Transcripts For CSPAN3 Judge Learned Hand Statutory Law 20171022

Good afternoon. The u. S. F judge of court of appeals for the Second Circuit. With his today along with the judges of the court of appeals are three distinguished justices of the Supreme Court. Justiceished circuit ruth bader ginsburg, our beloved colleague, former colleague, formce Sonia Sotomayor who many years was a member of this court. And, Justice Elena kagan a great friend of the Second Circuit who participated in our 125th Anniversary Program on Thurgood Marshall. Judicial colleagues, staff, members of the board, and friends of the Second Circuit it is an honor to welcome you here this afternoon to this special session of court as we bring to a close our courts your long retrospective marking 125 years of the u. S. Court of appeals the Second Circuit. Us, it is exciting to soin this historic room were many noteworthy cases have been adjudicated. Itchief judge, i serve first. All are committed to the Effective Administration of justice. We have been fortunate to have the great advocacy of those who have argued in this courtroom. When i proposed a project for the 100 25th Year Anniversary of our core, i did so not for anycelebration but because institution, if it is to do its work well should from time to past tolect on its better resolve the present in to meet the challenges of the future. To that end, my colleagues agreed to pursue a wide range of activities relating to the 125 Year Experience as we had done some 30 years ago. Dont worry, there will not he another 15 years from now. Consisted of a dedicated group of judges, court administrators, court staff, members of the bar, law school educators, and law students. To each of whom on behalf of our board i extend my deep gratitude. 120e look back on the fiveYear Anniversary project remarkablere some products. For example, a book of biographer use of judges of the circuit judge is published by the cornell law review. On the cases of the Second Circuit. A series of programs in the courthouse including sessions with Thurgood Marshall and others covered by cspan. A lecture on ulysses. A series of lectures on star ofes under the leadership others. And todays program with and our law School Anniversary committee. We have a wonderful circuit justice, ruth bader ginsburg. For more than 23 years, Justice Ginsburg has been our guardian, our guardian angel, any of the major proceedings we have are not complete without her. Her appearance at the Second Circuit conference is what we look most forward to each year and that she is with us at a difficult time in her core work every year at the circuit conference is more amazing. She is a special place in all of our hearts. Friend is one to us all. Justice ginsburg while knows in this courthouse, having served for judge palmieri, i know others in this courtroom 18 years ago that Justice Ginsburg swore me and with the wonderful wonderfulurg Marty Ginsburg present. Before i introduce her i would just like to know what the Holiday Season approaching, with your gift approaching, i andgnize Justice Ginsburg the book of her life. Justice ginsburg. [applause] Justice Ginsburg it is a delight to be with all of you for this celebration. I know to start my remarks with a brief remembrance of things past. Likewas the Second Circuit 195919 61, the years i served for judge palmieri and how did those days compare with the circuit today . Most evident difference is the size of the court. It has grown. The courts in 1959 was six all were male. So, too, world of the district judges. Today there are 11 active judges, 10 seniors and service. Ive the 11 active judges, seven or may allah and for our me know. Three on occasion. Male and for of them are female. In 1959, it was the year Henry Friendly was appointed and senior circuit judge learned hand was still a hearing cases. July 1959june 1960, the court of appeals closed 554 cases. 20152016 case dispositions of mounted 4743. 1959istrict court bench in numbered 32 active judges and eight seniors. In thedistrict judges 52 activeclude members and 51 seniors. Exist,tcy judges did not although as a recall district expertwere aided by bankruptcy referees. No magistrate judges, only parttime commissioners with authority to issue search and arrest warrants and set bail bonds. The most notable decision 57 appellations in the conspiracy case, United States on appeal inrgued decided in november of 1960. The case stemmed from a gathering of some 58 men, most with italian surnames. The men used a village in new man long suspected of leading illegal gambling in upstate new york. Departing from the meeting, many of the artistic pence were questioned by the Police Awaiting them before they hit the main road. Each answered independently. Why they accounts of were there varied, but none default the purpose of the gathering. Presiding judge irving townsend, the court convicted 20 of conspiracy to abstract justice and commit perjury. Convicted defendants served terms running from 35 years. I sat in on parts of the trial, as did many others. It was quite a show. In an opinion by judge lombard, the court of appeals roundly reversed the convictions. With no evidence of the meetings , the government could not by indicting attendees for conspiracy to lie for the reason about the gathering. It was entirely likely the court of appeal said that each defendant decided for them self to not discuss what they knew about the meeting. The message conveyed suspicion in the social desirability of sending bad men to jail is no substitute for proof of crime. Without reaching any constitutional question, the Second Circuit cautioned the government against shotgun conspiracy charges and admonished 12 judges in deciding the government had to make a case to go to the jury to analyze the evidence and each defendant with meticulous care. A prosecutioned framed on such a doubtful basis should never have been initiated or allowed to proceed so far. For in america, we still respect the ignorant he of the individuals even an unsavory to beter is not imprisoned except on definite proof of specific crimes. Instructive judgment for dontutors and justice, you agree. Theme turn that to remarkable man were celebrating this remarkable year. Dyed twonoble hand years before he entered law school. He was a man who thrived on the District Court but understood the importance of collegiality on an appellate bench. It was written on his passing, harmoniously combining discipline and compassion, he was one of those rare persons who made virtue attractive and nobility convincing. We can draw inspiration from then he gave two lawyers in 1951, not the best of time for our nation. Fears and concerned about the individual, no matter how inconspicuous. First to be in dire straits, he recalled. And we may be very sure we will not be the last. What we can do, he said, is to set out resolutely to understand this mysterious age and to contribute at least one more voice of reason to a distracted world. Good advice for our time. Fortune favored me. When learnedears, hand grace the federal bench from 19591961, i served in those years. A wise and kind Southern District judge, judge palmieri. His home was one lockup from judge hands. He regularly drove the revered elder judge home at the end of the day. Uptown with rode them, seated in the back of judge paul marries mercedes. Dutch judge palmieris mercedes. Mercedes. S ballots,ld be poetry, and sometimes calvinist hems if he was in a sober mood. His vocabulary was large and uninhibited. My mother never taught me. About any other judge, including those who served on the Supreme Court, i wanted to serve for the man his friends affectionately billy. B, for why i asked from my backseat, why dont you engage women . It would not cause you to censor your speech judging from what i have heard back here. Notg lady, he answered, im looking at you. ] aughter ginsburg and that is how it was then. Most of what i know from judge hand comes from a biography of learned hand, 25 years of a work in progress. In 1994. Ished 680 pages, trimmed down. At my washington, d. C. , welcoming circuit in 1980i asked my teacher at columbia before conveyest to stanford to something from the luminous pages from learned hand. Advice fitting for a federal judge. Jury chose and delivered words from judge hands 1939 memorial tribute to Benjamin Nathan cardoza. Of him, judge hand said, he never disguised the difficulties is lazy judges do to win the game by sweeping all the opposing just pieces off the table. He would often start by stating the other side better than his adversary had stated it himself. At times, for those of us in new him, the anguish which it seated the hard decision was apparent. Opinions very blunt, but he knew it was the judges duty ultimately to decide, not endlessly to debate. To expression here colleagues he respected tell us at least as much about him as they do about the colleague. His 52 euros on the federal bench, he contributed enormously to jurist rudiments which still guides us. Long before the Supreme Court reversed course, he was a leading critic. While still a district judge, he protectiven approach of politically unpopular speech. His opinion in that case may appointment ton the next vacancy on the appellate bench. The Second Circuit reversed learned hands decision but 18 years later, the Supreme Court inraced and stated deportation cases he revealed another already. Compassion and caring. Appreciation that Court Decisions affect the lives of everyday people. If appointed to the Supreme Court and, chief justice taft feared he would pair with a defender. Become ultimately it rested on his power to persuade and persuade others he had to persuade himself. The biography tells for example how learned hand was agonized over cases, diagrams, raging pens, pencils, and equals to represent the positions of ships and ears. Thetimes he reached exasperation point. When i told him the judges 13 draft still did not get it quite right. Learned hand hurled a paperweight in his direction and then consoled the distraught clerk with an affectionate pat on the head. That comforting to know learned hands eloquent opinions did not spring from the head as zeus. One recalled the in the touching portrait of learned hand published by the federal law council in 1983, he was never sure about anything except the importance of searching for the truth. More expansively, my dear learnedue david wrote hands necessities saw every judges common obligation. Suspicion of the easy cases, skepticism about clearedged categories, modest story in place of residence comic can door in playing one worthy. Nciple against another best known of learned hands public addresses, the remarks he made at mayor laguardias request at central park on may 21 in the war year 1944. Over 1. 5ience of million including 150,000 new league naturalized citizens, learned hand spoke of liberty not as an ideal written on parchment it is a spirit lodged in the hearts of men and women. Reminiscent i will quote learned hands famous words. What end is the spirit of liberty . I cannot define it. I can only tell you my own faith. The spirit of liberty is a spirit which is not to surely it is right. The spirit of liberty is the spirit which seeks to understand the mindset of other men and women. The spirit of liberty is the spirit which ways their interest alongside its own without bias. In a kingdom where that spirit learned hand said, the least shall be heard in considered sidebyside with the greatest. Say amen. Y we [applause] to live for that very special remembrance Justice Ginsburg, we are so grateful for those words. At our Opening Program last year, i made a comparison of the court to an orchestra. A great architecture like a great court depends upon a shared view and deep commitment to the values and purposes of the enterprise. They mayrs, though come with different perspectives, though they may play different instruments, read from the same score. Labor in an ongoing and noncompetitive relationship with one another, respect one anothers strengths, for go ego for the greater good, on her patients and recognize the excellence of the combined energies, experiences, and insights of the full complement of players. 125thnductor for our Anniversary Program has been judge richard p wesley call now to review the year past and discuss those are made it possible. A former judge, a former elected legislator, richard is a person of substantial talent and ability as a jurist and colleague. He has been the perfect chair of our committee. Courtg closely with our administrators and their teams. Affairs, ouregal clerk of court, all the teams. All who have worked on this so fullyhich has captivated the indy gauged our judges, court, staff, barter, scholars, and law students. Andll i say thank you bravo. Judge wesley, as the final series of our concert is played, will you please take the podium . [applause] you notice out karen is always reminding me to do something. Ofhink she is the spirit betty wesley reincarnated, who years ago. 12 or 13 a personal thank you for your kind words. I deeply respect and appreciate the trust you place in me and i hope the efforts we put forth up and worthy of that trust and respect. I am honored by the people i mentioned to you tonight. I am honored to hold this responsibility you entrusted to me. The desired for me to believe it has been three years since the chief asked me to cheer the 125th anniversary. We are here tonight to conclude the final celebration of the 125th anniversary here. What a spectacular year it has been. Chief, would like to personally thank you for the confidence you placed in me for this assignment. Committee ofa circuit judges, respected members of our bar, and begin this journey on october 20 6, it concludes tonight. The planning for those events midoctober 2014 and took over two years before we launched our very first event. During the course of planning and presenting of the events, the members of the committee deal. D a great a great deal about the men and women who brought the cases to this great court and about those who have labored here. I think all of us agree this was time very well spent. We have published two publications. The circuit judges biographical apology published by that great school which happens to be my alma mater, the cornell law review and now the cornell press. And a volume of seven substantive articles on jurist jurisprudence by the florida law review. And they were well received by scholars and judges and lawyers alike. I believe the two deans of those institutions are with us today. There they are. Gentlemen, please rise. [applause] wesley it did not take any time at all to respond to the request. It was a joy for the judges of the court to work with both members of the staffing and the authors who wrote the articles. It was a tremendous collaborative effort and i think the students enjoyed it greatly and i know the judges enjoyed it greatly. The judges worked so hard on giving us their biographies. I was good at wearing them down. It was a wonderful expense. Of us benefited from us it. If you go around the country or sit on the committee, talking about what we were doing and the Second Circuit to some of my country, iaround the said we are publishing an anthology, biographies of the judges and also a group of seven articles about the jurisprudence and the seventh circuit. Silence. None of the other circuits have gone to the extent we have gone to celebrate the joy of 125 years in our court. I did promise judge katzmann i would be brief and i know he knows that was a false promise. But one of my purposes is a set of thank you singalong overdue. I am delighted to report the hard work and cooperation of the initial expectations. I can remember the first meeting, talking about what were going to do. John, you are there. Sarah. Threed maybe we would do of them. We did 14. We never even had thought about anthologyphies or the of significant areas of jurisprudence. I know that the court is well pleased and justly proud of the work of the committee on this initiative. There are so many people to thank that i am concerned about brevity and overlooking some people. So while i have got the podium i will try. Let me begin with the members of the 125th Anniversary Committee. My judge members. The clerk of the court. Attorney. Staff our Circuit Library and who has in his abilityg to search down obscure facts and put things up in beautiful murals in the hallways. Professor from st. Johns law school. Others. Is ael cardoza, there court of appeals name for you. If anyone is a true historian of this court it is john. Tina. Karen. Professor john fagan. Nd our own circuit executive to that end, i