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The Anti-New Deal Progressive: Roscoe Pound's Alternative Administrative State

Published online by Cambridge University Press:  02 March 2012

Joseph Postell
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Abstract

Recent scholarship has linked the rise of the Progressive movement in America to the creation of an “administrative state”—a form of government where legislative, executive, and judicial powers are delegated into the hands of administrative agencies which compose a “headless fourth branch of government.” This form of government was largely constructed during the New Deal period. The influential legal theorist Roscoe Pound provides the paradoxical example of a Progressive who balked at the New Deal. While many commentators have concluded that Pound's opposition to the New Deal was based on a departure from his earlier Progressive thought, his opposition was in fact based on a consistent Progressive philosophy. Pound therefore provided a vision of an alternative administrative state, which would achieve the ends of the Progressive vision but without the means of the administrative state.

Type
Research Article
Information
The Review of Politics , Volume 74 , Issue 1 , Winter 2012 , pp. 53 - 85
Copyright
Copyright © University of Notre Dame 2012

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References

1 See, for instance, Pestritto, Ronald J., “The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis,” Social Philosophy and Policy 24 (2007): 16–54CrossRefGoogle Scholar; Pestritto, , Woodrow Wilson and the Roots of Modern Liberalism (Lanham, MD: Rowman and Littlefield, 2005)Google Scholar; Marini, John, “Progressivism, Modern Political Science, and the Transformation of American Constitutionalism,” in The Progressive Revolution in Politics and Political Science, ed. Marini, John and Masugi, Ken (Lanham, MD: Rowman and Littlefield, 2005)Google Scholar.

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4 If so, Pound would seem to offer guidance for contemporary attempts to institute a neoprogressivism in American political culture, one that attempts to implement an alternative to centralized administration. For examples of neoprogressivism, see Dawley, Alan, Struggles for Justice: Social Responsibility and the Liberal State (Cambridge, MA: Harvard University Press, 1991)Google Scholar; Dionne, E. J., They Only Look Dead: Why Progressives Will Dominate the Next Political Era (New York: Simon and Schuster, 1996)Google Scholar; McGerr, Michael, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: The Free Press, 2003)Google Scholar; Rorty, Richard, Achieving Our Country: Leftist Thought in Twentieth-Century America (Cambridge, MA: Harvard University Press, 1998)Google Scholar; Tomasky, Michael, Left for Dead: The Life, Death, and Possible Resurrection of Progressive Politics in America (New York: The Free Press, 1996)Google Scholar.

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7 Ibid., 224. The Walter-Logan Act was introduced by Francis E. Walter (D-PA) in the House, and William Logan (D-KY) in the Senate.

8 Franklin Delano Roosevelt, “Veto of a Bill Regulating Administrative Agencies,” 8 December 1940, available online via The American Presidency Project at http://www.presidency.ucsb.edu/ws/index.php?pid=15914.

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17 Witt's primary contention is that Pound's work was “to ensure that the new social policy functions of the mid-twentieth-century state would be channeled into existing institutions … limiting the spread of the administrative state and expanding into the common-law field known as the law of torts” (Patriots and Cosmopolitans, 214). One of the more curious aspects of Witt's argument is the claim that Pound was influenced by “a powerful conformity and a deep urge to please” (ibid., 230). Thus, Pound tacked rightward in order to conform to those around him. This is curious because the direction of Pound's reputation from 1930 (when he was dean of Harvard Law School) to 1960 can only be described in terms of steep decline; the more anti-New Deal Pound became, the more his influence and standing as an intellectual diminished.

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19 See the title of chapter 6 of Roscoe Pound and Karl Llewellyn, titled in part “Pound Moves to the Right,” as well as the preceding chapter which generally maintains that Pound changed his position constantly “over the course of intellectual [sic] career” (Hull, Roscoe Pound and Karl Llewellyn, 252). For Hull's argument that Pound was inconsistent, see especially 312–17.

20 See Hull, Roscoe Pound and Karl Llewellyn, 250: regarding George R. Farnum, writing about then-Dean Pound in the Boston University Law Review, “Farnum conceded the progressive strains of Pound's thought, but these were less important than the conservative ones. … Farnum did not admire Pound for Pound's real achievement, his dogged progressive pragmatism.”

