I'll confess: After devoting much time and thought to assembling the components of Tocqueville's Nightmare into a book, I was disheartened when Oxford asked me to write abstracts for each chapter so that subscribers to Oxford Scholarship Online could decide which ones to purchase and which ones to leave unread in the cloud. The realization that I could use the abstracts to introduce blog posts on the book was some solace. Here's the abstract for "Freund and Frankfurter":
One of the few Americans who looked to the European continent not just for programs to address the social ills of capitalism but also to constrain administrators was the German-educated law professor Ernst Freund. A trusted advisor to Chicago's progressives, Freund believed that the America was a Rechtsstaat, in which bright-line rules distinguished legitimate from illegitimate administrative action. Most legal progressives, believed instead that administrative discretion was inevitable and desirable. Their leader, the Harvard law professor Felix Frankfurter, revealed their disagreement when he and Freund jointly directed legal studies of agencies financed by the Commonwealth Fund. One monograph, by Gerard Henderson on the Federal Trade Commission, influentially argued that an agency's authority turned on the quality of its findings of fact. By 1932 Frankfurter had prevailed. Henceforth reformers would look not to the Continent but to the common-law tradition for a rule of law better suited to American politics.
So Tocqueville’s Nightmare begins not with a big bang of statebuilding or the bustle of administrators in action or the stern reprimands of judges but with scholars theorizing about administration and angling for grant money. I know that sounds a lot less dramatic than FDR’s Hundred Days or Court-packing plan, but the chapter does have its drama, one suggested by recent historical scholarship in the “transnational” vein. In Atlantic Crossings (1998), Daniel T. Rodgers showed that American progressives thought of themselves as part of a transatlantic search for solutions to the problems of industrial society. As John Fabian Witt added for legal history, these “cosmopolitans” often found themselves challenged by “patriots,” convinced of the United States’ exceptional place in world history and dismissive of European ways. Rodgers documented the existence of hundreds of intermediaries intent on bringing reforms from the European Continent to the United States, but in so doing he raised two questions for legal historians. Did some transnational lawyer attempt the analogous feat of importing a continental approach to constraining official power? If so, how did he fare in a legal order that apotheosized the common law and its institutions?Born in the United States and educated in Germany, Ernst Freund was that lawyer; for a full account of how he fared, you’ll have to read the book. Here I will explain why I chose to emphasize his conflict with another legal cosmopolitan, born in Austria and educated in the United States, Felix Frankfurter. Both lawyers volunteered their services to progressive reformers; and if they disagreed on some matters–Freund thought rate regulation ought not to be delegated to administrative agencies; Frankfurter thought it had to be–they agreed on many more, such as the need for worker’s compensation commissions and the abusiveness of the Palmer raids. Historians inclined to “lump”–that is, to look through particulars to a more fundamental similarity–have ample reason to group Freund and Frankfurter. Yet as a historian inclined to “split”–to look for variety and to see in it an opportunity for causal explanation–I was struck by differences between the two. Freund thought the law progressed by moving from open-ended standards to bright-line rules enacted in legislation drafted by experts in executive departments, legislative reference bureaus, and the law schools. Frankfurter, with the main body of American legal thought, believed that law was progressing from rules to standards applied by expert, nonpartisan civil servants. Biography provides a partial explanation for the disagreements: Freund saw his bills adopted in Illinois and elsewhere; Frankfurter successfully wielded power in William Howard Taft’s and Woodrow Wilson’s presidential administrations. But Frankfurter better understood how the partisan and patronage-orientation of American legislators hampered their ability to manage the social politics of an industrial age. Until legislatures overcame these limitations, Frankfurter’s influence eclipsed Freund’s.
As it happens, Freund did have at least one extremely influential follower, Benjamin V. Cohen, the legal "architect of the New Deal," who studied with Freund at the University of Chicago and named him as a major influence in an oral history conducted in 1970. A few years later, Cohen told Donald Ritchie, at work on his biography of James Landis, that he had insisted on appending a detailed schedule of items to be disclosed in registration statements to the Securities Act of 1933 because of Freund’s warnings of the dangers of “unstandardized power.”
Even so, Frankfurter’s counsel is more easily detected in the New Deal statute book. The vade mecum of New Deal lawyers was not Freund’s summa, the nearly unreadable Administrative Powers over Persons and Property (1928), but Gerard Henderson’s Federal Trade Commission (1924), or Frankfurter’s own Public and Its Government (1930) or Landis’s Administrative Process (1938). For example, Charles E. Wyzanski, Jr., “carefully studied” Henderson's book when drafting an alternative to the National Labor Relations Act.
As long as a New Deal order built on broad delegations of legislative power persisted unchallenged, scholars noted Freund’s work only to dismiss it. In 1936, for example, the political scientist Charles Hyneman declared it “high time to question whether [Freund's] hope of ultimate detailed statutory regulation is not largely vain and illusory.” A few years later, the law professor Ralph Fuchs scoffed that Freund had no “other basis than a conceptual one” for mistrusting discretion. In his 1940 casebook, Walter Gellhorn did refer readers to Freund for help with a knotty procedural point, but he omitted him from an introductory discussion of theorists of administrative law. In his postwar treatise, Kenneth C. Davis counted Freund among the authors of “early works in the field” that were “of little usefulness on current problems.”
No wonder, then, that when, in the 1960s, reformers, dissatisfied with what the New Deal had become called for specific delegations of legislative power, heightened judicial review, and mandatory rule-making, they “either failed to recognize or failed to acknowledge that Professor Freund long ago anticipated all of their arguments” (to quote Richard Stewart’s classic article, published in 1975). In The End of Liberalism (1969), for example, Theodore J. Lowi invoked not Freund's Administrative Powers but Hayek's "superb essay” on the Rule of Law in The Road to Serfdom (1944).
Between the 1930s and the 1970s, the most important exception to the general neglect of Freund was Willard Hurst, who first encountered him “in seminars under Felix Frankfurter" in the 1930s. Although Hurst cast the rise of the executive as the latest and presumably ultimate phase of The Growth of American Law (1950), he was too mindful of the tension between official discretion and democratic accountability not to take Freund’s point. “Sympathetic with the growth of the administrative process, but also distrustful of the delegation of broad policy decisions,” Hurst wrote, Freund “predicted in 1928 that legislatures would take back the leadership of policy as they gained experience in new fields of regulation.” In 1950, Hurst, like Freund, thought legislators could provide both expertise and legitimacy by drawing upon “the contributions of the executive” in framing statutes. In 1974, Hurst was less sure. “I could wish that there were more signs of the kind of legislative creativity and courage for which you note Freund hoped,” he wrote to Freund’s biographer. “So far the force of executive/administrative growth seems to have overwhelmed legislative nerve, and yet I am enough of a ‘legislative man’ myself to feel that we have no hope of satisfactorily placing executive/administrative roles in their rightful places unless there is vigorous surveillance and check.”
Despite Freund’s efforts, then, the Rechtsstaat tradition is only the intellectual equivalent of B-roll footage in the epic of administrative law in the United States from 1900 to 1940. The main action played out within the frame of a court-centered notion of the rule of law that was most influentially propounded by the English jurist Albert Venn Dicey and most perspicaciously translated into legal doctrine by the American jurist Charles Evans Hughes.
[This series continues here.]