Judge Friendly and the Law of Securities Regulation: The Creation of a Judicial Reputation

Few judges are more revered than the late Henry J. Friendly, a member of the United States Court of Appeals for the Second Circuit from 1959 to 1986. Leading jurists and scholars have described him as one of our wisest judges, a legend in his own time, the most remarkable legal mind of his generation, the pre-eminent appellate judge of his era, and the most distinguished judge in this country during his years on the bench. Are great judicial reputations-like great literary and scientific reputations- also shaped by contingencies? Or does the legal profession for some reason stand apart? This Article shows that great judges are not special. This Article focuses on his reputation in securities regulation. Judge Friendly is said to have done more to shape the law of securities regulation than any [other] judge in the country. The author of eighty majority opinions in the area, he tackled everything from Rule 10b-5 and the proxy rules to extraterritoriality, criminality, and tender offers. His name appears in ten securities opinions of the United States Supreme Court as well as in three hundred fifty-five securities opinions of the lower federal courts outside the Second Circuit. Nineteen of his opinions (hereinafter the casebook opinions ) have appeared as principal cases in securities regulation casebooks. This Article demonstrates the impact of contingencies on the development of Judge Friendly\u27s reputation. Its purpose is to help move analysis of contingencies into the mainstream of legal scholarship. Disregard of contingencies is costly because valuable insights about both individual judges and the judicial system are simply shut out