Monday, March 5, 2018

Ernst to Present on NRA Lawyers in BC Legal History Roundtable

On Thursday, March 15, Your Humble Blogger will present “We Cannot Live Our Dreams” to the Boston College Legal History Roundtable.  From BC law’s website: "The Roundtable meets in the afternoon at 4:30 pm in the Library Conference Room of the Boston College Law School Library.  Refreshments are available beginning at 4:15 pm.  Papers will be available when appropriate before each presentation.  For more information, please contact Joan Manna (617) 552-4344."

From my cover memo:
[I hope to]  upset two understandings of “New Deal lawyers,” the several hundred Wall-Street-grade, entry-level lawyers and their like-minded legal superiors who served in the federal government during Franklin D. Roosevelt’s first two terms.  Some have seen them as the would-be vanguard of a new social order, “boys with their hair ablaze.”  Critics on the left with this view have faulted them for compromises that kept social democracy from coming to the United States.  Critics on the right have faulted them for being too successful–for sending the Constitution into exile.  Others have seen the New Deal lawyers as unprincipled from the get-go, or nearly so.  With a moral constitution sapped by legal realism, their collapse into cynical self-aggrandizement was inevitable.

In contrast, I have been struck by how many New Deal lawyers used their professional authority to keep the expanding federal state within liberal democratic channels.  In this, they support a qualified version of Terence Halliday and Luicen Karpik’s thesis: at least when organized as a profession within civil society, lawyers tend to promote and defend a liberal, moderate state.  (I owe the qualification to Kim Lane Scheppele.)  They also show how administration could both constrain executive power and enable effective governance (to borrow the recent formulation of Gillian Metzger in HLR 131 [2017]: 7).  The illiberal impulses of President Donald John Trump cast a new light on those of President Franklin Delano Roosevelt and make the successes and failures of the New Deal’s liberal democratic lawyers more relevant than ever.
Bernice Lotwin (credit)

This chapter, on the National Recovery Administration, recounts a failure.  NRA lawyers (including Bernice Lotwin, right) were ready to play their part, but their ambitious general counsel, his sights set on serving as FDR’s “Assistant President,” denied them the chance.  Later chapters show how they regained their footing and asserted themselves, albeit not in time to save NRA from the U.S. Supreme Court.