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March 12, 2008

Re: Alexander Pekelis, Arthur S. Miller, And

Today's Supreme Court
By Lawrence Velvel

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
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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
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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.”
That was the essence of what Pekelis was talking about, though there are dozens of
pages in his article that deal with objections and with countervailing supporting
reasons.
So . . . . what is to be said today about Pekelis’ points and, for that matter, Miller’s?
Well, there are numerous things that can be said, but I will cover only a very few.
To begin with the least important -- to begin with the purely personal -- the articles
by Miller and Pekelis had an impact on me. They showed that there were scholars,
even at least one great mind, that saw law the same way I saw it then despite a
complete dearth of such learning in my then-just-ended law school experience, and
the way I still see it to this day.
Do judges try to act in ways that will maximize the general welfare? Sometimes yes,
sometimes no -- sometimes they merely act according to their own, most often
conservative to reactionary, prejudices, especially now with the reactionary, screw-
the-small-guy five in charge of the Supreme Court.
Do the courts use the best that social science has to offer in reaching decisions?
Sometimes yes, sometimes no. They are aware, of course, because we as a society
are far more aware than when Pekelis and Miller wrote, that both social science and
even supposed hard science can come and go in fads, that there often are opposing
views in these matters, and that reliance on them can be reliance on the merely
temporary or the ultimately disproven.
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Overall, I am not at all sure we are better off on these scores than when Pekelis and
Miller wrote, although I also think that one of the reasons we may not be better off is
because we now, as through most of our history, have reactionary courts that are
determined to impose right wing values on society -- that is what made George W.
Bush president, you know.
I’m going to discuss only one concrete recent example that bears on what I am
talking about here. It perhaps does not have an exact one to one relationship
(although maybe it does), but is close enough, and aggravating enough, to warrant
mention.
Recently, in an opinion by Justice Scalia, the screw-the-small-guy five, this time
joined, shockingly, by Souter, Breyer and in part by Stevens, ruled, over a powerful
dissent by Ginsburg -- so that in toto it was the screw-the-small-guy five plus two and
one-half against one and one-half -- that a man named Riegel could not bring suit
under state law against a manufacturer, Medtronic, whose catheter ruptured in
Riegel’s heart during open heart surgery. Riegel alleged that the catheter was
defective (as well as that his doctor had screwed up in various ways). To make a
long legal story short, the Supreme Court majority ruled that Riegel could bring no
case under state tort law, because Congress had given the Food and Drug
Administration the power to regulate the safety of medical “devices.” New York law
was said to therefore be “preempted” by Congress’ law. The FDA, Scalia said, uses a
cost-benefit analysis under which it considers if more lives “will be saved by a device
which, along with its greater effectiveness, brings a greater risk of harm.” But the
jury in a state law case, said Scalia, will not make such an analysis. Rather, it “sees
only the cost of a more dangerous design.”
Let me translate Scalia’s statements into unvarnished English: state law against
defective medical devices cannot be invoked, because a jury will find the company
guilty for defective design or manufacture, whereas the geniuses at FDA will allow
the device to be used in a defective state, instead of demanding that the defect be
cured, because the defective device will help those whom it does not harm or kill.
And, by the way, Scalia, one of the chiefs of the screw-the-small-guy five, pays no
attention to the fact that the company’s lawyers could argue to the jury that the
device was designed and manufactured as well as is technologically possible, or
possibly comes with warnings the patient had to be told of, etc. Nope. Scalia ignores
all this and just makes some assumptions about what juries might do, so that he can
arrive at the pro big business conclusion he desires.
Nor do Scalia or his pals in the majority give any consideration to a salient fact that
comes up time and time again in the news and events of this country. To wit, the
FDA makes lots of mistakes. It does lots of bad things. Many think it is in the hip
pocket of the big drug and device companies, even the more so under the
Republicans. Yet the screw-the-small-guy five-plus-two-and-one-half want to take
away the protection given by state law against such federal incompetence -- against
incompetence, if not venality, of the type that pervades Washington.
In her powerful dissent, Ginsburg said Congress gave the FDA the power to regulate
medical devices because the failure of “A series of high-profile medical devices
intended for human use . . . . Conspicuous among these failures was the Dalkon
Shield” of horrendous history. But Congress never intended, Ginsburg said, to
prevent (to preempt, in legalese) state common law claims by injured parties, a point
for which she cited various elements of the legislative history and even cited a
supporting statement by the former chief counsel of the FDA itself. Scalia, on the
other hand, ignored legislative history because he leads a movement to completely
abandon its use. So to hell with what Congress wanted. (Stevens took the pretty odd
position in a concurrence that while Ginsburg is right about the history and legislative
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purpose of the federal law -- which means he should have voted with Ginsburg
regardless of the unguarded language used in the statute -- he would nonetheless
