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“Islands of Conscious Power”: Louis D. Brandeis and the Modern Corporation

Published online by Cambridge University Press:  13 December 2011

Richard P. Adelstein
Richard P. Adelstein
Affiliation:
Richard P. Adelstein is professor of economics atWesleyan University and a member of the Connecticut Bar.
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Abstract

In this examination of the beliefs of Louis Brandeis about the twentieth-century corporation, we are given a paradoxical portrait of a man strongly committed to individual liberty and fulfillment who nevertheless became an outspoken advocate of Taylorism. By tracing Brandeis's views on the law and economics of me corporation and placing them against the jurist's belief in the primacy of society's needs, the article reveals the complexities and contradictions in Brandeis's thought as he struggled to visualize an order in which the interests of individuals and society would be identical.

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Articles
Information
Business History Review , Volume 63 , Issue 3 , Autumn 1989 , pp. 614 - 656
Copyright
Copyright © The President and Fellows of Harvard College 1989

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References

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22 “we cannot reach our goal without those [material] things,” Brandeis said early in 1915. “But we may have all those things, and have a nation of slaves. … Men must have industrial liberty as well as good wages.” Testimony of 23 Jan. 1915, before the Commission on Industrial Regulations, United States Senate, 64th Cong., 1st sess., 1914, 7657–81. Portions reprinted as “On Industrial Relations,” in The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis, ed. Osmond K. Fraenkel (New York, 1934), 70–95, at 81, 80.

23 “Unfortunately, there is a lack of popular participation in public affairs. The average man is not performing his function as a citizen…. The Government gives us ready-made conclusions instead of there being active discussion among the people.” Quoted (1940) in Lief, The Brandeis Guide, 34; Louis D. Brandeis, “The Road to Social Efficiency (1911),” in Business-A Profession (1914; Boston, 1925), 58–59.

24 On Brandeis's attitudes toward state socialism, see Brandeis to Bruère, 25 Feb. 1922.; Strum, Louis D. Brandeis, 72, 145, 181; on organized labor, see Louis D. Brandeis, “The Employer and Trades Unions (1904),” in Business: A Profession, 13–27; Brandeis, “How Far Have We Come on the Road to Industrial Democracy? (1913),” in Curse of Bigness, 43–47; Brandeis, “The Incorporation of Trades Unions (1902),” in Business: A Profession, 88–98; on ownership and control, see, generally, Brandeis, , Other People's Money and How the Bankers Use It (1914; New York, 1932)Google Scholar; Lief, Alfred, ed., The Social and Economic Views of Mr. Justice Brandeis (New York, 1930), 383–84Google Scholar; Mason, Brandeis: A Free Man's Lifi, 428–32.

25 “On Industrial Relations,” 74–75. See also Brandeis to Winthrop Talbot, 16 April 1912, Letters, 2: 586–89, at 587; Brandeis to A. Rosenberg, 15 Dec. 1915, ibid., 3: 669; Louis D. Brandeis, “Hours of Labor (1906),” in Business: A Profession, 28–36.

26 New York State Ice Co. v. Liebmann, 285 U.S. 262, 306–11 (1932) (Brandeis, J., dis senting); Brandeis to Paul U. Kellogg, 7 Nov. 1920, Letters, 4: 497–98; Brandeis to Woodrow Wilson, 15 April 1923, ibid., 5: 91. See also Lief, The Brandeis Guide, 70; Strum, Louis D. Brandeis, 172–73.

27 Cf. Coase, Ronald, “The Nature of the Firm,” Economica 4 (1937): 390–92.CrossRefGoogle Scholar

28 Compare Brandeis to Lorin F. Deland, 9 Feb. 1895: “A manufacturer is no longer the master of his employee, but an associate. History records first master and slave, then master and servant, then employer and employee, and now they are as associates or contractors.” Letters, 1: 121.

29 Brandeis to Frank A. Fetter, 26 Nov. 1940, Letters, 5: 648.

30 Miller, Arthur S., The Modern Corporate State: Private Governments and the American Constitution (Westport, Conn., 1976), 40Google Scholar; Liggett v. Lee, 548–64. See also Hurst, Legitimacy of the Business Corporation, 131–39.

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33 Providence Bank v. Billings and Pittman, 29 U.S. (4 Peters) 514, 562 (1830).

34 Dartmouth College v. Woodward, 518, 636. Thus, for example, in Bank of Augusta v. Earle, 38 U.S. (13 Peters) 519 (1839), the Court held that a business corporation was not a “citizen” within the meaning of the privileges and immunities clause of Article IV. This meant that although the business affairs of individuals could be conducted freely and equally anywhere in the United States, the corporation as such had no right to do business in any state other than the one that had chartered it.

35 Compare Justices Hugo Black, in Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 83 (1938), and William O. Douglas, in Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576 (1949).

36 Horwitz, “Santa Clara Revisited,” 181; Hurst, Legitimacy of the Business Corporation, 30–47; Letwin, William, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (Chicago, 1965), 59–67.Google Scholar

37 Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394, 396 (1886).

38 San Mateo County v. Southern Pacific Railroad Co., 13 F. 722, 743–744 (1882); Hor-witz, “Santa Clara Revisited,” 176–78.

39 Horwitz, “Santa Clara Revisited,” 184–85.

40 See Tariello, generally Frank Jr, The Reconstruction of American Political Ideology, 1865–1917 (Charlottesville, Va., 1982), 53–69Google Scholar; Lustig, R. Jeffrey, Corporate Liberalism: The Origins of Modern American Political Theory, 1890–1920 (Berkeley, Calif., 1982), 150–94Google Scholar; Wiebe, Robert H., The Search For Order, 1877–1920 (New York, 1967), 140–42.Google Scholar One of them, interestingly, was the young Woodrow Wilson: “Society is in no sense artificial; it is as truly natural and organic as the individual man himself.” Wilson, Woodrow, The State: Elements of Historical and Practical Politics (1889; Boston, 1894), 597.Google Scholar See also “The Study of Administration (1887),” in The Papers ofWoodww Wilson, ed. Arthur S. Link (Princeton, N.J., 1968), 5: 359–80; compare text at note 93.

41 Horwitz, “Santa Clara Revisited,” 176, 181–83.

42 Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928) (Brandeis, J., dissenting).

43 On Brandeis's premonition of the Depression, see Brandeis to Elizabeth R Raushen-bush, 13 Nov. 1929, Letters, 5: 409–10.

44 Liggett v. Lee, 517, 533–35.

45 Ibid., 543–44.

46 Ibid., 541.

47 Ibid., 568–69.

48 Ibid., 548–49.

49 Ibid., 564–67.

50 Ibid., 580. Compare note 95.

51 Ibid., 575.

52 Compare Urofsky, A Mind of One Piece, 55–60; McCraw, Prophets of Regulation, 108–9.

53 Cf. Brandeis's skeptical comments on the applicability of efficiency techniques to legislative drafting, Brandeis to Felix Frankfurter, 28 Jan. 1913, Letters, 3: 19–20.

54 Louis D. Brandeis, “Business-A Profession,” in Business-A Profession, 1–12, at 3.

55 Lenin, V. I., State and Revolution (1917; New York, 1943), 84.Google Scholar

56 Compare McCraw, Prophets of Regulation, 65–79, 94–101.

57 Pinson, Koppel S., Modern Germany: Its History and Civilization, 2d ed. (New York, 1966), 238Google Scholar; Louis D. Brandeis, Statement of 14 Dec. 1911, 1258.

58 Letwin, Law and Economic Policy in America, 198; Jenks, Jeremiah W., “The Trusts: Facts Established and Problems Unsolved,” Quarterly Journal of Economics 15 (1900): 46–74.CrossRefGoogle Scholar

59 Fine, Sidney, Laissez Faire and the General-Welfare State (Ann Arbor, Mich., 1956), 198–212.Google Scholar On the influence of German historicism in the development of American economics during this period, see Dorfman, Joseph, “The Role of the German Historical School in American Economic Thought,” American Economic Review 45 (May 1955): 17–28Google Scholar; Herbst, Jurgen, The German Historical School in American Scholarship: A Study in the Transfer of Culture (Ithaca, N.Y., 1965), esp. 129–202Google Scholar; Barber, William J., ed., Breaking the Academic Mould: Economists and American Higher Learning in the Nineteenth Century (Middletown, Conn., 1988), 203–24, 290–375.Google Scholar

