Michigan Lawyers in History

Michigan Lawyers in History--Thomas McIntyre Cooley: Michigan’s Most Influential Lawyer

by William J. Fleener, Jr.

A Life of Accomplishments

Thomas McIntyre Cooley was born in upstate New York in 1824. With only a high school education, he moved to Adrian in his late teens and took up the study of law as an apprentice. He also served as a city clerk, newspaper editor, and circuit court commissioner.

In 1846, Cooley was admitted to the Michigan Bar. In 1857, the Legislature appointed Cooley to amass the state’s statutes. Because of his work on that project, the next year Cooley was appointed the Reporter of Decisions for the Michigan Supreme Court.

In 1858, he moved from Adrian to Ann Arbor because he had been appointed as one of three professors at the newly organized University of Michigan Law School. Because he was the only one of the three willing to move to Ann Arbor, Cooley was charged with administrative responsibilities and became the law school’s first dean.

In 1865, Cooley was elected to the Michigan Supreme Court. He served on the Court for 20 years, until he was defeated in the 1885 election; for much of that time he served as the chief justice. After he left the Court, he was appointed as the receiver for the Wabash Railway. Next, Cooley was appointed by President Cleveland as the first chair of the Interstate Commerce Commission and served from its inception in 1887 until his resignation in 1891. In 1893, Cooley was elected the 16th president of the American Bar Association.

At the end of his life, Cooley battled pneumonia, depression, and epilepsy. Some speculate the cause of his health problems was the death of his wife in 1890. Cooley died in 1898, at the age of 74.

Legal Writings

In 1868, Thomas M. Cooley published Constitutional Limitations. This work interpreted and compared the many state constitutions and the Federal Constitution. It was immediately adopted as required reading for lawyers and law students. In 1873, Cooley published a new version of Joseph Story’s Commentaries on the Constitution. In 1865, he published an edition of William Blackstone’s Commentaries. He also published treatises on taxation in 1876 and on torts in 1879. In 1880, Cooley wrote The General Principles of Constitutional Law. He also wrote countless articles on these and other legal subjects.

As a justice of the Michigan Supreme Court, Cooley wrote hundreds of opinions, many of which were widely read and cited soon after they were authored. The opinions, which included benchmark decisions in the areas of separation of powers, constitutional interpretation, privileges, interpreting tax exemptions, statute interpretation, and the public duty doctrine were also admired for clarity. The decisions also covered the areas of criminal law, torts, statutes of limitations, and standards of review.

Cooley’s writings are often referred to today; the Michigan Supreme Court and the Michigan Court of Appeals often cite his decisions and writings. A recent Westlaw search revealed 10 Michigan appellate court decisions between June 1998 and July 1999 that cited Cooley.

Legal Education

Thomas M. Cooley had some very clear views on legal education, its substance, and its form. He was able to implement many of these at the new law department of the University of Michigan. As a teacher of constitutional law, real property law, trusts, estates, and domestic property, he was esteemed for his courtesy to students and the clearness of his lectures. Cooley highlighted the historical and cultural origins of the law and the social and political aims it is shaped to serve.

The law school Cooley managed was open to all literate Americans, and failure because of grades was nearly impossible. Students charted their own courses of study, learning what they thought they would need to know for their careers. The new law school granted admission to all, regardless of race or gender, and by the late 1800s had a large number of minority graduates.

Administrative Law

Thomas M. Cooley basically invented the administrative process, particularly the rulemaking process. In his position as chair of the newly created Interstate Commerce Commission, Cooley designed administrative due process of law, the concept of administrative rulemaking, and judicial review of administrative agencies’ actions. As chair, he set out that the public had the right to notice and the opportunity to be heard in the rulemaking process. Many of the concepts he originated were codified in the administrative procedure acts at the federal and state levels.

A Lasting Legacy

Cooley’s influence is clear in almost every segment of the law and the legal profession. He was heavily involved in the origins of legal education, especially in Michigan. His students included Justices Day and Sutherland, and Clarence Darrow.

He was the first to clearly set forth several legal theories that are relied on today, and he set in place the structure of administrative law that stands today. Professor Paul D. Carrington has probably written as much about Thomas M. Cooley as anyone, and this summary substantially relies on his many articles, including: Law and Economics in the Creation of Federal Administrative Law: Thomas Cooley Elder to the Republic; Law as ‘‘The Common Thoughts of Men’’: The Law Teaching and Judging of Thomas McIntyre Cooley; and The Constitutional Law Scholarship of Thomas McIntyre Cooley.

Professor Carrington stated that ‘‘Cooley won a national reputation as a legal scholar unequaled by any American in his time.’’ He further stated that, ‘‘Cooley...was revered as a law teacher, widely admired as a judge, and famous as a legal scholar.’’ When he received his honorary degree from Harvard, Cooley stated his view on the legal profession. Professor Carrington reports Cooley’s words as:

‘‘[W]e fail to appreciate the dignity of our profession if we look for it either in profundity of learning or in forensic triumphs. Its reason for being must be found in the effective aid it renders to justice and in the sense that it gives of public security through its steady support of public order. These are commonplace, but the strength of law lies in its commonplace character; and it becomes feeble and untrustworthy when it expresses something different from the common thoughts of men.’’

Despite coming from a very humble upbringing, Cooley was an extraordinary man. He spent most of his life living out his vision of the profession to which he dedicated his life. Much of his life was spent in service to others, particularly the common man. Because of the way he lived out his vision, Thomas McIntyre Cooley was Michigan’s most influential lawyer.

William J. Fleener, Jr. is a magna cum laude graduate of the Thomas M. Cooley Law School, and Western Michigan University. He is a member of the Bar Journal Advisory Board. He is also an adjunct professor at Thomas M. Cooley Law School and an attorney with the Lansing firm of McClelland & Anderson L.L.P.

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