vote with the majority because the wording was broad.)
So what we have here is a Supreme Court decision that once again screws over the
small man; does so without any basis in Congressional history or purpose, but,
rather, contrary to that history and purpose; and screws him over on the basis of
unsupported assumptions of what juries might do and with no regard for the
recognized fact that the federal agency that is supposed to protect the small guy is
incompetent and, apparently, is in the hip pocket of the big drug and device makers.
This is not the concern for the general welfare, the concern for a jurisprudence of
welfare, or the concern for what investigations or social science show to be the facts,
that was articulated so many years ago by Pekelis and Miller.
I close with a last point that I am unable to resist. Thirty-six years ago, in 1972, the
DePaul Law Review printed a symposium on the shifting balance of powers between
the federal government and the states. The federal/state balance is a subject that is
ever with us, and is with us still, of course. I was asked to and did write the
Introduction to that Symposium, and think the antepenultimate and penultimate
paragraphs of the Introduction are pertinent to a case like Medtronics:
The abuses of modern technology and the modern economy are
usually perpetrated by interstate organizations, and curtailing these
abuses will consequently have interstate effects of one kind or
another. Thus, the easy answer for courts to give on the preemption
problem is often that the power of cure resides solely in the national
government. This is particularly easy when the national government
has already addressed itself to the problem in some way. But, knowing
what we do know of the inadequacies in Washington, the easy answer
may not always be the safe one from the standpoint of health and
welfare.
The real challenge is for the courts to work out a set of coherent legal
doctrines which have the effect of insuring that the citizen obtains
adequate protection against technological and economic abuse. Such
doctrines would have to be flexible enough to permit protection to be
given by the political branches of the federal government when they
are doing a better job than the states, and to be given by the states
when they are doing a better job than the political branches of the
federal government. At the same time, the doctrines would have to be
sufficiently principled so that decisions would not be rendered on a
totally ad hoc basis. Lastly, the complete set of doctrines would have
to provide for judicial protection in cases where neither the states nor
the political branches of the federal government are protecting the
citizen: in such cases the judicial protection would have to be based
on some sort of evolving common law.
It is obvious, is it not, that what is suggested in these two paragraphs is emphatically
not what the Supreme Court did in Medtronics, where it did not protect the citizen but
instead found a way to screw him over in favor of big business and big, centralized
government as represented by an ineffective federal agency. Nor does the
Medtronics opinion do what Pekelis and Miller urged by maximizing human welfare
instead of screwing people over. And such screw-the-small-guy, Medtronics type
jurisprudence from the Supreme Court is one of the reasons -- only one, but
nonetheless one -- why lots of people are and should be reacting very adversely to
the current Supreme Court.*
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*
This posting represents the personal views of Lawrence R. Velvel. If you wish to
comment on the post, on the general topic of the post, or on the comments of others,
you can, if you wish, post your comment on my website,
VelvelOnNationalAffairs.com. All comments, of course, represent the views of their
writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If
you wish your comment to remain private, you can email me at Velvel@mslaw.edu.
VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit
VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page.
The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com
In addition, one hour long television book shows, shown on Comcast, on which Dean
Velvel, interviews an author, one hour long television panel shows, also shown on
Comcast, on which other MSL personnel interview experts about important subjects,
conferences on historical and other important subjects held at MSL, presentations by
authors who discuss their books at MSL, a radio program (What The Media Won’t Tell
You) which is heard on the World Radio Network (which is on Sirrus and other outlets
in the U.S.), and an MSL journal of important issues called The Long Term View, can
all be accessed on the internet, including by video and audio. For TV shows go to:
www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for
conferences go to: www.mslawevents.com; for The Long Term View go to:
www.mslaw.edu/about_LTV.htm; and for the radio program go to:
www.velvelonmedia.com.
Authors Website: http://velvelonnationalaffairs.com/
Authors Bio:
Lawrence R. Velvel is the Dean of the Massachusetts School of Law, which educates
the working class, mid-life people, minorities and immigrants. He is the editor of a
journal called The Long Term View, hosts an hour-long TV book show called Books of
Our Time, which appears in the New England and Mid-Atlantic states on Comcast's
CN8 and is streamed on the internet, and hosts a radio program called What The
Media Doesn’t Tell You. The radio program, which is carried on World Radio Network
and is streamed on the internet, discusses important matters which the media
doesn’t disclose (or insufficiently discloses) and the reasons for the nondisclosure.
Velvel wrote a 1970 book on the constitutionality of the Viet Nam War and civil
disobedience, and a recent quartet called Thine Alabaster Cities Gleam, comprised
of: Misfit In America; Trail of Tears; The Hopes and Fears of Future Years: Loss and
Creation; and The Hopes and Fears of Future Years: Defeat and Victory.
Velvel blogs at velvelonnationalaffairs.com. His 2004 and 2005 posts have been
published in Blogs From the Liberal Standpoint: 2004-2005.