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61 Marx, Karl, “Theses on Feuerbach (1845),” in McLellan, David, ed., Karl Marx: Selected Writings (Oxford, 1977): 156–58Google Scholar, quotation on 157. Compare Heilbroner, Roben L., Marxism: For and Against (New York, 1980), 141–74.Google Scholar

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65 Cf. Tariello, Reconstruction, 97; Wilson, “The Study of Administration“; Lustig, Corporate Liberalism, 170–75.

66 Letwin, Law and Economic Policy in America, 71–77; Fine, Laissez-Faire, 223–25, 231–33, 337–38; Tariello, Reconstruction, 112. Thus, Adams explicitly presented his influential principles of returns to scale for the purposes of identifying those industries in which public control was necessary, so that “the state may realize for society the benefits of monopoly.” Adams, “Relation of the State,” 98–114; Dorfman, “Role of the German Historical School,” 26.

67 Compare Adams, “Relation of the State,” 90–98, with Louis D. Brandeis, “Shall We Abandon the Policy of Competition? (1912),” and “Competition (1913),” in Curse of Bigness, 104–8, 112–24.

68 Coase, “The Nature of the Firm,” 389.

69 Cf. Alchian, Armen, “Uncertainty, Evolution, and Economic Theory,” Journal of Political Economy 58 (1950): 211–21CrossRefGoogle Scholar; Winter, Sidney, “Optimization and Evolution in the Theory of the Firm,” in Adaptive Economic Models, ed. Day, R. and Groves, R. (New York, 1975), 73–118.CrossRefGoogle Scholar

70 Quoted in Coase, “The Nature of the Firm,” 388.

71 This discussion owes much to the work of Oliver Williamson. See, for example, “Transaction-Cost Economics: The Governance of Contractual Relations,” Journal of Law and Economics 22 (1979): 233–61; “The Organization of Work: A Comparative Institutional Assessment,” Journal of Economic Behavior and Organization 1 (1980): 5–38; “The Modern Corporation: Origins, Evolution, Attributes,” Journal of Economic Literature 19 (1981): 1537–68.

72 Compare McCraw, Prophets of Regulation, 68–79.

73 Louis D. Brandeis, “Competition That Kills (1913),” in Business-A Profession, 243–61, at 260; Brandeis to Charles R. Crane, 11 Nov. 1911, Letters, 2: 510–11; Lief, The Brandeis Guide, 181; Strum, Louis D. Brandeis, 147–48.

74 Louis D. Brandeis, “Trusts and Efficiency’ (1912),” in Business-A Profission, 205–24, at 206–7. See also “Competition,” 116; Statement of 14 Dec. 1911, 1147–48; Mason, Brandeis: A Free Man's Life, 322–23.

75 Henderson, W. O., The Rise of German Industrial Power, 1834–1914 (London, 1975), 65Google Scholar; Chandler, The Visible Hand, 53–54.

76 McCraw, “Rethinking the Trust Question,” 8.

77 Compare, for example, Simon, Herbert, Administrative Behavior (New York, 1947)Google Scholar and “Rational Decision Making in Business Organizations,” American Economic Review 69 (1979): 493–513, with Hayek, Friedrich, “The Use of Knowledge in Society,” American Economic Review 35 (1945): 519–31Google Scholar; and “Competition as a Discovery Procedure,” in New Studies in Philosophy, Politics, Economics and the History of Ideas (Chicago, 1978), 179–90.

78 Quoted (1935) in Mason, Brandeis A Free Man's Life, 620; Brandeis to Harold Laski, 21 Sept. 1921, Letters, 5: 16–17.

79 Quoted (1915) in Lief, The Brandéis Guide, 22.

80 Brandeis, “Trusts and Efficiency,” 223–24. See also Statement of 14 Dec. 1911, 1147–48.

81 Hayek, Friedrich A., Law, Legislation and Liberty (Chicago, 1979), 3: 65–88.Google Scholar

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83 As, indeed, in his own law firm; see Brandeis to William H. Dunbar, 19 Aug. 1896, Letters, 1: 124–25. He also recognized the superior capacity of large firms to conduct what we now call “research and development“; see Brandeis to Franklin K. Lane, 12 Dec. 1913, ibid., 3: 218–21, at 219.