would ask that all members of our 125th Anniversary Committee who are here, i asked that you stand and be recognized by a round of applause. [applause] judge wesley net was a very short stand, bob. Had a case against the new york court of appeals. I reported that court the day after the argument, i lost 61. I was the only one who voted for your mom, bob. And i thought, i made a terrible mistake. I am in the wrong court. Nobody agrees with me. All right. The anniversary concludes today with a special session. By lecture to be delivered columbia law professor thomas w hand whobout judge along with his brother sat on the bench. Contributed have significantly to the jurisprudence of our court during their many years in this building. Last october i noted one of the 125thbenefits of our anniversary wasnt afforded the court an opportunity to partner with familiar friends at the bar. And, to make new friends such as other courtof the and bar who sponsored our november 16, 2016 program. A Wonderful Program about the rape brothers and patenting the right to fly. And the Honor Program about brothers and patenting the right to fly. Want tol others, i thank our court staff who have over the lastsly few years turning the vision of the 125th committee into reality. Out all of our hardworking staff we would not have been here to conclude this year, which was nothing short of extraordinary. Here is to the Library Staff who designed beautiful exhibits depicting famous deals heard in our court beginning with patents, to the pentagon, and to the destruction of the world trade center. Appeals are divided into several areas of jurisprudence. Perhaps in recognition of next month, next month is the most important baseball month of the year, we have very wisely 1990 five major baseball decision of a very, very, very distinguished thenSouthern District judge which just happens to be visiting with us today, just a sotomayor. Pandering, yes. Definitely. Although i dont have anything in front of the court right now to pander. The exhibit can still be seen in our main lobby. I encourage all of you to go. This is secular. This is act you are. Spectacular. Many have joined the Second Circuit exhibit in the north character. All of these exhibits are the results of Exceptional Talent and hard work of our Circuit Library and antennas staff and one of our courts dearest friends, our circuit historian. To the Staff Attorneys Office in our law clerks and the Staff Attorneys Office who drafted the biographies, redrafted the biographies and then redrafted them again. Altiple times for biographical anthology. Also have served as ushers at many of our 125th Anniversary Programs this past year. Here is to our Clerks Office staff who also served as our shows that many of our Anniversary Programs and to our i. T. Staffing managed our and in ours here overflow courtroom. We had overflow courtrooms were almost every Single Program we presented. And members of the bar who credits. E and our colleagues from the ininistrative Office Washington who webcast almost every Single Program including lectures, allowing judiciary and employs about the Second Circuit and the entire federal judiciary to watch our 125th programs and earn cle credits for them. At the major challenge of executing the program the invitations come the handouts, including the one you received today as you entered the courtroom, the cle certificate, the reception, and most importantly, the very terrific 125th anniversary swag or bling. G or i want to knowledge the hardworking staff and efforts team. Executive we put on four major events in the courtroom without a single hitch. Without me tearing out a single hair that i have left on this head of mine. Just most importantly and the majordomo who handed out , major security memoranda and was in charge of swag. Justin had deep most important position of all. I know it was a hard year for all of you at it was spectacular. I am extraordinarily proud and grateful. Like our circuit staff, they are probably hiding out in the hallway, ask them to come in and receive a round of applause. Come on in. [applause] judge wesley i am told they are sampling the hors doeuvres. A little on this side. We are not paying very much these days. Where is jim . Well have to take care of that. Threerough the last years, there has been one constant for me. Whenever there has been a challenge i had the able assistance of our circuit executive assistant, karen. And many latenight emails, keeping me appraised of all the facets of this wonderful endeavor. I want to take this moment to personally express my thanks to her for all of the hardware. Where are you, karen . Please come forward. Thank you. [applause] judge wesley the 125th anniversary year was important in the history of our court. Opportunities to reflect on our history and to look forward to the challenges of the future. That our sincere hope those of you who joined us this year will return for future thiss as we celebrate court, this great history, and to this rich tradition. Thank you very, very much. [applause] thank you judge wesley for your extraordinary contribution and thanks to all of those involved in this project. What a privilege it is to be part of this community and family. Now it is my great privilege to introduce professor thomas merrill, the professor of law at Columbia Law School who will next deliver a hand lecture. Named after First Cousins learned and augustus hand. The series is dedicated to examining subjects of interest bar ofjudiciary and the the Second Circuit. Professor merrill is a scholar of wide range. Preeminent property law and Administrative Law scholar. Authored with henry smith of Harvard University a series of articles relating to the structure property rates and information cost and optimal standardization and the laws of property and the unsupported published in the year a lot journaled. He also wrote a leading casebook property principle on policies. And he wrote with a professor the university of marquette. He has written about the history of Administrative Law and judicial review. Indeed, recommend his writings and need bibliography of my recent book. Professor merrill served as the deputy solicitor general in the department of justice in the late 1980s. For several years he worked for a law firm in chicago. He previously taught at Northwestern Law School from 19812003 and at Year Law School from 20082010. He is a member of the them eric and academy of arts and sciences. He clerked at the u. S. Court of appeals for the district of columbia circuit and on me Supreme Court. He has served as a visiting scholar at the university of Chicago Law School and a visiting law professor at university of virginia. He graduated from the university of Chicago Law School where he was the articles editor of the law review. In 1973, he graduated from oxford where he was a rhodes earlierand he graduated than that, 1971. Fetzer merrill will now offer his lecture on statutory interpretation theory and practice. [applause] prof. Merrill thank you very much. All of the members of the Supreme Court and the Second Circuit. Friends and guests. Me to bereat honor for asked to take part in the celebration of the Second Circuits 125th anniversary, and in particular to present the hands lecture. The Second Circuit in the 1930s and 1940s came to be called the hand court, and during those years it established its reputation as the most admired of the u. S. Circuit courts of appeals. It was called the hand court because two of its judges, who often formed the majority on threejudge panels, bore the surname hand. They were cousins. Augustus hand was a few years older than learned hand but was appointed to the bench somewhat later. In recent years, far more attention has been given to learned hand. This does not necessarily mean he was the better judge. Justice Robert Jackson once quipped that he advised new Federal District judges, always to quote learned and always to follow gus. This was probably intended to suggest that augustus hand was by no means the lesser judge, in terms of showing consistent good judgment. Yet with apologies to augustus hand, the focus of my remarks today will be on his younger cousin, learned. Learned hand was more of a public figure and much more given to sharing his thoughts in public venues than his cousin. So for my purposes, there is much more to say about him. Learned hand is today regarded as a great common law judge, and significant attention has been given, most prominently by his biographer gerald gunther, to some of his forays into constitutional law. Less has been said about learned hand and statutory interpretation, something he spoke about often in public speeches, and a task he performed on a continuing basis for 52 years as a sitting judge. First at the District Court, that the court of appeals for this circuit. Statutory interpretation has become a subject of controversy in recent years, at least among judges and academic lawyers. I thought therefore that it would be interesting, and perhaps illuminating, to consider what learned hand said and what he did in the way of statutory interpretation. Any theory of statutory interpretation must be grounded in a conception of separation of powers, at least one that addresses the relationship between the legislative and judicial branches of government. Learned hands conception of separation of powers in this sense was similar to that of Justice Oliver wendell holmes, whom hand intensely admired, and was consistent with that of other judicial luminaries who were roughly his contemporaries, such as Louis Brandeis and felix frankfurter. This conception gave nearlyabsolute authority to the legislature in setting public policy, and cautioned the judiciary not to interfere with the legislative prerogative. In embracing this conception, hand and his likeminded contemporaries were responding to the central constitutional issue of the times whether the policy innovations associated with the progressive era at the beginning of the 20th century, and later with the new deal, were permissible, given the limited government an earlier generation of judges perceived to be enshrined in the constitution. Hand agreed with holmes and others that legislative experimentation should be allowed to go forward, and the judiciary should not stand in the way. Hands posture of judicial restraint was revealed most clearly in his holmes lectures delivered at harvard in 1958, and published under the title the bill of rights. There he argued for almost complete judicial abstention in matters pitting individual Constitutional Rights against the government, especially in matters governed by the due process, equal protection, and free speech clauses. This is a position that would have few adherents today. The lectures, delivered when hand was 86yearsold, concerned a topic constitutional law as to which he had been more of an observer than a participant over his long judicial career. Like felix frankfurter, who is often characterized as becoming increasingly conservative toward the end of his tenure, hand was here being faithful to commitments he had developed much earlier in his life, when a different set of issues dominated. In contrast to constitutional law, where hand was largely an observer, he was very much an active participant in statutory interpretation. And when we turn to statutory interpretation, we find that hand had a welldeveloped and highly original theory of statutory interpretation, a theory more interesting than anything holmes, frankfurter and company had to say on the subject. The starting point of that theory, as i have indicated, was the assumption that the legislature sets the policy, and the courts must defer to that policy as faithful agents of the legislature. But hand went well beyond his contemporaries in spelling out exactly how that was to be done. Hands theory of statutory interpretation was first set forth in 1935. He was invited to give a radio address by the columbia broadcasting system, as part of a series designed to promote the use of Radio Broadcasting in education. He chose as his topic, how far is a judge free in rendering a decision . The title suggested a wideranging inquiry that would include common law and constitutional law, but the talk was almost entirely about statutory interpretation. Hand developed his idea about how judges should interpret statutes by contrasting two other positions, both of which he regarded as untenable. On the one hand, there was what hand characterized as the dictionary school of statutory interpretation. This he characterized as one that would have the judge read the words in their usual meaning and stop where they stop. This, he said, was a recipe for error. Hand was equally skeptical about canons of interpretation. As he put it, nothing is so likely to lead us astray as an abject reliance upon canons of any sort one is more likely to reach the truth by an unanalyzed and intuitive conclusion from the text as a whole, than by following, step by step, the accredited guides. Clearly, judge hand was no textualist, at least he would not embrace the version of modern textualism that relies heavily on dictionary definitions and canons. On the other hand, hand also resolutely rejected what he called the approach of common sense. This was the idea, as he put it, that the judge should conform his decision to what honest men would think right. This, he said, gives the judge too much latitude, and threatens to usurp the office of government. Hand was no pragmatist either, as the appeal to interpret the law to promote common sense has come to be known. Interpreting enacted law to yield what the judge regards as the just or common sense outcome would make the judge the policy maker, in violation of the fundamental starting point that this function is given to the legislature. What then is the proper approach to interpretation in cases where the statute is silent or unclear . According to hand, the judge should ask what the legislature would have decided if the issue had occurred to the legislators at the time of enactment. The judge should put himself in the shoes of the legislators, and try to image how they would have answered the question. Hand acknowledged that it would be misleading to call this discerning legislative intent. Strictly speaking, he said,it is impossible to know what they would have said about it, if they had. Still, he cautioned, the judge must always remember that he should go no further than he is sure the government would have gone, had it been faced with the case before him. This conception of how a judge should go about interpreting a statute would later be labeled imaginative reconstruction by judge richard posner, who briefly endorsed it early in his judicial career. Interestingly, hands commitment to imaginative reconstruction was not motivated by a view of the legislature as reflecting some kind of popular will or voice of the people. Usually, those who advocate a strong faithful agent theory of interpretation think of originalists in matters of constitutional law tend to valorize the enacting body. Constitutional originalists, for example, tend to depict the framers of the constitution as uniquely farsighted statesmen, whose work received the endorsement of the people after they read the trenchant explanation of the framers objectives in the federalist papers. Hands view of the legislative process, in contrast, was very nearly the opposite. Hand was born and for the first 30 years of his life lived in albany, new york, where the New York Legislature meets. And at one point early in his career he became an active participant in the affairs of the progressive or bull moose party, going so far as to accept the partys nomination for election to the new york court of appeals. As a close observer of the political scene, hand did not embrace any kind of dewyeyed or idealized conception of the legislative process. Instead, his understanding of that process was similar to what would later be called the Interest Group theory of politics. Consider this passage from a speech to the federal bar association, given a few years before his cbs radio address, bearing the title, democracy its presumptions and realities. Hand speaking, every man who aspires to office wants, if he is worth his salt, to be returned and how can he be returned . He looks upon an inert mass of constituents, who care little for themselves as citizens at large, but very much for this measure or that, which affects them in their livelihood to promote their special interests they form groups with inconveniently long memories the common will as the official sees it, is not common at all; it is a complex of opposing forces, whose resultant has no