Laboratories of democracy? Brandeis, federalism, and scientific management

Publius: The Journal of Federalism

Volumn 31, Issue 1, 2001, Pages 37-45

  Tarr, G Alan ^a  

^a NONE

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EID: 0039192954     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a004880     Document Type: Article

References (47)

1. Daniel J. Elazar, "Cursed by Bigness or Toward a Post-Technocratic Federalism," Publius: The Journal of Federalism 3 (Fall 1973): 239-298.
2. Elazar, "Cursed by Bigness," 261.
3. Louis Dembitz Brandeis, The Curse of Bigness, ed. Osmond K. Fraenkel (New York: Viking Press, 1934).
4. Philippa Strum, Brandeis: Beyond Progressivism (Lawrence: University Press of Kansas, 1993), p. 4.
5. Arthur S. Link, Wilson: The Road to the White House (Princeton, NJ: Princeton University Press, 1947), p. 489.
6. See, for example, Quaker City Cab Co. v. Pennsylvania, 277 U.S. 289 (1922); Liggett v. Lee, 288 U.S. 517 (1933); and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
7. On Brandeis's correspondence during this era, see Stephen W. Baskerville, Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis (Rutherford, NJ: Fairleigh Dickinson University Press, 1994), pp. 317-323. Brandeis voted with the Court majority to strike down provisions of the National Industrial Recovery Act of 1935 in Schecter Poultry Corporation v. United States, 295 U.S. 495 (1935) and in Panama Refining Company v. Ryan, 298 U.S. 388 (1935).
8. See, for example, Thomas K. McGraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Belknap Press, 1984), ch. 3; and G. Edward White, "Allocating Power Between Agencies and Courts: The Legacy of Justice Brandeis" Duke Law Journal 23 (April 1974): 195, 233.
9. See, for example, Thomas K. McGraw, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, MA: Belknap Press, 1984), ch. 3; and G. Edward White, "Allocating Power Between Agencies and Courts: The Legacy of Justice Brandeis" Duke Law Journal 23 (April 1974): 195, 233.
10. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).
11. The seminal work in this field is Jack L. Walker, "The Diffusion of Innovations Among the American States," American Political Science Review 63 (September 1969): 880-889. Useful surveys of diffusion research include Robert L. Savage, "Diffusion Research Traditions and the Spread of Policy Innovations in a Federal System," Publius: The Journal of Federalism 15 (Fall 1985): 1-27; and Virginia Gray, "Competition, Emulation, and Policy Innovation," Perspectives in American Politics, eds. Lawrence C. Dodd and Calvin Jillson (Washington, DC: CQ Press, 1994).
12. The seminal work in this field is Jack L. Walker, "The Diffusion of Innovations Among the American States," American Political Science Review 63 (September 1969): 880-889. Useful surveys of diffusion research include Robert L. Savage, "Diffusion Research Traditions and the Spread of Policy Innovations in a Federal System," Publius: The Journal of Federalism 15 (Fall 1985): 1-27; and Virginia Gray, "Competition, Emulation, and Policy Innovation," Perspectives in American Politics, eds. Lawrence C. Dodd and Calvin Jillson (Washington, DC: CQ Press, 1994).
13. The seminal work in this field is Jack L. Walker, "The Diffusion of Innovations Among the American States," American Political Science Review 63 (September 1969): 880-889. Useful surveys of diffusion research include Robert L. Savage, "Diffusion Research Traditions and the Spread of Policy Innovations in a Federal System," Publius: The Journal of Federalism 15 (Fall 1985): 1-27; and Virginia Gray, "Competition, Emulation, and Policy Innovation," Perspectives in American Politics, eds. Lawrence C. Dodd and Calvin Jillson (Washington, DC: CQ Press, 1994).
14. th ed. (Washington, DC: CQ Press, 1996)-highlights Brandeis's quote almost immediately (page 5) in beginning its discussion of state politics. Virtually every monograph on federalism quotes Brandeis. See, for example, A. E. Dick Howard, "Does Federalism Secure or Undermine Rights?" Federalism and Rights, eds. Ellis Katz and G. Alan Tarr (Lanham, MD: Rowman & Littlefield, 1996), p. 17. Articles in social science journals and law reviews quoting Brandeis are too numerous to list. Illustrative examples include Charles Fried, "Federalism-Why Should We Care?" Harvard Journal of Law and Public Policy 6 (Special Issue, 1982): 2; and Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," Columbia Law Review 88 (January 1988): 9.
15. th ed. (Washington, DC: CQ Press, 1996)-highlights Brandeis's quote almost immediately (page 5) in beginning its discussion of state politics. Virtually every monograph on federalism quotes Brandeis. See, for example, A. E. Dick Howard, "Does Federalism Secure or Undermine Rights?" Federalism and Rights, eds. Ellis Katz and G. Alan Tarr (Lanham, MD: Rowman & Littlefield, 1996), p. 17. Articles in social science journals and law reviews quoting Brandeis are too numerous to list. Illustrative examples include Charles Fried, "Federalism-Why Should We Care?" Harvard Journal of Law and Public Policy 6 (Special Issue, 1982): 2; and Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," Columbia Law Review 88 (January 1988): 9.
