Joseph E. Davies: The Wisconsin Idea and the Origins of the Federal Trade Commission

Journal of the Gilded Age and Progressive Era

Volumn 6, Issue 3, 2007, Pages 249-284

  Maclean, Elizabeth Kimball ^a  

^a OTTERBEIN UNIVERSITY   (United States)

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EID: 85017202058     PISSN: 15377814     EISSN: 19433557     Source Type: Journal    
DOI: 10.1017/S1537781400002097     Document Type: Article

References (308)

1. See, for example, Gabriel Kolko, Triumph of Conservatism: A Reinterpretation of American History, 1900–1916 (New York, 1963)
2. and Martin Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916 (New York, 1988).
3. Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago, 1999)
4. Scott C. James, Presidents, Parties, and the State: A Party System Perspective on Democratic Regulatory Choice, 1884–1936 (New York, 2000).
5. Robert H. Wiebe, The Search for Order: 1877–1920 (New York, 1967)
6. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York, 1982).
7. Strategically positioned” quoted in Sanders, Roots of Reform, 296. Sanders' study did not focus on those policy analysts or include Davies among them.
8. On the international framework within which the Wisconsin Idea arose, see Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA, 1998).
9. “Fanaticism” quoted in Herbert F. Margulies, The Decline of the Progressive Movement in Wisconsin, 1890–1920 (Madison, WI, 1968), 19–20.
10. See also Robert M. La Follette, Autobiography: A Personal Narrative of Political Experiences (Madison, WI, 1913), 207–08.
11. Joseph E. Davies, Biographical Notes, 67, Joseph E. Davies Papers, Manuscript Division, Library of Congress
12. Merle Curti and Vernon Carstensen, The University of Wisconsin: A. History, 1848–1925, 2 vols. (Madison, WI, 1949), 1:682.
13. Davies' Madison law partner, Michael Olbrich, was a La Follette progressive. His other partner, John Aylward, was “an idol” of Wisconsin Democrats and admired by La Follette. See Watertown (Wis.) Public Library, Newsclippings, Joseph E. Davies Collection, Oct. 7, 1935. Aylward would later claim that he and Davies built the progressive organization in Wisconsin's Democratic party.
14. See John Aylward to Joseph Tumulty, Feb. 5, 1916, case file 132G, series 4, Woodrow Wilson Papers, Manuscript Division, Library of Congress.
15. Borrowing La Follette's tactics, in the Wisconsin primary Wilson Republican Clubs had been organized in each county and a La Follette man made head of each club. See David P. Thelen, Robert M. La Follette and the Insurgent Spirit (Madison, WI, 1976), 76
16. and Davies to Paul S. Reinsch, Sept. 15, 1920, Paul S. Reinsch Papers, Wisconsin Historical Society, Madison, WI.
17. “Clean progressive score” quoted in Robert M. La Follette to Davies, June 24, 1912, La Follette Family Papers, Part I
18. Robert M. La Follette, Sr. Papers, Manuscript Division, Library of Congress.
19. Arthur S. Link, Woodrow Wilson: The Road to the White House (Princeton, 1947), 481–82.
20. “White Haired” quoted in Watertown Library Newsclippings, Sept. 24, 1935.
21. See also Watertown Library Newsclippings, June 24, 1941.
22. For Wilson's decision on the Davies' appointment, see Diary of Edward M. House, Jan. 8, 1913, Woodrow Wilson to Davies, Apr. 22, 1913, in Arthur S. Link et al, eds., The Papers of Woodrow Wilson, 69 vols. (Princeton, 1966–1994), 27: 21, 345.
23. La Follette's comments quoted in Robert M. La Follette to Woodrow Wilson, Jan. 17, 1913, series 2, Wilson Papers. Colonel House later remarked that through Davies he had access to “the most intimate view that [he could] get of the inside situation.”
24. See House to Davies, Feb. 27, 1915, Edward M. House Papers, Manuscripts and Archives, Yale University Library, New Haven, CT.
25. James, Party System Perspective, 124, 130.
