View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by bepress Legal Repository The Birth of a “Logical System”: Thurman Arnold and the Making of Modern Administrative Law August 25,2004 Mark Fenster* Associate Professor Frederic G. Levin College of Law University of Florida P.O. Box 117625 2500 S.W. 2nd Avenue Gainesville, FL 32611-7625 352/392-8468 (v) 352/392-3005 (fax) [email protected] * J.D., Yale Law School, 1998; Ph.D., University of Illinois, Champaign-Urbana, 1992. The Birth of a Logical System: Thurman Arnold and the Making of Modern Administrative Law Abstract Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions—most notably administrative agencies and the judiciary—well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and James Landis, and on the contemporaneous challenge to their work raised by the legal realist Thurman Arnold. Arnold characterized early modern administrative law as a quasi-formalist effort to impose a logical system of procedure and judicial review on what he saw as pragmatic, functional regulatory agencies that were attempting to address the crisis of the Depression. Although he conceded the persuasive power of this logical system, Arnold predicted that its requirements, especially for adversarial litigation and judicial review, would ultimately impede the optimal operations of a modern administrative state. Although Arnold’s eclectic alternative proposals had no influence, his predictions and critique remain incisive and relevant to an academic field and body of doctrine that regularly face regular bouts of intellectual and political crisis. The Article carries the historical disagreement between Arnold and his contemporaries into the present by connecting their debates first to the development of legal process theory as an approach to federal courts and constitutional law in the 1950s and then to similar debates in administrative law today. Arnold’s challenge to early modern administrative law, the Article argues, remains relevant because American law still demands a systemic, legalistic conception of the administrative state. A logical system of administrative and legal process has enormous symbolic power even though, as its current detractors note, it often produces suboptimal regulatory practices. The recurring conflict between an enormously durable system and its critique, a conflict that continues to drive administrative law scholarship, began in the 1920s and 1930s; any efforts to reform the field should understand the terms and implications of the conflict’s foundations. 2 Table of Contents Abstract .........................................................................................................................2 Introduction .........................................................................................................................4 I. An Administrative and Judicial Process: First Generation Administrative Law Scholarship.................................................................................................................10 A. Precursors to the First Generation...........................................................................11 B. The First Generation................................................................................................15 C. James Landis and The Administrative Process.......................................................21 II. Arnold’s Post-Realist Approach to Administrative Law...................................................26 A. Arnold’s Post-Realism............................................................................................29 B. Critiquing the “Symbols” of Administrative Governance......................................32 C. Arnold’s Administrative Law..................................................................................40 1. Faster Judicial Decisions...............................................................................43 2. Greater Judicial Involvement........................................................................46 3. Minimize Judicial Involvement....................................................................49 D. Conclusion...............................................................................................................52 III. The “Mumbo-Jumbo of Legal Jargon”: Frankfurter, Arnold, and the Procedure Core of Administrative Law.............................................................................54 IV. The Administrative Process and the Legal Process Approach..........................................61 A. The Institutional Core of the Legal Process Approach...........................................62 B. Against Theology: Arnold, Henry Hart, and Judicial Process...............................66 V. Regulatory Frustration and the Recurring Crisis of the “Logical System”.......................69 A. Systemic Continuity................................................................................................70 B. The Continuity of Crisis and Dissent......................................................................76 Conclusion .......................................................................................................................80 3 Huge treatises are now appearing showing the compatibility of administrative justice with the law. Just as theology was not able to exist without a Redeemer, so the “law” must