16. th ed. (Washington, DC: CQ Press, 1996)-highlights Brandeis's quote almost immediately (page 5) in beginning its discussion of state politics. Virtually every monograph on federalism quotes Brandeis. See, for example, A. E. Dick Howard, "Does Federalism Secure or Undermine Rights?" Federalism and Rights, eds. Ellis Katz and G. Alan Tarr (Lanham, MD: Rowman & Littlefield, 1996), p. 17. Articles in social science journals and law reviews quoting Brandeis are too numerous to list. Illustrative examples include Charles Fried, "Federalism-Why Should We Care?" Harvard Journal of Law and Public Policy 6 (Special Issue, 1982): 2; and Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," Columbia Law Review 88 (January 1988): 9.
17. th ed. (Washington, DC: CQ Press, 1996)-highlights Brandeis's quote almost immediately (page 5) in beginning its discussion of state politics. Virtually every monograph on federalism quotes Brandeis. See, for example, A. E. Dick Howard, "Does Federalism Secure or Undermine Rights?" Federalism and Rights, eds. Ellis Katz and G. Alan Tarr (Lanham, MD: Rowman & Littlefield, 1996), p. 17. Articles in social science journals and law reviews quoting Brandeis are too numerous to list. Illustrative examples include Charles Fried, "Federalism-Why Should We Care?" Harvard Journal of Law and Public Policy 6 (Special Issue, 1982): 2; and Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," Columbia Law Review 88 (January 1988): 9.
18. th ed. (Washington, DC: CQ Press, 1996)-highlights Brandeis's quote almost immediately (page 5) in beginning its discussion of state politics. Virtually every monograph on federalism quotes Brandeis. See, for example, A. E. Dick Howard, "Does Federalism Secure or Undermine Rights?" Federalism and Rights, eds. Ellis Katz and G. Alan Tarr (Lanham, MD: Rowman & Littlefield, 1996), p. 17. Articles in social science journals and law reviews quoting Brandeis are too numerous to list. Illustrative examples include Charles Fried, "Federalism-Why Should We Care?" Harvard Journal of Law and Public Policy 6 (Special Issue, 1982): 2; and Deborah Jones Merritt, "The Guarantee Clause and State Autonomy: Federalism for a Third Century," Columbia Law Review 88 (January 1988): 9.
19. See Daniel A. Farber, "Reinventing Brandeis: Legal Pragmatism for the Twenty-First Century," University of Illinois Law Review (1:1995): 175: "In an era in which footnotes were rare in judicial opinions, Brandeiss dissent contains fifty-seven footnotes, and it cites a mix of [non-legal] sources that would still be unusual today." Brandeis himself had reservations about the wisdom of Oklahoma's policy, though he did not allow them to affect his judgment about its constitutionality.
20. Liebmann, 309-311.
21. Ibid., 279-280. Sutherland's argument resembles but anticipates Justice Robert Jackson's famous statement, much beloved by civil liberterians, in West Virginia Board of Education v. Barnette, 319 U.S. 624,638(1943): "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." This may not be altogether surprising. Although Sutherland may have sought to protect property rights in Liebmann, he would likely have been comfortable with its extension to civil liberties as well. See Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton, NJ: Princeton University Press, 1994).
22. Ibid., 279-280. Sutherland's argument resembles but anticipates Justice Robert Jackson's famous statement, much beloved by civil liberterians, in West Virginia Board of Education v. Barnette, 319 U.S. 624,638(1943): "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." This may not be altogether surprising. Although Sutherland may have sought to protect property rights in Liebmann, he would likely have been comfortable with its extension to civil liberties as well. See Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton, NJ: Princeton University Press, 1994).
23. Gardner, "'States-as-Laboratories' Metaphor'," 480-482.
24. Ibid., 481.
25. Liebmann, 310.
26. Ibid., 310.
27. Ibid., 311.
28. Edward L. Rubin and Malcolm M. Feeley, "Federalism: Some Notes on a National Neurosis," U.C.L.A. Law Review 41 (April 1994): 923-926; Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge: Cambridge University Press, 1998), pp. 185-186.
29. Edward L. Rubin and Malcolm M. Feeley, "Federalism: Some Notes on a National Neurosis," U.C.L.A. Law Review 41 (April 1994): 923-926; Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge: Cambridge University Press, 1998), pp. 185-186.
30. Strum, Brandeis, p. 85, and Baskerville, Of Laws and Limitations, p. 315.
31. Strum, Brandeis, p. 85, and Baskerville, Of Laws and Limitations, p. 315.
