The Legal 100: A Ranking of Individuals Who Have Most Influenced the Law
By Darien A. McWhirter
This reference book includes a portrait and a short biography of each person listed, other photographs and illustrations, and a bibliography.
Citadel Press (1998)
Reviewed by: Judge Anthony J. Mohr
Books of lists sell, so it was only a matter of time before someone collected the names of those who most profoundly influenced the development of the law in Western history. Darien A. McWhirter—an Austin-based attorney, law professor, and author of several books on constitutional issues—made the selections for his book The Legal 100 with the help of law school colleagues to whom he sent questionnaires. The respondents generally concurred about who should be listed but sharply disagreed about how they should rank. McWhirter writes, "In the final analysis, the choices and rankings are mine and mine alone."
A quarter of the list consists of nonlawyers, including James Madison, who is ranked number one. Although never admitted to the bar, "no one ever 'read law' to greater effect and no more powerful legal mind ever existed." McWhirter includes philosophers such as Aristotle, John Locke, Montesquieu, John Stuart Mill, and this century's H. L. A. Hart. There are agitators like Susan B. Anthony, Martin Luther King Jr., Vladimir Lenin, Karl Marx, and Emmeline Pankhurst. Rulers and politicians are included: Benjamin Disraeli, William Gladstone, Hammurabi, Justinian, Theodore Roosevelt, and Lyndon Johnson. Two attorneys made the list only because of their ability to write fiction: Earle Stanley Gardner, for conceiving the character of Perry Mason, and John Mortimer, the creator of Horace Rumpole. Only four women are on the list: Mary Wollstonecraft ranks the highest at 47, followed by Anthony (50), Pankhurst (51), and Sandra Day O'Connor (98). McWhirter suggests two ways to read his book: straight through, from first to last (Mortimer), or in chronological order with the help of an introductory chapter, a "Brief History of Western and Anglo-American Law." In this chapter he mentions everyone profiled in The Legal 100, starting with Hammurabi and finishing with Justice O'Connor. Each name in the chapter has a corresponding entry in the list so that the reader can flip through the book to the appropriate biography. A third way to read the book is simply to dip in wherever it seems interesting. This last method is the most relaxing by far.
Each of the 100 luminaries rates a three- to four-page biography, in which McWhirter succeeds in capturing the particular characteristics that give readers a glimpse of the person behind the success. Although the rough sketches of these l00 lives may be familiar, readers learn details that they may have forgotten or never knew. For example: 1) where did the jury system originate? 2) Exactly what is a Brandeis brief? 3) Who said, "We must never forget that it is a Constitution we are expounding"? 4) What criminal defense lawyer first used the "scales of justice" in his summation to the jury? 5) Who ended a debate over how many teeth a horse had by actually looking "in the horse's mouth"? 6) Who was the first "official law professor" in the United States? 7) Who said, "The criminal is to go free because the constable has blundered"? 8) Who described what school as "a small college. And yet there are those who love it"? 9) Who left his estate to the United States, where it was used to write a history of the Supreme Court?1 Such little-known facts make The Legal 100 fun to browse. Here are some more: most people know that Franklin Delano Roosevelt tried unsuccessfully to pack the Supreme Court by increasing the number of seats beyond nine. Readers may not know that Roosevelt pushed a bill through Congress raising pensions for retired justices. This encouraged the older, conservative jurists to retire, eventually opening seven seats for FDR to fill. Although considered "the perfect example of what a lawyer should be," Cicero was killed by a former client for whom he had won an acquittal in a murder trial. The Warren court overturned 45 Supreme Court decisions. Montesquieu was the first to envision a democratic system of three independent branches of government, each acting as a check on the other. In 1942, Roosevelt refused to appoint Learned Hand to the Supreme Court because he thought that at 71, Hand was too old. Instead the president named 48-year-old Wiley Rutledge, who died six years later. Hand lived until 1961. McWhirter sprinkles his text with lots of personal tidbits. Woodrow Wilson failed miserably when he started his own law practice. Benjamin Cardozo's father, also a state court judge, resigned rather than be impeached for doing favors for Boss Tweed's ring. George Wythe wrote a will leaving his fortune to one of his slaves and his great nephew. The great nephew did not like sharing and poisoned the soon-to-be-emancipated slave. Wythe accidentally drank from the slave's cup, but he had enough time before dying to change his will—and cut off the great nephew without a penny.