have its equity or its administrative law in order to save mankind from the consequences of its logical systems. - Thurman Arnold (1935)1 Since their origins in the Depression, the practice, teaching, and study of modern administrative law have continued to develop in the midst of debates over how to resolve conflicts between a dominant set of legal doctrines and external political demands. Over the past half-century or more, periodic administrative legitimacy crises have spawned an academic literature consisting of authoritative, influential articles that clarify embryonic doctrines and theories.2 The now-familiar rhythm of such outbursts began with modern administrative law’s widespread emergence in the 1930s, when federal regulatory agencies became sufficiently prevalent to warrant extensive attention from legal academics.3 Administrative law histories have established this fairly well-known story: Academics sympathetic to the Roosevelt Administration, including most prominently Felix Frankfurter and the young professors who had taken his classes at Harvard Law School, provided the theoretical and doctrinal bases for the Administration’s efforts to address the vast market failures wrought by the Depression.4 In doing so, this first generation of scholars launched administrative law as a basic part of the law 1 THURMAN ARNOLD, THE SYMBOLS OF GOVERNMENT 64 (1935)[hereinafter SYMBOLS]. 2 The period of greatest ferment was the mid-1970s, when three influential critiques of administrative law appeared: James O. Freedman, Crisis and Legitimacy in the Administrative Process, 27 STAN. L. REV. 1041 (1975); Robert Rabin, Administrative Law in Transition: A Discipline in Search of an Organizing Principle, 72 NW. U. L. REV. 120 (1977)[hereinafter Transition]; Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1668 (1975)[hereinafter Reformation]. This ferment was neither unprecedented, seeHENRY FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER DEFINITION OF STANDARDS (1962), nor the last word, seeCHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY (1990); Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543, 545-49 (2000). 3 See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1252-53 (1986)[hereinafter Historical Perspectives]. 4 school curriculum and a popular subject of academic legal research. More important, they put in place a particular ideological and conceptual approach to the subject, one that continues to shape the theory and practice of administrative law today.5 For first generation administrative law scholars, the correct legal and administrative processes and structure would lead inexorably to superior law and policies. Their presumptions about both the peculiar competencies of administrative agencies and the limited but still important role of the judicial review of agency action continue to underpin the conceptual and doctrinal dimensions of the field. These scholars faced opposition in their own time, most famously from elite members of the legal community who—seeking to protect their clients, their status and business, and/or their legal culture—sought to challenge the political and legal legitimacy of new and expanded federal regulatory programs.6 But they also faced a critique from an unlikely source within the legal academy: Thurman Arnold, a member of the Yale Law School faculty associated with the legal realists.7 Like the first generation of administrative law scholars, Arnold was an advocate of federal regulation and especially of the New Deal, but unlike his contemporaries at Harvard, he was deeply suspicious of comprehensive solutions based upon structural and procedural systems. His brief but evocative writings on the subject represent a singular effort to bring realism’s 4 See, e.g., STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY: PROBLEMS, TEXT, AND CASES 21-24 (5th ed. 2002); G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 103-08, 114- 16 (2000)[hereinafter CONSTITUTION]. 5 SeeWILLIAM C.CHASE,THE AMERICAN LAW SCHOOL AND THE RISE OF ADMINISTRATIVE GOVERNMENT (1982); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 213-25 (1992); WHITE, CONSTITUTION,supra note 4, at 103-08; Thomas O. Sargentich, Teaching Administrative Law in the Twenty-First Century, 1 WIDENER J. PUB. L. 147, 150-54 (1992); Stewart, Reformation, supra note 2, at 1677-78. 6 SeeRONEN SHAMIR, MANAGING LEGAL UNCERTAINTY: ELITE LAWYERS IN THE NEW DEAL (1995); George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 NW. U. L. REV. 1557, 1571-72 (1996); Nicholas S. Zeppos, The Legal Profession and the Development of Administrative Law, 72 CHI.-KENT L. REV. 1119 (1997). 7 The best current source of biographical information on Arnold is Gene M. Gressley, Introduction, in VOLTAIRE AND THE COWBOY: THE LETTERS OF THURMAN ARNOLD 1 (Gene M. Gressley ed., 1977)[hereinafter VOLTAIRE AND THE COWBOY]. A full-length biography by Spencer Webber Waller is forthcoming from NYU Press. 