by Dalia Tsuk Mitchell. Ithaca: Cornell University Press, 2007. 368pp. Hardcover. $59.95. ISBN: 9780801439568
Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.
The name Felix Cohen remains unknown to much of the contemporary American legal community. However, Dalia Tsuk Mitchell’s biography reminds us that Cohen’s lack of familiarity is not synonymous with a lack of significance. Indeed, from his early years at the City College of New York (CCNY) to his doctoral studies at Harvard University, Columbia Law School, and work as a lawyer at the Department of the Interior, Cohen found himself at the center of a number of the legal and political debates that gripped the United States in the first half of the twentieth century. Consequently, Mitchell’s assessment does far more than tell the story of Felix Cohen the man. It relies on Cohen’s individual contributions and experiences to illustrate “the impact of the legal pluralist image of the modern state on the transformation of American thought and American society in the first half of the twentieth century” (p.7).
The eldest son of second- and third- generation Jewish immigrants, Felix Solomon Cohen was born in New York City in July 1907. His father, Morris, was himself a prominent philosopher and legal scholar in the realist tradition. Appropriately, the younger Cohen was named after Felix Frankfurter, his father’s roommate at Harvard who would go on to become an associate justice on the United States Supreme Court. From Cohen’s early years on Manhattan’s Lower East Side, he was imbued with an appreciation for diverse cultures and the necessity of tolerance. That appreciation would grow, as Cohen matured in Yonkers and, later, Washington Heights. His exposure to leftist ideologies at CCNY, where he encountered the socialism of Norman Thomas, combined with his experience as editor of the student paper there, reinforced this worldview. “Not a choice among values but tolerance was Felix’s intuitive reaction to [a] plurality of opinions” (p.28). Those beliefs would become Cohen’s lodestar as he sought to articulate his vision of legal pluralism and pursue that vision at the Department of the Interior. At Interior, Cohen “believed that his work could become a model for addressing the needs of diverse groups in society” (p.132).
After graduating from CCNY, Cohen pursued a doctorate in philosophy at Harvard. While there, he audited courses in law from Roscoe Pound and Felix Frankfurter, and anthropology from Alfred Tozzer. His exposure to anthropology was particularly important in cultivating his pluralist worldview. One year before earning his doctorate at Harvard, Cohen began studying law at Columbia University. As a bastion of legal realism, Columbia Law School was well-suited to Cohen’s interests. Legal realism – particularly its emphasis on [*765] social science’s relevance to legal issues – resonated with his view of a pluralist society. Specifically, Mitchell notes that Cohen “turned to positive science to learn about the effects of law on different interests and groups in society” (p.50).
Upon his graduation from Columbia Law School, Cohen accepted an invitation to join the Department of the Interior and would help New Dealers in the Roosevelt Administration change federal Indian policy. While Cohen had no experience in Indian affairs, he saw the nation’s Indian tribes as “one of many political and economic groups that would form the foundation of the modern pluralist state” (p.4). In effect, Cohen joined Interior because he saw the position as an opportunity to implement his pluralist vision.
Part II of the book describes Cohen’s role as principal drafter of the Interior Department Bill that would later become the Indian Reorganization Act (IRA). In his initial draft of that bill, Cohen articulated the need to encourage tribal self-government and endorsed cultural pluralism and collective ownership of Indian lands. Finally, Cohen’s draft envisioned a system of specialized Indian courts that could “generate legal stability and political advancement on reservations” (p.88). Aided by Cohen’s pragmatism and determination, Congress passed and President Roosevelt signed the IRA into law in 1934. However, in the wake of contentious congressional hearings and public debate, a number of Cohen’s most radical proposals were excised from the final bill.
Cohen would supervise another major effort at Interior related to his pluralist vision – the Alaska Development Plan. Although Interior attempted to frame the issue as one benefiting Alaska’s economic development, a major goal of the Alaska Development Plan was to create refugee reservations for Jews living (and dying) under Germany’s Nazi regime. Both the Alaska Development Plan and a later effort to accommodate refugees in the Virgin Islands proved unsuccessful (pp.152-161), and these setbacks led Cohen to recalibrate his pluralist vision.
In later years Cohen found his ambitious vision constrained by internal and external forces, and these forces also produced shifts in his thought. Cohen viewed President Truman’s Interior Department as unsympathetic to his pluralist vision. By the Truman years, Interior deemphasized historical and cultural distinctions, opting to view all groups through a single prism. As a result, Cohen became increasingly cynical, “no longer trust[ing] policymakers to create a plural polity” (p.264). He left Interior in 1948, convinced that his efforts to promote pluralism there could no longer be successful. Moreover, informed by his experiences, Cohen abandoned the belief that economic and political self-reliance among groups would, by itself, promote political tolerance.
In the context of the Warren Court’s increasing emphasis on civil liberties and rights at home and a growing international emphasis on the protection of individual human rights, the group-centeredness of Cohen’s pluralist vision [*766] went out of vogue. Though he did not discard that pluralist vision, Cohen was acutely aware of these changing social and legal circumstances. For example, as American law became increasingly individualistic, Cohen again shifted focus “from finding ways to accommodate diverse interests and values to exploring the cultural reasons for the inability of law (and society) to do so” (p.6). In that odyssey, Cohen focused increasingly on ways in which diverse group needs could be accommodated in a society – and a legal system – whose focus was on individual rights (p.188).