21 Hull, Roscoe Pound and Karl Llewellyn, 251, 254. In essence, Hull's argument is that Pound was inconsistent (Hull argues that in one of Pound's essays “the many Pounds floated on the surface … like the flotsam of a shipwreck after a storm” [ibid., 283]), and that he moved away from his earlier progressivism, but also never fully embraced a natural law conservatism tied to the ideas of the Founding. Hull admits that Pound, even in his later career, thought “systems of ideas” based on natural law were “rooted in a now-gone vision of an individualistic frontier society,” but also argues that Pound repudiated progressivism after 1930, and that his later criticism of the New Deal represents “a far cry from the Pound of the 1900s, who noted with approval the subordination of the claims of powerful individuals to the needs of the community” (ibid., 252, 259). What I hope to show in this article, to repeat, is that the Pound of the 1900s and the Pound of the 1930s are essentially consistent, and that we can learn from both Pounds. Hull does note that Pound himself “did not admit his backsliding” (ibid., 283).

22 Ibid., 257.

23 Ibid., 315.

24 See, for instance, Hull's assessment: “The Administrative Procedure Act of 1946 did more or less exactly what Pound had wanted eight years earlier” in the ABA report of 1938 (Roscoe Pound and Karl Llewellyn, 258).

25 Kagan, Robert, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2003)Google Scholar.

26 The emphasis on pragmatism in Roscoe Pound's legal thought is described by di Filippo, Terry, “Pragmatism, Interest Theory and Legal Philosophy: The Relation of James and Dewey to Roscoe Pound,” Transactions of the Charles S. Peirce Society 24, no. 4 (1988): 487–508Google Scholar. Di Filippo argues that “Pound's own work consisted in large part of the extension to legal theory of the philosophic principles advanced by William James and John Dewey” (ibid., 487).

27 Pound, , The Formative Era of American Law (Boston: Little, Brown, 1938), 6Google Scholar.

28 Ibid., 12.

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30 It is worth noting that Pound's interpretation of legal history closely follows Auguste Comte's famous description of the development of scientific inquiry through theological to metaphysical to positive stages. See Comte, Auguste, Cours de Philosophie Positive, chap. 1, in Auguste Comte and Positivism: The Essential Readings, ed. Lenzer, Gertrud (New York: Harper and Row, 1975), 71–101Google Scholar.

31 Pound, Interpretations, 6.

32 Ibid., 9.

33 Pound, , The Ideal Element in Law (1958; reprint, Indianapolis: Liberty Fund, 2002), 196Google Scholar.

34 “We may well believe, then, that an epoch in juristic thought has come to an end, and that the time is ripe to appraise its work … and to consider wherein its way of unifying stability and change, with which men were content for a century, is no longer of service” (Pound, Interpretations, 12).

35 As Paul F. Murphy has written, “Pound found the then influential natural rights dogma … distasteful” (Murphy, , “Holmes, Brandeis, and Pound: Sociological Jurisprudence as a Response to Economic Laissez-Faire,” in Liberty, Property, and Government: Constitutional Interpretation Before the New Deal, ed. Paul, Ellen Frankel and Dickman, Howard [Albany: State University of New York Press, 1989], 57Google Scholar).

36 Pound, Formative Era, 18.

37 Ibid., 19.

38 Ibid.

39 See Selznick, Philip, “Sociology and Natural Law,” Natural Law Forum 84 (1961): 84–108Google Scholar.

40 He wrote, “However much the last generation may have railed at the theory of natural law, no achievements of any of its theories are at all comparable” (Formative Era, 21).

41 Ibid., 29.

42 Ibid.

43 In October 1921, in the preface to a book titled Introduction to the Philosophy of Law, Pound wrote: “Philosophy has been a powerful instrument in the legal armory and the times are ripe for restoring it to its old place therein. … It is possible to look at those problems [of legal science] philosophically without treating them in terms of the eighteenth-century natural law or the nineteenth-century metaphysical jurisprudence which stand for philosophy in the general understanding of lawyers” (Pound, , Introduction to the Philosophy of Law [New Haven: Yale University Press, 1922], 10–11Google Scholar).

44 Pound, Interpretations, 132.

45 Ibid., 133.

46 Ibid., 119.

47 Pound, , “Mechanical Jurisprudence,” Columbia Law Review 8 (1908): 605–23CrossRefGoogle Scholar.

48 Ibid., 609.

49 Pound, , “The Growth of Administrative Justice,” Wisconsin Law Review 11 (1924): 331Google Scholar.

50 Ibid.

51 Ibid.

52 Ibid., 332.

53 Pound, “Mechanical Jurisprudence,” 612.

54 Pound, “The Growth of Administrative Justice,” 332.

55 See note 3 above.

56 Pound, “The Need of a Sociological Jurisprudence,” 607, 608.

57 Pound, “Mechanical Jurisprudence,” 609.

58 Pound, “The Need of a Sociological Jurisprudence,” 609.

59 Ibid., 610.

60 Ibid., 610–11.

61 Ibid., 611.

62 Hull, Roscoe Pound and Karl Llewellyn, 278.

63 Pound, “The Need of a Sociological Jurisprudence,” 612.

64 Ibid.

65 Pound, Interpretations, 158.

66 In fact, Pound in 1931 wrote about “the call for a realist jurisprudence” in an article by that title, in Harvard Law Review 44 (1931): 697–711CrossRefGoogle Scholar.

