1. Morton J. Horwitz's influential account of the legal realist movement, for example, asserts legal realism's impact on the New Deal but limits its discussion to the debate over administrative procedure and executive reorganization in the late 1930s. Horwitz, , The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York, 1992), chap. 8Google Scholar. Daniel R. Ernst has taken Horwitz to task for “the peculiarly abstract and bloodless way in which Horwitz connects legal realism to the ‘real political struggles’ of early twentieth-century America” and his failure to explore in greater depth the actual workings of the new jurisprudence in politics and public policy. Ernst, , “The Critical Tradition in the Writing of American Legal History,” Yale Law Journal 102 (01 1993): 1067.CrossRefGoogle Scholar

2. Pops, Gerald M., “Administrative Law as Public Policy: The First Fifty Years,” Journal of Policy History 2 (1990): 98–100, emphasizes this neglect.CrossRefGoogle Scholar

3. Novak, William J., “The Legal Origins of the Modern American State,” in Sarat, Austin, Garth, Bryant, and Kagan, Robert A., eds., Looking Back at Law's Century (Ithaca, 2002), 249–283, quotations on p. 251.Google Scholar

4. Part of the neglect of the SEC lies in the persistence of the narrative of the First, Second, and Third New Deals, for the commission's history conforms neither to the planning ethos of the First New Deal nor the left-ward turn of the Second New Deal. The most influential study of New Deal political economy in the past decade, Brinkley's, AlanThe End of Reform: New Deal Liberalism in Recession and War (New York, 1995)Google Scholar, also has little room for the SEC in an analytical framework that charts out the transition from an early New Deal dominated by the planning agenda to the dedication to Keynesian economic management that emerged in the late 1930s and early 1940s. Several of Brinkley's critics have cited his failure to acknowledge those elements of the early New Deal (such as the SEC) aimed at the restoration of capitalism. See Brown, Michael K., “The Ambiguity of Reform in the New Deal,” Studies in American Political Development 10 (Fall 1996): 407CrossRefGoogle Scholar; and Plotke, David, “The Endurance of New Deal Liberalism,” Studies in American Political Development 10 (Fall 1996): 417CrossRefGoogle Scholar. On this issue, Schwarz, Jordan A., The New Dealers: Power Politics in the Age of Roosevelt (New York, 1993)Google Scholar, provides an important counterweight to Brinkley's narrative by concentrating on the New Deal as a form of state capitalism. Not coincidentally, Schwarz's account gives due recognition to the significance of the SEC, although the bulk of his work focuses on other agencies. Detailed accounts of the commission's history remain relegated primarily to several important monographs, cited later in this article.

5. I use the term “legal pragmatism” as an inclusive term covering a variety of intellectual movements that challenged formalist conceptions of law with understandings of legal truth derived from philosophical pragmatism. Robert S. Summers has used the weightier term, “pragmatic instrumentalism,” in much the same way. Summers, “Pragmatic Instrumentalism in Twentieth-Century American Legal Thought: A Synthesis and Critique of Our Dominant General Theory About Law and Its Use,” Cornell Law Review 66 (06 1981): 861–948.Google Scholar

6. On nineteenth-century judicial practices, see, for example, Karsten, Peter, Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill, 1997)Google Scholar; and Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, 1996)Google Scholar. With respect to the case method and nineteenth-century legal science, Hoeflich, M. H., “Law and Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (1986): 95–121CrossRefGoogle Scholar, argues for the continuity between Langdell's case method and earlier law treatises, whereas LaPiana, William, Logic and Experience: The Origin of Modern American Legal Education (New York, 1994)Google Scholar emphasizes the Austinian positivism behind Langdell's jurisprudence and the extent to which the case method's opponents viewed Langdell's approach to law as the enemy of legal truth as defined in the treatise tradition. On the question of formalism as a means for upholding the corporate political economy, Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977)Google Scholar, provides the classic statement of this thesis, but the argument has been hotly disputed. On the historiographical debate, see Ernst, “The Critical Tradition in the Writing of American Legal History”; and Braeman, John, “Law and American Economic Development,” Journal of Policy History 6 (1994): 470–473CrossRefGoogle Scholar. The relationship of courts to the administrative state has been addressed in recent works that have increasingly emphasized frequent willingness of courts to tolerate administrative action, or, in the case of lower courts, to experiment with undertaking administrative functions themselves. See, for example, Salyer, Lucy, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill, 1995)Google Scholar; Willrich, Michael, City of Courts: Socializing Justice in Progressive Era Chicago (New York, 2003)Google Scholar; Reuel Schiller, “‘Saint George and the Dragon’: Courts and the Development of the Administrative State in Twentieth-Century America,” forthcoming in the Journal of Policy History; and White, G. Edward, The Constitution and the New Deal (Cambridge, Mass., 2000), chap. 4.Google Scholar

7. The phrase “a science internal to the law” comes from Nelson, William E., The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980 (Chapel Hill, 2001), 24Google Scholar. As William J. Novak has observed, “Although historians have spent much time debating the shift from legal instrumentalism to legal formalism, it is clear that the rationality of late nineteenth-century private and public law was both more formalist and more instrumental than the customary and historical jurisprudence of the common law tradition. Late nineteenth-century law was simultaneously more committed to the logic and precision of legal form, category, and rule and more attuned to law's effectiveness as a tool for advancing external societal goals like economic efficiency.” Novak, The People's Welfare, 247. Novak thus appears to open the door to Horwitz's thesis about the tight linkage between formalism and industrial capitalism, but Novak views the Civil War as more decisive in promoting the ascendance of individual rights over the salus populi (240–44). Horwitz contends that the mantle of science served both the professional interest “in representing law as an objective, neutral, and apolitical system,” as well as the desire of “mercantile and entrepreneurial interests … to freeze legal doctrine and to conceive of law not as a malleable instrument of their own desires and interests but as a fixed and inexorable system of logically deducible rules.” Horwitz, The Transformation of American Law, chap. 8. Nelson, William E., The Roots of American Bureaucracy, 1830–1900 (Cambridge, Mass., 1982), 133–148Google Scholar, documents the emergence of legal formalism and a growing judicial reliance on natural rights theory, but he emphasizes professional objectives, particularly the desire of judges to give their decisions the imprimatur of scientific truth and avoid acknowledging their actions as policymakers. Nelson observes: “Most American judges sought to clothe their decisions in the language of formal ‘logical deduction’ … [,] to make legal reasoning seem like mathematics and to convince themselves that, if men differed over a question of law, it meant simply that one side or the other were not doing their sums right, and, if they would take more trouble, agreement inevitable would come” (144). Nelson's latest study suggests that while classical legal thought frequently served the interests of property, in some cases, such as contract law, formalism ill served the corporate political economy. Nelson, The Legalist Reformation, 63, 90–92.

8. On the general history of the “revolt against formalism,” see White, Morton, Social Thought in America: The Revolt Against Formalism, rev. ed. (Boston, 1957Google Scholar; originally published New York, 1949); and Purcell, Edward A., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, Ky., 1973)Google Scholar. Although Columbia law professor Karl Llewellyn asserted legal realism's identity as a distinct and coherent intellectual movement, in reality legal realism owed much to the sociological jurisprudence of Roscoe Pound, and it encompassed such a diverse range of scholars and ideas as to escape the possibility of precise definition. For Llewellyn's attempt at a programmatic statement, see Llewellyn, Karl N., “A Realistic Jurisprudence—The Next Step,” Columbia Law Review 30 (04 1930): 431–465CrossRefGoogle Scholar. Earlier scholarship on legal realism saw it as a major departure from Progressive Era critiques of formalism, but more recent scholarship has rightly emphasized the continuities. For an example of the former, see White, G. Edward, “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America,” Virginia Law Review 58 (09 1972): 999–1028CrossRefGoogle Scholar. For the latter point of view, see Horowitz, The Transformation of American Law, chap. 6. Horwitz provides a superb analysis of how Llewellyn, helped by Pound's growing conservatism and his refusal to acknowledge some of the more intellectually radical implications of his own approach, created the myth of legal realism's distinctiveness. N. E. Hull, H., Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago, 1997)Google Scholar, also emphasizes the common ground between sociological jurisprudence and legal realism, the clash of personalities between Pound, on the one hand, and Llewellyn and Jerome Frank, on the other, notwithstanding.

9. Holmes, Oliver Wendell Jr., The Common Law (Boston, 1881), 1.Google Scholar

10. On Holmes and pragmatism, see Menand, Louis, The Metaphysical Club: A Story of Ideas in America (New York, 2001), chaps. 1–3.Google Scholar

11. As Holmes argued in the Harvard Law Review in 1899, “The true science of the law does not consist mainly in a theological working out of dogma or a logical development as in mathematics.” Rather, it lay in “accurately measured social desires instead of tradition.” Holmes, Oliver Wendell Jr., “Law in Science and Science in Law,” Harvard Law Review 12 (1899): 443CrossRefGoogle Scholar, reprinted in Novick, Sheldon M., ed., The Collected Works of Justice Holmes, vol. 3 (Chicago, 1995), 412–413Google Scholar. Two years earlier, Holmes told a Boston University audience that “the man of the future” was “the man of statistics and the master of economics,” and he called for the statistical and sociological study of crime in order to find out if the criminal justice system's easygoing assumptions about punishment and deterrence actually held true. Oliver Wendell Holmes, “The Path of the Law,” address at Boston University, 8 January 1897, in Novick, ed., The Collected Works of Justice Holmes, 3:391–405, quotation on p. 399; the reference to criminology is on p. 400.

12. For a brief summary of Holmes's critique of classical legal thought, see Wiecek, William M., The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York, 1998), 179–182.Google Scholar

13. On Dewey's pragmatism and his political thought, see Westbrook, Robert B., John Dewey and American Democracy (Ithaca, 1991)Google Scholar. For a statement by Dewey himself, see Dewey, John, The Public and Its Problems (New York, 1927, reprinted Athens, Ohio, 1991)Google Scholar. Although the book was published in the 1920s, in part it recapitulated ideas about democratic community and the need for society to provide for individuals' self-realization that had appeared in Dewey's work as early as the 1880s.

14. Zunz, Olivier, Why the American Century? (Chicago, 1998), chap. 2, esp. 33–39.Google Scholar

15. Wigdor, David, Roscoe Pound: Philosopher of Law (Westport, Conn., 1974), chaps. 3 and 6–8Google Scholar. Pound was no scientific dilettante. His dissertation, published as the Phytogeography of Nebraska, earned him a reputation as one of the founders of the ecology movement in the United States, and he achieved international recognition during his brief botanical career.

16. See Pound, Roscoe, “The Scope and Purposes of Sociological Jurisprudence,” part I, Harvard Law Review 24 (06 1911): 611CrossRefGoogle Scholar; and Pound, , “The Scope and Purposes of Sociological Jurisprudence,” part II, Harvard Law Review 25 (11 1911): 146CrossRefGoogle Scholar. Pound referred specifically to, among other cases, Lochner v. New York (1905), which struck down a New York state law mandating maximum hours for bakers, and Adair v. United States (1908), in which the Supreme Court invalidated a federal law that attempted to protect workers' right to unionize. The high court contended that both laws, and many other attempts at regulating industrial working conditions, violated liberty of contract.

17. Pound, “The Scope and Purposes of Sociological Jurisprudence,” part I, 598. In his critique of classical orthodoxy, Pound contended that formalism produced “a jurisprudence of conceptions, in which new situations are to be met always by deduction from old principles, and criticism of premises with reference to the ends to be subserved is neglected. In the pursuit of principles, there is a tendency to forget that law is a practical matter. The desire for formal perfection seizes upon jurists. Justice in concrete cases ceases to be their aim. Instead, they aim at thorough development of the logical content of established principles through rigid deduction, seeking thereby a certainty which shall permit judicial decision to be predicted in detail with absolute assurance” (596).

18. Pound, Roscoe, “The Scope and Purpose of Sociological Jurisprudence,” part III, Harvard Law Review 25 (04 1912): 489–516CrossRefGoogle Scholar, quotations on p. 513.

19. Ibid., 516.

20. The ranks of the New Deal's legal pragmatists included Thurman Arnold, Felix Cohen, William O. Douglas, Jerome Frank, Walton Hamilton, James Landis, Herman Oliphant, and Wesley Sturges. Glennon, Robert Jerome, The Iconoclast as Reformer: Jerome Frank's Impact on American Law (Ithaca, 1985), 84Google Scholar. Felix Frankfurter declined an administrative position, but he served the New Deal closely as an informal adviser, and many of his students became New Dealers, including Landis, Thomas G. Corcoran, and David E. Lilienthal.

21. For background on state “blue sky” laws, the political pressures leading to federal securities legislation, and the legislative history of the 1933 and 1934 acts, see Seligman, Joel, The Transformation of Wall Street: A History of the Securities and Exchange Commission and Modern Corporate Finance, rev. ed. (Boston, 1984), chaps. 1–3Google Scholar; Parrish, Michael E., Securities Regulation and the New Deal (New Haven, 1970), chaps. 1–3 and 5Google Scholar; and McCraw, Thomas K., Prophets of Regulation (Cambridge, Mass., 1984), 160–181.Google Scholar

22. Although the appointment of Kennedy initially dismayed most New Dealers, he proved a highly capable administrator, who quickly established smooth and effective operations at the SEC. Seligman, The Transformation of Wall Street, chap. 4.

23. Laura Kalman has quipped that legislation was “a subject Langdell would have banned from the curriculum.” Kalman, , Legal Realism at Yale, 1927–1960 (Chapel Hill, 1986), 52Google Scholar. See also Landis, James M., “The Implications of Modern Legislation to Law Teaching,”address to the Thirty-Second Annual Meeting of the Association of American Law Schools,29 December 1934, copy in Speeches By SEC Officials, 1934–1961, vol. 9, Louis Loss Library, SEC, Washington, D.C.Google Scholar

24. Landis once told Ganson Purcell that one had to avoid letting legislation in the classroom “degenerate into a course in statutory interpretation,” in which one taught nothing more than “hollow and sham rules of statutory construction.” James M. Landis to Ganson Purcell, 30 November 1931, Box 7, Folder “General Correspondence, 1925–33, Purcell, Ganson,” James M. Landis papers, Manuscripts Division, Library of Congress, Washington, D.C. He avoided the pitfalls of formalism by taking his students through legislative procedure and the work of legislative committees before focusing on specific contemporary problems and requiring his students to engage in legislative draftsmanship. Ritchie, Donald A., James M. Landis: Dean of the Regulators (Cambridge, Mass., 1980), 36.CrossRefGoogle Scholar

25. James M. Landis to Sidney P. Simpson, 27 May 1936, RG 266, Records of the SEC, Chairman's Files [Landis], Box 1, Folder [Chronological—May 1936], National Archives, College Park, Md.

26. See, for example, Balogh, Brian, “Reorganizing the Organizational Synthesis: Federal-Professional Relations in Modern America,” Studies in American Political Development 5 (Spring 1991): 119–172CrossRefGoogle Scholar; and Jordan, John M., Machine-Age Ideology: Social Engineering and American Liberalism, 1911–1939 (Chapel Hill, 1994).Google Scholar

27. In the case of accounting, for example, the SEC played a major part in building accountants' professional status and increased autonomy by working with the American Institute of Accountants to strengthen standards and bring greater uniformity and rigor to accounting procedures. At the same time, despite its broad statutory powers to establish uniform accounting procedures, the agency deferred to a considerable extent to the professional community's judgment about the range of acceptable practices. McCraw, Prophets of Regulation, 189–92. Historians have rightly faulted the SEC for delegating too much of its authority over accounting standards to the accounting profession. See Parrish, Securities Regulation and the New Deal, 200–208; and Seligman, The Transformation of Wall Street, 116–17 and 197–201. As Landis frequently observed, however, accounting is not an exact science, and therefore the SEC had to accept a variety of professionally developed practices, rather than imposing strict and rigid accounting requirements. See, for example, James M. Landis to J. N. B. Hoxsey, 27 November 1936, RG 266, Records of the SEC, Chairman's Files [Landis], Box 2, Folder “Chronological—November, 1936”; and James M. Landis to Donald Myrick, 3 May 1937, RG 266, Records of the SEC, Chairman's Files [Landis], Box 2, Folder [Chronological—May 1937]. But the lack of more stringent regulatory measures had dire consequences. Decades later, the Enron debacle and other corporate scandals revealed the extent to which accountants remained controlled by the pressure of corporate clients and continued to struggle to establish their professional autonomy. See “Bigger than Enron,” Frontline, aired 20 June 2002, transcript available online through www.pbs.org/wgbh/pages/frontline (November 2004).

28. Landis, James M. to Editor, Springfield Union (Springfield, Mass.), 9 04 1936, RG 266, Records of the SEC, Chairman's Files [Landis], Box 1, Folder “Chronological-April 1936Google Scholar.” The quotations actually came from one of Landis's speeches, excerpts of which he included in his letter. Although it might be too much to derive Landis's thinking from John Dewey, it is worth noting that he read Dewey's work and there are suggestive parallels between his conception of regulation and Dewey's emphasis on upholding the public.

29. Furner, Mary O. and Supple, Barry, “Ideas, Institutions, and State in the United States and Britain: An Introduction,” in The State and Economic Knowledge: The American and British Experiences, ed. Furner, Mary O. and Supple, Barry (New York, 1990), 5.Google Scholar

30. Under Herbert Hoover's leadership, the Department of Commerce played a major role in taking the Progressive drive for social intelligence from immigrant communities to the marketplace. Barber, William J., Designs Within Disorder: Franklin D. Roosevelt, the Economists, and the Shaping of American Economic Policy, 1933–1945 (New York, 1996), 117.CrossRefGoogle Scholar

31. See William O. Douglas, untitled address, undated [probably late 1928 or early 1929], Box 681, Folder “Speech re. Bankruptcy Laws,” William O. Douglas papers, Manuscripts Division, Library of Congress, Washington, D.C.; and Douglas, , “A Functional Approach to the Law of Business Associations,” Illinois Law Review 23 (03 1929): 673–682.Google Scholar

32. On the shortcomings of legal realism's scientific aspirations, see Verdun-Jones, S. N., “Cook, Oliphant, and Yntema: The Scientific Wing of Legal Realism,” Dalhousie Law Journal 5 (01 1979): 3–44, esp. 17 and 43Google Scholar. Between late 1929 and the summer of 1931, Abraham Flexner and Douglas exchanged a series of letters, in which Flexner roundly criticized Douglas's early bankruptcy research. See Box 5, Folder “General Correspondence, Flexner, Abraham 1929–31,” William O. Douglas papers, Manuscripts Division, Washington, D.C. Flexner, then retired, had spent many years as a Rockefeller Foundation official. The foundation was a major patron of the social sciences, including Yale's Institute for Human Relations, and Douglas therefore could not ignore Flexner's reproaches. For a detailed account of Douglas as social scientist, see Schlegel, John Henry, American Legal Realism and Empirical Social Science (Chapel Hill, 1995), chap. 2.Google Scholar

33. Douglas, William O., “Some Functional Aspects of Bankruptcy,” Yale Law Journal 41 (01 1932): 329–364CrossRefGoogle Scholar; quotation on p. 331. Douglas's machine metaphor typified the ideal of social engineering that dominated social science in the early decades of the twentieth century. See Jordan, Machine-Age Ideology.

34. Douglas, William O. and Marshall, J. Howard, “A Factual Study of Bankruptcy Administration and Some Suggestions,” Columbia Law Review 32 (01 1932): 25–59, quotation on p. 31.CrossRefGoogle Scholar

35. For the article that caught Landis's attention, see Douglas, William O., “Protective Committees in Railroad Reorganizations,” Harvard Law Review 47 (02 1934): 565–589.CrossRefGoogle Scholar

36. I have elaborated upon the Protective Committee Study and its larger meaning with respect to empirical knowledge in policymaking elsewhere, in a currently unpublished manuscript.

37. Securities and Exchange Commission, Fourth Annual Report of the Securities and Exchange Commission (Washington, DC: U.S. Government Printing Office, 1938), 74–76Google Scholar; Securities and Exchange Commission, Sixth Annual Report of the Securities and Exchange Commission (Washington, D.C, 1941), 131Google Scholar; Seligman, The Transformation of Wall Street, 189–97; and Skeel, David A. Jr., Debt's Dominion: A History of Bankruptcy Law in America (Princeton, 2001), 119–127.Google Scholar

38. Frank, Jerome, Law and the Modern Mind (New York, 1949, sixth printing; originally published by Bretano's, Inc., 1930), 98Google Scholar. Italics in the original. I have discussed Frank's jurisprudence and its relationship to philosophy of science at greater length in an unpublished conference paper: “Technocratic Politics and the New Deal: Jerome Frank, William Leiserson, and Public Policy in the 1930s,”Annual Meeting of the Society for the History of Technology,October 2001.Google Scholar

39. On Frank's corporate legal career and his difficult tenure at the AAA, see Davis, Kenneth S., FDR: The New Deal Years, 1933–1937 (New York: 1986), 275–281, 286–88, 299–302, and 475–79.Google Scholar

40. Jerome Frank, “Experimental Jurisprudence and the “New Deal,”” Address before the Association of American Law Schools, Chicago, 30 December 1933, copy in Speeches by SEC Officials, 1934–1961, vol. 5. Also reprinted in Congressional Record, 73^rd Cong., 2^nd sess., pt. 11 (18 June 1934): 12412; and as “Realism in Jurisprudence,” American Law School Review 7 (1934): 1063–69.

41. On legal realism and Frank's policy innovations at the AAA, see Glennon, The Iconoclast as Reformer, chap. 3, esp. 89–93.

42. Jerome N. Frank to R. P. Mullins, 20 July 1939, Box 27, Folder “Chronological July 1939”; Jerome N. Frank, “DRAFT—July 25, 1939,” Box 26, Folder “Brokerage Banks—Misc.”; Jerome N. Frank to Carle Conway, 10 August 1939, Box 26, Folder “Brokerage Banks—Correspondence Re. Examining Board”; “Concerning expressed willingness of Chairman Frank and SEC to accept substitutes for brokerage bank plan,” 26 August 1939, Box 26, Folder “Brokerage Banks—Correspondence Re. Examining Board”; and Jerome N. Frank to Norman Stabler, 29 August 1939, Box 26, Folder “Brokerage Banks—Correspondence Re. Examining Board,” all in RG 266, Records of the SEC, Chairman's Files [Frank]; see also Jerome N. Frank, Address before the Association of Customers' Brokers, 23 June 1939, copy in Speeches by SEC Officials, 1934–1961, vol. 5. Ultimately, the SEC accepted self-regulation by Wall Street, when the NYSE adopted a requirement that brokers segregate investors' cash from the rest of their funds, in addition to mandating other rules to govern brokers' banking functions.

43. Jerome N. Frank to Arthur Garfield Hays, 1 March 1940, RG 266, Records of the SEC, Chairman's Files [Frank], Box 27, Folder “Chronological File March 1940.” On another occasion, he defended Chapter X of the Chandler Act in similarly pragmatic terms, arguing that “no inflexible pattern has determined the manner in which this assistance [by the SEC to the courts] may be rendered; rather, the particular variety of procedure in each instance meets the pragmatic test of effective accomplishment of the end which is sought.” Frank later added that the commission sought not “moral condemnation” of practices “which the Commission found to have been injurious to investors” but “to assay the social consequences of those practices.” Jerome Frank, Address before the American Bar Association, 25 July 1938, copy in Speeches by SEC Officials, 1935–1961, vol. 5.

44. Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge, 1982)CrossRefGoogle Scholar. On lower courts' sanction for administrative government during a period in which most historians have emphasized the court system's resistance to expanded administrative power, see, for example, Michael Willrich, “The Case for Courts: Law and Political Developments in the Progressive Era,” in Jacobs, Meg, Novak, William J., and Zelizer, Julian E., eds., The Democratic Experiment: New Directions in American Political History (Princeton, 2003).Google Scholar

45. Jones v. Securities and Exchange Commission, 298 U.S. 24 (1936).

46. “Report of the Special Committee on Administrative Law,” Annual Report of the American Bar Association (Chicago: American Bar Association, 1938), 331–368Google Scholar. On Pound's distaste for legal realism and his attacks on administrative government, see Wigdor, Roscoe Pound, chap. 11; Hull, Roscoe Pound and Karl Llewellyn, chs. 5 and 6; and Horwitz, The Transformation of American Law, 1870–1960, chap. 8. Willrich, “The Case for Courts,” highlights Pound's early dedication to court reform over the expansion of administrative government and indicates the underlying consistency between his brand of sociological jurisprudence and his harsh stance against legal realism and its political consequences in the 1930s.

47. Horwitz, The Transformation of American Law, 1870–1960, 230–33. In his ABA report, Pound attacked legal realism as “Marxian” and compared the New Dealers' aspirations for administrative expertise to both fascist and Soviet rule, as well as autocracy more generally. See “Report of the Special Committee on Administrative Law,” 340, 343, 345, 360. The most complete account of the political debate over administrative procedure in the late 1930s and 1940s is Shepherd, George B., “Fierce Compromise: The Administrative Procedure Act Emerges From New Deal Politics,” Northwestern University Law Review 90 (1996): 1557–1683Google Scholar; pp. 1562, 1591, 1602, and 1604–12 document the targeting of the SEC and NLRB.

48. Chester Lane, “Administrative Law Bill,” 22 July 1939, RG 266, Records of the SEC, Documents Concerning Legislation Administered by the SEC, Subject Files, Box 11, [Folder 2]. Shepherd, “Fierce Compromise,” 1631 labels the Walter-Logan bill “a deadly struggle for the New Deal's life”; Horwitz, The Transformation of American Law, 1870–1960, 231 observes, “The battle over administrative procedure was nothing less than a struggle over the legitimating premises of the New Deal”; and Barber, Designs within Disorder, 102 notes that at the outset of Roosevelt's second term, before the 1937–38 “Roosevelt recession,” government reorganization loomed larger than economic policy on the New Deal agenda.

