Appellate Insults and Legal Payback

Have you ever wondered how appeals court justices insult each other. There is a wonderful example in the concurring opinion by Judge Frank of the Second Circuit in the case between the National Labor Relation Board and Universal Camera Corp. 190 F.2d 429 (2d Cir. 1951). This is actually the second time this case came before this court, the first time only a year earlier. In the meantime, the case moved up to the Supreme Court and was remanded with instructions to reconsider the weight of the conclusions of a special investigator for the NLRB, whose conclusions had previously been overruled by the NLRB's board. The facts of the case are not really important, but it is one of those cases that moves up and down the courts going one way and then the next, and my Admin Law book decided to reprint each of the opinions so that we could see how the case moved around. Judge Learned Hand, who is pictured above in the middle, and who, with a name like Learned Hand, was born to be a judge, wrote both of the appeals court opinions. He is one of those appellate judges, along with Cardozo, pictured left, and Warren, pictured right, whose opinions crop up again and again in first year casebooks. He is also one of the most well renowned and respected justices of American jurisprudence, which you will see when you read the way Judge Frank criticizes his majority opinion; or could Frank's words be just a mask for a scathing in your face appellate insult. This is how Frank's concurring opinion begins:

Recognizing, as only a singularly stupid man would not, Judge Hand's superior wisdom, intelligence and learning, I seldom disagree with him, and then with serious misgivings. In this instance, I have over come my misgivings because I think that his modesty has moved him to interpret too sweepingly the Supreme Court's criticism of our earlier opinion written by him. . .

If this had been a dissent, I think it would fall more to the scathing side; rather, after review Frank's words again, I see here a touch of a type of brilliance that we rarely see in our day to day dealings with the world anymore: the capacity to respectfully disagree. If only we all had the capacity to tell other's they have made a mistake with such craftily constructed phrases and such relationship edifying independence.

On another note, I received my first pay check for doing real legal work. (work study at the library circulation desk doesn't count) After forking over an ungodly amount of money, fronted by banks and the U.S. government, in order to work in this chosen field, I am finally seeing that there is hope of some of that coming back to me. And if I can proceed to earn that money with half the class of Hand and Frank, I think I am going to do alright by the law.