Tuesday, June 17, 2008

Jerome Frank Hires Some Lawyers, Part I

This week, while I’m away, I thought I’d serialize, in three installments, a reading from my legal history class. Here is the first installment.

The young graduates of elite, case-method law schools who went to work in Franklin D. Roosevelt’s first two administrations, commonly known as “New Deal lawyers,” were the first large cohort of “Wall-Street-grade” legal talent to take entry-level jobs in the national government. In my teaching and scholarship I argue that these lawyers’ quest for professional authority helped build bureaucratic autonomy in the federal government--that is, it helped strengthen officials’ ability to act in ways that neither politicians nor organized interests preferred but were unable to check or reverse.

My students tend to think that prestigious institutions have always hired entry-level lawyers on the basis of academic merit. In lectures I explain how this standard emerged at corporate law firms in the early twentieth century and describe the very different hiring practices that prevailed in the federal government before the New Deal. What I needed was a reading that conveyed just how great a break the New Deal’s legal divisions represented.

Fortunately an exchange of letters between Jerome Frank and Julien Friant at the U.S. Department of Agriculture in October 1934, cited by Peter Irons, Laura Kalman and others, does the job nicely. Frank, the child of German-Jewish immigrants to the United States, was a corporation lawyer in Chicago and New York who won considerable notoriety with his book Law and the Modern Mind (1930), which drew upon Freudian psychiatry to argue that judges and law professors who believed in an absolute, objective rule of law were emotionally immature, having never gotten over the discovery that their fathers were fallible. Bored with his practice, he jumped at the chance to join the New Deal, despite a substantial cut in pay. An odd chain of events ended with him as the first general counsel of the Agricultural Adjustment Administration, an agency created within USDA during the First Hundred Days. The AAA oversaw production controls and approved marketing agreements that immunized food processors from prosecution under the antitrust laws in exchange for guaranteeing prices to farmers and not mulcting consumers.

The lawyers for these food processors were among the nation’s best. Frank realized he needed to fight fire with fire, and he was a sufficiently inspiring mentor to attract young legal talent that was as good or better than any in the firms, such as Abe Fortas, pictured at right. (The firms’ biases against Jewish and Catholic law graduates gave Frank a large pool to draw upon.) Yet his hires ran into the opposition of such leading Democrats as Vice President John Nance Garner, who protested this “handing the top cards to boys who had never worked a precinct.”

By October 1934 Frank had already beaten back the claim of James Farley, FDR’s Postmaster General, to a veto over his lawyers and mastered the endemic, internal opposition of the AAA’s agribusinessmen and civil servants. He was on good terms with Agriculture Secretary Henry A. Wallace (pictured at left) and had allies in the secretariat; the “purge,” well-chronicled by Peter Irons and many others, that would force him from office was months away. Still, he had to endure a challenge to his hiring practices from Julien Friant, Wallace’s chief patronage manager.

Friant’s letter to Frank, here.

1 comment:

Shag from Brookline said...

This is somewhat off topic but does deal partially with food at a time prior to the New Deal.

I became familiar with jazz starting in the late 1930s, early 1940s. "Careless Love" was a jazz standard. Then there was another song with the same melody but different words written by W. C. Handy with the title "Loveless Love" that was recorded by Louis Armstrong around 1920. (From what I gather, "Careless Love" had long preceded "Loveless Love.") Here are Handy's lyrics:

"Oh love oh love of loveless love
Has set our heart on goal-less goals
From milkless milk to silkless silk
We are growing used to soul-less souls

Such grafting times we never saw
That's why we have a pure food law
In everything we find a flaw
Even love oh love of loveless love"

In Armstrong's rendition, he interjects after the line with "a pure food law" quizically, "a pure food law?" Just imagine, Armstrong seemed to be thinking, we need a law for pure food? Shouldn't food be pure?

Wikipedia provides commentary upon these songs, stating that the lyrics of "Loveless Love" "compare loveless love to synthetic goods and artificial food."

Consider the recent tomato scare. I guess we do need a "pure food law" after all. The New Deal implemented the work of earlier progressives but the Neo-cons message of "Government-less government" is not very melodious and dangerous to our health..