387 Mass. 1223 (1982)
A special sitting of the Supreme Judicial Court was held at Boston on September 21, 1982, at which a Memorial to the late Justice Robert Braucher was presented.
Present: Chief Justice Hennessey, and Justices Wilkins, Abrams, Nolan, Lynch, and O'Connor.
Francis X. Bellotti, Attorney General, addressed the court as follows:
May it please the court: As the Attorney General of the Commonwealth, it is my privilege and honor to present a memorial in tribute to the late justice Robert Braucher. I present this memorial address not merely in my own name, but also on behalf of the bar of the Commonwealth and of the committee which has arranged for these proceedings and has participated in the preparation of the memorial which follows.
Justice Braucher was born in New York City in 1916. He was graduated from Haverford College with high honors in 1936 and from Harvard Law School in 1939, magna cum laude. He served as editor of the Harvard Law Review while at Harvard Law School. From 1939 to 1941 he practiced law in New York City. He entered the United States Army Air Force during World War II and, while in service, received the Distinguished Flying Cross and the Air Medal. He was a war hero who never talked about it.
After leaving military service, Robert Braucher served as a professor at Harvard Law School from 1949 to 1971, where he was known to his students as a scholar and a very fine teacher. He specialized in contracts and business law. While at Harvard Law School, he took a leave of absence and served as Fulbright lecturer at Chuo and Tokyo Universities in 1959. He also taught as a visiting professor at the University of Minnesota Law School during the academic year 1968-1969.
He was active in the National Conference of Commissioners on Uniform State Laws, serving as Commissioner from Massachusetts from 1954 to 1971, and as vice president of the Conference from 1967 to 1970. He was also active in sections of the American Bar Association. He was chairman of the National Commission on Consumer Finance from 1969 to 1971 and of the National Institute for Consumer Justice. In 1971, he was appointed Associate Justice of the Massachusetts Supreme Judicial Court by the then Governor Francis W. Sargent and served in that capacity until the time of his death.
His contribution to the law extended far beyond his service as a law professor and as a judge -- to a myriad of activities. He was a member of the Council of the American Law Institute from 1972 until his death. From 1962 to 1971, he served as the first reporter for the Restatement, Second, of the Law of Contracts. The bar will no doubt come to appreciate the simplification which the Restatement, Second, of the Law of Contracts attains in comparison with the first Restatement of Contracts. This improvement is directly attributable to Justice Braucher. He was one of the authors of the Massachusetts conflict of interest statute. He was a Massachusetts Commissioner on Uniform State Laws from 1954 until 1971. In that capacity, the National Conference of Commissioners on Uniform State Laws relied on him as a key member in resolving its most difficult drafting and substantive problems. He was vice president of that National Conference from 1967 to 1970. He was chairman of the committee for the drafting of article 2 of the Uniform Commercial Code and reporter for the review committee that rewrote article 9 of the Uniform Commercial Code. He was serving as a member of the board of editors of the Journal of the American Bar Association at the time of his death. He also served for many years and until his death on the faculty of the summer seminar for appellate judges held at the New York University Law School. The depth of his experience and the degree of his exposure to these numerous law-related matters brought to the Supreme Judicial Court understanding and insight that the court would not otherwise have had.
He was also active in his church and in the government of the town of Belmont. He served as a town meeting member, was a member of the town's planning board, and served on the Belmont school committee.
Robert Braucher was a brilliant man who was able quickly to get to the heart of any issue under consideration. He could express his views with conviction, but he was always willing to consider views and the suggestions of others.
Philosophically, he was a conservative, but more important, he was amazingly flexible. He had the rare and admirable balance between strong conviction and open-mindedness which is so essential for a great appellate justice.
He was possessed of a tremendous love for legal argument tempered by a charming sense of humor. If opinions sometimes seemed obscure, it was because he never wasted time with extra verbiage but went right to the heart of the issue.
He inspired admiration because beyond these judicial qualities he had tremendous courage and persistence, working until the day of his death. In a very quiet and studied manner, his life had great impact upon our lives generally. His service upon the highest court of our Commonwealth -- the State whose Constitution was the foundation of our Federal Constitution -- was a fitting climax to a career that had as its hallmark an enduring and unerring commitment to the law.
It is an honor for me to participate in this fitting memorial to a fine Justice of our Supreme Judicial Court and a man for whom I had a great deal of respect.
On behalf of the bar of the Commonwealth, I respectfully move that this Memorial be spread on the records of this Court.
