Danelski, David J.

English

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Washington Law Review Volume 41 Number 2 4-1-1966 Fair Fight and Foul: A Dissenting Lawyer's Life, by Thurman Arnold (1965) David J. Danelski Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Legal Biography Commons Recommended Citation David J. Danelski, Book Review, Fair Fight and Foul: A Dissenting Lawyer's Life, by Thurman Arnold (1965), 41 Wash. L. Rev. 378 (1966). Available at: https://digitalcommons.law.uw.edu/wlr/vol41/iss2/14 This Book Review is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. BOOKSBOOK REVIEWFAIR FIGHTS AND FOUL: A DISSENTING LAWYER'S LnFE. By ThurmanArnold. New York: Harcourt, Brace & World, Inc., 1965. Pp. xi,292. $5.95."In spite of its imperfections and its aspects of high comedy," writesThurman Arnold, "there is no career in the world more interesting thanthe law in the United States. You have an orchestra seat from which toobserve the most fascinating spectacles" (p. 270). He sees Harvardbusily buying books and just as busily giving scholarships to make surethe books are read, Yale trying to make law a behavioral science, lesserlaw schools trying to imitate one or the other, law firms with hundredsof lawyers working day and night to find cases to include in their briefsand "thus confuse the courts," judges and their law clerks in turn work-ing just as hard to avoid being confused, Establishment high priestsstamping the imprimatur of orthodoxy on things political and economicwhile castigating all other thinking as "unsound," Madison Avenue'sP.R. men making the images of our political leaders, and scientists("the only knowledgeable hard workers in the lot") devising meansby which we can destroy ourselves and civilization (pp. 270-71). Andhe sees another fascinating spectacle -Thurman Arnold dressed in"striped pants" and "a high silk hat," passing in life's review (p. vii).As he watches himself go by, he attempts to record and understand hisrole in the human venture.If one knows anything about Thurman Arnold, the prospect of read-ing his autobiography is inviting. Irreverent legal realist, former Yaleprofessor, author of two brilliant books,- chief of the antitrust divisionof the Department of Justice in the latter days of the New Deal, ex-judge of the U.S. Court of Appeals for the District of Columbia, andfriend and former associate of Justices Douglas and Fortas-theseare the marks of a man about whom we should like to know a greatdeal. Thus for those who are familiar with his writings and want tounderstand the man in depth, his prefatory comment that writing auto-' ARNOLD, THE SYMBOLS OF GOVERNMENT (1935); ARNOLD, THE FoLxLoRE OFCAPITALISm (1937).3781BOOK REVIEWbiography is "much like dressing yourself in striped pants, puttingon a high silk hat, and watching yourself go by" is disconcerting, forit symbolizes formality and gives rise to the suspicion that when itcomes to certain subjects, such as aspects of his personal life affectinghis official conduct, Arnold will hide behind his stiff white shirt frontand black tie. To a large extent the suspicion is justified. Arnoldspeaks of his youth with some candor, though the recollections of thatperiod are intended to amuse as much as to enlighten, but as he ap-proaches his important official years, he becomes more and more distantas a person, and the focus of the book shifts from Arnold's life toArnold's views about life.For those who expected the confessions of a legal realist, the shift isdisappointing. Yet the book remains interesting to the end, mostlybecause it discusses and illustrates Arnold's major original insight-thesignificance of the symbolic aspects of law and politics - somethingpolitical scientists and sociologists are just beginning to study systemat-ically.2 It may not have been by design, but no matter what Arnolddiscusses, he soon taps its symbolic dimension. Here are a couple ofexamples. Although he thinks the NRA was economic nonsense, herecognizes its symbolic importance, for President Roosevelt used it as"an instrument that gave the people hope and courage. When it ceasedto do that, Roosevelt turned to other means" (p. 146). In regard tothe Supreme Court, Arnold believes that the legal realists of the 1930's,himself included, did yeoman service in exposing the psychology thatlies behind the facade of legal logic, but he concedes that "legal realismis not effective in giving to our legal institutions the public respect re-quired to symbolize the great ideal of a rule of law above men" (p. 70).The Court today, he says, is dramatizing the ideals of due process andequality, and because it has been fairly successful in symbolizing thesevalues, it has retained public respect and hence political power.In symbolic terms, the most important position Arnold held was U. S.Court of Appeals judge. At the time of his appointment, it was hisintention to spend the rest of his years on the bench. The chapter deal-ing with his judicial period is surprisingly short-less than four pages,half of which have little to do with Judge Arnold. Further, for some2 EDELMAN, THE SYMBOLIC USES OF POLITICS (1964); GUSFIELD, SYMBOLICCRUSADE: STATUS POLITICS AND THE AmmuCAN TEMPERANCE MOVEMENT (1963).Harold D. Lasswell, however, like Arnold, did much of the pioneer work in this area.See LASSWELL, WORLD POLITICS AND PERSONAL INSECURITY pt. II (1935); LASSWELL,POLITICS: WHO GETS WHAT, WHEN, How ch. 2 (1936) ; LASSWELL, LERNmF & POOL,THE COMPARATIVE STUDY OF SxMOLS (1952).1966]WASHINGTON LAW REVIEWreason not directly disclosed in the text, those pages seem to have beenwritten with tongue in cheek. Why did Arnold resign from the Courtof Appeals? His answer is that he felt that he was by temperamentmore of an advocate than a judge, that the judicial role did not satisfyhim, that he was impatient with legal precedents that reached unjustresults, and that he felt restricted in being unable to speak out oncontroversial subjects. This is a plausible explanation, but one wonderswhether there might still be more to it than that. Although JeromeFrank was able to adjust to the bench, it seems incongruous for a legalrealist to take the robe without compromising his position; it is almostlike an unbeliever taking holy orders. A legal realist at the bar isanother matter; there his realism contributes to success in the profes-sion. Unlike the judge, he can quip, as Arnold impishly did in hisPlayboy brief: "The only way to avoid such repellent descriptions is tohold that no nudes is good nudes" (p. 184).Fair Fights and Foul was published just before Abe Fortas-Arnold's law partner and one of the persons to whom the book is ded-icated-was appointed to the Supreme Court. A number of cases inwhich Fortas was counsel-such as Lattimore, Durham, and Gideon-are discussed, but no clear picture of Fortas' personality or value sys-tem emerges. The impression Arnold gives, however, is that he andFortas were in substantial agreement concerning most social andpolitical issues. In view of Fortas' elevation to the High Court, it isunfortunate that Arnold did not write in greater detail about his part-ner. There is, of course, still time to do so.Thurman Arnold's memoir is delightful, informative, and interest-ing; it whets the appetite for more. And there is more to be said, agreat deal more. But to say it Arnold will have to take off the high silkhat and striped trousers. Perhaps it is too much to ask for the candorof Rousseau, Norris, Gide, or Augustine. Many would settle for a gooddeal less-what Arnold himself would have settled for when he andEdwin Robinson taught their course at Yale on the psychological basisof law.'DAVID J. DANELsi*3 See RoBiNsoN, LAW AND LAWYERS (1935).* Associate Professor of Political Science, Yale University; member of the Illinoisand Washington Bar Associations.[VOL. 41 :378

\u3ci\u3eFair Fight and Foul: A Dissenting Lawyer\u27s Life\u3c/i\u3e, by Thurman Arnold (1965)

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\u3ci\u3eFair Fight and Foul: A Dissenting Lawyer\u27s Life\u3c/i\u3e, by Thurman Arnold (1965)

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