From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this contribution to “Serious Fun” a symposium in honor of John Henry Schlegel of the University at Buffalo School of Law, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt’s presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers’ agency as political actors. In particular, the New Deal lawyers’ projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.

In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in a fifth the time. Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss.

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar. When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.” Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail. It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates.

To build its many unprecedented bureaucracies, the American New Deal heavily relied upon recent graduates of elite law schools, in a break with prior practice and to the increasing annoyance of congressmen and senators. To head off an attempt to entrust the selection of government lawyers to the Civil Service Commission, in January 1939, President Franklin D. Roosevelt appointed a committee, chaired by Stanley Reed and including two other Supreme Court Justices, Felix Frankfurter and Frank Murphy, to study the question. In April 1941, he accepted the recommendation of the lawyers on the "Reed Committee" and created the Board of Legal Examiners, headed by Solicitor General Francis Biddle (soon replaced by Charles Fahy) and managed during its first, crucial year by Herbert Wechsler, who was on leave from the Columbia Law School. As conceived especially by Frankfurter, the Board's mission was to create an American counterpart to the British Civil Service, in which lawyers advanced to increasingly important posts throughout the executive branch. Although wartime conditions hampered the Board, it administered a national exam that provided greater access to government jobs than had the New Deal's version of an "old boys network," which drew heavily upon the law faculties of Harvard, Columbia, and Yale. Congressional hostility persisted, however, and was joined by the opposition of a powerful veterans' lobby. The Board's response to this pressure is instructive for a time when government lawyers and other professionals are being denounced as members of an anti-democratic, Deep State.

The French aristocrat Alexis de Tocqueville once wrote that insufferable despotism would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that Tocqueville's nightmare has come true. Between 1900 and 1940, it seems, radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom. Tocqueville's Nightmare, shows, to the contrary, that the nation's best corporate lawyers were among the creators of commission that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were designed into the administrative state. American statebuilders rejected the leading European scheme for constraining government, the Rechtsstaat, a state of rules, in favor of the Anglo-American notion of the rule of law as a rule of courts, in which judges aggressively reviewed administrators' decisions. Soon, however, even judges realized that strict judicial review shifted decisions best left to experts to the courts. The most masterful judges ultimately decided that a day in court was unnecessary if individuals had already had a day in commission, in which fundamentals of due process had been observed. Not only did this procedural notion of the rule of law solve the judges' puzzle of reconciling bureaucracy and freedom; it also assured lawyers that their expertise in the ways of the courts would remain valuable and professional politicians that executives would not use administratively distributed largess as an independent source of political power.

In the 1830s, the French aristocrat Alexis de Tocqueville wrote that 'insufferable despotism' would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmare has come true. In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom. Tocqueville's Nightmare, shows, to the contrary, that the nation's best corporate lawyers were among the creators of 'commission government,' that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were designed into the administrative state. Far from following 'un-American' models, American statebuilders rejected the leading European scheme for constraining government, the Rechtsstaat, a state of rules. Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions aggressively. Soon, however, even judges realized that strict judicial review shifted to generalist courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a 'day in court' was unnecessary if individuals had already had a 'day in commission' where the fundamentals of due process and fair play prevailed. Not only did this procedural notion of the rule of law solve the judges' puzzle of reconciling bureaucracy and freedom; it also assured lawyers that their expertise in the ways of the courts would remain valuable and professional politicians that presidents would not use administratively distributed largess as an independent source of political power.

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From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of theRechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund,Administrative Powers over Persons and Property(1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today theRechtsstaatis largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.

In April 1938 New York's first constitutional convention since 1915 convened in Albany. When it adjourned in late August, one of the amendments slated for a referendum that fall was an “anti-bureaucracy clause,” a provision that would greatly increase the New York courts' oversight of the state's agencies. Although voters rejected it, contemporaries saw the anti-bureaucracy clause as a harbinger of a national campaign against the New Deal. In September 1938 Charles Wyzanski, a former member of the Solicitor General's office, warned Attorney General Homer Cummings that the anti-bureaucracy clause was “the advance signal of an approaching partisan attack on a national scale.” Wyzanski was right: in early 1939 a bill endorsed by the American Bar Association's House of Delegates was introduced in Congress by Representative Francis Walter and Senator Marvel Mills Logan. Just as the New York provision “would have almost certainly destroyed the effectiveness of the state administrative agencies,” the New Dealer Abe Feller warned Cummings's successor, so would the Walter-Logan bill hamstring the federal government. When President Franklin Roosevelt vetoed the bill in December 1940, he declared it part of a national campaign that had begun with the anti-bureaucracy clause.

The federal regulation of financial markets was one of the success stories of the New Deal. It was also the realm of New Deal statebuilding most dominated by lawyers who had either worked in large corporate law firms or had all the credentials to do so but were excluded on grounds of ethnicity, gender or race. Government lawyers looked to the law factories of Wall Street for inspiration as they built bureaucratic autonomy at the Securities and Exchange Commission and gave private practitioners their own stake in securities regulation. The SEC lawyers also learned to address the partisan needs of their allies in Congress, who were as hostile to Eastern capital as they were solicitous of investors, while maintaining the independence that made their agency useful to politicians in the first place. Their experiences are instructive for the architects of financial regulation today.

Pierson v. Post, 3 Caines 175 (N.Y. 1805) is one of the most commonly assigned cases in first-year Property courses. For many years our only information about the case, other than the report itself, has been a vivid but antiquarian account published in 1895. Recent years have seen a flurry of articles that provide a great deal more insight into the case and its context. This paper summarizes the “new learning” for students and teachers of Property.

In the 1890s, New Zealand legislators established the Arbitration Court as an ad hoc system for settling industrial disputes; by the mid-twentieth century the Court had become a pillar of New Zealand's welfare state. This transformation did not proceed smoothly, however, because of a mismatch between the mission and its managers. The judges who presided over the court were more interested in legal principles and forensic debate than the bargains of workers and their employers. They considered their tenure as a purgatory to be endured until they were promoted to full-time service on the New Zealand Supreme Court. This mismatch resulted because the Court evolved into an institution that differed from the founders' intent and because a dearth of other professionals left only the judiciary as a vehicle for putting the resolution of industrial disputes beyond the reach of partisan politics. This article is reproduced by kind permission of the Friends of the Turnbull Library, Wellington, New Zealand (www.turnbullfriends.org.nz).

Unlike other proteges of Felix Frankfurter in the 1930s, James Willard Hurst left his clerkship with Supreme Court Justice Louis Brandeis in 1937 not for law job in Washington but to teach at the University of Wisconsin School. Together with his dean Lloyd K. Garrison, Hurst developed Law in Society, New Dealer's first course in law, centered not on courts but administrative agencies. When the came, Hurst had the chance to test out his notions of law and administration as lawyer at the Board of Economic Warfare. Headed by Vice President Henry A. Wallace, the BEW was bastion of New Dealism in an increasingly business-oriented effort. Among other things, it was charged with developing and procuring new overseas supplies of materiel to replace sources that had fallen into enemy hands. Hurst contributed one of the BEW's most controversial measures, provision in procurement contracts obliging employers to observe minimum labor standards. This attempt to fight a New Deal war by improving the lives of African and Latin American workers failed not long after Hurst's departure for the U.S. Navy. Still, the affair elucidates much of Hurst's pioneering scholarship on legal history and the legal profession in the postwar period.

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Belief that the United States occupies an exceptional place in world history has been a persistent element of the American creed. The founding of the nation was a new birth of freedom, Americans have been taught; it delivered them from the class conflict and ideological strife that have plagued the rest of the modern world. Not infrequently, seekers of the ultimate source of the United States’ exceptionalism have settled on the peculiarly fragmented nature of its government. The nation was born in a revolt against the modern state. In Europe, standing armies, centralized taxation, juryless courts, and national bureaucracies loyal to a distant sovereign were the hallmarks of the proudest monarchies. To Revolutionary America, they were evidence of tyrannous intent, “submitted to a candid world.” To prevent such abominations from reappearing in the new nation, Americans shattered sovereignty into legislative, executive, and judicial fragments and embedded them in their states’ written constitutions. The Federal Constitution of 1787 went further, for it also divided sovereignty between the national government and the states. The result, as John Quincy Adams observed, was “the most complicated government on the face of the globe.”

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