Justice Benjamin Kaplan addressed the court as follows:
Rising to support the motion of the Attorney General, I shall speak of Robert Braucher's career before he came to the Bench.
In late 1945, about to be discharged from the Air Force, Major Braucher received a teaching offer from the law faculty of Columbia University. He informed Erwin Griswold of the fact. Now Professor Griswold had known Bob as a formidable student in the Harvard Law School class of 1939 -- as the No. 2 student of that class (for those were the days of numerical rankings a la West Point), as Note Editor of the Law Review, finalist in the Ames moot court competition, and winner of the Beale Prize for the best paper on the Conflict of Laws (Griswold's own subject). Griswold evidently moved quickly to cause the Columbia offer to be outflanked - and the advantage was Harvard's.
Bob started teaching in January, 1946, and we have reliable testimony about his approach to his first class in Contracts where -- the legend is true -- he found his former commanding officer sitting as a student in a front row. Using Williston's casebook, in which the cases were related expressly to the rules of the Restatement, Bob laid siege to the so-called rules, showing by intensive questioning that they did not hold up as generalizations: too various, too disorderly, were the facts of life. This sounds like the Legal Realism of K. N. Llewellyn. The meaning and place of rules in a legal system continued to fascinate Bob, and it would make a nice study to follow his thought on the problem as he dealt with it in his later roles as draftsman of statutes and a Restatement, and as judge.
In a quarter century at Harvard, Bob's steadiest interests lay in Contracts and Commercial Law, but he ranged in his teaching all over the curriculum -- more widely, I believe, than any of his contemporaries on the faculty. His curiosity carried him into many fields. Moreover, his great speed of assimilation and organization of material was well known, and this made him vulnerable to decanal cries for help when by odd chance gaps appeared on the teaching program. It may be that that was how he first came to teach Accounting, which would not seem particularly in his line -- but he was, of course, very fast with figures. I interrupt my discourse to quote some characteristic Braucher about the Accounting course: "In one sense," he said, "this course is a corrective for deficiencies in the pre-legal education of the majority of our students. They suffer from what Veblen called 'the leisure-class standards of learning which find expression in the deprecatory attitude of the higher schools toward matter-of-fact knowledge.' They are ignorant of many things well known to graduates of commercial high schools, and even of some things they are supposed to have learned in grammar school. The chance that such carefully cultivated ignorance as it is often displayed will be cured by what is 'picked up in the course of practice' is very slight. A more serious question is whether there is sufficient motivation for learning to make the training useful for those with a well-developed and conscious scorn for a body of learning regarded as ignoble."
Not only did Bob spread himself through the conventional courses; with sensitivity to emerging needs he invented new ones. The courses in Commercial Transactions, Government Contracts, Consumers' Rights, and Professional Responsibility were traceable to his initiative, and he was designing a course on Women and the Law when he was called to this court. Bob was also an innovator or experimenter in teaching method. One of his early exploits was to write (with Professor Corker) a remarkable text setting forth some facts of commercial life which students were to read as preparation for the course. Bob's placing statutes at the heart of instruction was more daring than it might seem today. And he was using a "problem method" when that style was rare in the schools and even somewhat suspect. Bob's classes managed to combine stiff theoretical analysis with tactical questions posed against a background reproducing faithfully the conditions and urgencies of the current law practice. These exercises are recalled by alumni with admiration -- recollections that have, sometimes, a kind of rueful edge: the classes were conducted with bursts of boisterous good humor and laced engagingly with irony and paradox, but they were swiftly paced and very exacting, and did not brook the easy or superficial answer. There was no inconsistency between Bob's rigorous classroom standards and his earnest and even emotional advocacy of changes in the Law School's grading system to eliminate pathologic competition among students.
Bob involved himself in a variety of extracurricular activities too numerous to be fully catalogued here; these he valued for themselves, but from them he also drew insights that irrigated his teaching and writing -- and, I should add, his later judging. The local scene he knew very well from experiences in his home town of Belmont. He thought it a duty of citizens, especially the brainier of them, to engage in town politics and service. He did not disdain to work at the precinct level. Of the town offices he held over the years, I imagine he enjoyed most his tour as chairman of the school committee: an institution with unique Massachusetts accents, whose singularity, however -- I learn with regret -- is being abraded these days by financial stringency and other calamities. It should not be overlooked that -- not so much out of a sense of duty, but from his gregariousness and affinity for people -- Bob did more than his fair share for his church, the PTA, and the tennis club. He once told a student interviewer: I think I have more contact with people who are not lawyers than some of the people around here . . . . When I want to know what the common man thinks, I have a formula. I simply ask myself what I think. I get it right every time."
Bob had large experience of State legislative processes. Not long after coming to Harvard, he began to immerse himself in the movement toward a Uniform Commercial Code. It is very possible that the arrival of that reform would have been much longer delayed, had not Bob (with Professor Sutherland) "coordinated" a revision of the early draft Code which had been nurtured by many hands but had failed grandly of adoption. Betty Braucher recalls Bob's marching up and down the country with his abundant energy to help get the Code enacted. At a later stage, Bob took a leading part in improving the famous article 9 of the Code. Alongside his work on the Code, Bob served as the Commonwealth's Commissioner on Uniform State Laws by successive appointments of four Governors, and latterly also as Vice President of the National Conference. On the Washington scene he was chairman by Presidential appointment of the Commission on Consumer Finance. As usual, his practical experience fed his teaching. For a time he taught a course on Legislation in league with Professor Surrey.
I am one of the crowd who think the Restatement Second of Contracts, of which Bob was the Reporter from 1960 to 1971, a masterful accommodation of the first Restatement to our times and to a cautious prevision of the future. It is full of ideas that delight a reader, at least a reader prepared for eclecticism and not looking to find ultimate truth in a document calculated to do practical good. Already it has generated an ocean of valuable commentary.
When you take together Bob's published articles and teaching materials and his work with statutes and the Restatement, you have a lifetime's notable contribution to private law. Professor Riegert was not indulging in lapidary overstatement when he said the other day that Bob probably knew as much about Contracts and Commercial Law as anyone else in the world. Although a certified specialist, Bob was of that diminishing breed of lawyers who had a commanding general knowledge fortified by tenacious memory. You did well to talk to him when you had a question that seemed without plausible analogy, and he was invariably generous of his time -- a good colleague. He was generous, too, in taking delight in the achievements of his associates and spreading them abroad: he did not partake of the maxim of the French wit that it is not enough that one succeeds, one's friends must fail.
Bob loved argument. Hearing nearly any flat assertion especially if it was commonplace or infected by a suspicion of humbug or pretense -- Bob might be inspired to do his best to maintain the exact contrary. The defender would find himself nettled by attacks from unexpected directions: Bob's thought had those interesting eccentric strains so frequently associated with very high talent; besides, he preferred the novel to the familiar, and liked to startle and excite. This iconoclastic sportiveness could mislead sobersided folk, students included, into harboring the thought that Bob was lacking in fundamental seriousness.
When serious business was on foot, whether in faculty, A.L.I., or elsewhere, Bob was wise in counsel, with fewer aberrations than most; and he had an ability to see the real point on a confused scene and to devise the formula that would lead to agreement. As an organization man, as he called himself, Bob allowed recommendations of the management a certain presumption of correctness, and up to a point he was willing to vote against his own better judgment. He did not really enjoy a position of dissent -- considered it a sort of failure on his own part.
In a community of professed liberals, Bob pronounced himself a conservative, and he was one in the sense of having a low opinion of man's capacity for extended prophecy and a deep suspicion of proposals for global change. He spent much of his time promoting more circumspect reforms that made an appeal for utilitarian reasons. He cherished the spaces still left for private autonomy in a society more and more locked under governmental controls. He related his legal interests to higher things in the following passage: "The entire market and credit structure, of course, depends not only on the stability of law and government but also on the mutual trust and confidence of a large number of people most of whom are strangers to each other. This mutual trust under law, essential to many aspects of civilized living, is particularly important in both democracy and credit. For a complex industrial society, it provides the equivalent of the neighborly mutual self-help of the smaller community, sometimes called the brotherhood of man." I end by referring to Bob's passion, known to all, for upholding the rights of minorities and of women. What pleasure he took in leading the team that wrote a Model Anti-Discrimination Act, and again in testifying before the Senate Judiciary Committee in favor of E.R.A.!
I have touched on Bob's teaching, scholarship, and earlier public service. The ebullient man himself I can hardly depict in words, and must leave to the grateful memory of his friends.
Robert W. Meserve, Esquire, addressed the court as follows:
I speak for the lawyers of this Commonwealth in support of the Attorney General's motion. The person who represents the lawyers of Massachusetts at a memorial for a justice of our Supreme Judicial Court, such as this, traditionally deals primarily with that justice's career as a practitioner before he became a member of the Supreme Judicial Court.
While Justice Braucher was a member of the Massachusetts Bar from 1950 until his untimely death, he surely did not "practice" (as we here normally would use the term) as a lawyer to any substantial extent prior to his appointment to our bench in 1971, and there would indeed be little I could say on that score.
So far as I know, Mr. Justice Braucher appeared as a lawyer before this court only when he was sworn in, although, in 1958, he did write the brief for the unsuccessful plaintiff in the attempted reopening of the famous Willett-Sears case of the 1920's, the 1958 opinion being reported as Willett v. Webster in the 337th volume of our reports at page 98. Apparently during his twenty years of Bar membership, the Justice did also argue one case, unsuccessfully, before the U.S. District Court for the District of Massachusetts; an adverse decision which he succeeded in persuading the First Circuit to reverse in the year 1967, in a decision reported as Massengale v. Transitron Electronic Corp., 385 F.2d 1983.
Even if one adds to these practical experiences, the approximately two years Mr. Justice Braucher spent with a good New York law firm as an associate just out of Harvard Law School, before he became a fighter pilot in World War II, it is improbable that his actual trial and appellate experience prior to his appointment to this court was in any way significant, but, although he may never have examined a witness in an actual trial of a litigated matter, nor advised many clients, face to face, as an office practitioner would do, our friend had indeed made a great contribution to our Bar before his appointment and had demonstrated a lifelong interest and sympathy with problems of the practitioner. In fact, few Justices have been more warmly regarded by, or better known to, the body of Massachusetts practitioners when appointed, and after appointment, than was Robert Braucher.
To begin with, of course, the Justice's experience as a teacher at Harvard Law School for about two and a half decades (from 1946 to 1971) had made him personally acquainted with a substantial segment of Massachusetts lawyers. He had principally taught Contracts and Commercial Transactions -- bread and butter subjects which his former students probably used almost every day in many aspects of their post-graduate practice. That he was an effective teacher, whose sage advice and instruction had continuing value, I have personal reasons to know through the testimony of two of my sons who studied under him. From this point of view, the new Mr. Justice Braucher's acquaintance at the Bar was probably wider, and the attitude of those who knew him more favorable, than that of most active practitioners would be and, while he was still a teacher, many lawyers who needed help with specific problems had sought him out at Harvard and gratefully received his advice and assistance.
But, as Justice Kaplan has told you, it was Mr. Justice Braucher's activities in the work of the American Law Institute which brought him often and favorably to the attention of a host of others, graduates of law schools other than that at which he taught. His work as reporter of the second Restatement of Contracts, as coordinator of the 1956 revision of the Uniform Commercial Code and as reporter of Article 9 of the 1972 revision, improved in every way the skill and knowledge of practicing attorneys, both in this State and beyond its borders.
For about seventeen years Professor Braucher also served as a valued member of the Massachusetts Commission on Uniform State Laws and his activities as a teacher, even before he received judicial appointment, often extended to the field of continuing legal education in this State.
Robert Braucher was, through his Uniform State Laws and American Law Institute activities, as well as his teaching, also known to many outside of this Commonwealth.
After he began his teaching career, he went to Japan as a Fulbright Scholar and taught, as a visiting professor, at Columbia, Northwestern, University of California, Michigan, Minnesota and New York University law schools. And, even after his appointment to this court in 1971, he continued to teach -- part of the time -- at Harvard Law School and at Boston University Law School.
When Mr. Justice Braucher came to the bench he continued to try to understand fully the work of the active practitioner of the lawyer's art. I am sure that no Justice of this court more faithfully participated in the social, and postgraduate educational, activities of Massachusetts lawyers. A perusal of the programs, social and educational, of the various bar associations and other bar groups of the Commonwealth during the decade that Mr. Justice Braucher sat on the bench of this court will provide abundant evidence of his attention to, and his sustained interest in, the bar and in the problems of the individual practicing lawyer. He was always a welcome guest and participant.
For we all knew that Justice Braucher was, above everything else, a warm and pleasant human being. Whether as a humorous lunch table conversationalist, as a lecturer, or as an understanding interlocutor, no one could be long with Robert Braucher without full realization of his interest in human beings, in the human condition and in the many problems which beset the practitioner.
I hope I may become autobiographical at this point.
I have practiced as a lawyer at the bar of this court for nearly fifty years. I have been acquainted latterly, on a generally personally friendly basis, with most of its Justices. I deplore the general habit of the the past twenty years or so to classify Justices of this court, and other courts, as "liberal" or "conservative." In my opinion, like most human beings, most of our Justices have and have had a great deal of both in their nature. Perhaps with a few exceptions, the man or woman, and above all the judge, who can properly always be characterized, as in one camp or the other would be a poor person and a poor judge, indeed.
In the whole of his judicial career, Robert Braucher, as many others, demonstrated that, as a student of the law and as one who applied it, he was simply above the error of a dogmatic adherence to purely logical, conservative or liberal, economic or sociological doctrine. He was, above all, a student and law giver whose approach to contested issues was that of a warmly involved, fair, and charitable human being. And, in his relation to the bar (and to his colleague on the bench, in the one case we know about where the issue arose), Robert Braucher was always understanding, and always ready to help, rather than condemn, and to give the benefit of the doubt to the human being before him. Perhaps it was a lack of sophistication arising from a lack of the hard experience with human frailty which many of his colleagues and those who appeared before him possessed, perhaps he believed and practiced a human charity which others merely mouth, but to me his essential willingness to believe the best possible, often about some of the worst, demonstrated both courage and a deep sympathy with the human condition.
And, believe me, here I do speak from experienced observation. In preparation for my remarks today, I have read again Bob's concurring opinion in the Bonin case,*1 in which I was much involved, and a score of brief decisions in disciplinary matters on which our friend sat as single justice during my tenure as Chairman of the Board of Overseers. I surely do not suggest, at this date, that the late Justice was in error in any of his conclusions. That, as I once told him and a colleague, was, and is, none of my business. But in virtually every one of those matters, on thoughtful review, one thing stands out -- Robert Braucher's willingness to believe the best he logically possibly could about the human being before him, and, in the disciplinary cases to find a way in which, without derogating from disciplinary necessities, he could be helpful in starting the process of rehabilitation and making sure that even an admitted serious offender was himself fairly and honestly treated and punished as lightly as the offense would warrant.
In speaking of Robert Braucher, it is hard for me, as I am sure it would be for many others here today, to refrain from permitting emotion and affection to intrude where, perhaps, objectivity should control. For virtually every person in this room, I'm sure, was fond of Robert Braucher, the human being, as well as conscious of the great service that he performed as lawyer and judge.
During the last few months of his life it became apparent to his friends that Robert was seriously ill. He knew it. He never complained. He carried his full burden. He still had the appropriate humorous story to tell. "He was a man, take him for all in all."
As we all know, although he never talked about it, Mr. Justice Braucher had a distinguished combat career as a flyer, as well as significant military staff experience. Merely physical courage one would expect from such a man. And his whole history of the conscientious performance of duty was consistent with his determination to do his work to the end -- a determination that led him, during that last hot summer, to continue his teaching at the appellate judges' seminar of the Institute of Judicial Administration in overheated Greenwich Village.
In this aspect, I suggest that Mr. Justice Braucher, in writing about another humanly great person -- our mutual friend Professor Arthur Sutherland - in volume 86 of the Harvard Law Review -- wrote unknowingly of himself. I read -- with minor change -- what, in fact, Robert said of Arthur.
"His gallantry when he learned that he had probably only a short time to live furnishes a model for us all: he faced his fate with clear eyes, and speeded his work so that he would not leave it incomplete. Few of us can hope to achieve distinction as he did, a lawyer and lawgiver, staff and field soldier, and teacher and scholar, all in one lifetime. But we can aim to cultivate for ourselves the wealth of inner resources which sustained [him] in his last time of troubles."
As the Puritan novelist put it, "Valiant-for-truth passed on and the trumpets sounded on the other side."
Daniel R. Coquillette, Esquire, addressed the court as follows:
Mr. Chief Justice and Honorable Members of the Supreme Court, may it please the court:
I am here on behalf of Justice Robert Braucher's former law clerks and -- in a sense -- on behalf of all of his old students. We number in the thousands. It is a special privilege for us to support the Attorney General's motion.
Braucher was a great law teacher. In my experience at least, his greatness as a teacher simply overshadowed all his other professional qualities. He taught all his life. For twenty-five years he taught the students at Harvard Law School. He taught as a visiting professor at Boston University, Columbia, the University of California, NYU, Michigan, Minnesota, and Northwestern and many other law schools. He taught as a Fulbright Scholar in Japan. He taught his peers at the Institute of Judicial Administration. And -- heaven knows -- he taught his law clerks. Only his old students really know the greatness of this teacher, and even some of us came to recognize that gift only years after we received it.