relation to the common good, but which will nevertheless decide whether he goes back or not the more compact, determined and relentless the groups with which he must deal, the more they have to say in his fate. He must pick his way nicely, must learn to placate though not to yield too much, to have the art of honeyed words but not to seem neutral, and above all to keep constantly audible, visible, likeable, even kissable. This brutal realism about the legislative process could have been written by george stigler, or judge frank easterbrook. So we have something of a paradox. Hands starting point in thinking about statutory interpretation, his normative premise was that the judge must always act as the faithful agent of the legislature. But the legislature, as he perceived it, was filled with chameleons eager for reelection who respond, if at all, to the most powerful selfserving Interest Groups. How to square the premise with the perception . I submit that the tension between premise and perception was precisely what gave rise to hands commitment to interpretation as imaginative reconstruction. The judges duty and office is to respect the compromise that the legislative body reached, in all its particularity and, even, venality. The only way to do this is for the judge to imaginatively project himself back into the legislative body at the time of enactment, in an effort to grasp the deal that was reached. Armed with this insight, the judge can then interpret the statute to reach the result the enacting legislature would have reached, if it had anticipated the question. Hand never wavered in his commitment to imaginative reconstruction as the appropriate approach to statutory interpretation, at least in his extrajudicial writing. He repeated the idea in 1942, in a speech commemorating the 250th anniversary of the Supreme Judicial Court of massachusetts; again in 1947 in an article celebrating judge thomas swans 20th year of service on the Second Circuit; again in a speech on continuing Legal Education delivered in 1958; and finally in his holmes lectures at harvard. It may be helpful to consider a concrete example of what hand understood by imaginative reconstruction. I will take as my illustration a case called fishgold v. Sullivan drydock repair corporation, a decision judge posner, during his brief embrace of hands theory, called a masterpiece in statutory interpretation. This was the issue. In 1940, well before the United States entered world war ii, Congress Passed a Selective Service act, reinstating the draft. Congress was concerned about the impact on men who were working in jobs governed by seniority systems. The 1940 act accordingly included a provision that said employees, after their military service was over, were entitled to be reinstated in their previous jobs, provided they were still available, without any loss in seniority. This directive, it turned out, was ambiguous. Did no loss in seniority mean that the workers were entitled to go back to their job with the same seniority they had when they were drafted . Or did it mean that they were entitled to their old job with additional seniority tacked on as if they had not been drafted . Hand concluded for the Second Circuit that no loss in seniority meant the draftees were to be reinstated with the seniority they had when they were drafted, but no more. In a critical paragraph, this is how he explained his conclusion when we consider the situation at the time the act was passed september, 1940, it is extremely improbable that congress would have meant to grant any broader privilege than as we are measuring it. It is true that the nation had become deeply disturbed at its defenseless position, and had begun to make ready; but it was not at war, and the issue still hung in the balance whether it ever would be at war. If we carry ourselves back to that summer and autumn, we shall recall that the president ial campaigns of both parties avoided commitment upon that question, and that each candidate particularly insisted that no troops should be sent overseas. The original act limited service to one year, and it was most improbable that within that time we should be called upon to fight. Congress was calling young men to the colors to give them an adequate preparation for our defense, but with no forecast of the appalling experiences which they were later to undergo. Against that background it is not likely that a proposal would then have been accepted which gave industrial priority, regardless of their length of employment, to unmarried men for the most part under thirty over men in their thirties, forties, and fifties, who had wives and children dependent upon them. Today, in light of what has happened, the privilege then granted may appear an altogether inadequate equivalent for their services; but we have not to decide what is now proper; we are to construct, as best we may, what was the purpose of congress when it used the words in which the act was cast. Several brief comments about hands use of imaginative reconstruction in this case. Note that the approach is relentlessly originalist. The ambiguity is to be resolved the way it would have been decided had congress attended to it in 1940, not the way Congress Might resolve it in 1946, when the case was decided. Also, the reconstruction of the values and attitudes of congress in 1940 is based on wellknown public events, like the president ial campaign of 1940 and public sentiment about the prospects for war; there is no reference to legislative history. Finally, and perhaps most strikingly, there is a steely resolve to ignore the enormous moral claims of the soldiers and sailors who were drafted under the 1940 act and great hardship and disruption to their lives they endured, often for many years, in the service of their country. The task of the judge, as hand saw it, is to project the purposes of the legislature that enacted the law into the future, not to perfect the law by making it more just or equitable in light of subsequent events. As hand continued to reflect on the proper approach to statutory interpretation over the years, he became increasingly aware of the extraordinary demands his theory put on the interpreter. The most obvious problem, to use a fancy term, is epistemic. How do you know . It is one thing to ask the interpreter to unpack the legislative deal in considering a recent enactment by a legislature with which the interpreter has significant familiarity. It is quite another to require the interpreter to imaginatively reconstruct a complex statute adopted many years ago or even a recent statute enacted by a legislature with which the judge has no familiarity. Hand acknowledged the problem some years later in his commemoration of the Judicial Service of judge thomas swan. He spoke of the great difficulty of engaging in imaginative reconstruction. In his words, the judge must have the historical capacity to reconstruct the whole setting which evoked the law; the contentions which it resolved; the objects which it sought; the events which led up to it. This was an especially daunting task in dealing with an enactment like the Internal Revenue code. Speaking specifically about that law, hand confessed to considerable difficulty in giving meaning to the words. As he said, the words merely dance before my eyes in a meaningless procession crossreference to crossreference, exception upon exception couched in abstract terms that offer no handle to seize hold of[leaving] in my mind only a confused sense of some vitally important, but successfully concealed, purport, which it is my duty to extract, but which is within my power, if at all, only after the most inordinate expenditure of time. Hand praised judge swan for his superior skills in finding his way through thickets of verbiage in statutes with more ease than any other judge of my personal acquaintance. But if imaginative reconstruction of the revenue code is possible only for a talent like judge swan, and pushes even a learned hand to the limits of his ability, how is it possible that this approach could be recommended for use by more ordinary mortals . Hand further acknowledged that the capacity to imaginatively reconstruct the context of an historical enactment is only the beginning of the demands on the judge. In addition, the judge must also have the capacity to project the historical