[As long-time readers will recall, I include in my American Legal History course a question about some lawyer active in the first half of the twentieth century. This year it was Bernice Lotwin Bernstein. This sketch relies heavily on affidavits Karen Tani found in the Bernard Bernstein Papers at the Harry S Truman Library and brought to my attention.]
Bernice Lotwin Bernstein (1908-1996) was born in a small town in northwestern Wisconsin. Her father had immigrated to the United States in 1895 from a part of Poland long settled by Jews and governed by Russia. By working on farms and trading goods, her father earned enough to pay for his wife and two sons to join him. In time he came to own a furniture store and some farm land. “We were the only Jewish family in the community,” Lotwin recalled. She received no formal training in Judaism. Instead, she tagged along to the Sunday schools of various local churches.
“In school,” she recalled, “leading my class simply came very easily.” She received the medal awarded to the outstanding member of the graduating high school class even though she was only sixteen. At the University of Wisconsin her grades were again at or near the top. She also fell in with a circle of university-based reformers who were attempting to work out a system of unemployment insurance. (Several would later write the Social Security Act of 1935 and serve on the Social Security Board.) But Lotwin was no radical: she considered communism “a freak ideology that was not of any real concern in our country.” In 1929 she graduated Phi Beta Kappa as a philosophy major and won a prize for her undergraduate thesis, "The Philosophy of Justice Oliver Wendell Holmes and Its Influence upon His Legal Thought."
Convinced that a legal training would prove useful in her expected career as a social reformer, Lotwin became one of two women to enroll in the entering class at the University of Wisconsin’s law school that fall. “We were both bright students,” she recalled, and intended to show “the men that we wanted to be judged solely on our academic merits.” It was tough going. Their male classmates excluded them from their groups, because they “didn’t think we belonged there.” Whenever she answered a question in one class, the professor would scoff that she couldn’t possibly succeed as a lawyer if she couldn’t even be heard in a lecture hall. When Lotwin moved to sit directly in front of the professor, he refused to call on her. Fortunately, some of the younger professors were more friendly and helpful. One was Malcolm Sharp, who had been Thomas Corcoran’s classmate at the Harvard Law School and later done graduate work there under Felix Frankfurter. She assisted with Sharp’s research on administrative law. Another favorite professor was Phillip La Follette, the son of the great Progressive senator, who was elected Wisconsin’s governor in 1932.
In that same year, Lotwin graduated at the top of her law school class, after having served as note editor of the Law Review. Her former professor, the new governor, urged her to come work in state government, “saying private practice was ‘too tough’ for a girl like me.” She worked in the Department of Agriculture and Markets, where she helped administer two statutes: (1) a state-level equivalent of the Federal Trade Commission Act; and (2) a law to foster and assist farm cooperatives. Often she participated “in administrative proceedings to eliminate unfair trade practices.” In addition to her official duties, Governor La Follette would put her “to work on anything that he was interested in and wanted developed.”
It happened that Malcolm Sharp knew a prominent Chicago lawyer and progressive named Donald Richberg, who in, June 1933, became general counsel of the National Recovery Administration. Richberg asked Sharp to help him assemble a legal staff. Sharp persuaded Lotwin to join him as one of the NRA’s first lawyers by pointing out that she would “participate in the development of a new field of law.” She stayed on after Sharp returned to academia that fall.
In the summer of 1933, the NRA’s Administrator, Hugh Johnson, a former Army General, was hell-bent to get American industries to adopt “codes” that set minimum labor standards, prohibited various unfair trade practices, and, it turned out, facilitated illicit price fixing. Each code was administered by a Code Authority, whose members usually came from the leading trade association in the industry. Without much regard for procedural niceties, the NRA produced codes for a host of industries that summer. “People were dedicated and working without limit,” Lotwin remembered. To work from 8:00 AM to midnight was not at all unusual.
