Mr. Try-It Goes to Washington: Law and Policy at the Agricultural Adjustment Administration

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

The Shallow State: The Federal Communications Commission and the New Deal

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar. When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.” Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail. It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates

Willard Hurst and the Administrative State: From Williams to Wisconsin

This article follows Willard Hurst from his undergraduate days at Williams College through the start of his teaching career at Wisconsin in the fall of 1937. During these years Hurst acquired an abiding interest in the rise of the administrative state as well as some of the insights he would use to account for it in his mature work. For the most part, the article proceeds chronologically through four episodes in Hurst\u27s training: (1) his year-long study of Charles and Mary Beard\u27s Rise of American Civilization undertaken as an undergraduate at Williams College; (2) his three years as a student at the Harvard Law School; (3) his research fellowship with Felix Frankfurter during the 1935-36 academic year; and (4) his service as legal secretary to Louis D. Brandeis during the October 1936 Term of the U.S. Supreme Court. The first and third episodes inclined Hurst to see history less as an aid to the judicial interpretation of precedents, statutes, and constitutions than as a way to divine where the state should strike the balance of power in regulating the American economy and society. The second and fourth episodes show that Hurst embraced the Legal Realists\u27 skepticism toward judge-made law, but also went beyond them to address that large field of present human activity ... governed not alone by court decisions and statutes, but by administrative regulations and decisions. More enthusiastically than his mentors Frankfurter and Brandeis, Hurst accepted the growth of unreviewable discretion by administrators, and he was quicker to accord the regulations, rulings and decisions of administrative agencies the same status as judge-made law. Each of the four episodes contributed something to Hurst\u27s mature understanding of the Rule of Law in the new American state, but their lessons did not add up to a complete answer. His experiences of the late 1930s and 1940s taught him new lessons and gave him cause to discard or rework what he had already learned. A complete account of the origins of Hurst\u27s mature work would have to address his activities as a law professor before Pearl Harbor, his service in Washington\u27s wartime bureaucracies, and his period of study under a Demobilization Grant of the Social Science Research Council. Even so, a study of Hurst\u27s education and apprenticeships is enough to suggest how much his social history of American law owed to the political history of his young adulthood

Of Sheepdogs and Ventriloquists: Government Lawyers in Two New Deal Agencies

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 contribution to “Serious Fun” a symposium in honor of John Henry Schlegel of the University at Buffalo School of Law, 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

Taking Stock: New Views of American Labor Law Between the World Wars

This Article provides an introduction to the symposium. This symposium originated in a session at the annual meeting of the American Society for Legal History held in Seattle in October 1998. Entitled Labor, Law, and the State in the Interwar Period, the panel provided four different views of a decisive period in the development of labor law in the United States. In the 1980s the panel\u27s chair, Katherine Van Wezel Stone, and commentator, Christopher L. Tomlins, published works that helped spark a modern revival in the historical study of U.S. labor law. The authors of the four papers presented at the session were more recent entrants into the field and had significantly different perspectives on their subject. As members of the audience quickly realized, the panel as a whole provided an excellent opportunity for taking stock, not only of labor law in the 1920s and 1930s, but also of how historians\u27 understanding of the role of the state in American labor relations has changed in recent years

Pierson v. Post: The New Learning

Pierson v. Post, 3 Caines 175 (N.Y. 1805), one of the most commonly assigned cases in the first-year Property course, was a dispute over the ownership of a fox discovered at large “upon a certain wild and uninhabited, unpossessed and waste land, called the beach.” For a very long time, all that was known about the case, other than the report itself, was a vivid but antiquarian account published in the Sag Harbor Express of October 24, 1895, by the judge and local historian Henry Parsons Hedges (1817-1911). Hedges claimed to have met Jesse Pierson (1780-1840) and Lodowick Post (1777-1842). He judged them “specimens of physical power and high resolve that would have made them as champions formidable in modern or ancient times,” as well as “rich, resolute, [and] wilful.” According to Hedges, Jesse was walking home from his job as a schoolteacher “when he saw the fox fleeing from his pursuers and run into the hiding place,” which Hedges identified as “an old shoal well.” “In a moment, with a broken rail, he was at the well’s mouth and killed the fox, threw it over his shoulder, and was taking it home when Lodowick, with his hounds and partisans, met him and demanded the fox.” Jesse demurred. “It may be you was going to kill him, but you did not kill him,” he retorted. “I was going to kill him and did kill him.” Readers have never known just how far to credit Hedges’s account. Our knowledge of the case improved significantly with the appearance of a spate of articles between 2002 and 2009. Here is a summary of “the new learning.

Overview of Quantum Error Prevention and Leakage Elimination

Quantum error prevention strategies will be required to produce a scalable quantum computing device and are of central importance in this regard. Progress in this area has been quite rapid in the past few years. In order to provide an overview of the achievements in this area, we discuss the three major classes of error prevention strategies, the abilities of these methods and the shortcomings. We then discuss the combinations of these strategies which have recently been proposed in the literature. Finally we present recent results in reducing errors on encoded subspaces using decoupling controls. We show how to generally remove mixing of an encoded subspace with external states (termed leakage errors) using decoupling controls. Such controls are known as ``leakage elimination operations'' or ``LEOs.''Comment: 8 pages, no figures, submitted to the proceedings of the Physics of Quantum Electronics, 200