Monday, March 4, 2019

Ernst on New Deal Lawyers at AAA

I’ve posted my paper Mr. Try-It Goes to Washington: Law and Policy at the Agricultural Adjustment Administration, which is forthcoming in the Fordham Law Review as part of the symposium “The Varied Roles, Regulation, and Professional Responsibilities of Government Lawyers,” hosted by the Fordham Law Review and the Stein Center for Law and Ethics on October 12, 2018, at Fordham University School of Law:
Jerome Frank (LC)
In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in a fifth the time.

Although the professors in attendance might have nodded approvingly, Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its muddying of a distinction between law and policy that he insisted upon when battling administrators over the terms of marketing agreements for agricultural commodities. How Frank actually drew the line owed less to his legal realist jurisprudence that the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss.
In this draft, be sure to check out note 190, which apparently discloses the existence of a previously unsuspected Hoover-era experiment in state-sponsored semiotics.