Tushnet on Administrative Law in the 1930s

"Administrative Law in the 1930s: The Supreme Court's Accommodation of Progressive Legal Theory," by Mark Tushnet, Harvard Law School, will soon appear in the Duke Law Journal 60 (2011): 1565-1637, but it is available here now. Here's the abstract:

In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal—the SEC, the NLRB, and others—meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself. In a series of contentious cases decided by the Hughes Court, Progressives believed that they had suffered loss after loss. And, counting only outcomes, they had. Yet by the end of the decade, the Court had moved administrative law closer to the position the Progressives had sought.

This Lecture examines developments in administrative law in the 1930s. Focusing on three major cases during that decade, this Lecture describes how far administrative law adapted to the vision articulated by Progressive scholars, most notably Felix Frankfurter and James Landis. In each case, Progressives believed that the Court had substantially eroded the accomplishments of administrative law; but in each, Progressives were mistaken. And whereas the Progressives failed to acknowledge how much they had gained from the Supreme Court during the 1930s, by the end of that decade, their opponents better understood what had occurred and mobilized political support to retrench. Only a presidential veto stood in the way of a substantial revision of administrative law. That veto, though, allowed modern administrative law to adapt to the changing place of administrative agencies in the modern administrative state.