March 17, 2008
Alexander Pekelis, Arthur S. Miller,
And Today’s Supreme Court

Dean Lawrence R. 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 playwright 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.”

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.

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 no t 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 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.

This posting represents the personal views of Lawrence R. Velvel.  If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu.  Your response may be posted on the blog if you have no objection; please tell me if you do object.


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