Philip Elman
Encyclopedia
Philip Elman was an American lawyer at the United States Department of Justice
and former member of the Federal Trade Commission
. He is best known for writing the government's brief in Brown v. Board of Education
.
, he moved with his family to New York City
, where he attended DeWitt Clinton High School
and the City College of New York
. He went on to Harvard Law School
, where he was an editor of the Harvard Law Review
in 1938 and 1939.
to Judge Calvert Magruder
of the U.S. Court of Appeals for the First Circuit, 1939-1940. After a brief stint at the Federal Communications Commission
(1940–1941), he served as a law clerk to U.S. Supreme Court
Justice Felix Frankfurter
from 1941 to 1943. Among the opinions Elman was involved in drafting during his clerkship was Frankfurter's dissent
in the second Flag Salute case, West Virginia State Board of Education v. Barnette
. Elman and Frankfurter remained fast friends; Elman would later recount that Frankfurter still regarded him as his clerk for years after Elman had joined the Justice Department.
, where he worked as an assistant to the Solicitor General of the United States from 1944 to 1961. He took part in drafting briefs and arguments for a number of civil rights cases, including Shelley v. Kraemer
.
In his oral history
about his time at the Solicitor General's office, Elman recounted his involvement in the case of Brown v. Board of Education
. He explained how, in writing the government's brief, the concept "with all deliberate speed" originated:
Elman reasoned that he wanted a "middle ground" between reaffirming the "separate but equal" doctrine of Plessy v. Ferguson
and requiring immediate integration of all public schools, even though that meant separating the constitutional principle from the remedy. He believed that the Supreme Court would not have been able to decide the case unanimously and have the decision accepted by the American public otherwise.
He also explained the origin of the phrase itself. He borrowed the concept from antitrust cases and boundary dispute cases of the United States Supreme Court, particularly the opinions of Oliver Wendell Holmes, Jr.
, but had difficulty finding out where the actual phrase had originated. Researchers from the National Association for the Advancement of Colored People
later found the origins of the phrase in Francis Thompson
's poem The Hound of Heaven.
Robert F. Kennedy
did not go as planned, Elman was nominated to a seat on the Federal Trade Commission
instead. Elman was confirmed by the United States Senate
, and served on the FTC from 1961 to 1970.
While at the FTC, his main agenda was eliminating false advertising
. His actions led to the FTC mandating warning labels on cigarette packs in the United States. Among Elman's assistants during his time at the FTC was a young Richard Posner
, who went on to become a professor at University of Chicago Law School
and a judge on the United States Court of Appeals for the Seventh Circuit
.
from 1970 to 1976.
Elman admitted in his oral history that he and Justice Frankfurter conferred privately about the intended remedy in the case, which technically constituted a breach of judicial ethics
. He was publicly criticized for this in 1987 by Time Magazine and the New York Times. Elman defended both himself and Justice Frankfurter by stating that these discussions took place before the United States became a party
to the case, and even then, the United States was not an adversary party but rather an amicus curiae
.
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
and former member of the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
. He is best known for writing the government's brief in Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
.
Early life
Elman was born in Paterson, New Jersey to Polish-Jewish immigrant parents who worked in the silk industry. During the Great DepressionGreat Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
, he moved with his family to New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
, where he attended DeWitt Clinton High School
DeWitt Clinton High School
DeWitt Clinton High School is an American high school located in the Bronx, New York City, New York.-History:Clinton opened in 1897 at 60 West 13th Street at the northern end of Greenwich Village under the name of Boys High School, although this Boys High School was not related to the one in Brooklyn...
and the City College of New York
City College of New York
The City College of the City University of New York is a senior college of the City University of New York , in New York City. It is also the oldest of the City University's twenty-three institutions of higher learning...
. He went on to Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
, where he was an editor of the Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
in 1938 and 1939.
Judicial clerkships
Elman began his legal career as a law clerkLaw clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
to Judge Calvert Magruder
Calvert Magruder
Calvert Magruder was a Judge of the United States Court of Appeals for the First Circuit.After attending Harvard Law School, Magruder served for one year as a law clerk to Justice Louis Brandeis of the Supreme Court of the United States. He became a law professor at Harvard Law School in 1920 and...
of the U.S. Court of Appeals for the First Circuit, 1939-1940. After a brief stint at the Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
(1940–1941), he served as a law clerk to U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...
from 1941 to 1943. Among the opinions Elman was involved in drafting during his clerkship was Frankfurter's dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
in the second Flag Salute case, West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette, 319 U.S. 624 , is a decision by the Supreme Court of the United States that held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the...