understanding onto a future when an issue emerges which the enactors did not contemplate. This, he said, requires the judge to have the the far more exceptional power of divination which can peer into the purpose beyond its expression, and bring to fruition that which lay only in flower. Perhaps even more importantly, it requires great power of selfrestraint. The judge must purge his mind and will of those personal presuppositions and prejudices which almost inevitably invade all human judgments; he must approach his problems with as little preconception of what should be the outcome as it is given to men to have; in short, the prime condition of his success will be his capacity for detachment. One is reminded of ronald dworkins conception of the judge as hercules, only for hand the herculean judge is not one who discerns and enforces true morality; he is the one who can steel himself again yielding to his sense of true morality. In one of his last public statements on the subject, hand acknowledged that imaginative reconstruction would strike many people as having a fantastic unreality. But he insisted that there was no other choice you really must ask what they would have said. In these remarks, hand also offered, in an offhanded way, a qualification. He noted that there are, indeed, occasions when a statute, which i like to call an openended statute, will say to you, you do what you think best about that, just as we do with juries in the case of negligence. But in other cases, when the legislators have not handed over the authority to us to make our own choices, we have to assume that they did mean to impose some choice of their own. Hand did not elaborate on how judges are to discern when the legislature has imposed some choice of its own, and when it has delegated authority to the judiciary to do what you think is best. Why did hand conceive of imaginative reconstruction as a jurisprudential imperative, at least when the legislature has made some choice of its own, in the face of his implied but grudging concession that imaginative reconstruction is beyond the capacities of most judges . The closest he came to an answer was in his speech commemorating the anniversary of the Supreme Court of massachusetts. Its theme was the need for an independent judiciary. He said there that statutes do not represent permanent principles of jurisprudence,assuming that there are any such, but they can be relatively stable; and, provided that the opportunity always exists to supplant them when there is a new shift in political power, it is of critical consequence that they should be loyally enforced until they are amended by the same process that made them. That is the presupposition upon which the compromises were originally accepted; to disturb them by surreptitious, irresponsible and anonymous intervention imperils the possibility of future settlements and pro tanto upsets the whole system. In other words, faithful reconstruction of the legislative bargain, and skillful projection of that bargain in resolving future controversies, is a necessary condition of achieving change through elections and the process of translating electoral success into enacted law. This was the only means, hand thought, by which government by the people can become articulate and be made effective. In the end, hands original premise grounded in separation of powers that the Legislature Must reign supreme in matters of policy and that courts must act as faithful agents of the legislature drove him to embrace imaginative reconstruction. The premise prevailed, even in the face of his deeply pessimistic perception about the reality of the legislative process. And it prevailed even in the face of his growing awareness that imaginative reconstruction was beyond the capacity of most judges. In assessing judge hands theory of statutory interpretation, i thought it would be instructive to compare theory to practice, to ask how judge hand actually proceeded in resolving questions of statutory interpretation. Hand probably sat on thousands of cases involving statutory interpretation during his long judicial career. It would be beyond the limits of human endurance, mine at least, to read all of these decisions. To make the exercise more manageable, i decided to concentrate on hands opinions in one area of statutory interpretation, federal copyright law. Copyright is a Natural Choice for several reasons. First, the number decisions is about right written opinions by learned hand arising under the copyright act. Second, the copyright act he construed was adopted in 1909, the same year hand was appointed to the bench, and it remained largely unchanged throughout his tenure as a judge. There is thus good reason to think that hand would be familiar with the values and objectives of the legislature that adopted the act, and that this understanding would not be complicated by later amendments. Third, hand is justly famous for his copyright decisions, several of which were pathbreaking and some of which continue to be cited and quoted today. Not all of these decisions involved questions of great magnitude. But a good number required the resolution of questions of legal interpretation, enough to give us a fair sample. In these decisions, one thing stands out not once did hand seek to resolve a question about the meaning of the copyright act by asking how the congress of 1909 would have resolved the matter if it had thought about it. [laughter] merrill thus, we can say, at a minimum, that although hand repeatedly stated in extrajudicial writing that judges must engage in imaginative reconstruction in construing statutes, he did not adopt that approach, at least not explicitly, in interpreting the copyright act. Consider one of hands most important contributions to copyright law his development of the idea expression dichotomy and the understanding that abstract ideas are not eligible for copyright protection. He first set forth this understanding in nichols v. Universal pictures corporation in 1930. The question was whether the copyright of a play, abies irish rose, which involved a jewish boy who falls in love with and secretly marries an irish girl, was infringed by a movie, the cohens and the kellys, which involved a jewish girl who falls in love with and secretly marries an irish boy. There was no claim that the movie had plagiarized the dialogue of the play. The question was whether the similarities in the plot constituted an infringement. Hand held that although the plot line of a play is eligible for copyright protection, here the similarity was too general, too abstract, to constitute an infringement. In reaching this conclusion hand advanced one of the first articulations of the understanding that ideas, at least abstract ideas, are not subject to copyright protection. For present purposes, the primary significance of the decision is that, in adopting this distinction, hand made no reference to the copyright act of 1909. The only authorities he mentioned in his opinion were earlier decisions, including decisions construing copyright statutes in effect prior to 1909. One possible explanation for hands failure to reference how the legislature of 1909 would have decided the legal question in nichols is that he had not yet formulated his theory of imaginative reconstruction. Yet in 1936, after hand released his thoughts about statutory interpretation in his cbs broadcast, he returned to the issue. Sheldon v. Metrogoldwyn pictures corporation again presented the question whether a movie infringed the copyright in the plot line of a play. Hand reaffirmed the importance of the idea expression dichotomy, and reaffirmed that it was necessarily a distinction without a sharp boundary. This time hand held that the defendants were guilt of infringement, given the substantial similarity in the characters, the setting, and the sequence of events depicted. Again, however, hand relied exclusively on precedent, including his prior decision in nichols, in developing the dichotomy and applying it to the facts. Ignored not completely questions about the Proper Division of roles between the legislature and the courts in all matters involving copyright. Two important decisions involving the scope of copyrightable material reveal that hand was highly sensitive to what i have called the separation of powers question in this context. In cheney bros. V. Doris silk corporation, decided in 1929, hand confronted the question whether the design of fabric used in producing clothing is eligible for copyright protection. Although photographs were explicitly covered by the 1909 act, and courts had extended this to moving pictures, hand held that any decision to make fabric designs eligible for copyright would have to be taken by congress. The case before him involved blatant copying, and hand acknowledged that some sort of redress or remedy would seem appropriate. But he said larger issues are at stake. Judges, he wrote, have only a limited power to amend the law; when the subject has been confided to the legislature, they must stand aside, even though there be an hiatus in completed justice. An omission in such cases must be taken to have been as deliberate as though it were express, certainly after longstanding action on the subject matter. Indeed, we are not in any position to pass on the questions involved. We must judge upon records prepared by litigants, which do not contain all that may be relevant to the issues, for they cannot disclose the conditions of this industry, or of the others which may be involved our vision is inevitably contracted, and the whole horizon may contain much which will compose a very different picture. 29 here too we see no reference to imaginative reconstruction. Congress did not decide the question, but instead of treating silence as an invitation to consider what they would have decided had they attended to the issue, hand treats silence as a denial of copyright eligibility. Again, it is not likely that hand proceeded this way because he had not yet developed his theory of statutory interpretation. A similar question arose before hand in 1940. This time the question was whether the holder of a copyright in a phonograph record could prevent persons who purchase a record from using it in a radio broadcast. Hand ruled in rca mfg. Co. V. Whiteman that the question was again a novel one about the scope of eligibility for copyright protection, and that such a question had to be resolved by congress, not the courts. Decision. Opyright in 1939, the sheldon case the second hand decision involving the idea expression dichotomy, came back before the court on the question of remedy. Recall that the first time around, hand concluded that the movie was guilty of infringing portions of the plot of the play. The plaintiff argued that this meant it was entitled to recover all the profits from the infringing movie. The defendants argued that the profits should be apportioned, and the plaintiff was entitled only to the portion attributable to the infringement. Hand agreed with the defendants. In justifying this conclusion, hand briefly mentioned the language of the 1909 copyright act, which empowered courts to award damages in lieu of actual damages and profits. Not quite on point, but the ultimate basis for his decision was an amendment to the patent act adopted by congress in 1922. As hand explained, congress in 1922 amended the patent act to allow opinion or expert testimony on the question of apportionment. Hand reasoned that we ought not to disregard the progress of the law in a field so close to that before us. On this basis, a previous decision of the Second Circuit disapproving apportionment in Copyright Cases was overruled, hand writing that court is justified in basing its decrees upon practices common in other human affairs. The decision proved to be of enormous and lasting significance. The second sheldon case can no more be considered an exercise in imaginative reconstruction than the other copyright decisions i have mentioned. If anything, sheldon ii would have to be regarded as an example what professor bill eskridge calls dynamic statutory interpretation. Hand did not ask what the congress of 1909 would have thought about the matter; he relied on what congress did in thirteen years later under another statute to resolve an analogous question. What are we to make of this admittedly limited excursion into learned hands practice of statutory interpretation . When he addressed the theory of statutory interpretation in extrajudicial writing, hand never wavered from his position that imaginative reconstruction was imperative. When called upon to engage in statutory interpretation in practice, at least under the copyright act, hand never relied specifically on what he insisted was required in theory. One lesson, i think, is that the theory was incomplete. Certainly if we consider hands decisions about the types of expression eligible for copyright protection, there was no contradiction between the underlying premises of the theory and practice. When confronted with claims for protection of fabric designs or broadcasts of phonograph records, hand forthrightly concluded that it was impossible to say how congress would have resolved the issue in 1909. There were simply too many imponderables and too many conflicting interests for a court to make a reasoned guess. This seems to me to be fully consistent with his philosophical commitment to legislative supremacy and his understanding of the legislative process as set of compromises between competing interests. The decision in sheldon ii about remedies for Copyright Infringement can also be reconciled with hands primary commitments. Recall that he acknowledged, in addresses that in some cases congress will signal that it is leaving a question for the courts to decide. It does so primarily in adopting an openended statute, saying in effect you do what you think best about that. The question whether copyright infringers must disgorge all profits or could be allowed to show that profits should be apportioned, it seems to me, falls comfortably within this class of cases. Congress in 1909 said that courts could award damages other than actual damages and profits, suggesting broad judicial discretion in matters of setting compensation. And courts have traditionally exercised greater autonomy in determining remedies than in identifying primary obligations. Also, hand may have regarded the legislative judgment about the possibility of apportionment in patent cases, rendered in 1922, to be a reasonably reliable guidepost about what congress would have decided in 1909, if it had it expressly considered the issue. To be sure, hand did not attempt to justify his decision about apportionment in terms of either delegated lawmaking or imaginative reconstruction. But the justifications were there, if he had seen fit to make them. The most difficult decisions to square with hands underlying commitments were the ones adopting the idea expression dichotomy. The most notable feature of these decisions is that they do not read like statutory interpretation opinions. There is no reference to the language of the statute at all. They read like common law decisions, or perhaps decisions based on general principles common to all copyright regimes. My view is that hand did not seek to reconcile the idea expression dichotomy with his basic commitment to legislative supremacy because it did not occur to him that the dichotomy was a potentially contestable proposition. It was, in his mind, a simple truth about the nature of any copyright regime. As he put it, protection would be meaningless if limited to the actual words used, because this would be susceptible of easy evasion. But there must be some limit to how far one abstracts from the words used, or else the first person to copyright a play could prevent anyone else from writing a play. Hand also regarded the process of deciding when the boundary has been crossed between expression and abstract idea to be an intensely particularized inquiry, depending on the totality of the factual circumstances. There may be issues what are not legitimately contestable. Even with these amendments, there is still the epistemic problem and the problem of evening the importation of the judges fell use in construing what the legislator mightve done. The copyright contexts, the weight of the administered and strictly adhering to prior precedents. And the performance and interpreting the copyright act. But, if anything is the contemporary of all of this. Perhaps that minimum we can say that judge poznan with great osner good sense and abandoning it. Looming much larger today than it did in judge hands time. The Internal Revenue code that judge hand, which