Wednesday, June 29, 2011

Malcolm Mason, Julius Goebel, Jr., and the "Control of Business" Project

Recently Malcolm S. Mason posted 1485: Control of Business in the Early Tudor Period on the SSRN. The paper is the introductory chapter of a book manuscript on which he commenced work over seventy-five years ago as a research assistant in the Foundation for Research in Legal History (FRLH) at the Columbia Law School. Under the FRLH's Director, Julius Goebel, Jr., Columbia became the font of one of the great traditions in the writing of American legal history, the "Development of Legal Institutions" or "DLI." I was trained in the tradition as a law student at the University of Chicago, and it has been preserved for another generation in the remarkable text, History of The Common Law: The Development of Anglo-American Legal Institutions, by John H. Langbein, Renee Lettow Lerner, Bruce P. Smith. The appearance of a portion of Mason's long lost work has prompted me to investigate the circumstances of its writing and Goebel's apparent decision not to publish it. My investigation is incomplete, but rather than let the posting of Mason's chapter pass unremarked, I am filing an intermediate report now.

Malcolm Mason was born in the Bronx in 1910. He graduated from Columbia College with honors in 1930 (after studying with Mortimer Alder and Mark Van Doren), spent the next academic year studying philosophy in France, and was admitted to the Columbia Law School in 1931. He was an outspoken student who frankly told Columbia's eminences when he thought they were wrong. This offended some but delighted Karl Llewellyn. Mason took Goebel's course on the Development of Legal Institutions with everyone else in the first year class, but, unlike most everyone else, he suggested improvements to the DLI materials, which Goebel later adopted. Later, he impressed Goebel with a research paper that pursued the duty to rescue through sources in Aramaic, Bulgarian, French, Gaelic, Hebrew, Italian and Latin.

Graduating in 1934, Mason followed three law school friends to Jerome Frank's legal division at the Agricultural Adjustment Administration, where he worked in the opinion section under Frank Shea and Telford Taylor. At some point he also assisted Alger Hiss when AAA lent the pair to the Special Senate Committee on Investigation of the Munitions Industry. That summer Goebel contacted him with an offer of a fellowship that, at $3,000, paid more than his AAA salary. Mason requested a leave of absence and commenced his work for Goebel on October 1, 1934. Although gone from Washington, he was not forgotten. After Frank and other AAA lawyers were purged for their liberal ways in February 1935, Telford Taylor commended him to Thomas Corcoran, the "network entrepreneur" of the New Deal lawyers, as "unusually good and well worth inquiring about," although Taylor was "not sure how keen he would be to come down," in light of his "very fat fellowship." In fact, Mason remained at Columbia for four years, assisting Goebel for pay and Llewellyn without compensation. He finally left Morningside Heights for the National Labor Relations Board in 1938.

I met Mason in September 2005, when I traveled to his daughter and son-in-law's house near Charlottesville to interview him about his time at the AAA and NLRB. When he mentioned his fellowship with Goebel, I was intrigued. At the University of Chicago Law School, Richard Helmholz had me and the other members of his seminar read Goebel's devastating assault on the frontier thesis as applied to the legal history of the American colonies, and, early in my work with him, John Langbein pointed me to the monumental Law Enforcement in Colonial New York (1944). I was under the impression that Goebel and other contributors to what William Nelson has called the "professional tradition" of American legal history were principally interested in the history of courts and lawyers.  A study of the legislative and administrative regulation of business seemed to me Hurstian, not Goebellian.

Mason told me that he was one of two researchers set to work on a project entitled "Control of Business in Medieval and Tudor England." Armand DuBois, already at work on an inventively researched and imaginative book on corporate law in the shadow of the English "Bubble Act" of 1720, had been assigned the medieval era; Mason, the Tudor. Mason explained:
I wrote on economic regulation in the time of Henry VII. Jules said to me, "It's a very fine book but you ought to rewrite it in a more academic style." I don't know whether he meant that or whether it was a way to let me down gently. . . . I think it was an important book but it's never been published.
Later in the interview, we returned to the subject. "What was behind it," Mason recalled, "not in Jules's mind, I think, but in [the mind of] his financial sponsor, [was that] I might show up the New Deal"–that Mason might reveal the New Deal to be "wrongheaded." But, Mason continued, "I didn't show up the New Deal. If anything, I supported the New Deal." Mason could not recall being pressured by Goebel, Goebel's "sponsor," or anyone else. When I suggested that Goebel's concern about style might have masked other objections, Mason allowed that it might have been "a pleasant way of saying, ‘Well, you haven't done what we wanted.'" Still, he was inclined to think that Goebel's stylistic concern was decisive. "I did write in an unusual style," he observed.

[This series continues here.]