March 12, 2008Re: Alexander Pekelis, Arthur S. Miller, And Today’s Supreme Court.
In recent months I read a book which mentioned the name “Alexander Pekalis.” It was a name I had not seen referred to in print in over 40 years. The author, whether because of a mistaken impression or a typographical error, spelled the name wrong. It is not Pekalis. It is Pekelis.
I first heard of Alexander Pekelis in 1964. I was working on an ocean shipping rate conference matter for the Antitrust Division of the Department of Justice, and read an article on relevant matters in the University of Chicago Law Review by John McGee, who became a reasonably well known economist. In the same volume of the University of Chicago Law Review was an article coauthored by Arthur S. Miller. He was not the Arthur Miller who was the playright and one of Marilyn Monroe’s husbands. He was not the Arthur Miller who taught at the University of Minnesota Law School, then at the Michigan Law School, and now has been for decades a famous professor at the Harvard Law School. He was Arthur Selwyn Miller who taught at the Emory University Law School and then at George Washington University’s Law School.
Miller’s article was entitled The Myth of Neutrality In Constitutional Adjudication. It assailed a doctrine called “neutral principles,” which at the time was an intellectual fad du jour after having been enunciated by a then famous law professor, Herbert Wechsler, in 1959. Without describing this doctrine, let me say only that it was a bête noir of liberals, who feared that it would stop the social progress then being made through law (and in the Supreme Court particularly), but was so silly (like lots of intellectual fads du jour) that it later was devastated by a conservative, Richard Posner, in what possibly was the greatest single demolition job I have ever seen worked upon a doctrine.
I read Miller’s piece because, unlike what happens to so many law students, my years at the Michigan Law School (1960-1963) had not succeeded in knocking out of me the liberalism and concern for social justice of my youth. (The non knockout is described in Volume I of Thine Alabaster Cities Gleam.) Interested in the use of courts as an instrument for social justice -- historically a mainly false hope, but one that was fostered by actions of the Warren Court from 1954-1968 that were contrary to the tide of both prior and subsequent Supreme Court history -- I read Miller’s piece to see what it said.
Without elaborating nearly 35 pages of argument, suffice to say that Miller’s main point was that it is humanly impossible for a judge (or any human being) to act “neutrally.” One’s (inevitably non-neutral) values always came into play, said Miller. (Would anyone who is knowledgeable really contest that today in the case of judges?) Towards the end of the piece the liberal Miller argued that decisions should be weighed “in terms of their social adequacy,” which would require supplementing straight doctrine legal doctrine “with relevant facts and principles from the social sciences.” In this connection Miller mentioned a proposal “by Alexander M. Pekelis, whose article calling for a ‘jurisprudence of welfare’ has lain neglected for over fifteen years.” That was the first I had heard of Alexander Pekelis.
Naturally, I got Pekelis’ article, entitled The Case for a Jurisprudence of Welfare. I can see the pages of the article in my mind’s eye to this day. It was in a journal published by the National Lawyers Guild. If memory serves, the Guild had been started around 1937 as a counterweight to the conservative American Bar Association, and, during the midcentury Red Scare of the late 1940s and 1950s, had been placed on the Attorney General’s list of subversive organizations. (Sic semper liberales.) It made a comeback during the Viet Nam War and, I gather, remains somewhat of a force to this day.
When reading Pekelis’ piece, I learned from some type of editor’s note that he had been killed in an air crash at Ireland’s Shannon Airport in 1946. This seemed doubly a tragedy: any such human death is tragic, and in Pekelis’ case the crash silenced what obviously was a great liberal voice besides. But his death at Shannon was all I knew about Pekelis’ life.