32. Rubin and Feeley. "Federalism," 924. In their book, Rubin and Feeley insist that "the effect of federalism, to the extent that it is still operative, has not been to encourage experimental state programs or state-sponsored coordinating agencies, but simply to keep some truly innovate national efforts limited, tentative; and vaguely apologetic." (Judicial Policy Making, p. 187) However, this statement reflect an animus against federalism rather than analysis. For a more careful analytic approach, see Susan Rose Ackerman, "Risk Taking and Reelection: Does Federalism Promote Innovation? Journal of Legal Studies 9 (June 1980): 593.
33. Rubin and Feeley. "Federalism," 924. In their book, Rubin and Feeley insist that "the effect of federalism, to the extent that it is still operative, has not been to encourage experimental state programs or state-sponsored coordinating agencies, but simply to keep some truly innovate national efforts limited, tentative; and vaguely apologetic." (Judicial Policy Making, p. 187) However, this statement reflect an animus against federalism rather than analysis. For a more careful analytic approach, see Susan Rose Ackerman, "Risk Taking and Reelection: Does Federalism Promote Innovation? Journal of Legal Studies 9 (June 1980): 593.
34. Rubin and Feeley. "Federalism," 924. In their book, Rubin and Feeley insist that "the effect of federalism, to the extent that it is still operative, has not been to encourage experimental state programs or state-sponsored coordinating agencies, but simply to keep some truly innovate national efforts limited, tentative; and vaguely apologetic." (Judicial Policy Making, p. 187) However, this statement reflect an animus against federalism rather than analysis. For a more careful analytic approach, see Susan Rose Ackerman, "Risk Taking and Reelection: Does Federalism Promote Innovation? Journal of Legal Studies 9 (June 1980): 593.
35. See, for example, William R. Lowry, The Dimensions of Federalism (Durham, NC: Duke University Press, 1992); Robert Eyestone, "Confusion, Diffusion, and Innovation," American Political Science Review 71 (June 1977): 441.
36. See, for example, William R. Lowry, The Dimensions of Federalism (Durham, NC: Duke University Press, 1992); Robert Eyestone, "Confusion, Diffusion, and Innovation," American Political Science Review 71 (June 1977): 441.
37. Gardner, "'States-as-Laboratories'," 479.
38. Taylor comprehensively elaborates his system in Frederick W. Taylor, Scientific Management (New York: Harper, 1947). The best study of Scientific Management and its impact is Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890-1920 (Chicago: University of Chicago Press, 1964). Most of the background of my account relies on Haber's volume.
39. Taylor comprehensively elaborates his system in Frederick W. Taylor, Scientific Management (New York: Harper, 1947). The best study of Scientific Management and its impact is Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890-1920 (Chicago: University of Chicago Press, 1964). Most of the background of my account relies on Haber's volume.
40. th ed. (Fort Worth, TX: Harcourt Brace 1997). p. 30.
41. th ed. (Fort Worth, TX: Harcourt Brace 1997). p. 30.
42. Haber, Efficiency and Uplift, p. x.
43. Organized labor, however, remained skeptical of Scientific Management. See Paul D. Carrington, Stewards of Democracy; Law as a Public Profession (Boulder, CO: Westview Press, 1999), p. 125.
44. The legal brief submitted by Brandeis in this case waxes eloquent on the promise of Scientific Management. "Under scientific management nothing is left to chance. All is carefully prepared in advance. Every operation is to be performed according to a predetermined schedule under definite instructions, and the execution under this plan is inspected and supervised at every point. Errors are prevented instead of being corrected. The terrible waste of delays and accidents is avoided. Calculation is substituted for guess; demonstration for opinion." Quoted in McGraw, Prophets of Regulation, pp. 92-93.
45. Muller v. Oregon, 208 U.S. 412 (1980). Philippa Strum attributes Brandeis's enthusiasm for Scientific Management (wrongly, I believe) to an atypical love of theory in contradiction of facts. See Strum, Brandeis: Beyond Progressivism, pp. 43-45.
46. Quoted in Phillippa Strum, Louis D. Brandeis Justice for the People (Cambridge: Harvard University Press, 1984), p. 310. Brandeis's anti-foundationalism may explain why John Dewey praised Brandeis, noting his "strict adherence to this policy of reference to factual context." Quoted in Strum, Brandeis: Beyond Progressivism, p. 6.
47. Quoted in Phillippa Strum, Louis D. Brandeis Justice for the People (Cambridge: Harvard University Press, 1984), p. 310. Brandeis's anti-foundationalism may explain why John Dewey praised Brandeis, noting his "strict adherence to this policy of reference to factual context." Quoted in Strum, Brandeis: Beyond Progressivism, p. 6.