Tuesday, November 18, 2008

Karen Tani reports on ASLH panel "Administrative Law and the Reconstruction of States in the US, Europe and Japan"

This is a guest post from Karen Tani, Sharswood Fellow in Law and History at the University of Pennsylvania.

This past Friday at the annual conference of the American Society for Legal History, I had the good fortune of attending a panel on “Administrative Law and the Reconstruction of States in the U.S., Europe, and Japan.” The panelists discussed the intellectual foundations of U.S. administrative law, post-WWII legal reconstruction projects, and the import of the New Deal, all within a transnational framework.

Legal History Blogger Dan Ernst presented “Freund, Frankfurter and an American Rechsstaat, 1894-1932: A Transatlantic Shipwreck,” a paper on the two scholars who dominated the field of administrative law in the first decades of the twentieth century: Ernst Freund and Felix Frankfurter. As Ernst lucidly explained, Freund and Frankfurter agreed on several fundamental points (e.g., Albert Venn Dicey’s misplaced views on administrative law), but disagreed sharply about administrative discretion. Freund, embracing the German concept of Rechsstaat, envisioned an administrative system governed by statutes so detailed as to be practically self-implementing, accompanied by a judiciary empowered to review any exercise of administrative discretion. He believed such a system would prevent administrative officials (who he assumed to be beneficiaries of patronage politics) from doing any harm to private rights. By contrast, Frankfurter imagined an administrative state staffed by experts – experts who could be trusted to make necessary adjustments as they applied legislative policy choices to existing realities. Ernst then described how Freund gradually slipped into Frankfurter’s shadow, inspiring no disciples, influencing few laws, and generally fading from view. Ernst, however, urged us to “give Freund his own place in the intellectual history of administrative law.” When we do, Ernst argued, we will see not only “patriots” and “cosmopolitans” (to borrow John Witt’s categories, but a third intellectual tradition: one that tried to make the Rechsstaat part of the American reform tradition.

The next panelist, Rande Kostal, University of Western Ontario, presented “Laying Down the Law: New Deal Lawyers and the Legal Reconstruction of Postwar Germany and Japan.” Kostal confined his talk to reconstruction efforts in Germany, and specifically to the efforts of former Solicitor General Charles Fahey to reconfigure the German legal system along liberal democratic lines. Fahey, a consummate careerist and perhaps the “quintessential New Deal apparatchik,” responded to his task with “earnestness” and “zeal,” Kostal observed, but faced many difficulties. Not only did he lack knowledge of German language, politics, and culture, he arrived in Germany in 1945 without any plan of attack. Furthermore, he was committed to implementing a “new legal deal” without imposing law on the Germans; rather, he hoped to show the Germans why they, of their own accord, should adopt democratic legal principles. The “reconstructed” legal regime that resulted fell short of American aspirations, in Kostal’s view. It was staffed with former Nazi supporters, and it did little to remedy Germans’ “collective denial” about the evils of Nazism.

Pulling together themes from the previous papers, Peter Lindseth, University of Connecticut, presented “Transatlantic Functionalism: New Deal Models and Administrative Governance in Postwar Western Europe.” Lindseth opened his talk with several observations about the “post-war constitutional settlement” that followed depression and total war. This settlement, which frames Lindseth’s larger project, consisted of (1) explicit legitimization of delegated power, counterbalanced by protections to legislatures in the form of delegation constraints, (2) recognition of the leadership of the national chief executive, and (3) expansion of legal control by courts and administrative tribunals. Lindseth then narrowed his discussion to the second element and its relationship to the work of political theorist David Mitrany and activist Jean Monnet. Both men, according to Lindseth, perceived the New Deal as a useful model for dealing with crisis; they saw in it a relatively autonomous, technocratic system of governance that operated according to functional demands as opposed to traditional legal patterns and categories. In Lindseth’s view, however, Mitrany and Monnet misunderstood the New Deal. He pointed out that FDR was careful to maintain executive control over administrative governance.

Elizabeth Borgwardt, Washington University in St. Louis, provided an excellent comment on the three papers. Regarding Ernst’s work, she noted the importance of recognizing fads and fashions in the law. What doesn’t “stick” may be as illuminating to historians as what does. She also observed that Freund’s views resonated in some ways with Friedrich Hayek’s subsequent critique of socialism and collectivism. As to Kostal’s paper, she highlighted the interesting comparison it promised between Germany and Japan and wondered why the postwar reconstruction of Japan has been seen as more successful, despite the existence of even greater cross-cultural barriers than Kostal found in Germany. Borgwardt stressed “iterative” transnational dialogue in her comment on Lindseth’s work, characterizing his story as in some ways an extension of Daniel Rodger’s Atlantic Crossings. She also wondered how the New Deal technocrats differed from their progressive era counterparts and suggested that the complexity of their plans (unintelligible to many politicians) may have contributed to their appeal to Lindseth’s functionalists.

Bob Gordon, Yale Law School, chaired the panel.

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