Monday, June 2, 2008

Jerold Auerbach Interviews Louis Jaffe

Louis Jaffe, the great scholar of American administrative law, earned two law degrees from Harvard in the late 1920s and early 1930s, served as Felix Frankfurter’s research assistant and Supreme Court Justice Louis Brandeis’s legal secretary, did his bit as a foot soldier in Jerome Frank’s general counsel’s office at the Agricultural Adjustment Administration, and was a member of the Review Division of the National Labor Relations Board. At the Triple-A he worked in of one of the best and most progressive legal divisions of the early New Deal. At the NLRB he was part of a team of young lawyers who, under the direction of Nathan Witt, sometimes stretched the record to favor the industrial unions of the CIO over the more conservative unions of the AFL. As Jaffe recalled, “We were finding facts as we wanted to have them be. We were ... using every power that we could possibly have, and a little bit more, to produce certain results.”

Something happened to Louis Jaffe between his NLRB days and the 1950s, when he wrote a series of articles debunking the New Dealers’ faith in the administrative process. After publishing one of them, in 1954, Jaffe received an appreciative letter from Justice Frankfurter and was moved to self-reflection. “I appear to have very few enthusiasms, at least of the sort which stirred me and my generation in the New Deal days,” Jaffe mused to his old teacher. “My allegiance, as it shows from day to day, is to the critical rationalism, in which, side by side with the early enthusiasm for justice, I was trained.... I suppose that what has become uppermost for me is a feeling of the life of reason as embodied in the premises and traditions of our society and particularly our legal system. Perhaps it is the ultimate fate of many members of our profession in this age when faiths--at least explicit faiths--are so transient that they end by making a religion of their professional premises.”

Although the letter survives in the Library of Congress’s collection of the Frankfurter Papers, that’s not where I learned of its existence. Rather, the historian Jerold Auerbach mentioned it during his 1972 interview of Jaffe, which is only one of many of interest to legal historians in the American Jewish Committee’s collection at the Dorot Jewish Division of the New York Public Library. Auerbach was researching his brilliant arraignment of the American legal profession, Unequal Justice (1976), including its caustic account of the New Deal as “a Lawyer’s Deal.” The liberal lawyers of Jaffe’s generation “too easily assumed that any social problem was amenable to resolution by enacting a statute, creating an administrative agency, and staffing it with law review editors,” Auerbach complained. “They assumed that how results were reached, not what results were reached, was the only test of responsible government.” By isolating process from substance, they risked becoming “mere technicians in the service of power.”

In the interview Jaffe struggled to persuade Auerbach of the the New Dealers' good intentions, but the historian wasn't buying--even after Jaffe made his confession, quoted above, about misstating the record at the NLRB. “Their idea was to improve the administration, to intensify the demands for civil liberties,” the great Harvard law professor explained. They worked to improve the position of labor to break up monopolies, to end abuses in the marketing of securities, and to constrain the power of bankers. They said that if you could do all these things “you would indeed have a wonderful society,” Jaffe concluded. “And in a sense they got them all–”

“Except the wonderful society,” Auerbach interjected.

I go on at such length because the AJC interviews are not as well known as those in Columbia University’s Oral History Collection, even though their subjects include such significant figures for legal historians as Raoul Berger, Paul Freund, and Ida Klaus (the NLRB’s first Solicitor). The collection is well worth browsing, via the NYPL’s online catalogue.

2 comments:

  1. Your reference to Columbia University brings to mind the James S. Carpentier Lectures that my ConLaw Prof. Thomas Reed Powell delivered at Columbia in 1955 titled "Vagaries and Varieties in Constitutional Interpretation" published in 1956 by Columbia University Press. Have the Carpentier Lectures continued at Columbia or elsewhere? The first of such lectures took place in 1904-5, James Bryce, Viscount Bryce "Law in Its Relations to History." Are the Carpentier Lectures significant in the annals of legal history?

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  2. Reed Powell is surely significant in the annals of legal history. As for the Carpentier Lectures, perhaps one of the readers of the blog based at Columbia will take a stab at it.

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