84 Liggett v. Lee, at 565.

85 Statement of 14 Dec. 1911, 1171. See also Mason, Brandeis: A Free Man's Life, 322–23.

86 Strum, Louis D. Brandeis, 147–51; Urofsky, A Mind of One Piece, 55–57; Mason, Brandeis: lawyer and Judge, 48–49.

87 “Competition That Kills,” 261.

88 “Competition,” 113.

89 On Roosevelt's views, see Letwin, Law and Economic Policy, 244–47, 266; quoted (1911) in Urofsky, A Mind of One Piece, 77.

90 Letters, 2: 688–94, at 688. “I used to think that there were ‘good trusts'; that there were big men at the head of some of them, and that they worked out things for the benefit of the community. I know better now. There are no good trusts.” Quoted (1912) in Lief, The Brandeis Guide, 181.

91 Brandeis to Felix Frankfurter, 30 Sept. 1922 and 4 Jan. 1923, Letters, 5: 65–71, at 67, and 84–85; Urofsky, A Mind if One Piece, 59–68; Strum, Louis D. Brandeis, 390–91.

92 “On Industrial Relations,” 80.

93 Brandeis to Ray Stannard Baker, 5 July 1931, Letten, 5: 482.

94 Brandeis to George Soule, 22 April 1923, Letters, 5: 91–92, at 92.

95 Brandeis to Felix Frankfurter, 8 Nov. 1925 and 12 Feb. 1926, Letters, 5: 192–93, at 93, 207. Compare McCraw, Prophets of Regulation, 105–8, and Brandeis's response to his former clerk Henry Friendly, who had been in Tallahassee as the Liggett statute was being adopted. “I was down watching the Florida Legislature,” an amused Friendly reported, “and I don't think they had any of those social benefits in mind that you discussed. I think they were just influenced by the drug lobby.” Brandeis did not smile or respond in any way, and changed the subject. Paper, Brandeis, 335.

96 See, e.g., Myers v. United States, 272 U.S. 52, 291–95 (1926) (Brandeis, J., dissenting); New York State Ice Co. v. Liebmann, 262, 306–11. Cf. Urofsky, A Mind of One Puce, 58–59; Strum, Louis D. Brandeis, 151–52.

97 On resale price maintenance, see “Competition That Kills“; on information exchange and grain markets, American Column & Lumber Co. v. United States, 257 U.S. 377 (1921) (Brandeis, J., dissenting); Chicago Board of Trade v. United States 246 U.S. 231 (1918); Bork, Robert H., The Antitrust Paradox: A Policy at War With itself (New York, 1978), 41–47.Google Scholar

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102 Haber, Efficiency and Uplift, 2–3, 20–24; Aitken, Taylorism, 21–28.

103 Kolko, Gabriel, The Triumph of Conservatism: A Reinterpretation of American History, 1900–1916 (Chicago, 1967), 208Google Scholar; Merkle, Judith A., Management and Ideology: The Legacy of the International Scientific Management Movement (Berkeley, Calif., 1980), 105–15.Google Scholar

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105 Louis D. Brandeis, brief submitted to the Interstate Commerce Commission, 3 Jan. 1911, portions reprinted as Scientific Management and Railroads (New York, 1911), 8, 6, 17.

106 Brandeis to Amos Pinchot, 14 Nov. 1910, Letters, 2: 386; Brandeis to Rudolph G. Leeds, 9 Nov. 1910, ibid., 383–85, at 385.

107 Gilbreth, Frank B., Primer of Scientific Management (New York, 1912)Google Scholar; Kraines, “Brandeis' Philosophy,” 196; Brandeis to Louis B. Wehle, 21 May 1932, Letters, 5: 502. The memorial address is “Efficiency by Consent (1915),” in Business—A Profission, 51–56.