26. Wilson to A. Mitchell Palmer, Mar. 28, 1913, case file 3E, series 4, Wilson Papers
27. Davies to House, undated, House Papers.
28. Robert M. Crunden, Ministers of Reform: The Progressives' Achievement in American Civilisation, 1889–1920 (New York, 1982), 4.
29. See also Ronald Steel, Walter Lippmann and the American Century (Boston, 1980), 4–6, 63–65.
30. “General attitude,” quoted in John D. Buenker, The History of Wisconsin, Vol. 4: The Progressive Era, 1893–1914 (Madison, WI, 1998), 569.
31. See also Charles McCarthy, The Wisconsin Idea (New York, 1912), 1–87.
32. On the debate over the sources and origins of the Wisconsin Idea in relation to Wisconsin progressivism, see Buenker, Progressive Era, 569–600.
33. On the role of the university's presidents and faculty in the origins of the Wisconsin Idea, see David J. Hoeveler, “The University and the Social Gospel: The Intellectual Origins of the ‘Wisconsin Idea’,” Wisconsin Magazine of History 59 (Summer 1976): 282–98.
34. For Ely's comments, see Richard T. Ely, Ground Under Our Feet An Autobiography (New York, 1938), 136.
35. See also Ground Under Our Feet An Autobiography, 72–79, 87–91, 132–35, 154–55, 213–16.
36. For “architects,” see Crunden, Ministers of Reform, 12–14.
37. Nancy C. Unger, Fighting Bob La Follette: The Righteous Reformer (Chapel Hill, 2000), 121–22, 137–38
38. Edward N. Doan, The La Follettes and the Wisconsin Idea (New York, 1947), 14–15.
39. On La Follette's view of the importance of the university, see La Follette, Autobiography, 26–33.
40. Davies, Biographical Notes, 102.
41. When Davies was being considered for a cabinet post, several of the “architects” of the Wisconsin Idea, including Ely, Van Hise, McCarthy, and Ross, wrote Wilson urging that he appoint Davies to the cabinet. Republican Progressive Nils P. Haugen of the State Tax Commission also wrote in support. See “Correspondence Regarding Mr. Joseph E. Davies,” April, 1913, Series 4:3E, Wilson Papers.
42. “Political and economic values” quoted in John M. Jordan, Machine-Age Ideology: Social Engineering & American Liberalism, 1911–1939 (Chapel Hill, 1994), 82.
43. See also Margulies, Decline of the Progressive Movement, 19–20.
44. Quotes from Jordan, Machine-Age Ideology, 39, 65, 82.
45. See also Robert M. Crunden, “Essay” in John D. Buenker, John C. Burnham, and Robert M. Crunden, Progressivism (Rochester, VT, 1986), 75–76.
46. On the role of Davies' mother, see Keith Eagles, Ambassador Joseph E. Davies and American-Soviet Relations, 1937–1941 (New York, 1985), 3.
47. On the evangelical roots of the Wisconsin Idea, see Hoeveler, “University and Social Gospel,” 282–98.
48. “Fundamental” and “moral regeneration” quoted in Crunden, “Essay,” 72.
49. Davies to House, June 6, 1916, House Papers.
50. On the enthusiasm for scientific management and efficiency, see Jordan, Machine Age Ideology, ch. 2
51. and Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890–1920 (Chicago, 1964), chs. 5–6.
52. “Facts” quoted in Haber, Efficiency and Uplift, 79. “Non-politics
53. quoted in Jordan, Machine Age Ideology, 66.
54. The fascination with efficiency permeated the culture at all levels. It was Wilson's adviser, Louis Brandeis, who created the term “scientific management,” and it was he “who catapulted efficiency into the public imagination.” See Jordan, Machine Age Ideology, 42–43.
55. Jordan, Machine-Age Ideology, 43–44, 51, 67, 73, 85.
56. See also David J. Rothman, “The State as Parent” in Willard Gaylin, Ira Glasser, Steven Marcus, and David J. Rothman, Doing Good: The limits of benevolence (New York, 1978), 92–93.
57. Frederick Jackson Turner, “Pioneer Ideals and the State University,” Commencement Address delivered at Indiana University, 1910, ch. 10 in The Frontier in American History (New York, 1920), 285.