My first class in Law School was Braucher on Contracts. It met at 9:00 A.M. in Austin Hall. I can remember the room as if it were yesterday. Steve Burbank, another future Braucher clerk was also sitting there. That class was, as law students say today, "really something else."
My casual study of the humanities in ivy halls just hadn't prepared me for life and death by the intellectual sword. After only fifty minutes, there seemed to be conceptual blood all over the room. It occurred to me that this was the way it felt attending Roman gladiatorial games. It was really fun, if it weren't for the possibility that you could be next. I remember one incident particularly well. Braucher had called on a student, sitting uncomfortably close to me. We'll call him "Mr. Smith." It was a commercial code question. "What is the answer, Mr. Smith -- is it sub-section A or subsection B?" "B, Sir, but it is all a matter of degree." "Well, Mr. Smith, would it totally surprise you if I told you that the answer is sub-section A?" At this point, our Mr. Smith made his big mistake. Instead of simply shutting up, he made a last desperate gamble -- based on four years of permissive liberal arts education. . . "No, sir, but as I said, it is all a matter of degree." Braucher looked up -- paused and said, "Mr. Smith, the difference between you and a virus is a matter of degree."
Braucher taught his students that there was such a thing as absolutely right and wrong answers. In the late '60's, such intellectual discipline was already no longer in vogue, but this was no popularity contest. I remember another incident. This time a student decided that the limitless elasticity of the Equal Protection Clause might save the day -- when the proper sub-section of the Uniform Commercial Code had been overlooked or forgotten. "Oh," said the Professor. ""So you say the answer could involve the Equal Protection Clause- Do you know what the Equal Protection Clause means in the commercial context? If you and I are entering the Harvard Square MBTA, and I have a token -- and you don't -- I ride, and you don't -- that's what the Equal Protection Clause means in commercial transactions."
As initial fear subsided, I developed an immense respect for this teacher -- and gradually became to recognize that, his aversion to intellectual spoon feeding and pampering students demonstrated far more genuine respect for the student than the easier, and more popular, techniques of some others.
My first exposure to legal ethics, a subject I now teach, was in Braucher's contracts class. It was a typical demonstration. "Today," said the Professor, "Due to a new Law School policy, I am required to do five minutes of legal ethics with you. Let me tell you a story about legal ethics. Once there was a lawyer. He made some risky investments. They could mature handsomely in a year. But he ran out of cash. If he sold out his investment, he'd lose all. So he took some money from the client account of one of his clients an elderly widow who had money to spare. A year later, his investments all succeeded. He paid back the money into the client account with full interest, and lived happily ever after. That's your ethics lesson for today." The look on those one hundred and thirty faces was really worth the tuition! It made several of us into ethics teachers. Braucher simply refused to teach platitudes. The toughest teaching is making the student do the job on his own. My first research memo to Braucher as a law clerk came back transformed into a sea of red ink. It was amazing how many corrections he could fit on a page. This memo was just the first of many attempts -- each dissected and criticized with a care that must have taken him hours. He could have done the job himself in half the time. But I had to rewrite each memo until they were right: every fact, every citation, every transcript reference. He'd never do the job for me. As the Judge was fond of saying to me, "Dan, anyone can be a success, if one only sets his sights low enough."
The last lesson I learned from Braucher was about the ultimate responsibility of the teacher to teach. It was the middle of the Vietnam crisis. Many classes had been shut down to become "discussion groups." Braucher was asked by a group of students in our class to do the same. His response was that he was a law teacher. Did they want to hear his views? Fine. But he had both the responsibility and the authority of being teacher. He had a duty to teach, under any conditions.
Together with many of Braucher's former students, I learned over the years what a loyal friend and ally their old task master could be, particularly when the chips were down and the fair weather friends disappeared. This is to say nothing of Mrs, Braucher, whose friendship, and kitchen, became familiar to us all. Justice Braucher's tough, relentless standards -- the painstaking effort in every class -- over every memo and exercise -- was the true manifestation of a teacher's love, a love for the law and a love for his students. In Chaucer's words, he "gladly would learn, and gladly teach." We can hardly forget him.
In concluding, the law clerks would like to especially thank Mrs. Emily Paradise, Justice Braucher's loyal secretary and a great friend to all of us, and Mr. Patrick Hurley, Clerk of the Supreme Judicial Court for the Commonwealth, for their hard work in support of this Memorial session. On behalf of Justice Braucher's law clerks and former students, I move to support the Attorney General's Motion.
Justice Wilkins, speaking for the court at the request of Chief Justice Hennessey, responded as follows:
Mr. Chief Justice and members of the court, Mr. Justice Kaplan, Mr. Attorney General, members of the Bar, and Guests:
Mr. Justice Braucher served this court with dedication and competence from January 18, 1971, until his death on August 26, 1981. He brought to the court remarkable skills and vast experience in the law. He was able to move immediately and effectively into the court's work. At the time of his appointment the burdens on this court were onerous because, although the need for an intermediate appellate court was clear, the Appeals Court had not yet been established. From 1969 to 1972, because of a death and retirements, the years of appellate judicial experience of the members of this court declined from over one hundred to less than twenty. The court needed a person of wide ability in the law, and Justice Braucher fulfilled that need. He provided solid guidance and wise common sense in all aspects of the work of this court.
Justice Braucher's opinions were concise and clear. They left no doubt as to the issues considered or as to the court's position on those issues. In the fall of 1973, he commenced a regular practice of stating the court's conclusions on the issue or issues before the court early in each opinion, usually in the first paragraph. Many of the first paragraphs of his opinions read like statements of issues that might be presented in a law school classroom, with, however, the advantage of having the right answer immediately provided. Justice Braucher's practice of disclosing the court's conclusions early in an opinion is one now generally followed in opinions of this court.
Justice Braucher's avoidance of unnecessary discussion of collateral points and of speculation on matters not directly before the court is reminiscent of opinions of this court in earlier times. He eschewed the use of footnotes to express parenthetical ideas. If a point was worth making, it was his view that it should appear in the body of the opinion.
It is fitting that Justice Braucher's first opinion, published on March 5, 1971, concerned an action in contract involving the applicability of the Uniform Commercial Code and the rights of a judgment creditor (Canter v. Schlager, 358 Mass. 789 ), and that his final opinion, published on August 7, 1981, concerned the consequences of a wrongful dishonor of checks under the Uniform Commercial Code Raymer v. Bay State Nat'l Bank, 384 Mass. 310 ). These and other opinions in the area of commercial law demonstrate his vast experience and learning in that field. See, e.g., Commercial Bank & Trust Co. v. Plotkin, 371 Mass. 218, 220-221 (1976); Rockland Trust Co. v. South Shore Nat'l Bank, 366 Mass. 74 (1974); Akron Brick & Block Co. v. Moniz Eng'g Co., 365 Mass. 92, 95 (1974).
One hesitates to select for comment particular opinions authored by Justice Braucher because of the wide range and significance of many of the 358 opinions authored in his name. The following opinions, however, should be mentioned: Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409 (1973), overruling General Elec. Co. v. Kimball Jewelers, Inc., 333 Mass. 665 (1956), and holding that the nonsigner provision of the Fair Trade Law was an unconstitutional delegation of legislative power to private parties, and Green v. Commissioner of Corps. & Taxation, 364 Mass. 389 (1973), rejecting the concept that a woman's domicil is always that of her husband. Other notable opinions are: Hendrickson v. Sears, 365 Mass. 83 (1974), holding that the statute of limitations did not commence to run in favor of an attorney until the client discovered, or reasonably should have discovered, the attorney's error; Hershkoff v. Board of Registrars of Voters of Worcester, 366 Mass. 570 (1974), concerning the domicil of students for voting purposes; Carpenter v. Suffolk Franklin Sav. Bank, 370 Mass. 314 (1976), a purported class action concerning mortgagors' asserted rights to savings banks' earnings on real estate tax payments; and Secretary of the Commonwealth v. City Clerk of Lowell, 373 Mass. 178 (1977), holding that, absent fraud, people may select and change their names freely.
Justice Braucher held and expressed strong views about the role of judges. He felt that they should grant substantial deference to legislative determinations and to executive decisions, even when those judgments or decisions appeared to be of little or no merit. He recognized, however, that individual rights should be protected and wrote opinions protecting rights under State law where the Constitution of the United States did not. See Board of Selectmen of Framingham v. Municipal Court of the City of Boston, 373 Mass. 783 (1977) (evidence seized from a person's home in violation of his constitutional rights could not be used against him in a civil proceeding); Commonwealth v. Sees, 374 Mass. 532 (1978) (rights found under art. 16 of the Massachusetts Declaration of Rights where none existed under the United States Constitution). On the other hand, he was mindful of the interests of the public in matters of criminal justice. He commented on the injustice of excluding reliable evidence on constitutional grounds where "police officers acted in good faith, attempting to observe proper legal standards." Commonwealth v. Haas, 373 Mass. 545, 564-565 (1977) (Braucher, J., concurring). And yet, he was mindful of the role of State judges on Federal constitutional issues and undertook to adhere faithfully to what he discerned to be the instructions of the Supreme Court of the United States.