108 Aitken, Taylorism, 45; “Efficiency by Consent,” 51–56, at 56.

109 Brandeis to John Mitchell, 12 Dec. 1910, Letters, 2: 394–95; Brandeis to A. J. Howlitt, 29 March 1911, ibid., 418; Brandeis, Louis D., “The New Conception of Industrial Efficiency,” Journal of Accountancy 12 (1911): 35–42Google Scholar; Louis D. Brandeis, “Organized Labor and Efficiency (1911),” in Business-A Profession, 37–50; Louis D. Brandeis, “Efficiency Systems and Labor (1914),” in Curse of Bigness, 48–50; Strum, Louis D. Brandeis, 165–68.

110 Strum, Louis D. Brandeis, 165–68; Mason, Brandeis: A Free Man's Life, 332. On the attitudes of labor toward scientific management, see generally Nadworny, Milton J., Scientific Management and the Unions, 1900–1932: A Historical Analysis (Cambridge, Mass., 1955).Google Scholar

111 Brandeis, “Organized Labor and Efficiency,” 42–43, 48–49.

112 Liggett v. Lee, 517, 580.

113 Strum, Louis D. Brandeis, 125–26; Mason, Brandeis: A Free Man's Lift, 400; Haber, Efficiency and Uplift, 11, 79–80.

114 Quoted (1905) in Mason, Brandeis: A Free Man's Life, 141.

115 Quoted (1895, 1915) in Haber, Efficiency and Uplift, 2, 27.

116 “On Industrial Relations,” 86–87; see also Brandeis to Abraham J. Portenar, 22 Jan. 1913, Letters, 3: 10–11, at 11.

117 Quoted (1912) in Lief, The Brandeis Guide, 54–55.

118 Myers v. United States, 52, 293.

119 Brandeis to Frankfurter, 12 Feb. 1926, Letters, 5: 207.

120 Strum, Louis D. Brandeis, 174–80, 233–35; Mason, Brandeis: A Free Man's Life, 289–315; Gal, Allon, Brandeis of Boston (Cambridge, Mass., 1980), 124–27.CrossRefGoogle Scholar

121 Quoted (1931) in Strum, Louis D. Brandeis, 233.

122 Quoted (1914) in Gal, Brandeis of Boston, 126.

123 Ibid., 149–73, 195–207; Strum, Louis D. Brandeis, 248–65.

124 Brandeis, Louis D., “A Call to the Educated Jew,” Menorah Journal 1 (1915): 13–19Google Scholar, reprinted as ‘Our Richest Inheritance,’ in The Menorah Treasury: Harvest of Half a Century, ed. Leo W. Schwarz (Philadelphia, Pa., 1964), 868–74. See also Brandeis to editor, Menorah Journal, Jan. 1915, Letters, 3: 398–99.

125 “Our Richest Inheritance,” 871–72.

126 Address to the Economic Club of Boston, 8 Feb. 1915. Quoted in Lief, The Brandeis Guide, 262–63. See also Louis D. Brandeis, “The Jewish Problem: How to Solve It (1915)” in Curse of Bigness, 218–32, at 218–24; Brandeis to Norman Hapgood, 1 Oct. 1914, Letters, 3: 306–7; Brandeis to Gustave Hartman, 16 June 1915, ibid., 534–35.

127 “Our Richest Inheritance,” 871–72; Strum, Louis D. Brandeis, 236.

128 Compare the discussion of a surprised and disappointed Alpheus Mason on this point, in Mason, Brandeis: Lawyer and Judge, 170–73.

129 Lenin, State and Revolution, 75–85.

130 Compare Lief, Brandeis, 478–79.

131 Strum, Louis D. Brandeis, 234–47, 273–79; Urofsky, A Mind of One Piece, 101. See also Brandeis to Rudolph I. Coffee, 2 May 1916, Letters, 4: 178; Brandeis to Mary Fels, 6 July 1916, ibid., 247–48; Brandeis to Chaim Weizmann, 13 Jan. 1918, ibid., 334–35.

132 Quoted (1930) in Gal, Brandeis of Boston, 180–81.

133 Mason, Brandeis: A Free Man's Life, 644.