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.
Early life and education
Bennett Boskey was born in New York City and grew up on Central Park West on 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.The City College Quarterly, Vol. 9 (New York: 1913), at 159. 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."The Mercantile Adjuster and the Lawyer and Credit Man: A Monthly Magazine Devoted to Credits and Collections, Vol. 31 (1916), at 119. His son, Bennett, would later describe his law practice in the same way.Entry for "Bennett Boskey Firm," Martindale-Hubble Legal Directory, Martindale.com (2016).
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."Interview with Bennett Boskey" (July 5, 2005). Williams College Oral History Project. 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 had also grown up on the Upper West Side of Manhattan."Shirley Ecker is Bride; Daughter of Justice Married to Bennett Boskey," NY Times, July 4, 1940. She graduated Phi Beta Kappa from Vassar College, 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)"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. and Frances Schuman (January 14, 1891 – July 16, 1979),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). 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.""Shirley Boskey – The First Female Department Director of the World Bank," The World Bank. Retrieved July 29, 2016. The Shirley Ecker Boskey Chair in International Studies at Vassar is endowed in her memory,Department of International Studies, Vassar College. and her papers are archived at Princeton University.
Judicial clerkships
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."Alumni Notes, "Profile – Bennet Boskey ’39: Not Shy, Not Retiring," Harvard Law Bulletin, Fall 2000.
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.Barnes, Bart, "Bennett Boskey, Washington lawyer, dies at 99," Washington Post, June 1, 2016; Boskey, Bennett, "Mr. Chief Justice Stone," 59 Harv. L. Rev. 1200 (1946).
In October 1941, Justice Robert H. Jackson joined the Court, an event Boskey recalled fondly in a 2005 essay.Boskey, Bennett, "Bob Jackson Remembered," 68 Albany L. Rev. 5–7. Robert H. Jackson Center, Jan. 9, 2005.
Ex parte Quirin: Saboteurs case standing doctrine
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.'"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. 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.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).
Legal career
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.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. 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).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.
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."Zielinski, Graeme, "Obituary for Joseph Volpe, Jr.," Washington Post, February 1, 2002. 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.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.")
At the firm, Boskey represented non-profit organizations, individuals in probate cases, and companies in matters of nuclear energy licensing.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). On December 12, 1961, Boskey argued Coppedge v. United StatesCoppedge v. United States, 369 US 438 (1962), Bennett Boskey for the Petitioner, Mark Coppedge. before the U.S. Supreme Court, winning a 5–2 majority for his in forma pauperis client appealing a criminal conviction.Coppedge v. United States Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Jan 8, 2017. In 1973, Boskey helped Columbia University defend its license to operate a nuclear reactor on campus for research purposes, though it was never used.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. When the firm dissolved in 1996, Boskey maintained a solo practice for an additional nineteen years.