Alschuler, Albert W. 1940–

views updated

Alschuler, Albert W. 1940–


Born September 24, 1940, in Aurora, IL; son of Sam and Winifred Alschuler. Ethnicity: "White." Education: Harvard University, A.B., 1962, LL.B., 1965. Politics: Democrat. Religion: Presbyterian.


Home—Chicago, IL. Office—Northwestern University Law School, 350 E. Chicago Ave., Chicago, IL 60611. E-mail—[email protected].


Attorney, educator, and author. Called to the bar, 1965; University of Texas at Austin, Austin, professor of law, 1969-76; taught law at University of Colorado, Boulder, 1976-84, and University of Pennsylvania, Philadelphia, 1984; University of Chicago, Chicago, IL, professor, 1985-88, Wilson-Dickinson Professor of Law, 1988-2002, Julius Kreeger Professor of Law, 2002-06, professor emeritus, 2006—; Northwestern University School of Law, Chicago, professor, 2006—. Visiting professor at University of Michigan, University of California, Berkeley, Columbia University, and Brooklyn Law School; visiting scholar at National Institute of Justice and the American Bar Foundation.


(Coauthor) The Privilege against Self-Incrimination: Its Origins and Development, University of Chicago Press (Chicago, IL), 1997.

Law without Values: The Life, Work, and Legacy of Justice Holmes, University of Chicago Press (Chicago, IL), 2000.


Albert W. Alschuler is a professor of law whose writings focus on legal history, ethics, plea bargaining, criminal procedure, civil procedure, sentencing reform, privacy, search and seizure, jury selection, courtroom conduct, and legal theory. In The Privilege against Self-Incrimination: Its Origins and Development, Alschuler and his coauthors examine nearly 1,000 years of documentation from medieval times through the common law of the Middle Ages, and from the colonial era to the present day in the United States. The authors find that the modern version of law that prohibits self-incrimination was not, as is commonly accepted, formed in the seventeenth century. Defendants were strongly encouraged to testify in criminal trials and were denied counsel until 1806. The accused were required to answer magistrates' questions before trial, and they could not subpoena witnesses. It wasn't until the transformation of the criminal trial during the nineteenth century that defendants enjoyed the protections that Americans associate with their Fifth Amendment rights.

Craig Hemmens noted in Western Legal History that the view presented in this volume is contrary to that of Leonard Levy in his Pulitzer Prize-winning Origins of the Fifth Amendment. Hemmens noted that "the newer version appears the more accurate…. A copious amount of research went into this book, as evidenced by the inclusion of ninety pages of notes to accompany the approximately two hundred pages of text." Hemmens wrote that the chapter contributed by Alschuler "examines the privilege as it exists today…. He argues that the privilege has taken on a much broader meaning than the founding fathers intended, and he suggests a return to a more limited privilege, where magistrates could require defendants to answer incriminating questions. This astounding suggestion has profound implications for the administration of criminal justice." "Even with some safeguards, I would see this as a retreat from a privilege against self-incrimination that has been eroded by Supreme Court decisions for several decades," wrote Marvin Zalman in Criminal Justice Review. Zalman concluded by saying that Origins of the Fifth Amendment "is essential reading for criminal justice historians and for those who specialize in criminal procedure and constitutional law." English Historical Review contributor J.H. Baker called the study "a successful exercise in disentanglement carried out by a group of distinguished American scholars who have tackled the question from different historical angles."

In Law without Values: The Life, Work, and Legacy of Justice Holmes, Alschuler chronicles the career of Oliver Wendell Holmes, Jr. (1841-1935), the lawyer, legal scholar, Harvard law professor, and state court justice who was appointed to the U.S. Supreme Court by President Theodore Roosevelt. "Legal scholars and historians will find this work thoroughly researched," wrote Steven Puro in Library Journal. Holmes's father was a poet and the founder of the Atlantic Monthly, and his friends included Herman Melville, Ralph Waldo Emerson, and Nathaniel Hawthorne. Holmes, who knew President Abraham Lincoln and both Roosevelts, fought in the Civil War as an abolitionist, but Alschuler shows how his idealism was affected by this experience, during which he was seriously wounded three times and nearly died.

Holmes has been immortalized in a novel, a play, and on a postage stamp, and a mountain in Alaska was named for him; but another side of Holmes is exposed by Alschuler, who often backs up his views with Holmes's quotes. National Review contributor Ramesh Ponnuru wrote that the book "frankly aims to knock Holmes off his pedestal." Ponnuru noted that Alschuler "gives various labels to the philosophy with which Holmes emerged from the war: ‘existentialism,’ ‘noble nihilism,’ ‘Darwinism.’ It is a philosophy that venerates power, struggle, and assertions of will. Holmes has sometimes been described as a ‘utilitarian,’ but this is incorrect. He believed that different people inevitably had clashing interests and tastes, and that these differences could not be argued out or aggregated into some common good." Ponnuru noted that some of Holmes's admirers reason that remarks contained in his correspondences were written for their shock value. Ponnuru stated that "when a man makes so many such remarks over a period of decades, and when … these remarks are consistent with his life's work, it is reasonable to assume he means what he says. Admirers can, it is true, point to other Holmes remarks that suggest that he retained a romantic streak. But on examination, what he is romanticizing usually turns out to be war, will, and death."

Booklist reviewer Vernon Ford felt that Alschuler "explores the complexities of Holmes's personality that have been obfuscated by his reputation." Alschuler's portrait of Holmes is that of a skeptic who favored eugenics and social Darwinism. In 1903, Holmes upheld Alabama's denial of voting rights for the state's 180,000 blacks through literacy tests, poll taxes, and other hurdles. In 1927, he upheld laws that resulted in the sterilization of more than 18,000 people in thirty states labeled as mentally retarded, saying in his opinion that "three generations of imbeciles are enough." Alschuler quotes from a letter in which Holmes discusses "restricting propagation by the undesirables and putting to death infants that didn't pass the examination." Jeffrey Rosen wrote in the New York Times Book Review that "enthusiasm for eugenics, as Judge Richard Posner has noted, was a staple of progressive thought during Holmes's career…. Even if Holmes was an enthusiastic eugenicist, it's not clear how relevant his anti-egalitarian views were to his jurisprudence." Rosen felt that Holmes "was sufficiently skeptical of his own exclusive ability to discern the truth that he insisted that judges should not use their undemocratic power to impose supposedly objective (but actually vigorously contested) principles of right and wrong on a deeply divided nation…. For reminding us of the power of Holmes's embattled vision, in spite of his valiant efforts to discredit it, we have Albert Alschuler to thank."

Holmes became a favorite of liberals, particularly because of his opinions on labor law. In Lochner v. New York (1905), he defended the right of the New York legislature to limit the hours worked by bakers to no more than ten a day. His reasoning was that the courts did not have the right to interfere with the legislative process. Ponnuru wrote that "liberals consider Holmes a hero of free speech because he devised the ‘clear and present danger’ test, under which speech can be restricted only if it presents such a danger. Alschuler points out that Holmes did not mean the test to be as protective of speech as the liberals do, and in fact invented it in the course of opinions allowing the jailing of pacifist agitators during World War I. In Abramsv. United States, Holmes addressed First Amendment issues when he said: "The best test of truth is the power of the thought to get itself accepted in the competition of the market." Jay P. Lefkowitz noted in the Wall Street Journal that "this formulation, however anodyne it seems today, was rooted in Holmes's Darwinian philosophy, as Mr. Alschuler observes. In fact, Holmes often voted against petitioners who claimed that their civil liberties had been violated. It was only toward the end of his career, when he came under the influence of his more progressive colleague, Louis D. Brandeis, that Holmes actually earned his reputation as a civil libertarian." Lefkowitz concluded by saying that "Mr. Alschuler's brief against Holmes is strong enough to make us wonder whether this paragon of legal thinking should himself be viewed with a healthy dose of ethical skepticism from now on."



American Journal of Legal History, October, 1998, David J. Bodenhamer, review of The Privilege against Self-Incrimination: Its Origins and Development, pp. 419-421.

American Spectator, March 2, 2001, Florence King, review of Law without Values: The Life, Work, and Legacy of Justice Holmes, p. 100.

Booklist, November 1, 2000, Vernon Ford, review of Law without Values, p. 496.

Chicago Daily Law Bulletin, April 24, 1998, Martha Neil, "All This Winning Hurts System, Professor Says," p. 3.

Criminal Justice Review, spring, 1998, Marvin Zalman, review of The Privilege against Self-Incrimination, pp. 91-93.

English Historical Review, February, 1999, J.H. Baker, review of The Privilege against Self-Incrimination, p. 282.

Florida Law Review, July, 1997, David Dolinko, "Alschuler's Path," pp. 421-439, James Gordley, "When Paths Diverge: A Response to Albert Alschuler on Oliver Wendell Holmes," pp. 441-462, Winston P. Nagan, "Not Just a Descending Trail: Traversing Holmes' Many Paths of the Law," pp. 463-482.

Library Journal, October 1, 2000, Steven Puro, review of Law without Values, p. 123.

National Review, May 14, 2001, Ramesh Ponnuru, "Judging Holmes."

New York Law Journal, February 16, 2001, William Heinzen, review of Law without Values, p. 2.

New York Times Book Review, December 17, 2000, Jeffrey Rosen, "One Man's Justice," p. 26.

University of Chicago Legal Forum, 1998, Tracey L. Meares and Dan M. Kahan, "Black, White, and Gray: A Reply to Alschuler and Schulhofer," p. 215.

University of Colorado Law Review, summer, 1993, Kay A. Knapp, "A Reply to Professor Alschuler," pp. 737-741.

Wall Street Journal, December 14, 2000, Jay P. Lefkowitz, "Bookshelf: The Supreme Court and Its Most Famous Justice," p. A24.

Western Legal History, winter, 1999, Craig Hemmens, review of The Privilege against Self-Incrimination, pp. 103-105.