Although Lotwin toiled on many codes, she quickly became the NRA’s undisputed legal expert on the lumber industry. “As the legal advisor to the lumber code, I literally worked as hard as I think I’ve ever worked in my life to learn that industry and what their code provisions meant,” she remembered. “That code was a complex document,” with provisions governing “wage rates, a differential between the North and the South and the Pacific Northwest, prices, production levels,” and so on.
Lotwin thought it was her job to discover the “bugs” that big lumber companies put into the code to injure their competitors and to propose alternatives that better promoted “the principles of the National Industrial Recovery Act.” That the NRA’s administrators thought otherwise became apparent in August 1933. Convinced that several provisions unlawfully restrained trade, Lotwin urged Richberg to withhold his approval of the proposed lumber code. This stance provoked a senior administrator to denounce Richberg’s lawyers for trying to set NRA policy. “The Administrator’s findings of fact should be binding on the General Counsel,” this official declared. Lotwin’s claim that provisions in the lumber code would restrain trade was policymaking “masquerad[ing] as a controlling legal opinion.” Chastened, Richberg’s second-in-command instructed the legal staff, “It is very unwise for any of us to make dogmatic statements to the effect that the Legal Division ‘cannot approve’” some provision. If an administrator chose to overrule a “suggestion” of the Legal Division, “we should merely submit . . . a memorandum, pointing out that even though we have passed the code, we have not approved . . . the particular provision.”
Lotwin stayed at NRA as it increasingly came under fire for letting big companies cartelize their industries at the expense of consumers and smaller firms. Even before the Supreme Court struck down the agency in May 1935, she had followed her Wisconsin friends’ drafting of the Social Security Act (SSA) with the idea of moving to whatever federal agency it created. Soon after the SSA’s passage, Lotwin found work at the new Social Security Board (SSB). Her first job was to draft a model bill for state legislatures to implement the SSA’s national system of unemployment insurance. Before long, she was promoted to Assistant General Counsel, in which capacity she oversaw a team of lawyers who drafted model rules and regulations on for state agencies.
During these years, Lotwin roomed with Felix Frankfurter’s former secretary, who had left her job at Harvard to work in one of the New Deal’s legal divisions. Through her, Lotwin met many young Harvard-trained lawyers and “went out with several of” them. At a party she attended with one of Frankfurter’s prize students in 1937 she met Bernard Bernstein, a Treasury Department lawyer who had finished third in his class at the Columbia Law School. “Thereafter, I saw more and more of him and less and less of the others.” They were married in August 1938.
The Bernsteins had three children, daughters all, born in 1940, 1943, and 1946. Apparently both parents participated actively in the raising of their daughters. “As our children were born,” Bernard once recalled, “a considerable part of our time was devoted to them.” Bernice continued “working hard” at the SSB until 1942, when she left to become Associate General Counsel of the War Manpower Commission (WMC). It turned out to be a “grim year.” Although she was pregnant with her second child and Bernard was unlikely to be drafted, he volunteered to perform a variety of financial and monetary tasks for the U.S. Army overseas. “Though I didn’t want to be without my husband,” Bernice explained, “I wanted him to go because he wanted to go. He left on one day’s notice.”
She “continued to work, of course,” but the next years were difficult. After the birth of her second child, she went back to work as soon as she found “a competent nursemaid.” Bernice worked hard, “often well into the night, both at home and at the office.” News that her husband was doing outstanding work cheered her. So did her sense of the importance of her job at the WMC. In fact, she “carried pretty completely” the workload of the general counsel, an aged lawyer who apparently got the job because he had once befriended Woodrow Wilson.
Bernice and Bernard were reunited in December 1945. Her husband established a private practice in New York City and Washington. Increasingly he worked in New York and commuted to DC only for the weekends. Bernice bore her third child and continued working as a government lawyer. Finally (and somewhat reluctantly), Bernice agreed to relocate the family to Long Island. She became Regional Attorney of the New York office of the Department of Health Education and Welfare. She became the Region’s Director in 1966.