Bennett Boskey

Bennett Boskey (August 14, 1916 – May 11, 2016) was an American lawyer who clerked for Judge Learned Hand and for two U.S. Supreme Court justices, Stanley Reed and Chief Justice Harlan F. Stone. He helped to craft the standing doctrine in Ex parte Quirin which enabled the U.S. Supreme Court to hear a case against German military saboteurs, which has had legal implications during the War on Terror in the first two decades of the 21st Century.

Bennett Boskey
Born(1916-08-14)August 14, 1916
New York, New York, U.S.
DiedMay 11, 2016(2016-05-11) (aged 99)
Bethesda, Maryland, U.S.
CitizenshipUSA
Alma materWilliams College (BA), Harvard Law School (LL.B.)
OccupationAttorney
Known forClerk for Judge Learned Hand
Home townNew York, New York U.S.
Spouse(s)Shirley Ecker
Parent(s)Meyer Boskey, Janet Lauterstein
RelativesBetty Jane Boskey

Early life and education

Bennett Boskey was born in New York City and grew up on Central Park West in the Upper West Side of Manhattan, the son of Janet Lauterstein (July 12, 1890 – May 26, 1983), and a prosperous lawyer, Meyer Boskey (July 24, 1883 – February 10, 1969). Bennett's younger sister, Betty Jane Boskey (November 9, 1918 – December 28, 1984), married Lloyd Stanley Snedeker (May 27, 1916 – December 14, 1977) and lived in Great Neck, Long Island, New York. He was raised in a household committed to equality. In 1899, his father co-founded the Delta Sigma Phi fraternity at New York's City College.[1] The fraternity admitted Christians and Jews at a time when others refused to mix religions. In 1914, two years before Bennett's birth, Meyer Boskey withdrew as National Secretary of the fraternity when it limited its membership to white Christians.

In 1916, Meyer Boskey advertised his legal services in the firm of Brown & Boskey as "general practice in all courts."[2] His son, Bennett, would later describe his law practice in the same way.[3]

After arriving at Williams College at age 15, Boskey was graduated in 1935 and then studied economics for a year at the University of Chicago at the height of the Great Depression.[4] In 1939, he graduated from Harvard Law School, where he came to the attention of then Professor Felix Frankfurter and was a member of the Board of Editors of the Harvard Law Review.

In 1940, Bennett Boskey married Shirley Ecker (January 15, 1918 – October 13, 1998), who also had grown up on the Upper West Side of Manhattan.[5] She graduated Phi Beta Kappa from Vassar College, then attended Columbia Law School, and received her law degree from George Washington University. She was the daughter of two successful real estate attorneys, Judge Samuel Ecker (August 21, 1882 – March 30, 1970)[6] and Frances Schuman (January 14, 1891 – July 16, 1979),[7] and shared her husband's childhood immersion in law. In Washington, D.C., Shirley Boskey worked at the World Bank, rising to become its first female head of department as Director of the International Relations Department, where "she was responsible for managing the...relationship with other intergovernmental organizations such as the United Nations."[8] The Shirley Ecker Boskey Chair in International Studies at Vassar is endowed in her memory.[9]

Judicial clerkships
Learned Hand circa 1910

Bennett Boskey was a law clerk for a year (1939-1940) for Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit in New York. As the story goes, "Hand accepted Boskey sight unseen after Felix Frankfurter...recommended the student."[10]

In 1940, Boskey came to Washington, where he clerked at the U.S. Supreme Court for Justice Stanley Reed from 1940 to 1941, and Chief Justice Harlan F. Stone from 1941 to 1943.[11]

In October 1941, Justice Robert H. Jackson joined the Court, an event Boskey recalled fondly in a 2005 essay.[12]

Ex parte Quirin: Saboteurs case standing doctrine
Chief Justice Harlan Fiske Stone circa 1925 to 1932.

During Boskey's clerkship for Chief Justice Stone, the Court decided Ex parte Quirin, 317 U.S. 1 (1942), a case that upheld the jurisdiction of a United States military tribunal during WW II over the trial of eight German saboteurs in the United States. Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States.

Boskey played a pivotal role in shaping the case's reasoning. "Writing to Boskey about the Fifth and Sixth Amendments challenge..., Stone admitted that 'I think [my statement in the draft opinion] is right but my authorities are meager.'"[13] With a creative flair, Boskey proposed to Stone the so-called "satisfactory alternative method" to give the Court the standing to review the Saboteurs Case.[14]

After Army service in World War II, where Boskey achieved the rank of first lieutenant, he worked for several federal agencies. Boskey was special assistant to the Attorney General in the U.S. Department of Justice in 1943, and an adviser on enemy property in the U.S. Department of State from 1946 to 1947, in an office led by economist John Kenneth Galbraith.[15] Boskey was an attorney for the Atomic Energy Commission ("AEC") from 1947 to 1949; he served as deputy general counsel for the AEC from 1949 to 1951, where he worked under agency counsel, Joseph Volpe, Jr. (October 18, 1913 – January 26, 2002).[16]

General Leslie Groves (left), military head of the Manhattan Project, with Professor Robert Oppenheimer (right).

From 1951 to 1996, Boskey was a partner in the firm that became Volpe, Boskey and Lyons. During WW II, Volpe had assisted Gen. Leslie Groves (August 17, 1896 – July 13, 1970) in negotiations to "secure uranium and other material from Great Britain."[17] In 1954, physicist J. Robert Oppenheimer (April 22, 1904 – February 18, 1967) asked Volpe to represent him against charges of treason. The U.S. Government had bugged Volpe's law office and secretly recorded the conversations.[18]

At the firm, Boskey represented non-profit organizations, individuals in probate cases, and companies in matters of nuclear energy licensing.[19] On December 12, 1961, Boskey argued Coppedge v. United States[20] before the U.S. Supreme Court, winning a 5-2 majority for his in forma pauperis client appealing a criminal conviction.[21] In 1973, Boskey helped Columbia University defend its license to operate a nuclear reactor on campus for research purposes, though it was never used.[22] When the firm dissolved in 1996, Boskey maintained a solo practice for an additional nineteen years.

ALI headquarters, Philadelphia, Pennsylvania.

Following the model set by Judge Hand, Boskey devoted substantial effort to law reform. Judge Hand was an early member of the American Law Institute ("ALI"),[23] and had chaired the committee that established ALI's method of involving a mix of private practitioners, law professors and judges to publish recommendations. As with Hand, Boskey believed law should adapt to changes in society.[24] The ALI's recommended reforms and publishing Restatements of law furthered that goal. From 1975 to 2010, Boskey was treasurer of ALI.[25] Since at least 1971, his so-called "Boskey motion", precisely capturing a draft’s procedural status, has preceded its approval at the ALI Annual Meeting.

In 1975, during the administration of President Gerald Ford, Boskey was on the short list of possible nominations to the Supreme Court.[26]

The position of the Bennett Boskey Professor of Law at Harvard Law School was first held by Lani Guinier. There is also a Bennett Boskey fellowship in Extra-European History since 1500 endowed by legacy at Exeter College, Oxford and Williams College. [27]

Boskey was a member of the New York bar for more than seventy-five years (making him among the top five longest tenured members), and the Washington, D.C., bar for sixty-seven.[28]