. Elman and Frankfurter remained fast friends; Elman would later recount that Frankfurter still regarded him as his clerk for years after Elman had joined the Justice Department.
Solicitor General's office
After his clerkship with Frankfurter, Elman joined the United States Department of JusticeUnited States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
, where he worked as an assistant to the Solicitor General of the United States from 1944 to 1961. He took part in drafting briefs and arguments for a number of civil rights cases, including Shelley v. Kraemer
Shelley v. Kraemer
Shelley v. Kraemer, 334 U.S. 1 , is a United States Supreme Court case which held that courts could not enforce racial covenants on real estate.-Facts of the case:...
.
In his oral history
Oral history
Oral history is the collection and study of historical information about individuals, families, important events, or everyday life using audiotapes, videotapes, or transcriptions of planned interviews...
about his time at the Solicitor General's office, Elman recounted his involvement in the case of Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
. He explained how, in writing the government's brief, the concept "with all deliberate speed" originated:
[i]'ts because we were the first to suggest, and all the parties and amicus on both sides rejected it after the government proposed it, that if the Court should hold that racial segregationRacial segregation in the United StatesRacial segregation in the United States, as a general term, included the racial segregation or hypersegregation of facilities, services, and opportunities such as housing, medical care, education, employment, and transportation along racial lines...
in public schools is unconstitutional, it should give the district courtsUnited States district courtThe United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
a reasonable period of time to work out the details and timing of the implementation of the decision. In other words, "with all deliberate speed".
Elman reasoned that he wanted a "middle ground" between reaffirming the "separate but equal" doctrine of Plessy v. Ferguson
Plessy v. Ferguson
Plessy v. Ferguson, 163 U.S. 537 , is a landmark United States Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of state laws requiring racial segregation in private businesses , under the doctrine of "separate but equal".The decision was handed...
and requiring immediate integration of all public schools, even though that meant separating the constitutional principle from the remedy. He believed that the Supreme Court would not have been able to decide the case unanimously and have the decision accepted by the American public otherwise.
He also explained the origin of the phrase itself. He borrowed the concept from antitrust cases and boundary dispute cases of the United States Supreme Court, particularly the opinions of Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, but had difficulty finding out where the actual phrase had originated. Researchers from the National Association for the Advancement of Colored People
National Association for the Advancement of Colored People
The National Association for the Advancement of Colored People, usually abbreviated as NAACP, is an African-American civil rights organization in the United States, formed in 1909. Its mission is "to ensure the political, educational, social, and economic equality of rights of all persons and to...
later found the origins of the phrase in Francis Thompson
Francis Thompson
Francis Thompson was an English poet and ascetic. After attending college, he moved to London to become a writer, but in menial work, became addicted to opium, and was a street vagrant for years. A married couple read his poetry and rescued him, publishing his first book, Poems in 1893...
's poem The Hound of Heaven.
Federal Trade Commission
Elman had desired to become an Assistant Attorney General of the United States, but after an interview with then-United States Attorney GeneralUnited States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Robert F. Kennedy
Robert F. Kennedy
Robert Francis "Bobby" Kennedy , also referred to by his initials RFK, was an American politician, a Democratic senator from New York, and a noted civil rights activist. An icon of modern American liberalism and member of the Kennedy family, he was a younger brother of President John F...
did not go as planned, Elman was nominated to a seat on the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
instead. Elman was confirmed by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
, and served on the FTC from 1961 to 1970.
While at the FTC, his main agenda was eliminating false advertising
False advertising
False advertising or deceptive advertising is the use of false or misleading statements in advertising. As advertising has the potential to persuade people into commercial transactions that they might otherwise avoid, many governments around the world use regulations to control false, deceptive or...
. His actions led to the FTC mandating warning labels on cigarette packs in the United States. Among Elman's assistants during his time at the FTC was a young Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, who went on to become a professor at University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
and a judge on the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
.
Later in life
Elman taught at Georgetown University Law CenterGeorgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
from 1970 to 1976.
Elman admitted in his oral history that he and Justice Frankfurter conferred privately about the intended remedy in the case, which technically constituted a breach of judicial ethics
Judicial misconduct
Judicial misconduct is a term used to describe certain actions of a judge which are unethical or otherwise violate the judge's obligations of impartial conduct...
. He was publicly criticized for this in 1987 by Time Magazine and the New York Times. Elman defended both himself and Justice Frankfurter by stating that these discussions took place before the United States became a party
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
to the case, and even then, the United States was not an adversary party but rather an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
.