Levine on Jewish Lawyers and Rent Control, 1920

Samuel J Levine, Pepperdine University School of Law, has posted Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth Century Public Interest Litigation, which appeared in the Journal of the Legal Profession 33 (2008). Here’s the abstract:

In this Article, Levine examines the litigation surrounding the New York Emergency Rent Laws of 1920. In particular, he focuses upon a series of cases litigated by two of the most prominent Jewish lawyers in United States in the first half of the twentieth century: Louis Marshall and Julius Henry Cohen. Among other notable aspects of the litigation, the cases reached the New York Court of Appeals and the United States Supreme Court, which at that time included two of the most eminent jurists in the history of the United States, Judge Benjamin N. Cardozo and Justice Oliver Wendell Holmes, Jr., respectively. One element of the strategy Cohen employed in advocating before these courts adds yet another component to the significance of Jewish lawyers and Jewish law in the context of the Emergency Rent Laws cases. Specifically, in both his briefs and his oral arguments, Cohen relied, in part, on materials from medieval Jewish legal history. Part I of this Article provides a brief background of the New York Emergency Rent Laws, tracing the enactment of the legislation as well as the course of the ensuing litigation. Part II explores the roles of Marshall and Cohen in these cases, placing their contributions in the context of their broader efforts and shared commitments to furthering public and Jewish communal interests. Finally, Part III of the Article focuses on Cohen's reliance on Jewish legal sources and other historical precedents in his arguments supporting the constitutionality of the New York Emergency Rent Laws. In light of the limited substantive relevance of Jewish law to the legal issues surrounding the Emergency Rent Laws, Levine looks at alternative motivations for Cohen's inclusion of these materials in his briefs and arguments. In particular, Cohen's memoirs recall the remark of one of the judges on the New York Court of Appeals suggesting that the reference to Jewish law was an effective method for influencing Cardozo. Levine concludes that this story, even if accurate, was most likely not a reliable reflection of Cohen's reasons for relying on Jewish law, and indeed, that Cohen may have recounted the colorful story primarily as means of entertainment. This conclusion is reached on the basis of a number of factors, including a consideration of Cardozo's attitude toward the law and toward his Jewish heritage, as well as an examination of the interactions of lawyers and judges involved in the New York Emergency Rent Laws Cases. Ultimately, Levine suggests, Cohen's anecdote provides a valuable framework for reflection on the interests and interrelationships that might have influenced judicial decision making in the early twentieth century. Moreover, in light of controversies that have arisen regarding the religious beliefs and personal relationships of members of the current Supreme Court, this exercise has abiding relevance and potential application in the early twenty-first century as well.