Footnotes
  1. The City College Quarterly, Vol. 9 (New York: 1913), at 159.
  2. The Mercantile Adjuster and the Lawyer and Credit Man: A Monthly Magazine Devoted to Credits and Collections, Vol. 31 (1916), at 119.
  3. Entry for "Bennett Boskey Firm," Martindale-Hubble Legal Directory, Martindale.com (2016).
  4. "Interview with Bennett Boskey" (July 5, 2005). Williams College Oral History Project.
  5. "Shirley Ecker is Bride; Daughter of Justice Married to Bennett Boskey," NY Times, July 4, 1940.
  6. "Samuel Ecker on Swann's Staff," New-York Tribune, March 15, 1916, p. 12, Image 12 ("District Attorney Swann announced yesterday that that he had appointed former Deputy Attorney General Samuel Ecker, of 30 Broad Street, as Assistant Attorney General. Mr. Ecker was graduated from the New York University Law School and has practiced in this city twelve years."); and "Samuel Ecker, 87, Once City Justice," NY Times, March 31, 1970.
  7. Ecker, Allan B. (2009). "Playwright of the Law: Elmer Rice," 12 Green Bag, An Entertaining Journal of the Law (George Mason Law School) 2D 277, 280-281 ("Admitted to practice in 1915, one of the first-ever women members of the New York bar, Frances [Shuman Ecker] became one of Manhattan’s best-known Real Estate lawyers. She claimed to have 'bought and sold every property in the Yorkville neighborhood of New York.'"); "Mayor Mitchell and Secretary of War Garrison Take Honorary Degrees at N.Y. University," The Sun (New York, NY), June 11, 1914, p. 16 (Frances Schuman awarded graduation honorable mention in Evening Division at N.Y.U. Law School).
  8. "Shirley Boskey – The First Female Department Director of the World Bank," The World Bank. Retrieved July 29, 2016.
  9. Department of International Studies, Vassar College.
  10. Alumni Notes, "Profile – Bennet Boskey ’39: Not Shy, Not Retiring," Harvard Law Bulletin, Fall 2000.
  11. Barnes, Bart, "Bennet Boskey, Washington lawyer, dies at 99," Washington Post, June 1, 2016; Boskey, Bennett, "Mr. Chief Justice Stone," 59 Harv. L. Rev. 1200 (1946).
  12. Boskey, Bennett, "Bob Jackson Remembered," 68 Albany L. Rev. 5-7. Robert H. Jackson Center, Jan. 9, 2005.
  13. Wiecek, William M. (2006). The History of the Supreme Court of the United States, at 316 and fn 35. New York, NY: Cambridge University Press.
  14. Davies, Ross E. (June 13, 2016), "Some Clerical Contributions to Ex Parte Quirin." SSRN; and Boskey, Bennett, "A Justice's Papers: Chief Justice's Stone's Biographer and the Saboteur's Case," 14 Sup. Ct. H. Soc. Q. 10 (1993).
  15. U.S., Register of Civil, Military, and Naval Service, 1863-1959, vol. 1, 1946 (Washington, D.C.: U.S. Gov’t Printing Ofc.), at 39 (Department of State, Office of Economic Security Policy (John K. Galbraith, Director), Division of Economic Security Controls, Special Advisor, Bennett Boskey). Retrieved from Ancestry.com July 30, 2016.
  16. U.S., Register of Civil, Military, and Naval Service, 1863-1959, vol. 1, 1950, at 531; "AEC Appoints New Yorker," NY Times, July 10, 1949 ("The Atomic Energy Commission announced today the appointment of Bennett Boskey of New York as a deputy to Joseph Volpe Jr., AEC general counsel. 'Mr. Boskey [is] 33 years old."); and Boskey, Bennett, "Inventions and the Atom," 50 Colum. L. Rev. 433 (1950); At the AEC, Boskey worked with Frederick Aley Allen, who had clerked for Judge Hand and then Justice Reed, as had Boskey.
  17. Zielinski, Graeme, "Obituary for Joseph Volpe, Jr.," Washington Post, February 1, 2002.
  18. WaPo Feb. 1, 2002. ("During the 1954 proceedings on the matter, Oppenheimer asked Mr. Volpe to represent him, but Mr. Volpe demurred, citing his previous work for the AEC. Neither knew that their conversations, in Mr. Volpe's private offices, had been bugged by the government, according to historical accounts.")
  19. In the Matter of Alabama Power Company, Docket No. 50-348A, 50-364A, U.S. Nuclear Regulatory Comm'n (June 24, 1977) (Boskey representing Alabama Electric Cooperative); and Allied-General Nuclear Services v. United States, 839 F. 2d 1572 (Fed. Cir. 1988)(Boskey on brief for Allied-General).
  20. Coppedge v. United States, 369 US 438 (1962), Bennett Boskey for the Petitioner, Mark Coppedge.
  21. Coppedge v. United States Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Jan 8, 2017.
  22. Morningside Renewal Council, Inc. v. U.S. Atomic Energy Commission, 482 F.2d 234 (2d Cir. 1973), cert. denied, 417 U.S. 951 (1974); and United States and Trustees of Columbia Univ. v. City of New York, 463 F. Supp. 604 (S.D.N.Y. 1978) (Boskey representing Columbia Univ.); and "History of the Nuclear Reactor at Columbia University" Department of Applied Physics and Applied Mathematics, Columbia University (2007)("1974: The Supreme Court denied the petition that June and Columbia's position was upheld. The University only needed to reapply to the AEC in order to receive the operating license. At that time, Columbia was in the process of re-evaluating the Nuclear Science and Engineering program and the need for the nuclear reactor. With changes in upper management and financial considerations, the project was put on indefinite hold."). Retrieved September 4, 2016.
  23. "Creation of ALI," ALI Website Archived 2016-08-30 at the Wayback Machine (2016)("ALI's incorporators included Chief Justice and former President William Howard Taft, future Chief Justice Charles Evans Hughes, and former Secretary of State Elihu Root. Judges Benjamin N. Cardozo and Learned Hand were among its early leaders.").
  24. Boskey, Bennett (May 17–19, 2010). Speech, American Law Institute 87th Annual Meeting, Washington, D.C. 28 mins., at 11:00-13:00 mins.
  25. "In Memoriam: Bennet Boskey," American Law Institute (May 2016).
  26. O'Brien, David M., "Filling Justice William O. Douglas's Seat: President Gerald R. Ford's Appointment to Justice John Paul Stevens," 1989 SCOTUS Historical Society Yearbook 20, at 30.
  27. "Bennett Boskey Fellowship in Extra-European History since 1500" (PDF). Exeter College Oxford. Retrieved 14 July 2020.
  28. New York State Bar, date of admission: 1940; and Washington, D.C. Bar, date of admission: July 1, 1949.
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References