Felix Cohen died of lung cancer in 1953 at the premature age of 46, giving him five short years to pursue his vision after leaving Interior. Still, these final years were quite productive. Acting as a private attorney, Cohen secured voting rights for Indians in Arizona and New Mexico. In the early 1950s, he was a vocal critic of efforts by the Bureau of Indian Affairs that he believed would undermine the Indian New Deal. Two years prior to his death, Cohen presented the final iteration of his jurisprudential approach in “Field Theory and Judicial Logic” (in Cohen 1970).
In fleshing out the complexities of Cohen’s legal pluralism, Dalia Tsuk Mitchell engages in a particularly useful discussion of legal realism. In juxtaposing the views of legal realists with legal classicists, Mitchell clarifies the relationship of Cohen’s pluralism to the larger movement of legal realism and refers to Cohen’s vision as “a strand within legal realism” (p.55). The book’s second chapter is especially effective in situating legal pluralism within that larger realist framework.
One of the book’s most instructive themes is the way in which Cohen’s vision of legal pluralism was rooted in pragmatism and, thus, evolved as his knowledge grew and political circumstances changed. For example, in the early 1930s Cohen “believed that economic and political equality could be achieved by universal schemes” (p.273). But his work on Indian Affairs at Interior soon made him realize that society’s numerous cultural and value traditions made such universal prescriptions unworkable. Cohen, Mitchell tells us, embraced a “functional jurisprudence” which recognized that different groups necessitated unique solutions to their problems.
Mitchell’s book is comprehensive, well-written, and promises to be of interest to scholars of jurisprudence and legal history. It succeeds in capturing the essence of Felix Cohen’s legal pluralism and relates that vision to his work in a balanced, evenhanded manner. The book retains an objectivity about its subject that, sadly all too often, is lacking in biographical scholarship. At the same time, Mitchell masterfully demonstrates a symbiosis between Cohen’s own story and the resulting evolution of his legal and political thought.
That said, there are two ways in which the book could have been improved. First, additional elaboration on how Felix Cohen came to the Department of the Interior would have been useful. While the author notes that “The New Deal’s zest, the Indians’ plight, and, ultimately, Cohen’s vision for the modern state brought him to Interior” (p.64), early portions of the book could have benefited from even greater descriptive details concerning the [*767] sequence of events that led a man with no policy specialization to Interior and, specifically, to a position of responsibility over Indian affairs.
Second, I found the book’s discussions of Indian law to be tedious at times. Mitchell’s treatment of these issues is certainly comprehensive – perhaps, at times, overly so. Much of this detail may be unavoidable, given the centrality of Indian law to Cohen’s story. Still, portions of the book’s treatment of Indian law are dense and may limit its accessibility to readers for whom issues of Indian law are secondary to Mitchell’s broader thesis on Cohen’s legal pluralism.
Mitchell likens Felix Cohen to the Woody Allen character Zelig, and that characterization is apt. Like Zelig, Cohen repeatedly found himself at numerous historical crosspoints and in the company of a number of the twentieth century’s most notable figures. He knew Roger Baldwin, founder of the American Civil Liberties Union. He was influenced by leading American socialist and six-time presidential candidate Norman Thomas, met Oliver Wendell Holmes, and Benjamin Cardozo judged him the winner of Columbia Law School’s moot court competition in 1931. His HANDBOOK OF FEDERAL INDIAN LAW won effusive praise from Justice William O. Douglas. The breadth of Cohen’s acquaintances was apparent even in his death, as Justice Felix Frankfurter, Senators Hubert Humphrey and William Langer, and four prominent federal judges served as his honorary pallbearers.
Beyond these acquaintances, Cohen was also charged with implementing one phase of President Franklin Roosevelt’s New Deal. He had socialist sympathies. He contributed to important debates on jurisprudence (see Cohen and Cohen 1951) and authored THE HANDBOOK OF FEDERAL INDIAN LAW, still the authoritative text on the subject, in 1946.
Some are largely seen by history; others remain unseen and experience history first-hand. As Dalia Tsuk Mitchell’s biography vividly illustrates, Felix Cohen falls squarely into the latter category. His philosophy of legal pluralism was unquestionably shaped by his life experiences. Ultimately, that pluralism “rested on the assumption that diversity was important to individual and social life . . . [and that l]iberty was born of tolerance” (p.157). This is the lesson of Cohen’s story, and it remains a useful lesson for the modern age.
Cohen, Felix S. (ed). 1942. HANDBOOK OF FEDERAL INDIAN LAW. Washington, D.C.: U.S. Government Printing Office.
Cohen, Lucy (ed). 1970. THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. COHEN. New Haven: Yale University Press.
Cohen, Morris R., and Felix S. Cohen. 1951. READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY. New York: Prentice Hall.
© Copyright 2007 by the author, Brett W. Curry.