Thursday, October 22, 2009

Ernst on Freund, Frankfurter and the American Rechstsstaat

The prepublication draft of my article Ernst Freund, Felix Frankfurter and the American Rechtsstaat: A Transatlantic Shipwreck, 1894-1932 now appears on Georgetown Law's institutional website. The definitive version is available in print in Studies in American Political Development 23 (October 2009): 171-88. It also is available, for a fee, here. Here is the abstract:
From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund (left) developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter (right), a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.
You'll note, if you make it all the way through, that I close with Willard Hurst's appreciation of Ernst Freund in The Growth of American Law (1950). After the article went to press, I stumbled upon another, quite interesting assessment of Freund by Hurst here.