Here's a post for those of you who just can't get enough of the in-jokes of the American legal realists about the "functional approach."
As is well known, Thurman Arnold, William Douglas, Wesley Sturges and the other legal realists at the Yale Law School never let a little thing like illegality get in the way of raucous, alcohol-fueled partying during the last years of Prohibition. Jerome Frank, who in this period was a corporate reorganizer in New York City, used to say that his principal responsibility as a "lecturer" at YLS was to import liquor to New Haven. One of the few Harvardarians welcomed at their brawls was Thomas Reed Powell, the brilliant and acerbic professor of constitutional law who had been Douglas's teacher at the Columbia Law School before moving to Cambridge in 1925. (I still laugh out loud every time I read his review of James Montgomery Beck's Constitution of the United States (1924).)
In 1930, Douglas learned that William Clark, a federal judge in New Jersey was about to publish an opinion that drew upon some of Powell's learning in quashing an indictment under the Volstead Act on the ground that the Eighteenth Amendment had been improperly ratified and wondered what Powell thought of the argument. (See H.H. Creekmore, "The Sprague Case," Mississippi Law Journal 3 (1931): 282-91.) Powell replied that it was too late in the day to argue the unconstitutionality of the Eighteenth Amendment. Besides, he continued, "‘it would be much pleasanter to talk about the distinction between law in books and law in action and to approach the problem functionally and realistically, as we did at Al McCormack’s dinner.” (McCormack was a Columbia law graduate, Harlan Fiske Stone clerk, and a lawyer at Cravath, Swaine & Moore, where Douglas had also worked.)
Douglas took up the jest in his response. “I never realized before I received your letter of the 14th what the functional approach was. Now that I have found out I have climbed on the band wagon. Evidently I have been a functionalist for years and did not know it.”