67 Pound, Interpretations, 1. See also “Report of the Special Committee on Administrative Law,” 357.

68 Pound, , “Executive Justice,” American Law Register 55, no. 3 (1907): 139Google Scholar.

69 Pound, “Report of the Special Committee on Administrative Law,” 352.

70 Pound, , The Organization of Courts (Philadelphia: Law Association of Philadelphia, 1913), 2Google Scholar.

71 Pound, “Executive Justice,” 137, 139.

72 Pound, “Report of the Special Committee on Administrative Law,” 351–52.

73 Pound, Organization of Courts, 3.

74 Pound, “Executive Justice,” 137, 139.

75 Ibid., 140.

76 Pound, “The Growth of Administrative Justice,” 327.

77 Ibid.

78 Pound, “Executive Justice,” 141.

79 Ibid., 144.

80 Ibid., 145.

81 Pound, “The Growth of Administrative Justice,” 325.

82 Pound, Organization of Courts, 4.

83 Ibid., 5. In 1924 Pound would similarly write, “we are entering upon a period of legal development that has many of the possibilities of that more classic period in the seventeenth century when Lord Coke laid down the doctrine of which I spoke a moment ago. For not merely in England, where perhaps it has gone farther, but in this country, to a lesser extent in Canada, and throughout the English-speaking world, one of the striking phenomena in the large administration of justice, is the growth, the progress, of administrative justice. And this administrative justice, at least in its crude beginnings, appears to have much in it of the oriental; to have very much in it of a reversion to a primitive justice without law” (Pound, “The Growth of Administrative Justice,” 324–25).

84 A claim that has been well established in the scholarly literature. See, e.g., White, G. Edward, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000), 99–100Google Scholar; Mashaw, Jerry L., Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (New Haven: Yale University Press, 1997), 131–57Google Scholar.

85 Pound, “Executive Justice,” 145.

86 Ibid., 146.

87 Ibid., 145–46.

88 Pound, “The Growth of Administrative Justice,” 330. In making this argument Pound was following the analysis of thinkers such as Albion Small and Richard Ely, who argued that the complexity of modern government was an inevitable outcome of the socioeconomic upheaval of the Progressive Era. See Ely, Richard, Studies in the Evolution of Industrial Society (New York: Macmillan, 1903)Google Scholar; Small, Albion, “Private Business is a Public Trust,” American Journal of Sociology 1 (1895): 276–89CrossRefGoogle Scholar; Small, “The State and Semi-Public Corporations,” American Journal of Sociology 1 (1896): 398–410CrossRefGoogle Scholar.

89 Pound, “Executive Justice,” 144. Once again, in his description of the movement from judicial justice to executive justice to sociological jurisprudence, the influence of Hegelianism on Pound is apparent.

90 Ibid., 146.

91 Pound, Organization of Courts, 7.

92 Witt, Patriots and Cosmopolitans, 223.

93 See Stevens, Robert B., Law School: Legal Education in America from the 1850s to the 1980s (1983; repr., Union, NJ: Lawbook Exchange, 2001), 131–71Google Scholar; Chase, William C., The American Law School and the Rise of Administrative Government (Madison: University of Wisconsin Press, 1982), 106–35Google Scholar.

94 Pound, Roscoe, “Do We Need a Philosophy of Law?,” Columbia Law Review 5 (1905): 352CrossRefGoogle Scholar.

95 This conception of the administrative state was shared by Ernst Freund, another influential progressive legal theorist, as Daniel R. Ernst has insightfully explained. See Ernst, , “Ernst Freund, Felix Frankfurter, and the American Rechtstaat: A Transatlantic Shipwreck,” Studies in American Political Development 23 (2009): 171–88CrossRefGoogle Scholar. On Freund, see also Chase, The American Law School and the Rise of Administrative Government.

96 Two prominent legal scholars responded in print to Pound's report, both expressing shock at its tone. See Davis, Kenneth Culp, “Dean Pound and Administrative Law,” Columbia Law Review 42 (January 1942): 89–103CrossRefGoogle Scholar. Davis wrote that Pound's “sweeping strictures on administrative agencies have been widely influential” (89). See also Louis Jaffe, review of Pound, Roscoe, Administrative Law: Its Growth, Procedure, and Significance (Pittsburgh: University of Pittsburgh Press, 1942)Google Scholar, in Columbia Law Review 42 (November 1942): 1382–85. Jaffe opened his review of Pound's book by noting that “the depth of controversy is attested by the violence and the distortion which it generates. … Not the least offender, both by reason of intellectual eminence and the extent of his transgression, is Dean Pound” (1382).

