Tuesday, July 5, 2011

The Foundation for Research in Legal History

[This is the third in a series of posts entitled "Malcolm Mason, Julius Goebel and the "Control of Business" Project: A Dispatch on the DLI School in the 1930s." The series begins here.]

By 1930, the results of Goebel's DLI course and research seminar were sufficiently promising that Columbia decided to raise a standard for his rigorous and scholarly approach to legal history. It obtained most of the funds for the FRLH through the generosity and influence of George Welwood Murray, an alumnus, John D. Rockefeller's favorite lawyer, and a member of the New York City law firm Milbank, Tweed. Murray personally contributed $25,000 to endow the FRLH–hence Goebel's characterization of him as his "sugar daddy." He brought more contributions as a member of the Board of Directors of the Commonwealth Fund. The Fund was created in October 1918 by the widow of Stephen V. Harkness, John D. Rockefeller's silent partner, with an endowment of $10 million. In 1920 the Fund established a Legal Research Program, which supported a monographic series on Administrative Law and Practice, directed by Ernst Freund and Felix Frankfurter. The Fund promised $25,000 over five years; Columbia committed to contributing a comparable amount, as well as Goebel's salary and a suite of rooms on the top floor of Kent Hall.

The inaugural project, on the "classification of crimes with reference to the distinction between felony and misdemeanor," was, Goebel reported, "chosen after a conference with Mr. George Welwood Murray," as well as Columbia's Jerome Michael, and Penn's Edwin Keedy. He hired a remarkably talented group of research assistants, most of whom, it seems had been members of his seminar. Herbert Wechsler, who labored mightily on the 1931 edition of the DLI casebook and also researched the appeal of felony, and George Bronz worked full-time. Part-timers included Benjamin Kaplan (later a leading scholar of civil procedure at Harvard and a judge of the Massachusetts Supreme Judicial Court), Thomas R. McNaughton (Goebel's coauthor on the great book on criminal law enforcement in New York), and Ambrose Doskow (a future Cardozo clerk). Irwin Langbein worked full-time after his graduation in June1931. Goebel declared Langbein "an expert linguist" whose "knowledge of paleography has been indispensable." He would work with Goebel for four years, including, in what William O. Douglas likened to a flying trapeze act, a period in which he divided his time between the criminal procedure of medieval England and Douglas's investigations for the Securities and Exchange Commission.

Already in the spring of 1931, Goebel was contemplating adding business law to the FRLH's agenda while continuing its commitment to manuscript research. Goebel projected "a study of corporate development in England and America from the Bubble Act (St. 6 George I, c. 18) until approximately 1840." His work on the corresponding section in the DLI materials "indicated that the great developments in corporate structure during the eighteenth century that laid the basis of modern practice had been those in which the courts at first had no hand." Cases–the stuff of the amateur legal history he had rebelled against–were "negligible," but a manuscript collection of legal opinions he had recently examined led him to suspect that this "process of informal opinion" had produced "an extrajudical body of practice." He intended to send Doskow to England to work in the records of the South Seas Company and other firms, but the young lawyer had other plans. Armand DuBois, who had labored on one phase of Goebel's felony and misdemeanor project, got the job in 1932. Meanwhile, Goebel's seminar continued to study the development of the corporation in England and the United States. Shaw Livermore's Early American Land Companies: Their Influence on Corporate Development (1939) apparently was one result.

The second year of the New Deal brought the first mention of the "Control of Business" study. By then, the New York State Bar Association had already appointed a committee to study the National Recovery Administration, "the most dramatic experiment of government control of business ever undertaken in Anglo-Saxon law." In that same spirit, in May 1934, Murray proposed a new study, "The Control of Business in Medieval and Tudor England," to the Commonwealth Fund's Legal Research Committee. Its purpose, he explained, was
to trace the origins of such powers to determine whether they really grew out of governmental powers established as earl as the time of Henry VIII in England, or whether such powers originally were exercised by and within trade guilds and similar organizations. The Chairman stated that a determination of the facts is of importance with regard to the legal basis of administrative powers, the assumption of which, by governmental; bodies, has been marked in recent years.
Murray thought that the study would require two years. He suggested that Goebel conduct it "at an expense not to exceed $10,000 a year." The committee promptly commended the proposal to the Board of Directors, which assented.

Goebel, it seems, originally engaged DuBois for the project, but illness prevented him from working on it until 1936. By early July 1934, he had persuaded Mason to take the job, although the young AAA lawyer arranged to delay his starting date until October 1, 1934. In 1934, Goebel expected Mason to "proceed to England when and if necessary," but the two later agreed that the printed sources at Columbia's and other research libraries sufficed. The unspent travel funds were a source of further compensation for Mason after the original authorization expired in October 1936. Six months later, Goebel reported that he had devoted a great deal of time to helping to bring the Business Control study to a conclusion but that Mason still needed "six or eight months additional to get his studies into book form." By October 1937 Mason had finished "all but two" of his chapters. Already Goebel had twice revised Mason's drafts. He assured Murray that "the present version should be the final one," that he would spend the remainder of 1937 to a further revision, and that he expected the manuscript to be ready for the press in early February 1938.

But when March 1938 came, Mason was still writing and Goebel was still revising. At this juncture, it seems, Goebel told Mason his concerns about the manuscript. "I was about to start a new and challenging job at the National Labor Relations Board," Mason recalled, "and I was quite unwilling to rewrite my book in a more academic style." Although Goebel declared the manuscript complete that summer, after Mason had left for the NLRB, it continued to languish in Kent Hall, where it was later joined by a draft of DuBois's companion study. The last mention of the Mason manuscript in the records of the Commonwealth Fund occurs almost four years after its completion. "As I wrote you last year," Goebel reminded the executive director in April 1942, "I have the manuscript drafts of Mason and of DuBois on the Control of Business. I should like sometime having the opportunity of talking with you about these books."

[The series continues here.]

No comments: