The administrative state, front and center: Studying law and administration in postwar America

Law and History Review

Volumn 26, Issue 2, 2008, Pages 415-427

  Schiller, Reuel E ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 64949141085     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s073824800000136x     Document Type: Review

References (91)

1. See Daniel J. Boorstin and Brooks Mather Kelley, A History of the United States (Needham, Mass.: Prentice Hall, 1996), 705-71
2. (Brown is the only judicial decision mentioned in the section entitled "Postwar Problems, 1945-1960")
3. Paul Boyer, Bayer's American Nation (Boston: Houghton Mifflin, 2001) (chaps, on the "Cold War" and on "Society after World War II" mention Brown and Sweat v. Painter, but no other cases)
4. Andrew Cayton, Elisabeth Israels Perry, and Allan M. Winkler, America: Pathways to the Present (Needham, Mass.: Prentice Hall, 1995)
5. Gary Nash, American Odyssey: The United States in the Twentieth Century (New York: Glencoe/McGraw-Hill, 1999)
6. (Brown is the only judicial decision from the 1950s that is mentioned, although the book does discuss the trial of the Hollywood Ten). These textbooks are four of the six most popular high school American history textbooks according to the American Textbook Council, www.historytextbooks.org/adoptions. htm. College textbooks are not appreciably better. Alan Brinkley's The Unfinished Nation mentions no cases other than Brown in its chapters on the postwar period. See Alan Brinkley, The Unfinished Nation: A Concise History of the United States, 3rd ed. (New York: McGraw-Hill, 2001), 844-913
7. Another leading college text, America, Past and Present, mentions Yates v. United States, but otherwise focuses solely on Brown. Robert A. Divine, T. H. Breen, George Fredrickson, R. Hal Williams, America, Past and Present, 3rd ed. (New York: HarperCollins, 1991), 881
8. As Mary Dudziak has noted, even legal history texts, which obviously discuss more than just Brown in their sections in the postwar period, have the unfortunate tendency to segregate the race cases and the anticommunism cases from one another. Mary L. Dudziak, "Brown as a Cold War Case," Journal of American History 91 (2004): 32. As both Lee and Tani's articles indicate, these cases need to be woven together as part of the narrative of postwar legal history
9. http://www.nps.gov/brvb/. The courthouse in Saint Louis where the trials in the Dred Scott case were held is also a National Historic Site. However, this site is not devoted exclusively to Dred Scott. It instead memorializes the many links that the courthouse has to slavery, including the slave auctions that occurred there and its relationship to the Underground Railroad. It also has exhibitions on Virginia Minor's 1870 challenge to women's disfranchisement, nineteenth-century law in general, and the architecture of historic courthouses. http://www .nps.gov/jeff/planyourvisit/och.htm
10. Michael Klarman and Gerald Rosenberg are the two leading Brown skeptics. See Gerald Rosenberg, The Hollow Hope (Chicago: University of Chicago Press, 1991), 42-71
11. Michael Klarman, "Brown, Racial Change, and the Civil Rights Movement," Virginia Law Review 80 (1994): 7
12. Michael Klarman, "How Brown Changed Race Relations: The Backlash Thesis," Journal of American History 81(1994): 81
13. Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2005), 344-442
14. Mark Tushnet, "The Significance of Brown v. Board of Education," ibid., 173
15. and Paul Finkelman, "Civil Rights in Historical Context: In Defense of Brown," Harvard Law Review 118 (2005): 973
16. The germinal works discussing the rise of structural reform litigation are Abram Chayes, "The Role of the Judge in Public Law Litigation," Harvard Law Review 89 (1976): 1281 and Owen Fiss, The Civil Rights Injunction (Bloomington: Indiana University Press, 1978)
17. A contemporary, less sanguine, view of structural reform litigation is Ross Sandler and David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (New Haven: Yale University Press, 2003 )
18. Two areas that have received scholarly attention are anticommunism and legal thought. On anticommunism see Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (Westport, Conn.: Greenwood Press, 1977)
19. Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War (New York: Hill and Wang, 1982)
20. and Arthur J. Sabin, In Calmer Times: The Supreme Court and Red Monday (Philadelphia: University of Pennsylvania Press, 1999)
21. On postwar legal thought see G. Edward White, Patterns of American Legal Thought (Indianapolis: Bobbs-Merrill, 1978), 136-62
22. Laura Kalman, Legal Realism at Yale, 1927-1960 (1986), 145-231
23. Neil Duxbury, Patterns of American Jurisprudence (Oxford: Oxford University Press, 1995), 206-99
24. Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 22-42
25. and William N. Eskridge, Jr. and Philip P. Frickey, "The Making of Legal Process," Harvard Law Review 107 (1994): 2031
26. Of course, more synthetic surveys of twentieth-century legal history have sections on postwar developments. See Morton Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992)
27. William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980 (Chapel Hill: University of North Carolina Press, 2001)
28. and Lawrence M. Friedman, American Law in the Twentieth Century (New Haven: Yale University Press, 2002). Friedman has a particularly useful bibliography
29. On these subjects see Kenneth T. Jackson, The Crabgrass Frontier: The Suburbanization of the United States (New York: Oxford University Press, 1985)
30. Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (New York: Basic Books, 1988)
31. Lizabeth Cohen, A Consumer's Republic: The Politics of Mass Consumption in Postwar America (New York: Knopf, 2003)
32. and Meg Jacobs, Pocketbook Politics: Economic Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2004)
33. For the basic bibliographical references to the so-called "state-building" or "American Political Development" literature, see Reuel E. Schiller, "Enlarging the Administrative Polity: Administration and the Changing Definition of Pluralism, 1945-1970," Vanderbilt Law Review 53 (2000): 1389, 1393-96
34. For monographs from this literature that focus on the postwar period in particular, see Brian Balogh, Chain Reaction: Expert Debate and Public Participation in American Commercial Nuclear Power, 1945-1975 (Cambridge: Cambridge University Press, 1991)
35. Julian Zelizer, Taxing America: Wilbur D. Mills, Congress, and the State, 1945-1975 (Cambridge: Cambridge University Press, 1998)
36. Jennifer Klein, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2003)
37. Merl E. Reed, Seedtime for the Modern Civil Rights Movement: The President's Committee on Fair Employment Practice, 1941-1946 (Baton Rouge: Louisiana State University Press, 1991)
38. Meg Jacobs "'How About Some Meat?': The Office of Price Administration, Consumption Politics, and State Building from the Bottom Up, 1941-1946" Journal of American History 84 (1997): 910-41
39. as well as several excellent essays in parts one and two of The Politics of Social Policy in the United States, ed. Margaret Weir, Ann Shola Orloff, and Theda Skocpol (Princeton: Princeton University Press, 1988)
40. For three legal historians who have truly given the administrative state its due, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995)
41. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)
42. and Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (Cambridge: Cambridge University Press, 2001). Of course, none of these books address the postwar period
43. Reuel E. Schiller, "'Saint George and the Dragon': Courts and the Administrative State in Twentieth-Century America," Journal of Policy History 17 (2005): 110
44. Sewell Manufacturing, 138 NLRB 66 (1962)
45. Tanner Motor Livery, 148 NLRB 1402 (1964)
46. See Reuel E. Schiller,"The Emporium Capwell Case: Race, Labor Law, and the Crisis of Postwar Liberalism," Berkeley Journal of Employment and Labor Law 25 (2004): 129, 145-49
47. Emporium Capwell, 192 NLRB 173 (1971), reversed and remanded sub nom Western Addition Community Organization v. NLRB, 485 F.2d 917 (D.C.Cir. 1973)
48. United Packing House, Food, and Allied Workers v. NLRB, 416 F.2d 1126 (D.C. Cir. 1969)
49. Emporium Capwell v. Western Addition Community Organization, 415 U.S. 913 (1975)
50. NLRB v. Tanner Motor Livery, 419 F.2d 216 (9th Cir. 1969)
51. Sewell is still good law. See KI (USA) Corp, 309 NLRB 1063 (1992)
52. Zartic, Inc., 315 NLRB 495 (1994). United Packing House, on the other hand, has been narrowed by the Board
53. Jubilee Manufacturing, 202 NLRB 272 (1973). Consequently, racial discrimination rarely serves as the basis for a section 8(a)(3) claim
54. J. S. Alberici Construction Co., 231 NLRB 1030 (1977)
55. Dispatch Printing Co., 306 NLRB 9 (1992)
56. A notable exception to this is Welke, Recasting American Liberty, particularly chap. 9
57. This phrase was William Henry Hastie Jr.'s. See Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (Philadelphia: University of Pennsylvania Press, 1983), 211
58. Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), 142
59. Welke, Recasting American Liberty, 344-48
60. Lofgren, Plessy Case, 142-44
61. Catherine A. Barnes, Journey from Jim Crow: The Desegregation of Southern Transit (New York: Columbia University Press, 1983), 6-7
62. Note that this was all that Councill and the other early litigants were asking for. Lofgren, Plessy Case, 142-43
63. Henderson v. United States, 339 U.S. 816 (1950)
64. Barnes, Journey from Jim Crow, 74-76