he could confidently say how congress could have acted had it addressed the question. Couldontroversies perhaps be resolved using reconstruction. Consider the Supreme Court decision on king versus burwell quoting that Affordable Health perhaps you could by deciding how legislators would have voted had they paid attention to the issue. Chief Justice Roberts opinion for the court did not proceed this way, but perhaps it is the best justification for the decision. For most run of the mill statutory interpretation problems, however, it will be impossible to say with any confidence what the congress would have decided if it had attended to the issue. One thought that has occurred to me is that if hand were alive today perhaps he would be a textualist. I say this because his two primary commitments, to a conception of separation of powers in which courts defer to legislative judgments about policy and to a perception of the legislative process as one that produces messy compromises that may often clash with the judges own views of what is just or fair or even common sense are similar to the primary commitments that seem to drive todays textualists. Certainly justice scalia, the leading judicial advocate of textualism in recent years, embraced similar commitments. He consistently reprimanded judges who he thought were guilty of substituting their own preferences for those of the enacting legislature. Yet he also painted a picture of the legislature as a body of selfserving manipulators, eager to fool their colleagues and judges with potted legislative history. Judge easterbrook, another prominent textualist, shares similar views. Yet even if hands premises were similar to those of todays textualists, i doubt that hand would ever be a fullfledged convert to textualism. He clearly would have rejected one feature of textualism an approach to interpretation that relies heavily on dictionary definitions and canons of interpretation. He said so expressly. His touchstone, from beginning to end, was to extract and enforce the purpose of the legislature that enacted the law, and he rejected these sorts of interpretative aids because he thought they were a very inadequate way of capturing legislative purpose. What would hand think about another central tenet of textualism forswearing all reliance on using legislative history to interpret statutes . We do not know, since the practice in his day did not include consulting official legislative history, and as far as i can tell, and hand did not cite legislative history materials very often, certainly never in Copyright Cases. Given that his touchstone was always to extract the legislative purpose, i doubt that he would have endorsed a blanket prohibition on referencing legislative history, provided that history sheds important light on how the balance of interests came to rest in the legislature. But of course, we cannot know for sure. Learned hand was also the author of the hand formula in the law of torts, which essentially seeks to define reasonable behavior as that which produces benefits in excess of costs. Perhaps hand would have concluded that a general practice of requiring lawyers to research and debate legislative history in every case of statutory interpretation flunks the hand formula, and he would have joined the call for a general prohibition on that basis. A deeper question is whether my story suggests that any unitary theory of statutory interpretation is doomed to failure. The picture i have drawn is one which learned hand, a very smart man and supremely able judge, tenaciously embraced a theory of statutory interpretation in extrajudicial writing that he was either unable or unwilling to follow in practice, at least does this mean that any unitary theory of interpretation, be it textualism, purposivism, integrity theory, pragmatism, you name it, is doomed to failure when it runs up against the messy world of real controversies . Maybe so. Still, i do not think hands effort to derive a unitary theory of statutory interpretation, or for that matter any other attempt to derive such a theory, is a waste of time or that it is without consequences in resolving real world disputes. As an academic, i cannot help but be deeply impressed by hands struggle, throughout most of his career, to translate his normative premises and empirical perceptions into a coherent theory about how to interpret statutes. As i have suggested in discussing hands Copyright Cases, he may not have been able to use the fullblown version of his theory very often. But there are clear echoes of that theory in his decisions declining to extend copyright protection to matters where it is utterly unknowable how congress would reconcile the conflicting interests, as well as in his sense of the kind of issues that congress would regard as being given to courts to decide, as opposed to waiting for legislative guidance. The theory was the outgrowth of a broader philosophy of government and judging. Hands effort to work out and defend his theory, in extra judicial writing, undoubtedly shaped his general attitude about how to resolve the issues presented to him for resolution as a judge, even if the theory in its express formulation asked too much, and it was not feasible to use it very often. In any event, i hope i have conveyed enough of the flavor of judge hands thoughts about, and his performance in, the practice of statutory interpretation to show that he was both an exceptional thinker and an extraordinary man. Although his time has passed and questions of the day are different, his thoughts and his performance are very much worth engaging with today. He was a great judge in truest sense of the word, one of whom the Second Circuit should be unreservedly proud. He also has a lot to teach us, if we only take time to listen and learn. Thank you. [applause] thank you, professor merrill for that superb lecture. You have given us a lot to ponder and think about and elucidating the diversions and time between theory and practice and the difficulty of judges. It is a real contribution. More of your classes are focusing on statutory interpretation. Your lectures are popular. Thank you so much for that very 125thg end to our anniversary year. Thee close, reflecting on 125th Anniversary Program in the same courtroom where we started, i am reminded of the words in elliotts quartet, section five. We shall not cease with exploration and the end of all our exploring will be to arrive where we started and know the place for the first time. That exploration will continue. The various programs with had this year will be available on the court of appeals website and on the website of the Civic Education program, which i have had the privilege of starting along with a cochair. Also the project justice for a project of all of the courts of the Second Circuit, a project through which a wide range of civic activities seeks to bring courts closer to the communities of we serve to promote understanding of the courts and help courts better understand the communities we serve. We have been greatly led by jim, here today. Us you can visit the justice for. Ll website we invite your participation in our work. You can check the project for Upcoming Events at the courthouse. Come back in the fall and you will be able to visit our stateoftheart Learning Center in the courthouse. Multimedia exhibits and programs about the history of the court, the great history of the court, the judges of the court. Watch assumed for an exhibition to open on the Thurgood Marshall and his times, mounted with great appreciation to judge meyer and the library team. We hope you will come back and be part of this courthouse, as it is your courthouse. With that, we are adjourned. The purpose for which this special session of the United States court of appeals for the Second Circuit having that congress, this court is adjourned. Please join me and my colleagues in a reception in the main lobby on the first floor the courthouse, and as was alluded to, i invite you to visit the exhibit highlighting some of the history of the Second Circuit in the north corridor of the lobby. We are adjourned. Thank you. [applause] [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] youre watching American History tv among all weekend, every weekend on cspan3. To join the conversation, like us on facebook at cspan history. Up next on leur