5 insights to the judicial review of federal administrative agencies.8 Arnold argued that society is shaped by a deep-seated desire for stable and authoritative legal and political symbols, and he proposed an eclectic mix of creative means to enable the growth of an administrative state, one that would be sufficiently free of legal constraints to attack what he considered the root causes of the Depression. Both early proponents of the federal administrative state and their critics shared the assumption that the “supremacy of law” undergirding a liberal democracy required the judiciary and administrative agencies to operate within separate but interdependent spheres—even if they disagreed as to whether the judiciary’s role was to uphold or strike down agency decisions.9 By contrast, Arnold called for abandoning the separate domains of agency regulation and judicial review in favor of more functional, flexible relationships between courts and agencies, relationships that would include both institutional partnerships and greater agency independence. This departure from the consensus of his day reflected Arnold’s commitment to two of realism’s core tendencies: a deep-rooted distrust of formal distinctions and a restless quest for practical solutions to the functional impasses caused by unreflective formalist assumptions. The solutions Arnold proposed to the inefficiencies and irrationalities caused by judicial review were thus both critical and reconstructive, and opposed the formalities of legal system-building.10 8 SeeJERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY CLAIMS 11-14 (1983) [hereinafter BUREAUCRATIC JUSTICE]. 9 The popular notion of “judicial supremacy,” which presumes the judiciary’s authority to provide a final review of legal and especially constitutional questions, became prominent during the 1890s with the early stirrings of the administrative state, and was tied during that time to classical legal formalism and laissez faire ideology. See ROBERT A. BURT, THE CONSTITUTION IN CONFLICT 253 (1992); STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920, at 152-53 (1982); William E. Nelson, Commentary, Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States: 1790- 1860, 120 U. PA. L. REV. 1166, 1182-85 (1972); cf. Barry Friedman, The History of the Countermajoritarian Difficult, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 339-42 (1998) (placing the term’s earliest rise in popularity in the early and mid-nineteenth century). 10 This anti-systemic tendency extended to sarcastic criticism of the American Law Institute’s common law restatement project. See Thurman W. Arnold, The Restatement of the Law of Trusts, 31 COLUM. L. REV. 800 (1931). 6 Arnold resisted what he termed the “logical system” of administrative law, with its acceptance of a central role for judicial review, even as he recognized the judiciary as a necessary, if merely symbolic and ideological, component of the modern administrative state. Like the first generation scholars and their critics, he too saw the inevitability of law’s institutional “supremacy,” but assumed that any effort to retain judicial review would inevitably sink agency discretion. In the “trial by combat” of litigation, courts would always emerge the symbolic superior to any party appearing before them, whether individual, agency, or Congress.11 The only way to protect fledgling administrative agencies, therefore, was to avoid the combat in any way possible. Arnold’s proposed alternatives to trial by combat were dead on arrival and his critique of administrative law has largely been ignored, even as his anti-formalist criticism has remained current and popular.12 But his work was more than an historical anomaly. It was prophetic. He saw that the emerging approach advocated by his contemporaries featured a comprehensive, formal system that would successfully utilize prevailing symbols to legitimate administrative agencies. He also correctly predicted the costs of creating a formal structure that would ultimately limit administrative discretion and regulatory flexibility. Equally significant, his work illuminates two fundamental, related, and relatively unexplored aspects of the past and present of administrative law, aspects which in turn explain the cyclical tendencies of scholars in the field to find crisis and resolution in its familiar and flexible structures. First, his critique and the debate it sparked between himself and Felix Frankfurter starkly reveals modern administrative law’s procedural core and its precursor relationship to the legal 11 Thurman Arnold, Trial by Combatand the New Deal, 47 HARV. L. REV. 913 (1934) [hereinafter Trial by Combat]. 12 See Mark Fenster, The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory, 51 BUFF. L. REV. 1053, 1056-57 (2003). 7 process theory that would become, in the post-war period, the dominant post-realist approach to legal scholarship and teaching. Arnold rejected any fundamental or functional distinctions between the judiciary and agencies as institutions of governance except insofar as they served the symbolic dimensions of governance. He also showed little faith in process as a necessary and sufficient means to a functional administrative state. Rather, he saw procedural doctrines in the same way that a wily, creative attorney does: as a tool to move a decisionmaker to a desired outcome. Process, form, and structure were secondary to substantive policy and functional results. It was in response to Arnold, as well as to opponents of the New Deal expansion of the regulatory state, that first generation scholars began to articulate the concepts of process-centered jurisprudence, of limited, reasoned judicial review, and of institutional competencies—concepts now associated with legal process theory—as justifications both for the rise of administrative agencies and for the continuing (though limited) importance of judicial review of agency action. Juxtaposing the first generation scholars’ work to Arnold’s critique, then, makes plain the core commitments of modern administrative law—both in the moment at which they emerged and in the later appearance and success of legal process theory. In this light, administrative law appears less a realist effort to create a pragmatic, problem-solving legal regime and academic discipline, and more a traditional effort to apply recognizable, comprehensive, formal legal structures and methods to an emergent area of law and government. Second, reinserting Arnold’s critique into the historical trajectory of administrative law enables a better understanding of how the first generation scholars set in motion a systematic approach that is sufficiently abstract, flexible, comprehensive, and familiar to have contained the political and conceptual challenges to the administrative state that have unfolded over the past fifty years. Although first generation scholars recognized the dangers of judicial review for 8 administrative agencies—this debate took place, after all, at the height of the controversy surrounding the Supreme Court’s finding some New Deal regulatory programs unconstitutional—they advocated a system based on the judiciary’s ultimate supremacy over agency competence in developing expert policy. Like the first generation, succeeding generations of administrative law scholars have identified particular crises of legitimacy, governance, and functionality in regulatory agencies, and have posited new models of judicial and administrative processes that can better serve the needs of their times. Though certainly not without merit or beneficial effects, such efforts have typically offered to resolve the external crises they identify by redefining internal institutional competencies and rejiggering the relative authority of the judiciary and the internal procedures of administrative agencies. Such reforms reaffirm an earlier faith in a structural solution to the challenge of the regulatory state, one based upon administrative and legal process and overseen ultimately by the judiciary. To break this conceptual log jam and remake the field of administrative law, more recent scholarship has sought to change the first generation’s model, often borrowing methods and theories offered by other academic disciplines. In doing so, this scholarship has taken up, unknowingly, Arnold’s original challenge, and faces the same conceptual impasse and settled institutions and doctrines as Arnold faced, as further calcified by the field’s long history. To illuminate the comparison between Arnold and the consensus on administrative law that emerged in the 1920s and 1930s, the Article begins in Part I of this Article presents first generation scholars’ successful efforts to legitimate a vision of agency expertise and judicial review. Part II turns to Arnold’s competing vision of administrative law, first summarizing the broad themes of his approach to law and governance, and then focusing on his critique of conventional notions of judicial review within administrative law and his various proposals for a less formal and more flexible approach. Part III discusses the first generation scholars’ debate 9 with Arnold in correspondence and published scholarship, a debate that illuminates what both sides saw as the stakes of their proposed visions of modern administrative law. Parts IV and V consider the implications of this debate for the historiography of administrative law as a field of legal academic endeavor. Part IV demonstrates the conceptual connections between first generation scholarship and the legal process theory that emerged in the post- war period, and recounts Arnold’s intervention in 1960 against what he saw as legal process advocates’ conservative formalism—an intervention in which he revisited the arguments he initially made as modern administrative law emerged. Part V considers the continuities between first generation scholarship and more recent administrative law scholarship, as well as between Arnold’s dissent and current critiques of the field. I. An Administrative and Judicial Process: First Generation Administrative Law Scholarship At the height of legal realism, administrative law was a nascent academic enterprise, as well as an embryonic practice area of federal law.13 Significant federal statutory mandates for regulatory programs whose implementation was overseen by administrative agencies (as well as myriad state regulatory agencies overseeing state programs) had been in place since the Populist and Progressive Eras. Despite this fact, the modern federal administrative state—envisioned as a response to and check upon market failure—did not begin in earnest until the early New Deal.14 Unsurprisingly, then, as late as 1937, only a bare majority of accredited law schools offered one or more courses in administrative law.15 And even though numerous important agencies, including the Interstate Commerce Commission and the Federal Trade Commission, had fully 13 See A.H. Feller, Prospectus for the Further Study of Federal Administrative Law, 47 YALE L.J. 647 (1938). 14 See Rabin, Historical Perspective, supra note 3, at 1243-53. 15 See Arthur T. Vanderbilt, The Bar and the Public, 23 AM. BAR. ASSN. J. 871, 874 (1937). 10