65. Fitzgerald v. Pan American World Airways, 132 F. Supp. 798 (S.D.N.Y. 1955)
66. For a tantalizing, but brief, description of these events see Brian Ward, Radio and the Struggle for Civil Rights in the South (Gainsville: University Press of Florida, 2004), 274-77
67. Also see Kay Mills, Changing Channels: The Case That Transformed Television (Jackson: University Press of Mississippi, 2004)
68. The FCC was exceptionally resistant to considering such petitions until it was twice rebuked by the D.C. Circuit for its intransigence. Office of Communications of the United Church of Christ v. FCC, 359 F.2d 994 (D.C.Cir. 1966)
69. Office of Communications of the United Church of Christ v. FCC, 425 F.2d 543 (D.C.Cir. 1969)
70. Ward, Radio and the Struggle for Civil Rights, 277
71. See note 6, above. Ellen Schrecker's Many are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998), the definitive narrative history of McCarthyism, discusses many legal issues
72. In addition to Tani's piece in this Forum, see Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007), particularly chap. 3
73. and Martha F. Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (New Haven: Yale University Press, 1993)
74. Reuel E. Schiller, "Rulemaking's Promise: Administrative Law and Legal Culture in the 1960s and 1970s," Administrative Law Review 53 (2001): 1139, 1147-49
75. Reuel E. Schiller, "Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment," Virginia Law Review 86 (2000): 1, 21-51
76. Harry A. Millis and Emily Clark Brown, From the Wagner Act to Taft-Hartley: A Study of National Labor Policy and Labor Relations (Chicago: University of Chicago Press, 1950), 174-78
77. Reuel E. Schiller, "The Era of Deference: Courts, Expertise and the Emergence of New Deal Administrative Law," Michigan Law Review 106 (2007): 399, 436-38
78. Schiller, "Free Speech and Expertise," 43-41, 96-101
79. Indeed, in the late 1960s, at the height of the Supreme Court's commitment to libertarian free speech, the Court reaffirmed the FCCs power to restrict and direct the expression of its licensees. Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969)
80. For the FCCs abandonment of the fairness doctrine see Syracuse Peace Council, 2 F.C.C.R. 5043 (1987)
81. Jerry L. Mashaw, Due Process in the Administrative State (New Haven: Yale University Press, 1985), 33-34
82. These examples stem from two Supreme Court cases Heckler v. Campbell, 461 U.S. 458 (1983)
83. and Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994)
84. In a single year the Social Security Administration hears more claims than the federal courts hear on all subjects within their jurisdiction. (In 2005, 652,011 cases were commenced before the Social Security Administration. That same year 253,273 civil cases and 92,226 criminal cases were filed in federal district court. Federal courts of appeals heard another 68,473 appeals. Social Security Administration, Annual Statistical Supplement, 2006, Table 2.F9; Administrative Office of the United States Courts, Judicial Business of the United States Courts, [2006], pp. 102, 165, 214.) In 2005, almost fifty million people received old age benefits and seven and a half million people received disability benefits from the Social Security Administration. The value of these benefits was over $520 billion. SSA, Annual Statistical Supplement, 2006, p. 2
85. Reuel E. Schiller, "Reining-in the Administrative State: World War II and the Decline of Expert Administration," in Total War and the Law: The American Home Front in World War II, ed. Daniel Ernst and Victor Jew (Westport, Conn.: Praeger, 2002), 185-206
86. Horwitz, The Transformation of American Law, 213-46
87. Edward Purcell, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973), 115-78
88. Don't believe me about Beat culture? That's just because nobody, to my knowledge, has examined how licensing regimes (which frequently included restrictions on speech and conduct) in places like San Francisco and New York allowed certain subcultures to flourish. Similarly, how many Beat-era writers benefited, like Norman Mailer and Lawrence Ferlinghetti, from the G.I. Bill? See Edward Humes, Over Here: How the G.I. Bill Transformed the American Dream (Orlando: Harcourt, 2006), 154-86
89. Indeed, there is great potential in studying the legal facets of the connection between art and the administrative state. See Donna M. Binkiewicz, Federalizing the Muse: United States Arts Policy and the National Endowment for the Arts, 1965-1980 (Chapel Hill: University of North Carolina Press, 2006)
90. Richard McKinzie, The New Deal for Artists (Princeton: Princeton University Press, 1973)
91. and Monte Penkower, The Federal Writers' Project: A Study in Government Patronage of the Arts (Urbana: University of Illinois Press, 1977)