California Western School of Law

Askin, Frank

California Western Law Review 
Volume 27 
Number 2 A Focus on Justice Brennan Article 2 
1991 
Introduction: Getting to the Root of Brennan's Justice 
Frank Askin 
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CALFORNIA WESTERN LAW REVIEW
VOLUME 27 1990-1991 NUMBER 2
INTRODUCTION
GETTING TO THE ROOT OF BRENNAN'S JUSTICE"
FRANK ASKIN°
With the possible exception of John Marshall, who set the original course,
William J. Brennan Jr. has been the most influential of the 103 men and one
woman who have sat on our nation's highest court over the past 200 years.
Brennan was to James Madison's Bill of Rights what Dr. Martin Luther King
Jr. was to Lincoln's Emancipation Proclamation. Just as Dr. King's leadership
led to substantial implementation of Lincoln's declaration of black freedom,
Brennan was the architect of the Warren Court's brand of judicial activism which
belatedly breathed life into the noble sentiments about personal liberty written
into the United States Constitution 200 years before.
Brennan, of course, was not alone in rediscovering the Bill of Rights. During
the two decades before he appeared on the Washington scene, the Roosevelt-era
Court had begun a more vigorous enforcement of the first ten amendments, even
employing them against state officials through the fourteenth amendment.
Inspired by the earlier writings of Holmes and Cardozo, Justices Murphy,
Rutledge, Black, and Douglas, with help from pre-Roosevelt holdovers Hughes,
Stone, and Brandeis, had already uncovered important protections for individual
rights long buried in our national charter. Chief Justice Earl Warren himself
* This article is reprinted and edited with permission from the August 30, 1990 issue of the
NEw JERSEY LAW JOURNAL © 1990 NEw JERSEY LAW JouRNAL
** Professor at Rutgers Law School-Newark; General Counsel of the American Civil Liberties
Union.
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CALIFORNIA WESTERN LAW REVIEW
had molded the unanimous decision in Brown v. Board of Education,' which
abolished racial segregation, even before Brennan's arrival.
But Justice Brennan shaped the activist doctrines that ultimately came to
symbolize the Warren Court and that, for a time, transformed the federal
judiciary from a passive instrument of the status quo into a dynamic force for
social change.
I. WATERSHED FOR JUDICIAL AcTivIsM
Prior to the Warren era, Supreme Court jurisprudence exalted techniques for
avoiding constitutional issues: abstention, comity, non-justiciability, immunity,
exhaustion of remedies, and the political-question doctrine. Even progressive
jurists such as Brandeis extolled such passive virtues.3
That is why many rank Brennan's opinion in Baker v. Car,3 as the watershed
case for Warren Court activism. It was not Baker's enunciation of the one-
person, one-vote principle that was revolutionary, but rather its holding that the
issue was one that a federal court could decide. Prior precedent had held that
the issue was a "political question" not subject to judicial resolution. Once
Brennan had persuaded his colleagues that the courts should rule on the issue,
the outcome was inevitable.
In case after case, Brennan led his colleagues in knocking down formerly
impenetrable barriers to the judicial resolution of social issues by permitting
citizens to bring lawsuits against public officials and governmental bureaucracies
to enforce their constitutional rights. Under his guidance, the admonition that
"you can't fight city hall" became an anachronism.
Justice Brennan found an expression of his judicial philosophy in a statement
authored by a lower court judge that he picked up in a subsequent opinion: "We
yet like to believe that wherever the Federal courts sit human rights under the
Federal Constitution are always a proper subject for adjudication ... "4
In applying that principle, Brennan assembled majorities for landmark
opinions that for the first time:
9 Required federal officials to pay damages to citizens for violation of their
constitutional rights.5
1. 347 U.S. 483 (1954).
2. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 (1936) (Brandeis, J.
concurring). See also Bickel, The Supreme Court 1960 Tem-Foreward, The Passive Virues, 75 HAgv.
L Rev. 40 (1961).
3. 369 U.S. 186 (1962).
4. Zwickler v. Koota, 389 U.S. 241, 248 (1967) (quoting Stapleton v. Mitchell, 60 F. Supp.
51, 55 (D. Kan. 1945)).
5. Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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INTRODUCTION
• Authorized federal courts to issue injunctions to forbid state court
prosecutions under laws that violated the First Amendments protection of
freedom of speech.6
* Permitted congressional employees to sue members of Congress for
discriminatory treatment.
7
• Made local governing bodies absolutely liable for damages caused by their
employees' violations of citizens' constitutional rights.3
* Allowed litigants to bypass possibly hostile state courts and agencies and
bring their claims for constitutional redress against local officials directly to
federal court.9
Brennan's activist views also prodded the justices to invoke the remedial
powers of a court of equity. This enabled them to compel foot-dragging state
and local officials to comply swiftly with their desegregation rulings in order to
eradicate, "root and branch," the vestiges of segregationl°-an application of the
ancient maxim that the relief available from a court of equity was to be
measured by the size of the chancellor's shoe.
Under Brennan's guidance, equitable principles, permitting courts to shape
remedies to ensure that justice was done, became more and more the hallmark
of what would be known as the Warren Court. They opened the door to
structural injunctions which allowed federal courts to supervise the restructuring
not only of school systems, but also of prisons and other public institutions to
meet court-decreed constitutional standards.
II. VIEws FORGED IN NEW JERSEY
The constitutional revolution Brennan helped bring about may have come as
a shock to Dwight Eisenhower, the conservative president who enabled Brennan
to work his constitutional will. But in hindsight, legal historians will find
Brennan's Supreme Court years not at all surprising.
There can be little doubt that the federal jurisprudence of Justice Brennan was
largely shaped by his experience with the state judiciary in New Jersey. Like
Cardozo and Holmes before him, Brennan received his judicial nurturing in a
progressive state court system that produced strong common law judges
accustomed to refreshing ancient doctrine with modem wisdom born of
experience. Brennan not only served on both the New Jersey Superior Court
and Supreme Court before being called to Washington, but had been a
participant in the creation of the state's highly regarded modem legal system.
6. Dombrowski v. Pfister, 380 U.S. 479 (1965).
7. Davis v. Passman, 442 U.S. 228 (1979).
8. Owen v. City of Independence, 445 U.S. 622 (1980).
9. Zwickler v. Koota, 389 U.S. 241 (1967).
10. Green v. County School Board, 391 U.S. 430, 437-38 (1968).
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CALiFORNiA WESTERN LAW REVIEW
Most significantly, Brennan received his judicial baptism in the intellectual
crucible from which sprang the 1948 New Jersey Constitution. As an associate
editor, Brennan represented the New Jersey Law Journal in the debate surround-
ing the adoption of the new Constitution's judicial article. At the heart of that
debate was the proposal to merge New Jersey's then separate law and equity
courts, each with a tradition as a strong and dominating judicial body. The most
telling comments on the anticipated consequences of that merger were made by
the eminent Dean Roscoe Pound on the morning before Brennan himself
appeared before the judiciary committee of the constitutional convention.
Pound's remarks provide a remarkable insight into the judicial philosophy of his
former Harvard Law School student who was soon to wear judicial robes.
Explaining why the merger of law and equity would advance, not retard, the
dispensing of justice in New Jersey, Dean Pound said:
Equity, after all, is a great supplement to the common law. It deals
with everything all over the whole domain of the common law. It is
a remedial system, really, a great system of remedies where the
common law is not equal to maintaining the legal rights which it
developed and which it recognizes.... After all, it is not merely that
equity follows the law. Equity, in a sense, is administering the law,
but it is administering it by different kinds of remedies and within a
different atmosphere, you might say, by application of those reme-
dies.11
Those memorable words must have been ringing still in young Judge Brennan's
ears when, a year later, he ascended to the bench of New Jersey's newly
fashioned Chancery Division.
III. BEDROCK OF THE WARREN COURT
In 1956, Brennan took with him to Washington the unique and powerful idea
of utilizing the expansive powers of a court of equity to enforce and implement
Constitutional rights. It became the bedrock of the Warren Court jurisprudence.
The void left by Brennan's retirement from the Court is inestimable. However,
the reformation of the practice of constitutional law in this country-indeied, in
the world, where many other judicial systems have been inspired by Warren
Court doctrine-cannot be obliterated, although it has already been severely
blunted.
Brennan's progeny are legion. As a result of the Warren Court, there now
exists a flourishing public interest law movement which will not let the Brennan
legacy atrophy. Brennan has succeeded Pound as the inspiration of American
legal education. And even where specific doctrines he championed have been
11. STATE OF NEwJERssY CONSMIMONAL CONVENTION OF 1947, VOL. IV, COMMITrEE ON THE
JUDICIARY RECORD 108 (1949).
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1991] INTRODUCTION 237
overruled, legislative bodies, made more democratic and more responsive to
populist sentiments as a result of his Baker v. Carr decision, will enact many of
his holdings into statutory law.
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CONTEMPORARY PIRACY
ERIC ELLEN*
INTRODUCTION
It is appropriate to establish from the outset that some of the
activities referred to in this article would not stand up to critical
examination against the more precise definitions of piracy. Much
discourse during recent years has concentrated more on what the
activity should be called rather than on the consequences-human
or material-of the acts being considered. This could be thought to
be an inversion of priorities, but there should be a greater concen-
tration on consequences and less on definitions. If this means that,
as a term, "piracy" comes to mean all those malpractices afloat not
otherwise specifically defined, then so be it.
In concentrating on the consequences of such malpractices afloat,
this Article examines recent attacks on the high seas that have oc-
curred: 1) in the Philip Strait between Indonesia and Singapore; 2)
off the coast of West Africa; 3) in Southeast Asian waters; 4)
against the Vietnamese boat people; and 5) attacks with a military
or political feature. Finally, this Article discusses the involvement
of the International Maritime Bureau to act upon such malprac-
tices afloat.
I. THE PHILIP STRAIT
In the contemporary scene, we have continuing attacks on vessels
in the Philip Strait between Indonesia and Singapore. These at-
tacks are not on the high seas, as all the waters in the area are the
territorial waters of one or the other of the two countries. The at-
tacks take the form of intruders coming alongside the target vessel,
usually during the night, boarding it, and then taking possession of
whatever cash and negotiable valuables which come easily to hand.
The notable features of this type of attack are the degree of skill
which is used to board the vessel, coupled with the fact that vio-
lence is not normally used unless resistance is offered. It is this
comparative "non-violent" approach that, oddly enough, makes the
* LL.B. (Hons), QPM, CBIM, Executive Director, ICC Business Security Services.
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Ellen: Contemporary Piracy
Published by CWSL Scholarly Commons, 1990
CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
problem of piracy difficult to combat.
In statistical terms, the possibility of a vessel being boarded when
passing through the Philip Strait is remote. As the consequence of
such an attack is limited to loss of money or money's worth, then
basic risk management will come into operation and the cost of pre-
vention must not exceed the cost of the problem. The net result of
this is that the shipping companies will promote ordinary, secure
housekeeping procedures. This, coupled with a policy of non-violent
response, will reduce the problem to nothing more than nuisance
level.
There are, in the Philip Strait, security organizations offering all
types of guarding and escort systems which, although possibly ef-
fective, would be completely uneconomical. These escort systems
are uneconomical because their cost remains higher than their ef-
fectiveness in preventing such attacks.
The question of the principle of the attacks should be addressed
by the two sovereign states concerned. However, the political sensi-
tivities which could be upset by the incursions of forces from one
country into the territorial waters of the other cause the problem to
be given a low degree of priority by the authorities in the area.
II. OFF THE COAST OF WEST AFRICA
In contrast to the Philip Strait, the problem of "piracy" off the
coast of West Africa is of a different type showing several unique
characteristics. First, a high degree of violence has been demon-
strated by the criminals boarding a vessel and is therefore always a
factor to be considered. Second, the target items aboard the vessel
are not only money and negotiable goods, but also items of cargo
and ships' equipment. Third, the total value per attack tends to be
higher than in the Philip Strait. Fourth, there is a demonstrated
lack of competence on the part of law enforcement. And finally,
some of the target vessels are at anchor.
The only similarity between the Far Eastern and the West Afri-
can pirates is that they both come alongside in small craft and
mount high-sided vessels with remarkable agility. From that point
on, however, the similarity no longer exists as the West African
attackers often offer gratuitous violence and will steal everything
that is not well-secured. The result can be, particularly if ships'
equipment is stolen, that the safety of the vessel and its occupants
can be imperilled.
