Saturday, June 12, 2010

Lawyers as Agency Historians: Customs and Veterans Claims

Every year much of my legal history examination is a question that asks students to analyze some federal administrative scheme in existence from the Progressive Era through the New Deal that we hadn’t discussed in class in terms of the concepts and developments we did discuss–a kind of historical issue-spotter, if you will. This year’s topic was the customs system, from the stillborn Tariff Commission of 1882 through the Reciprocal Trade Agreement Act of 1934 (If anyone is interested I can post the narrative.) Working out the duties of the local appraisers, general appraisers, board of general appraisers, U.S. Customs Court and Court of Customs Appeals was something of a struggle. It would have been much easier had I stumbled upon The History of American Customs Jurisprudence (1941) before rather than just after I had written the exam. The book, festooned with forewords from John W. Davis, Roscoe Pound, and others, was obviously a labor of love, written by a lawyer in the U.S Customs Division of the Department of Justice named William H. Futrell.

Because of this post, I probably can’t test on the veteran’s benefits system, which I had previously considered when I realized that a woman lawyer, Lucy Somerville Howorth, served on the Board of Veterans Appeals. Were I to write such a question, I’d rely on a recently published paper by another government lawyer, James D. Ridgway, who is an attorney with the United States Court of Appeals for Veterans Claims. The paper is The Splendid Isolation Revisited: Lessons from the History of Veterans Benefits Before Judicial Review, and the abstract follows:
The history of warfare is grittier and more complex than that portrayed by the jingoistic news reels of old. So too, the history of veterans benefits is much more checkered and conflicted than might be suggested by slogans welcoming home the nation's heroes. Understanding the history and origins of a complex administrative area such as veterans law is vitally important to good practice and thoughtful scholarship. However, because attorneys were not involved in the system for generations while it evolved during two centuries without the oversight of judicial review, very few practitioners or scholars today have any direct experience with veterans benefits in the era before the creation of the U.S. Court of Appeals for Veterans Claims in 1988 - or even access to someone with such experience. This lack of institutional memory can be a serious handicap because the Veterans Judicial Review Act did not reinvent the veterans benefits system, but merely placed an independent, federal court above a system with a long history of policy conflicts and a well established political dynamic. Although this article tells the story of veterans benefits in the United States chronologically from the Revolutionary War through the Agent Orange Act of 1991, each subsection has its own narrative and offers a lesson about the politics and policy that still drive veterans law today. Ultimately, veterans law continues to weigh competing policy justifications, search for the proper roles of readjustment and long-term benefits, and struggle with its deep ties to both politics and medicine.

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