58. Baccalaureate Address delivered by Davies at the University of Louisiana, June 1, 1914, Charles R. Van Hise Papers, The University of Wisconsin Archives, Memorial Library, Madison, WI.
59. Alvin Toffler, The Third Wave (New York, 1991).
60. Sanders, Roots of Reform, 22, 207, 279–82, 389–91.
61. Davies, “Memoranda Re Past Work, Present Status, and Future Plan of Work of the Bureau of Corporations,” William C. Redfield to Wilson, July 31, 1913, Wilson to Redfield, Aug. 4, 1913, case file 3E, series 4, Wilson Papers.
62. Gerald Leinwald, “A History of the United States Federal Bureau of Corporations, 1903–1914” (PhD diss., New York University, 1962), 318–22.
63. Joseph E. Davies, Trust Laws and Unfair Competition (Washington, 1916), 9–11, 18–22, 24.
64. For differing perspectives on the role of the courts and the common law in containing or promoting monopoly, see Charles W. McCurdy, “American Law and the Marketing Structure of the Large Corporation, 1875–1890,” The Journal of Economic History 38 (Sept. 1978): 631–49
65. and “The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869–1903,” Business History Review 53 (Autumn 1979): 304–42
66. and Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore, 1955), 50–53.
67. Davies, Trust Laws, 11–12, 16–21, 85–86.
68. On the question of the degree to which the rule of reason restored or brought something new to common law principles, see Herbert Hovenkamp, Enterprise and American Law, 1836–37 (Cambridge, MA, 1991), part 6, ch. 21
69. and Scott C. James, “Prelude to Progressivism: Party Decay, Populism, and the Doctrine of Free and Unrestricted Competition in American Antitrust Policy, 1890–97,” Studies in American Political Development 13 (Fall 1999): 288–336.
70. Davies, Trust Laws, 87–89.
71. See also Linda Przybyszewski, The Republic According to John Marshall Harlan (Chapel Hill, 1999), 78, 151–52, 175–84.
72. Davies, Trust Laws, 16, 18–21
73. and “The Federal Trade Commission” in Proceedings of the Eighteenth Annual Session of the Florida State Bar Association (Jacksonville, FL, 1925), 97–98.
74. On the “periphery,” see Sanders, Roots of Reform, 277–79, 282.
75. James, Party System Perspective, 124, 147–55, 160, 163–64, 170–71, 181, 188
76. Sanders, Roots of Reform, 282, 284–285.
77. Sanders argued that periphery agrarians were not anti-statist,per se; they wanted the “statutory state” to expand. What they opposed was the “discretionary administrative state.” They did not trust “bureaucratic power” or the policy intellectuals and experts, who staffed those bureaucracies. See Sanders, 387–89.
78. James, Party System Perspective, 12–13, 29, 160–64
79. Sanders, Roots of Reform, 281, 284
80. John Milton Cooper, Jr., The Warrior and the Priest (Cambridge, MA, 1983), 146, 148, 209, 212, 215.
81. For “statist and technocratic,” see James, Party System Perspective, 162.
82. “Dangerous” quoted in James, Party System Perspective, 155.
83. Wilson's comments in John Wells Davidson, ed., A Crossroads of Freedom: The 1912 Campaign Speeches of Woodrow Wilson (New Haven, 1956), 83.
84. In a September 17, 1912, campaign speech in Sioux City, Iowa, Wilson told his listeners that he didn't “want a smug lot of experts to sit down behind closed doors in Washington and play providence to” him. See Link, Wilson Papers, 25: 154.
85. James, Party System Perspective, 158–60.
86. On the backgrounds and social-class distinctions between insurgent progressives in Congress and TR progressives, see James Holt, Congressional Insurgents and the Party System: 1909–1916 (Cambridge, MA, 1967), 2–3, 5, 64.
87. On La Follette and Brandeis and the origins of the 1911 bill, see Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, MA, 1984), 139–40, 145–47, 153–57.
88. Brandeis's career before being appointed to the Supreme Court in 1916 has been the subject of a voluminous literature. See, for instance, