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

Notes on Oriental Lamiini (Coleoptera: Cerambycidae: Lamiinae)

Longhorned beetles of the Tribe Lamiini have evolved into approximately 180 genera in South East Asia and nearby regions. Many genera and species are poorly-known and some taxa are still undescribed. As a prelude to a checklist and further studies of this group, the authors propose some taxonomic changes and provide corrections to previous literature. The private collection and literature of the senior author are deposited in Zoologische Staatssammlung Munchen, Munchhausenstrabe 21, D-8000, Munchen, Germany

Health Effects on Children's Willingness to Compete

The formation of human capital is important for a society's welfare and economic success. Recent literature shows that child health can provide an important explanation for disparities in children's human capital development across different socio-economic groups. While this literature focuses on cognitive skills as determinants of human capital, it neglects non-cognitive skills. We analyze data from economic experiments with preschoolers and their mothers to investigate whether child health can explain developmental gaps in children's non-cognitive skills. Our measure for children's noncognitive skills is their willingness to compete with others. Our findings suggest that health problems arenegatively related to children's willingness to compete and that the effect of health on competitiveness differs with socio-economic background. Health has a strongly negative effect in our sub-sample with low socioeconomic background, whereas there is no effect in our sub-sample with high socio-economic background.willingness to compete, non-cognitive skills, human capital, health, household survey studies

Health Effects on Children's Willingness to Compete

The formation of human capital is important for a society's welfare and economic success. Recent literature shows that child health can provide an important explanation for disparities in children's human capital development across different socio-economic groups. While this literature focuses on cognitive skills as determinants of human capital, it neglects non-cognitive skills. We analyze data from economic experiments with preschoolers and their mothers to investigate whether child health can explain developmental gaps in children’s non-cognitive skills. Our measure for children's noncognitive skills is their willingness to compete with others. Our findings suggest that health problems are negatively related to children's willingness to compete and that the effect of health on competitiveness differs with socio-economic background. Health has a strongly negative effect in our sub-sample with low socioeconomic background, whereas there is no effect in our sub-sample with high socio-economic background.willingness to compete, non-cognitive skills, human capital, health, household survey studies

Self-Reinforcing Market Dominance

Are initial competitive advantages self-reinforcing, so that markets exhibit an endogenous tendency to be dominated by only a few firms? Although this question is of great economic importance, no systematic empirical study has yet addressed it. Therefore, we examine experimentally whether firms with an initial cost advantage are more likely to invest in cost reductions than firms with higher initial costs. Wefind that the initial competitive advantages are indeed self-reinforcing, but subjects in the role of firms overinvest relative to the Nash equilibrium. However, the pattern of overinvestment even strengthens the tendency towards self-reinforcing cost advantages relative to the theoretical prediction. Further, as predicted by the Nash equilibrium, aggregate investment is not affected by the initial efficiency distribution. Finally, investment spillovers reduce investment, and investment is higher than the joint-profit maximizing benchmark for the case without spillovers and lower for the case with spillovers.Cost-reducing Investment, Asymmetric Oligopoly, Increasing Dominance, Experimental Study

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