Judge Louis Pollak wore many hats and robes over the 89 years of his life, all with marked distinction. He excelled as an appellate advocate, a law school professor, and a dean of two prestigious law schools. Yet, his greatest professional legacy, the role in which his talents and temperament were on utmost display, is his tenure as a federal judge.
In his perhaps true calling, he had a rare aptitude for distilling legal complexity and following precedent rather than personal predisposition. He was not result-oriented. He didn’t take sides or have a personal or judicial agenda, but he did more than call balls and strikes. As William Coleman once put it, Pollak was the “quintessential expression … [of] the capacity to reconcile conflicting interests and objectives in a fair and impartial manner, balancing thoughtful respect for tradition and precedent with sensitive appreciation for civilization’s unwavering quest for the fulfillment of dignity.”
Pollak’s antitrust opinions are an important and representative part of that legacy. Indeed, carefully examined, they are an object lesson in the artful execution of the office of federal district judge that others should heed and follow.
Pollak was not by pedigree an expert in antitrust law. Early in his career he practiced commercial law for a short time at the Paul Weiss law firm in New York, but he built his career on constitutional law. That is not surprising because constitutional law, particularly the fight for civil rights, was in his blood. His father, Walter Pollak, was a prominent civil rights attorney who represented the ill-fated appellant in Gitlow v. New York . The elder Pollak also argued Powell v. Alabama , in which the Supreme Court overturned the convictions of nine African-American men, famously known as the Scottsboro Boys, who were accused of raping two white women in Alabama.
In the 1950s and 1960s, Louis Pollak followed in his father’s large footsteps. After earning his LL.B. from Yale in 1948, and clerking for Supreme Court Justice Wiley B. Rutledge, Pollak entered private practice. During that time, Pollak worked with the NAACP Legal Defense Fund, assisting Thurgood Marshall and others in writing the briefs for Brown v. Board of Education . Later, while teaching constitutional law at Yale, he successfully argued civil rights cases such as Pennsylvania v. Board of Directors of City Trusts of City of Philadelphia and McLaughlin v. Florida before the Supreme Court. In its memorial to Pollak, the Legal Defense Fund noted, “Louis Pollak wrote briefs, made arguments, gave advice hundreds and hundreds of times on issues of the highest level of constitutional sophistication. Innumerable LDF briefs presented concepts that he formulated.”
Pollak’s talent for constitutional law translated well to antitrust issues. Perhaps antitrust law’s theoretical complexity was somehow more manageable having spent so much time working on equally theoretical civil rights cases like Brown . As Judge Guido Calabresi once put it, Pollak had “the capacity to make, and to use purposefully, the finest of distinctions.” Whatever the explanation, Pollak handled antitrust cases with aplomb. In cases such as MHB Distributors v. Parker Hannifin , he parsed dense statutory language while also making difficult, fact-sensitive determinations of market power and anti-competitive effect.
He was also perfectly willing to venture to the intellectual forefront of antitrust law and tackle novel issues. In one of his last antitrust opinions, McLafferty v. Deutsche Lufthansa AG , Pollak acted sua sponte to dismiss the case for lack of subject matter jurisdiction. According to one commentator, Pollak’s opinion in that matter was “one of the most direct answers to date to what has been an arguably unsettled question — whether a plaintiff’s payment of supracompetitive prices while in the United States, for a good or service that is otherwise transacted entirely in foreign markets, [establishes subject matter jurisdiction] under the [Foreign Trade Antitrust Improvements Act] FTAIA.”
While his formidable talents were evident in his 17 antitrust-related opinions, his personal predispositions — if one assumes he had some as a judge — were not. A 1978 appointee of President Jimmy Carter, who had been at the vanguard of the legal battle for civil rights as a plaintiff’s advocate, showed himself quite willing to grant motions to dismiss antitrust claims against plaintiffs in appropriate circumstances. Indeed, in roughly 70 percent of Pollak’s antitrust cases with published opinions his rulings favored the defendant.
