Friday, February 20, 2015

Ernst on Government Lawyers at AAA and NRA

I've posted a conference paper, Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies.  Thanks to Mark Fenster and John Henry Schlegel for organizing the conference and to them and the other participants for their comments.  I view the paper as a revision of the position I took here.  Here is the abstract:
Jerome N. Frank
From the neo-Weberian literature on state-building and the political sociology of the legal profession, one might expect government lawyers to be sheepdogs, nipping at the heels of straying administrators, supplying their agencies with the bureaucratic autonomy so often missing in American government. In this working paper, prepared for "Opportunities for Law's Intellectual History," a conference sponsored by Baldy Center for Law and Social Policy at the State University of New York at Buffalo, October 10-11, 2014, I report my preliminary findings for two agencies created during the Hundred Days of Franklin D. Roosevelt's presidency, the Agricultural Adjustment Administration and the National Recovery Administration. I suggest that the neo-Weberian model tends to minimize the lawyers' agency as political actors. In particular, the New Deal lawyers' projection of their own preferences upon general statutory delegations of legislative power, which they then interpreted authoritatively, could make them less the faithful agents of their master’s voice than ventriloquists in pursuit of their own political agenda.