Henry Friendly
Henry Jacob Friendly was an American jurist who served as a federal circuit judge on the United States Court of Appeals for the Second Circuit from 1959 to 1986. He was the court's chief judge from 1971 to 1973 and presided over its specialized railroad court from 1974 to 1986.
Born in Elmira, New York, Friendly distinguished himself as a prodigy at Harvard College and then Harvard Law School, where he was president of the Harvard Law Review and achieved the highest grades in the school's history. After clerking for Justice Louis Brandeis, he co-founded the law firm of Cleary Gottlieb Steen & Hamilton in 1945 and became the general counsel and vice president of Pan Am Airways in 1946. Following the recommendations of Judge Learned Hand and Justice Felix Frankfurter, President Dwight Eisenhower appointed Friendly to the Second Circuit in 1959.
In the 27 years he served as a federal judge, Friendly was a prodigious writer who penned more than 1,000 opinions while authoring books and law review articles that are now considered seminal. He was especially influential in the fields of administrative law, securities regulation, and federal jurisdiction. His opinions remain some of the most cited in federal jurisprudence and he is considered one of the most prominent and influential judges of the 20th century.
Early life
Friendly was born in Elmira, New York, on July 3, 1903, the only child of a middle class German-Jewish family. He was descended from Southern German dairy farmers in Wittelshofen, Bavaria, that had adopted the surname of Freundlich. Josef Myer Freundlich, Friendly's great-grandfather, was a prosperous farmer whose estate burned down in 1831; after being denied help by his neighbors because he was Jewish, Josef grew affluent from livestock dealing. Heinrich Freundlich, Friendly's grandfather, immigrated to the United States in 1852 to avoid conscription and anglicised the family surname to Friendly. Heinrich worked as a businessman in Cuba, New York, beginning as a peddler. He progressed to own a carriage factory before the birth of Friendly's father, Myer Friendly, who migrated to Elmira in his youth.The Friendlys resided in the primarily Christian, western side of Elmira, opposite of the city's Jewish community. They held various civic positions in town, lived comfortably, and were known as active members of the local German-Jewish population. A monograph in Elmira commemorates Friendly's grandfather, a generous donor to the Jewish community, as "one of the leading men of Elmira in the late nineteenth century." Though not devoutly religious, the family attended a Reform temple alongside other German Jews and held a bar mitzvah for their only son.
Friendly demonstrated precocious abilities in reading and diction at a young age. As early as age seven, "he could read almost any book written for adults." His mother, Leah Hallo, was a bardolater skilled at contract bridge with an excellent memory. She "poured all her attention to her son," headed a local Shakespeare club, and frequently took him to Gilbert and Sullivan performances; he later recalled, "there was absolutely nothing she wouldn't have done for me." Myer, by contrast, was a conservative father who impressed high standards of work and perfection. The marriage began unhappy with Leah choosing to move in with her sister in Chicago, but she later returned. "We didn't have a very close family," Friendly remembered.
As a child, Friendly was known locally for his earnestness. Outside of school, he frequented the outdoors, often walking to Mark Twain's study, and visited a great-aunt who played scores of Richard Wagner. He experienced his first exposure to law while serving as a teenage expert witness in a breach of warranty trial. By means of a friend's father, a lawyer, he developed a respect for the profession. He was a committed reader who enjoyed baseball but was an overweight, unathletic teenage boy. Myer, a sportsman and fisherman, took his son on forays that Henry would ultimately come to reject, which disappointed Myer. Henry also lacked dexterity and struggled with handling objects into adulthood; after puncturing his hand with a pencil, he lost function of his left-hand little finger and contracted a serious case of blood poisoning. Eye problems developed during boyhood, which would advance to retinal detachment in 1936, further complicated his health. A lack of friends, combined with a lack of close relationships, resulted in social and emotional defects that persisted throughout his life.
Education
Although he missed several periods of school away on family vacations, Friendly skipped three grades, taking interests in American history and English literature—especially English writers George Eliot and William Makepeace Thackeray—but avoided science. He became a versatile student at the Elmira Free Academy, where he was considered one of the "most brilliant students ever to attend" and once discovered a mathematical error in its trigonometry textbook. He was chosen to be class valedictorian and editor-in-chief of the academy's newspaper, The Vindex. Upon graduating in 1919, he sat the New York Regents Examinations, attaining the highest scores ever recorded in its 55-year history.After obtaining a copy of its catalogue, Friendly was drawn to Harvard; two months after his sixteenth birthday, he left Elmira for Cambridge to matriculate at Harvard College, which had accepted him on merit. He was a taciturn, underage student—the sole undergraduate from Elmira, unfamiliar with classmates, and lacking social skills in a college whose students disproportionately came from elite families and belonged to exclusive clubs. Instead, Friendly frequented the Boston Symphony Orchestra, the Museum of Fine Arts, and immersed himself with a focus in history, philosophy, and government, achieving superlative grades every year. He especially enjoyed history, a pursuit reinforced by Harvard's modern approach that emphasized the field's intellectual and political aspects. Indicating his standing as one of Harvard's top eight students, Friendly's performance won him election to the Phi Beta Kappa honor society. His successes in the classroom were noticed by peers. Classmate Albert Gordon recalled: "we thought of him not only as the smartest in the class but the smartest at Harvard College."
Harvard housed the nation's leading faculty devoted to European history, which became Friendly's specialty. He took courses under prominent scholars Charles Homer Haskins, Archibald Cary Coolidge, and Frederick Jackson Turner. He was exposed to government under president Abbott Lowell, then European diplomatic history under William Langer. The professor he admired the most was Charles Howard McIlwain, whose course in medieval England he credited with being "the greatest educational experience I had at Harvard College." The medievalist urged that "one must read words as they meant to the people of the times rather than as they mean to us," advice Friendly adopted. A paper titled "Church and State in England under William the Conqueror," written in McIlwain's course, earned Friendly the Bowdoin Prize; members of the faculty told him it could easily be accepted as a doctoral dissertation. History professor Frederick Merk judged one exam answer given by Friendly as worthy of publication in an academic journal and assured him that he would eventually be appointed to the faculty. McIlwain was so impressed with Friendly's work that he encouraged him to study medieval history with the promise of a Harvard professorship.
In 1923, Friendly graduated summa cum laude and first in his class at only age 19, "importuned to continue on for a doctorate." His reputation at Harvard was such that, when he defended his senior thesis, the number of professors and students that came in attendance was so great that the defense was moved to Sanders Theater.
Postgraduate years
Studies in Europe
Inspired by McIlwain, Friendly contemplated an academic life. He intended to pursue a Ph.D. in medieval history after graduation, confounding his parents' wishes for him to enroll in Harvard Law School. After Harvard awarded Friendly a prestigious Shaw Traveling Fellowship for abroad study, he notified his parents of his ambitions for a doctorate; Myer and Leah then steered connections to contact Judge Julian Mack, informing him "about this dreadful thing that was about to occur." Following Mack's recommendation, they arranged for Friendly to meet law professor Felix Frankfurter with the aim of dissuading him from pursuing a career in history. Frankfurter convinced Friendly to follow through the fellowship—which enabled postgraduate studies in Europe for a year in Paris, the University of Cambridge, and the University of Oxford—then tentatively attend the Law School.From 1923 until 1924, Friendly sojourned in Europe. He witnessed the alarming inflation and social unrest within the Weimar Republic, then traveled to Amsterdam and thirdly to Paris, where he attended the École pratique des hautes études for a few months and presented a French paper on 14th century parliament. He found the lectures on law there unimpressive, admitting that "between the two, I much preferred history...if anything could give one a distaste for law that was it." After stopping in Italy, his studies led him to the universities of Oxford and Cambridge in England. With the year "moderately successful" though still "somewhat dissatisfied," Friendly returned to the United States and entered Harvard Law School.
Law school
Friendly excelled academically as a young prodigy at Harvard Law School, finishing first in his class all three years. He quickly drew the attention and praise of its professors, including Thomas Reed Powell, a proponent of legal realism, as well as formalists Samuel Williston and Joseph Beale, and Zechariah Chafee and dean Roscoe Pound. After one examination, Calvert Magruder, Friendly's first-year teacher in contract law, left him a congratulatory note: " never run across as beautiful book as yours in Contracts... sense of values and emphasis, the logical construction of your answers, your compactness & facility of expression." Although he was not enrolled in any of his classes, Friendly was also the favorite student of Frankfurter and would be frequently summoned by him for discussions even during the middle of examinations. Under Frankfurter's influence, Friendly grew interested in federal jurisdiction and the emerging field of administrative law.After being selected to be an editor of the Harvard Law Review in his first year, Friendly was then elected the president of the Harvard Law Review his second year. With Herbert Brownell Jr., the editor-in-chief of the Yale Law Journal, he drafted the first edition of The Bluebook and is considered its creator. On top of his commitments to the law review, Friendly was also an active member of the Ames Moot Court Competition, where he won the Marshall Prize for its best brief. The summer of his second year was spent on an invitation from Frankfurter to make acquaintances with distinguished jurists Learned Hand, Augustus Noble Hand, Julian Mack, and C. C. Burlingham in New York City, then as an aide under Emory Buckner to prosecute former attorney general Harry Daugherty at the U.S. Attorney's office.
In 1927, Friendly graduated from Harvard Law School as class president and the first student in its history to ever earn an LL.B. with summa cum laude honors. His academic record is still considered the best in its history, surpassing that of Louis Brandeis, and the achievements he amassed earned him a "legendary" status that became "part of the lore of the university," according to the Harvard Law Review. Every honor the law school had to offer was bestowed upon him. The Fay Diploma, its most distinguished decoration, was awarded to him, as were both Sears Prizes, given usually to two who achieved the highest first and second year grades. But despite his outstanding record, Friendly found Harvard Law School "terribly disappointing" and "pretty bad." He thought highly of the case method but rarely enjoyed the faculty instruction. Criminal law, taught by Pound, bored him, as did Beale. "After a few thrilling months with Williston and Hudson at the beginning of the first year, everything seemed to slide," he wrote to Frankfurter. For the rest of his life, Friendly seriously doubted his decision choosing law over history.