Selected writings
  • Boskey, Bennett, "A Justice's Papers: Chief Justice's Stone's Biographer and the Saboteur's Case," 14 Sup. Ct. H. Soc. Q. 10 (1993).
  • ----, "Antitrust Enforcement by the Atomic Energy Commission," 19 A.B.A. Antitrust Section 399 (1961).
  • ----, "Appeals from State Courts under the Federal Judicial Code," 30 Virginia L. Rev. 57 (1943).
  • ----, "Bob Jackson Remembered," 68 Albany L. Rev. 5-7 (2005).
  • ----, "Book Review of 'Justice Brennan: Liberal Champion,'" 14 Green Bag 2d 343 (2010).
  • ----, "Mr Chief Justice Stone," 59 Harv. L. Rev. 1200 (1946).
  • ----, "Justice Reed and His Family of Law Clerks," 69 Kentucky L. Journal 869 (1980–81).
  • ----, "Inventions and the Atom," 50 Colum. L. Rev. 433 (1950).
  • ----, "Mechanics of the Supreme Court's Certiorari Jurisdiction," 46 Colum. L. Rev. 255 (1946).
  • ----, "Patent licensing problems in international atomic energy development." Address for delivery before Atomic Industrial Forum, Inc. Symposium on international problems of the atomic industry, April 25, 1957, Plaza Hotel, New York City.
  • ---- (2007). Some Joys of Lawyering: Selected Writings 1946-2007. Washington, D.C.: Green Bag Press. ISBN 193365807X, ISBN 978-1933658070.
  • ----, "Some Patent Aspects of Atomic Power Development," 21 Law and Contemporary Problems 113-131 (Winter 1956).
  • ----, "Supreme Court Declinations," 31(3) Journal of Supreme Court History 252 (2006)(paid link).
  • ---- (1967-1998, 5 eds.) Supreme Court Forms and Procedure. St. Paul, MN: West Publishing.
  • ---- (1990). The Supreme Court's New Rules for the Nineties. St. Paul, MN: West Publishing.
  • ---- & Roland A. Anderson, "Free Licenses to AEC Inventions," 33 J. Pat. Off. Soc'y 323 (1951).
  • ---- & Robert Braucher, "Jurisdiction and Collateral Attack: October Term, 1939," 40 Colum. L. Rev. 1006 (1940).
  • ---- & Eugene Gressman (1980). The Supreme Court's New Rules for the Eighties. St. Paul, MN: West Publishing.
  • ---- & Eugene Gressman, "The Supreme Court Bids Farewell to Mandatory Appeals," 121 F.R.D. 81, 85-86 (1988).
  • ---- & John H. Pickering, "Federal Restrictions on State Criminal Procedure," 13 U. Chi. L. Rev. 266 (1946).
  • ---- & Mason Willrich, eds. (1970). Nuclear Proliferation: Prospects for Control. New York, NY: Dunellen. ISBN 0-8424-0011-7.

See also
  • List of law clerks of the Supreme Court of the United States
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