97 Pound, “Report of the Special Committee on Administrative Law,” 338–39.

98 Ibid., 339.

99 Ibid.

100 Ibid., 346.

101 Ibid., 342.

102 Ibid., 339.

103 Ibid., 340.

104 Ibid., 342.

105 Pound, “Report of the Special Committee on Administrative Law,” 343.

106 Ibid., 352.

107 Ibid., 353.

108 Ibid.

109 Those who maintain that Pound was an inconsistent figure are correct in a certain sense; but they misplace when his break with progressivism occurred. By 1949 Pound appears to have developed much greater suspicion of progressivism than at any other point in his life. See, in particular, Pound's “The Rise of the Service State and Its Consequences,” reprinted in The Welfare State and the National Welfare, ed. Glueck, Sheldon (Cambridge, MA: Addison-Wesley, 1952), 211–34Google Scholar. The later Pound was still concerned about the perils of the administrative process, but he combined his critique of administrative absolutism with a critique of the expansive scope of government in his later writings. By 1949, but not by 1938, Pound was becoming more critical of the administrative state on grounds that were foreign to progressivism. His later work involved a reintroduction of the idea of limits on government authority and a critique of the new idea of rights combined with a defense of the Founders' concept of rights.

110 In particular, this is the thesis of G. Edward White, The Constitution and the New Deal, 116–27.

111 Pound, “Report of the Special Committee on Administrative Law,” 344.

112 Ibid., 345.

113 Ibid., 359.

114 Ibid.

115 Ibid., 334.

116 As many legal scholars have noted, the typical agency practice up to the 1960s was to treat every case as unique, and use specific adjudication to deal with each particular case. During the 1960s, a “flight to rulemaking” took place where agencies began to use rules to achieve policy goals. See, for instance, Scalia, Antonin, “Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court,” Supreme Court Review, no. 1978 (1978): 376CrossRefGoogle Scholar.

117 Pound, “Report of the Special Committee on Administrative Law,” 336.

118 “Judicial review in England and in the United States has had a marked effect in compelling the development of a technique of determination consonant with due process of law… commissions can be held to this balance only by legal checks judicially enforced” (ibid., 351).

119 Ibid., 342.

120 Pound, , “The Rule of Law and the Modern Social Welfare State,” Vanderbilt Law Review 7 (1953): 5Google Scholar.

121 Ibid., 12.

122 Ibid., 30.

123 The distinction is given clear expression by Lorch, Robert S., Democratic Process and Administrative Law (Detroit: Wayne State University Press, 1980), 26–34Google Scholar. Lorch argues that administrative agencies decide cases with a forward-looking approach rather than one based on precedent; can initiate action and seek out cases unlike a court; and are designed to decide cases with a view to the public interest rather than the justice of the particular parties in any given case.

124 Shapiro, Martin, “On Predicting the Future of Administrative Law,” Regulation 6, no. 3 (1982): 20Google Scholar.

125 Pound, “The Rule of Law and the Modern Social Welfare State,” 18.

126 See, e.g., Lowi, Theodore, The End of Liberalism (New York: W. W. Norton, 1969)Google Scholar; The Personal President: Power Invested, Promise Unfulfilled (Ithaca, NY: Cornell University Press, 1985)Google Scholar.

127 Quoted in Pound, Organization of Courts, 15.

128 Ibid.

129 Ibid., 20.

130 Ibid., 21–22.

131 Pound, “The Rule of Law and the Modern Social Welfare State,” 21.

132 Ibid.

133 Pound, , Justice According to Law (New Haven: Yale University Press, 1951), 83Google Scholar. In his later book, Jurisprudence, published in 1959, Pound continued to rail against the rise of unchecked administrative power in America, but did not mention the Administrative Procedure Act. Hull explains this fact as an oversight. See Hull, Roscoe Pound and Karl Llewellyn, 328. This is possible, but it is also possible that Pound simply believed the APA did not alleviate the fundamental problem.

134 Pound, The Ideal Element in Law, 86.

135 Ibid.

136 Ibid., 86–87.

137 Ibid., 87.

138 Ibid., 357.

139 Ibid.

140 Ibid., 358 (emphasis added).

141 Schwartz, Bernard, “The Administrative Agency in Historical Perspective,” Indiana Law Journal 36, no. 3 (1961): 278Google Scholar.

142 The ongoing cycle of crisis and legitimacy is the central starting point for Freedman, Crisis and Legitimacy.