Willis's American Counterparts: The Legal Realists' Defence of Administration

I Introduction

To an American lawyer, or at least any lawyer familiar with the debates over administrative law and government in the critical years from 1920 through 1940, the voice of John Willis is instantly recognizable. He is clearly one of the gang – the legal realists who were concerned to expand the authority of administrative agencies to govern new areas of economic life; to promote their virtues as policy makers and adjudicators over those of their chief rivals, the courts; to defend them against charges of arbitrariness and absolutism; and to limit the scope of judicial review of their decisions. The voice is familiar in style as well as in substance – the slashing sharp-pointed satirical barbs aimed to puncture the inflated claims of judicial 'formalism' and the blunt no-nonsense plain style used to highlight the virtues of civil servants' 'functionalism.' Close your eyes and you could be listening to Thurman Arnold, Reed Powell, or Jerome Frank. Willis is just as witty and quite a bit more succinct.

So Willis and the American realists are evidently steeped in a common set of argumentative modes and rhetorics as well as common aims. Part of my purpose here is to identify those commonalities; but another part is to point to significant points of difference as well, both among the principal American realists and between them and Willis. I find that the exercise of reading through a sizeable chunk of the realist literature on administration has stirred in me a modest rehabilitative urge. The realists did more than make sport of judges, courts, and legal reasoning and naively praise the expertise of bureaucrats, though, to be sure, they did plenty of both. Although the realists were by no means above crude polemics, their arguments at their best are both interesting and complex. My focus here will be on a group of lawyers who were the principal intellectual defenders of the administrative state: John Dickinson, Thurman Arnold, Jerome Frank, and James Landis. These men taught at law schools (Dickinson at Pennsylvania, Arnold and Frank at Yale, Landis at Harvard) but wrote for wide public audiences as well as for academic law reviews. They all had at some point held important administrative posts in the New Deal: Frank as general counsel for the Agricultural Adjustment Authority, Landis and Frank as SEC Commissioners, Arnold as assistant attorney-general for anti-trust, Dickinson as a draftsman (in the Commerce Department) of the National Industrial Recovery Act and defender (in the Justice Department) of other New Deal legislation in litigation challenging its constitutionality. Finally, I want to look at some of the criticisms that have been made of Willis and the American realists – both in their own time and in our own – and consider if they are well deserved.

In the early phases of the great debate over administrative discretion, the American realists were mostly playing defence, responding to a series of wholesale intemperate assaults on administrative arbitrariness and absolutism. Some of these came in the form of decisions and dicta of the US Supreme Court itself in reviewing decisions of administrative agencies and the constitutionality of the legislation creating them.¹ To judge by a casual inspection of the law review, speech, and pamphlet literature, most of the attackers were conservative lawyers who represented business clients, such as those who formed the notorious Lawyers' Committee of the Liberty League as a public-interest group to denounce and litigate the constitutionality of New Deal legislation. (Such lawyers, incidentally, were evidently motivated as much or more by ideological passion as by clients' interests. Not surprisingly, lawyers whose actual work for clients most frequently brought them into contact with administrative agencies tended to be much more moderate and circumspect in their criticisms of those agencies and of administrative procedure generally.) The attacks borrowed liberally from English critics such as Lord Hewart: in fact...