Intimacies are not spared. Mary Wollstonecraft and William Godwin (48 on the list, one name below Wollstonecraft) appalled London society by publicly trying an "open marriage." William Gladstone had a preoccupation "with saving "fallen women.'...But for a couple of well-publicized exceptions, he was not very successful." The great criminal defender Edward Marshall Hall proposed to a woman who broke his heart when she said no. He quit school and traveled around the world. When he returned, she changed her mind. On their wedding night, she said she did not love him "and would make his life miserable. She...ultimately left him, became pregnant by a lover, and died of a botched abortion."
As a bonus, McWhirter throws in a few individuals whose influence was significant but for one reason or another did not make the final cut. Included are George Mason (knocked off the list because he fought against ratification of the U.S. Constitution and refused to serve in the Senate), William Wirt (who prosecuted Aaron Burr), Charles Austin (who made more money practicing law than any other lawyer in the mid 1800s), and Jerry Giesler (who became the top criminal lawyer in Los Angeles, after Earl Rogers died, during the golden age of Hollywood).
Some of the listees held ideas that would be anathema today. Locke is celebrated for his declaration that kings do not rule by divine right—but he also developed the concept of jury nullification. During Lemuel Shaw's tenure on the Massachusetts Supreme Judicial Court, he upheld separate but equal school facilities for African Americans. Fifty years later, the U.S. Supreme Court would cite this opinion in Plessy v. Ferguson. Moreover, Justice Shaw created a variety of concepts to limit the liability of corporations (especially railroads), including contributory negligence, assumption of risk, and the fellow servant rule. (As workers gained more power, the courts did not overturn these doctrines; instead, workers' compensation insurance was introduced.) During World War I, lawyer Patrick Hastings persuaded a British jury to find against a member of Parliament and award £5,000 in favor of his German client.
McWhirter is not afraid to identify what he perceives as historical superlatives. Otto von Bismark made the cut because he developed social security. Writes McWhirter, "If the ratification of the U.S. Constitution was the most important event in the modern history of Western law, the creation of social security in the late nineteenth century comes a close second." In his praise for Mill, McWhirter adds a wry twist: "Mill spoke and wrote in favor of the emancipation of women. It is one of the great ironies of history that when women gained the right to vote in Great Britain and the United States, the first thing they did was vote to prevent their husbands from drinking and gambling, crimes that Mill argued were none of any government's business."
The author does not let his prose get in the way of his abundant stories. He uses no legalese and his writing style is unaffected. In fact, The Legal 100 is written so clearly that nonlawyers can appreciate even the most intricate legal concepts. Marbury v. Madison, for example, is explained well in 10 lines of prose, and The Slaughterhouse Cases, Palsgraf v. Long Island Railroad, MacPherson v. Buick Motor Company, among many others, receive similar treatment. At times, however, McWhirter gets too elementary (he notes, for example, that the function of debtors' prison was to help reduce debts.) Nevertheless, for readers in the legal profession, it is too bad The Legal 100 was not available during our law school years, particularly on those crucial nights before finals.
1. The answers, according to McWhirter: 1) France. 2) The question in Muller v. Oregon was whether the state should be allowed to set a maximum work day of 10 hours for women working in manufacturing. The brief Brandeis submitted spent 2 pages discussing relevant decisions and 100 pages citing studies to prove that long hours of work were detrimental to the health of women. 3) John Marshall. 4) Edward Marshall Hall. 5) Francis Bacon. 6) George Wythe. 7) Benjamin Cardozo. 8) Daniel Webster on Dartmouth College. 9) Oliver Wendell Holmes.
Anthony J. Mohr is a Los Angeles Superior Court judge in Van Nuys.