Stating that "judge-made rules of law are to be tailored to justice rather than to abstract logic," he once urged in dissent that rules concerning the admission of hearsay evidence should be greatly simplified so as to admit hearsay "unless the trial judge in his or her sound discretion thinks it fair to exclude it." Commonwealth v. White, 370 Mass. 703, 715-716 (1976) (Braucher, J., dissenting). See Bouchie v. Murray, 376 Mass. 524, 532 (1978) (Braucher, J., concurring in the result). In his dissent in Commonwealth v. Manning, 367 Mass. 605, 613-614 (1975), referring to "a legal tradition, established by men" and in effect urging a "rape shield" rule as part of the common law, he wrote forcefully against the use of reputation evidence to impeach the testimony of female victims of sex crimes.
Justice Braucher approached matters with an open mind. Some people tried to label him as a conservative. This is not a correct analysis of the man. Where emotional public issues might be said to have been involved in cases before the Supreme Judicial Court, the positions he took would not support the claim that he was a conservative judge. He was a liberal in the best sense of the word. On the tough questions, one could not confidently predict his position or his reasoning. As he said one day on the question of judicial liberalism or conservativism, "When justice requires, I am a conservative, and, when justice requires, I am a liberal."
Great as were the contributions of Justice Braucher's opinions to the jurisprudence of the Commonwealth, his contributions to the internal workings of this court and to the administration of justice were arguably even greater. Justice Braucher was a prodigious worker, eager to cut into the backlog of unfinished matters. He worked easily and cooperatively with his colleagues. He held a strong sense of obligation to the administration of justice, to the bar, and to education in the law. With all his qualities, there was an ego under control. He had no need to dominate or to receive recognition of his abilities and of his contribution to the court. There is little room for a strong manifestation of ego by an appellate judge. He had the appropriate temperament for the task.
I cannot emphasize too much Justice Braucher's capacity to bring people together. He was able to identify areas of agreement and areas of disagreement that were unimportant. Then he could suggest solutions in those areas of disagreement with which we had to deal. He saved the court many hours of work with this skill. His capacity to help us identify and resolve disagreements often eliminated disagreements, and, when it did not, his contribution defined more precisely the nature of the disagreement and the reasons for it.
Although, as I have noted, Justice Braucher was a cooperative colleague, willing to consider the views of others, he had firm views of his own. Sometimes, in advancing his position in the course of discussion, he would follow a practice which could be somewhat disconcerting to others, until they came to understand what was happening. Justice Kaplan has alluded to this characteristic. He would support his views by adopting an extreme position. I set forth a few examples:
"The rules of evidence are intended to suppress important information." "All consumer legislation is designed to increase the cost of goods and services." "The criminal justice system is fashioned to free the guilty and to convict the innocent." "The First Amendment will be the death of us all."
There is, of course, at least a germ of truth in each of these statements, but even he did not believe them. In discussions within the court, on rare occasions to liven up an appellate argument, but never in his opinions, however, he would announce such an extreme position and seek to defend it. By this approach within the court, he brought balance to the analysis and had a beneficial influence on the work product of his colleagues. I always regarded this special trait as a bit of the law professor that had not been purged in his transition from law professor to judge.
Justice Braucher loved people. He loved meeting, talking, working, and playing with people. He was the court's respected, unofficial ambassador to a large number of law-related organizations. He served on the Council of the American Law Institute and on the board of editors of the journal of the American Bar Association. He also served on the faculty of the summer seminar for appellate judges held at New York University Law School. He continued these efforts to the end, attending the session at that law school approximately two weeks before his death. From these various law-related activities, he brought back to us learning, information, advice, and experience that the court would not otherwise have had.
Bob Braucher was a man of immense good will and a man of brilliance. He brought his best to the court, but, equally important, he brought out the best in his colleagues.
We allow the motion that the Memorial be spread upon the records of the court.
1 Matter of Bonin, 375 Mass. 680, 729 (1978).
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