That is not to say that Pollak showed any bias in his analyses. Quite the contrary, he considered each case as it was presented and his opinions were guided by precedent if such precedent existed. He approached his cases like a good law school professor: stating the issue succinctly, dividing it into its constituent parts and subparts and methodically analyzing them one at a time. While explicating whatever sub-issues he identified, Pollak often emphasized any inadequacies in the parties’ arguments, reminiscent of the Socratic approach of law school professors. In reading his antitrust opinions, one gets the impression that, in true professorial form, he was providing the bar with a model for future briefs as both a teacher as well as a judge.
Pollak’s antitrust opinion in T.A.M. v. Gulf Oil is a classic example. The plaintiffs were two gas station franchisees that were suing their franchisor under the Sherman Act and the Clayton Act. Pollak began with an analysis of whether the court had subject matter jurisdiction. Only after thoroughly addressing that threshold issue and concluding that the court did have jurisdiction, did he dive in to address the merits of the plaintiffs’ claims. Ultimately, he went on to grant summary judgment for the defendant on the plaintiffs’ Sherman Act and Clayton Act claims.
The ability to set aside one’s personal predispositions while cloaked in powerful judicial trappings is constitutionally essential and exceedingly challenging for some. Perhaps Pollak’s capacity to do so was rooted in his humility and deep sense of doing what was right. As he said about his role model father, “I grew to understand that due process meant due process.” He was a consummate gentleman who was known to come down from the safety of the bench and shake hands with litigants at the end of each trial day and who found time when at Yale to serve on his local school board when his five daughters were young. He occasionally brought his golden retrievers to work with him to size up counsel during chambers conferences and bring a touch of home to their master. It was part of what he was, not done for effect or status or because he could. He once asked the author at the end of a long day of trial why he looked anxious and pressed him for an answer. The author said he had hoped trial would end earlier that day so he could get home for his young daughter’s birthday but said if he was delayed he thought she would understand. Pollak’s fatherly response was, “No, she will not understand and you are hereby excused to go home to your family. We can certainly finish up here.” That was the measure of the man.
He got it right more than most with his antitrust opinions. All passed the acid test of appellate review and many were cited with approval by other judges and justices in later cases. Like International Raw Materials v. Stauffer Chemical , where the U.S. Court of Appeals for the Third Circuit upheld Pollak’s carefully crafted antitrust rulings. Additionally, the District of Maryland cited with approval Pollak’s MHB Distributors and Advanced Power Systems v. Hi-Tech Systems opinions, and the Third Circuit cited with favor his Pao v. Holy Redeemer Hospital antitrust opinion. Pollak belonged to the elite group of jurists to whom other judges would refer by name when they wanted to add extra emphasis to their citations.
Pollak’s enormous stature in the federal judiciary is evidenced by the frequency with which he sat by designation on the Third Circuit to the point where he was effectively a member of the court of appeals. He was involved in three antitrust cases, including Animal Science Products v. China Minmetals and Warren General Hospital v. Amgen . Most notably though, in Environmental Tectonics v. W.S. Kirkpatrick , a case that interwove an antitrust claim with complex questions of international law and domestic separation of powers, Pollak authored the opinion, and on further appeal, the Supreme Court, in an opinion by Justice Antonin Scalia, unanimously upheld Pollak’s ruling for the panel.
Few people have such long and distinguished careers that one could plausibly state that their greatest legacy is something other than serving as the dean of two Ivy League law schools. Yet, Pollak really hit his stride when he stepped onto the federal bench and out of the Ivory Tower. Pollak’s death has given much deserved light to his remarkable career. His contributions to antitrust law are an important part of his legacy, and they survive as clear examples of the wisdom and integrity that defined his life. He will be missed. •
Carl W. Hitinger is the chairman of DLA Piper’s litigation group in Philadelphia, where he concentrates his practice in complex commercial trial and appellate litigation with a particular emphasis on antitrust and unfair competition matters. Hittinger is also a frequent lecturer and writer on antitrust issues and has extensive experience counseling clients on all aspects of civil and criminal antitrust law. He can be reached at 215-656-2449 or firstname.lastname@example.org.