Prevention of this type of attack is a problem for a combination
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ESSAYS ON PIRACY
of several reasons. Despite improvements in available equipment,
there is no great response from the forces of law and order ashore.
This response may vary marginally from country to country but, in
general, there is no great enthusiasm on the part of law enforce-
ment agencies to come into confrontation with large groups of
armed men with a proven predisposition towards violence.
By the same token, those pundits who would suggest a positive
physical response by the crews of the vessels under attack must ask
themselves if the advice they give is really in the best long-term
interests of the targets of the attack. It cannot be argued that any
effort to repulse an attack, if successful, will save a life at that
time. Be assured that the vessel will be marked and, when it even-
tually comes into port or returns on a later voyage, old scores will
be settled and what appeared to be a victory will soon be shown to
be nothing but a hollow gain of the moment.
With both of these types of attacks described above, the response
on the vessel should be passive in that, if possible, all crew should
retreat into a hardened area of the vessel to "ride out the criminal
storm." At the very worst, the consequences can be considerable
financial loss but, when set against the alternative of death or in-
jury which may result from the confrontation, there can really be
no argument.
III. ATTACKS IN SOUTHEAST ASIAN WATERS
There has been a marked increase in the number of piracy at-
tacks in Southeast Asia in 1990. The following example is derived
from an article published by the ICC.'
During a voyage from Bangkok to Busan in August, 1990, a gen-
eral cargo vessel was boarded by armed pirates. The pirates knew
her exact location and it became clear that they had made detailed
preparations to relieve the vessel of her cargo of tin plate.
When the pirates boarded just after 1:00 a.m., they pointed guns
at the chief officer's head, handcuffed him, and took him down to
his cabin. A total of four men boarded the vessel. All were armed,
and the crew of seven were told that they would stay alive if they
followed instructions.
The course was altered and the speed increased. The next day,
1. ICC, Pirates carry out sophisticated and well planned vessel attack, in COMMER-
CIAL CRIME INTERNATIONAL (1990) (magazine) (available from ICC International Maritime
Bureau, London, England).
19901
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
the funnel was repainted and the pirates brought a stencil with
them to change the name of the vessel. They also brought another
country's national flag which was hoisted at the stern. However, no
attempt was made to change the vessel's port of registry.
After the vessel sailed a southerly course for the next two days,
the vessel dropped anchor and the pirates made contact with ac-
complices ashore. During the night, the pirates began discharging
the cargo of tin plate into a barge. Forklifts were used and the
whole operation took about two and one-half days. During this
time, the crew were kept below and the portholes were covered so
they could see nothing of the operation.
After two more days at anchor, the vessel headed north and then
northwest. Two days later the pirates anchored the vessel and left
using a lifeboat. After the pirates had gone, the crew discovered
that the radio equipment and charts were destroyed or missing.
Although shots were fired during the attack, none of the crew
were hit. Some, however, were beaten in the head with a Chinese
weapon that was left behind.
This attack is very similar to another which took place in the
region in 1986 and may have involved some of the same people. It
was very well planned, as shown by the use of forklifts during the
discharge and the fact that the pirates brought a ready cut stencil
and another national flag with them.
So far, thirteen reports of piracy have been reported in the region
in 1990. This compares with only three for 1989. The Singapore
National Shipping Association has called for the authorities in the
area to step up their surveillance of shipping channels and endeavor
to keep them safe for international trade.
This case illustrates what is becoming a regular feature of voy-
ages in Southeast Asian waters. Captains must stay alert and take
all possible precautions to safeguard their vessels from such attacks
by well organized and ruthless pirates when passing through the
affected area.'
IV. ATTACKS AGAINST VIETNAMESE BOAT PEOPLE
There are other acts which, although coming under the heading
of piracy, cannot be dealt with in such a matter of fact way as the
attacks in the Philip Strait, off the coast of West Africa and in
2. Id. See also Pirates Setting Sail for New Plunder, L.A. Times, Nov. 27, 1990, at
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ESSAYS ON PIRACY
Southeast Asia waters. Amongst the foremost of these are the at-
tacks against the Vietnamese boat people. Although this may be
seen by some only as a political problem, in human terms it is trag-
edy afloat.
