statutes , 60 HARV. L. REV. 370 , 373 ( 1947 ). See generally Learned Hand, Is There a Common Will , 28 MICH. L. REV. 46 ( 1929 ).
83. See Cox , supra note 82.
84. See id.
85. GUNTHER, supra note 4, at 469.
86. Id .