49. As Dorothy Ross has noted, “There was no more characteristic refrain of the Progressive Era than that economic changes had created a world unknown to the founders and that new industrial conditions required new practices.” Ross, The Origins of American Social Science (Cambridge, 1991), 151.Google Scholar

50. James M. Landis, “The Implications of Modern Legislation to Law Teaching.”

51. James M. Landis, Address at the 49^th Annual Banquet of the Swarthmore Club of Philadelphia, 27 February 1937, copy in Speeches by SEC Officials, 1934–1961, vol. 9.

52. Landis, James M., Address before the Third Annual Eastern Law Students Conference,Catholic University of America,Washington, DC,20 March 1937, copy in Speeches by SEC Officials, 1934–1961, vol. 9.Google Scholar

53. James M. Landis, “Significance of Administrative Commissions in the Growth of the Law,” Address before the Indiana State Bar Association, 9 July 1937, published in Indiana Law Journal 12 (1937): 471–81. The quotations are found on pp. 473–74, and Landis's observations about specialized knowledge are on p. 476. The address was also reprinted in Vital Speeches 3 (1 August 1937): 631–34.

54. Landis, “Significance of Administrative Commissions in the Growth of the Law,” 477.

55. Ibid., 479.

56. Landis, James M., The Administrative Process (New Haven, 1938), 7Google Scholar. In his writings and speeches, Landis also continued to stress the contrast between dynamic and static conceptions of law, the need for a pragmatic (in the Deweyan sense) approach to government, and the necessity of expertise and scientific methods in modern government. See, for example, Landis, “Administrative Agencies in Government,” Dun's Review (November 1937): 5–8, copy in Box 168, Landis papers; Landis, “Liberty as an Evolutionary Idea,” address broadcast on WABC, 27 April 1938, reprinted in Vital Speeches 4 (1 June 1938): 488–89; Landis, “The Role of Law in Regulation,” address delivered at Stanford University, published in The State Bar Journal (California) 13 (June-July 1938): 1–7; Landis, “The Place of Administrative Law,” address delivered before the Hartford County Bar Association, 17 January 1939, published in Connecticut Bar Journal 13 (April 1939): 71–81; Landis, “Law and the New Liberties,” address delivered at the University of Vermont, 7 February 1939, published in Missouri Law Review 4 (April 1939): 105–13; and Landis, “The New Responsibilities of the Professions (Law, Engineering, Banking) in their Relationships with Business Management,” address delivered before the Bureau of Personnel Administration, 6 April 1939, copy in Box 164, Landis papers.

57. Landis, The Administrative Process, 55.

58. Ibid., 83.

59. Ibid., 98–100. As SEC chairman, Landis occasionally referred to the restraints that kept administrative power within its proper boundaries. See, for example, Landis, Address at the 49^th Annual Banquet of the Swarthmore Club of Philadelphia, 27 February 1937. By and large, however, he concentrated upon outlining the novel features of administrative agencies and their advantages, rather than focusing on appropriate constraints.

60. The quotation is from excerpts of an address by William O. Douglas delivered at the University of Chicago, 27 October 1936, reprinted in Allen, James, ed., Democracy and Finance: The Addresses and Public Statements of William O. Douglas as Member and Chairman of the Securities and Exchange Commission (New Haven, 1940), 1.Google Scholar

61. William O. Douglas, speech before the John Carroll Club of Georgetown Law School, 20 April 1938, Box 684, Douglas papers.

62. William O. Douglas, address sponsored by the Graduate School of Public Affairs of American University and the Graduate School of the Department of Agriculture, 17 April 1937.

63. William O. Douglas, address before the Eighth Annual Forum on Current Problems, sponsored by the New York Herald Tribune, 26 October 1938, copy in Box 686, Douglas papers. For other examples of Douglas's thoughts on administrative flexibility, see, for example, William O. Douglas, address before the Yale Club of Washington, DC, April 1936, reprinted in Allen, ed., Democracy and Finance, 248–55; Douglas, address sponsored by the Graduate School of Public Affairs of American University and the Graduate School of the Department of Agriculture, 17 April 1937, copy in Box 683, Douglas papers; Douglas, address before the Yale Club of Washington, 27 April 1938, copy in Box 684, Douglas papers; and Douglas, address before the Juristic Society of Philadelphia [notes], 21 March 1940, Box 688, Douglas papers.

