Newsletter Correction

(This article originally appeared in our 2016 Spring Newsletter)

Brandeis and Moses

By Rudy Kass

Joseph Bassett, a friend of mine who is a Presbyterian minister, recently sent me a book by Milner S. Ball, Professor of Law at the University of Georgia (and also a Presbyterian minister): (Duke University Press 2000).

Ball titles Chapter 3 of his book “Counsel for the Situation.” It is a reference to a response Louis D. Brandeis had made when criticized for representing conflicting interests: those of a corporate debtor and its creditors. Brandeis replied, “I should say that I was counsel for the situation... I was looking after the interests of everyone.”* Brandeis’ intellectual powers and his confidence that he could use them in the interests of everyone had not endeared him to several leaders of the Massachusetts Bar. The phrase came up at the 1916 Senate hearing on whether to confirm President Wilson’s nomination of Brandeis to the Supreme Court of the United States. It was offered as evidence of a breach of ethics.

Since 1916, acting as “counsel for the situation” has suffered some disfavor, albeit not regarded as impermissible. Consider, for example, five individuals seeking to launch a business and asking a lawyer to draft papers forming a limited liability partnership. Must each suffer the expense of a separate lawyer?

What has all this to do with a biblical saga? Professor

Ball posits that Moses acted as counsel for the situation as between God and the Israelites. Moses, upon God’s call, trudges up Mount Sinai whence God speaks the law to Moses and gives him the stone tablets. Moses descends to place the tablets in the ark and to speak to the people as the mouth of God. Moses, however, finds the people worshipping the golden calf and other gods of gold. God does not take this lightly and pronounces that his wrath may burn hot against the Israelites and he will consume them. Moses intercedes. He speaks to the Israelites about their sin of idolatry and, one presumes, their consequent peril.

Up the mountain again to intercede with God on behalf of the people, saying that they acknowledge their sin and shall obey God’s law. So it is that Moses acts on behalf of God and the People. Both Moses and the People rely on Moses as their spokesman. Was this counsel for the situation or was it mediation? More like the latter in that Moses shuttles back and forth, interceding at both ends. As mediations go, Moses was more directory than a mediator ordinarily is, although surely on the People’s end, Moses engaged in considerable risk assessment, as a mediator should and most often does. So here’s to Moses, the first mediator of record.

*During a recent panel discussion at Brandeis University marking the 100th anniversary of Brandeis’ appointment to the U.S. Supreme Court, three speakers remarked the resemblance of “counsel to the situation” to mediation.