When seeing the reference recently to the misspelled “Alexander Pekalis” (I can’t even remember what book I saw it in), my curiosity was whetted to reread The Case for a Jurisprudence of Welfare. The only place our library could find it was in a 1950 book, which we borrowed from the library of Amherst College, called Law and Social Action[,] Selected Essays of Alexander Pekelis. The book’s cover says it is “A Publication of the New School for Social Research” and is from the Cornell University Press, both reasonably heady institutional names. It was edited by the Milton Konvitz, a pretty well known law professor of his day. At the back of Amherst’s copy of the book was a permanent sign-out slip, of the kind that used to be omnipresent in library books, recording the names of people who signed it out and the dates they did so. There was only one name on the sign-out slip, and he had signed it out in 1958. Yes, 1958. Not a single person had signed out the collection of Pekelis’ essays in the fifty years from 1958 until it was loaned to us late in 2007. (To repeat, sic semper liberales?) Forty-nine years is “lain neglected” with a vengeance. Had anyone even read it in the forty-nine years, without signing it out?)
The collection of Pekelis’ work had an Introduction by Konvitz, a Foreword by Max Ascoli, a leading intellectual of the day who founded and edited a highly regarded magazine of the time called The Reporter, and a Postscript by a well known professor at The New School, Alvin Johnson. From these pieces I learned something of Pekelis and his life, a life that ended at age 44 at Shannon.
Those who heard Pekelis read papers “before the General Seminar of the Graduate Faculty of the New School for Social Research (the University in Exile),” it was said, “will never forget his brilliant performances.” And his friends, “with Max Ascoli in the forefront,” wanted “this volume of writing published as a memorial to his great genius.” The life history of this brilliant person it was made clear, was deeply unusual.
Pekelis, to my own surprise, was not American by birth. Like my parents, he had been born in Russia before 1910, in his case in Odessa in 1902. “The rise of Bolshevism and the wrecking of the Russian universities drove him out of Russia in 1920, to study in” Leipzig, Germany and then in Vienna. He was “deprived of his Russian citizenship in 1922,” becoming “a man without a country, a situation very unfavorable to advancement in the German university world.” So he went to Italy, became a citizen and lawyer there, and a professor of law. Then “Fascism drove him from his chair at the Royal University of Rome.” He practiced law in Paris in 1939 and 1940, and in September, 1941 he came to the United States to teach at the New School (which, again if memory serves, was begun as a haven for brilliant scholar refugees from fascist Europe). While he was teaching at the New School, he attended Columbia Law School, and became the first foreign-born editor [in chief] of the Columbia Law Review.” He did so brilliantly as editor, it is said, that a new office of “graduate editor” was created for him . . . for the year 1943-1944.” (Whether the heavy loss of law school students to the armed services during the war had anything to do with this is something I do not know.)
Pekelis, like my own Russian-born parents, was a Labor Zionist; it was the Labor Zionists from Russia, and Poland too I think, who created Israel. He had, indeed, gone to Europe on the fatal trip as an American Labor Zionist delegate to a World Zionist Conference in Basle, Switzerland. He was killed while returning.
So Pekelis was a man of five different countries, cultures and languages (treating Germany and Austria as one, a kind of Anschluss as it were), at least five languages, and, one gathers, enormous professional success, especially in Italy and the U.S. It was plainly a remarkable life that was cut short at age 44.
What, then, did Pekelis say in The Case for a Jurisprudence of Welfare. Let me once again avoid all the toing and froing, all the arguments pro and con, in order to immediately get down to essence.
He said, like the legal realists of the 1920s, and like Miller fourteen years later, that judges make law, not merely find it as a “brooding omnipresence in the sky” (a phrase I think was coined by Holmes). In making law, a judge should ask “which course of my action – which rule of law – is going to serve best the general welfare of the society I am sworn to serve,” and should try to answer this question not just with legal shibboleths, but with the help of “all available data” afforded by social sciences. Judges should at minimum learn enough about social science “to exercise a common-sense control” over the putative experts with their “charts and . . . essays,” in order “to narrow the appalling chasm between those who . . . study our community and those who, in legislative communities and courts, shape its life.”