64. On the contrasts between Landis's and Douglas's terms as SEC chairman, see Seligman, The Transformation of Wall Street, chs. 5 and 6; see also Murphy, Bruce Allen, Wild Bill: The Legend and Life of William O. Douglas (New York, 2003), chs. 14–15 on Douglas's chairmanship of the commission.Google Scholar

65. Douglas, address sponsored by the Graduate School of Public Affairs of American University and the Graduate School of the Department of Agriculture, 17 April 1937. A few days later, Douglas again emphasized the “formulation of policies” that resulted from the SEC's handling of “statistics, banking practices, finance, accounting principles and practices, problems of securities distribution, problems of securities exchanges, problems of marketing, of prices, of labor, of production, etc.” Douglas, Address delivered to the Columbia Law Review, 23 April 1937. On the importance of the commission's technical work to its policymaking functions, see also William O. Douglas, Address before the National Association of Accredited Publicity Directors, 21 November 1938, Box 686, Douglas papers.

66. See Frank, Law and the Modern Mind, part II, chap. 1.

67. Jerome Frank, “Administrative Flexibility or Industrial Paralysis?” Address before the Georgetown Law Alumni Club, 9 November 1938, copy in Speeches by SEC Officials, 1934–1961, vol. 5.

68. Jerome Frank, “Advance Administrative Decisions,” Address before the Association of the Bar of the City of New York, 5 May 1939, copy in Speeches by SEC Officials, 1934–1961, vol. 5.

69. Jerome N. Frank, “Fairness and Feasibility,” Address before the Association of the Bar of the City of New York, 27 March 1940, Box 168, Folder 623, Jerome Frank papers, Manuscripts and Archives Sterling Memorial Library, Yale University, New Haven, CT.

70. Frank, Jerome, “Some Realistic Reflections on Some Aspects of Corporate Reorganization,” Virginia Law Review 19 (04 1933): 541–570.CrossRefGoogle Scholar

71. Jerome N. Frank, “The SEC and the Rubber Hose,” Address before the Chicago Bar Association, 8 April 1939, copy in Speeches by SEC Officials, 1934–1961, vol. 5. Frank later coined the term “epithetical jurisprudence” to describe attacks on the administrative state based on theoretical arguments rather than empirical evidence.

72. Frank, Jerome, “Epithetical Jurisprudence and the Work of the Securities and Exchange Commission in the Administration of Chapter X of the Bankruptcy Act,” New York University Law Quarterly 18 (1941): 317–351, quotations on pp. 321–322 and 330, respectively.Google Scholar

73. Ibid., 335 and 336. Frank also cited specific examples from a wide range of Chapter X reorganization cases that had come before the SEC.

74. Ibid., 343.

75. Ibid., 351.

76. In addition to Law and the Modern Mind, see the following by Frank, Jerome: “What Courts Do in Fact,” part I, Illinois Law Review 26 (1932): 645–666Google Scholar; “What Courts Do in Fact,” part II, Illinois Law Review 26 (1932): 761–784Google Scholar; “Mr. Justice Holmes and Non-Euclidean Legal Thinking,” Cornell Law Quarterly 17 (1932): 568–603; “Why Not a Clinical Lawyer-School?” University of Pennsylvania Law Review 81 (June 1933): 907–23; and “Experimental Jurisprudence and the ‘New Deal.’”

77. Jerome N. Frank, “The SEC and the Rubber Hose.”

78. Frank, Jerome, If Men Were Angels: Some Aspects of Government in a Democracy (New York, 1942), 39–40.Google Scholar

79. Ibid., 47 addresses the charge of “administrative absolutism” and Frank's criticisms of “epithetical jurisprudence.”

80. Ibid., 92.

81. Ibid., 122. As Frank noted in his 1941 article on Chapter X bankruptcy, all fact judgments remained fundamentally interpretative and open to question. The SEC wanted “only to have it recognized that our conclusions are not mere casual conjectures but are based on intensive factual study, and to have those conclusions carry only such conviction as our study and our reasoning inspire.” Frank, “Epithetical Jurisprudence and the Work of the Securities and Exchange Commission,” 349.

82. On the Immigration Bureau, see Salyer, Laws Harsh as Tigers. Carpenter, Daniel P., The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, 2001)Google Scholar discusses the Post Office and the Bureau of Chemistry, among other agencies. Unfortunately, no scholar has yet undertaken a statebuilding analysis of the loyalty-security system of the cold war era, although my own work, as well as many other studies, have addressed its abuses. Wang, Jessica, American Science in an Age of Anxiety: Scientists, Anticommunism, and the Cold War (Chapel Hill, 1999).Google Scholar

83. On the virtues of hope over certainty, see Rorty, Richard, “Truth without Correspondence to Reality” (1994), reprinted in Rorty, Philosophy and Social Hope (New York, 1999), 23–46.Google Scholar