The attackers in these cases are, more often than not, fishermen
turned bandit because they find that the spoils of their attacks on
the refugees exceed what they can make by legitimate fishing. This
fact, coupled with perhaps some resentment at the fact that the
refugees are leaving, results in attacks of unbelievable ferocity.
Perverse though the logic may seem to some, it may well be that
the British Government's policy of non-voluntary repatriation may
well save the lives of those who now do not even try to make a
crossing in which some would undoubtedly have lost their lives. In
this area, control is difficult because of the same principle as holds
ashore. On land, the peasant of this moment is the partisan fighter
or bandit of the next and, in parallel on the sea, the fisherman of
this moment is the pirate of the next, only to revert to this type
immediately after an attack. In this type of ongoing battle, where
the opposition do not always wear their colors, it is difficult to
mount effective restraint.
V. MILITARY AND POLITICAL ATTACKS
The next type of maritime attacks to be considered are those
with a military or political feature. Notable amongst these was the
attack on the Achille Lauro followed some time later by the totally
different type of attack on the City of Poros.
By contrast with the attacks for purely monetary gain, the re-
sponse both on the part of the potential target and by the forces of
law and order has been to the highest degree. It is arguable
whether the response has been effective in ensuring that there has
been no repetition or whether the attacks were such as to be "one-
off" incidents. In either event, the world has been spared a scenario
which was unacceptable by any standards.
Other attacks can be classified as military or political attacks.
Within the last few months, there have been two or three attacks
on merchant vessels in the Red Sea, and in one case a vessel was
seized by one of the warring factions in a nearby state. These con-
sequences are to be expected in an area where war and violence
have become commonplace. However, it is pleasing to note that the
incidents referred to appear to be the exception rather than the
rule.
1990]
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Ellen: Contemporary Piracy
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
One of the most alarming types of acts which can be embraced
under the general term "piracy" has been the spate of thefts of
vessels in the area of the Philippines. By the very nature of the act,
precise details are not available. But some estimates suggest that
upwards of thirty vessels have been stolen in the past two years.
The objective of these crimes is to provide vessels for the phenome-
non known as the "Phantom Ships of the Far East" in which a ship
can assume a bogus registration for a few months. During this
time, the ship can be used to steal a legitimate cargo and sell it to
one of the all-too-willing buyers to be found in the area. It is sug-
gested that there are groups willing and able to steal any ship in
the area-to order-for just $300,000.
VI. THE ROLE OF THE INTERNATIONAL MARITIME BUREAU
The ICC-International Maritime Bureau' is often asked about
piracy both by the media and the industry in the hope that there is
some particular exclusive story or some panacea for the problem,
but neither exists. The types of piracy attacks described above,
headlifie-attracting though they may be, are only the maritime
equivalent of the muggings and burglaries that form a part of the
overall tapestry of life for those ashore. And as surely as the land-
based forces of law and order fail to find a lasting cure for what is
commonplace on land, so those same forces will have difficulty with
the parallel problems of the sea.
The International Maritime Bureau is required by its mandate
from the International Chamber of Commerce to act as a watchdog
of the seas in the commercial sense, and it continues to monitor not
only individual instances but also general trends. In doing this, it is
found that although piracy in any form is certainly not to be com-
mended, it is a phenomenon that the seafarer, with the personal
resilience peculiar to his breed, will take in his stride.
3. The ICC International Maritime Bureau was created on January 1, 1981 by the
Council of the International Chamber of Commerce as an independent body to deal with the
prevention and containment of fraudulent and other suspect practices in Maritime Transport.
The Inter-Governmental International Maritime Organization (IMO), the U.N. Maritime
Agency, welcomed this "positive and constructive initiative" and urged all interested organi-
zations and governments to cooperate fully with the International Maritime Bureau in taking
effective measures and exchanging information. Now reaching its tenth anniversary, the bu-
reau has been accepted world-wide as an organization of ability and integrity. The Bureau
contribution to literature on the subject has been the publication of three books, VIOLENCE
AT SEA, PIRACY AT SEA and PORTS AT RISK, all published by the ICC Publishing Company
Limited.
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Contemporary Piracy

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International Law in the Federal Courts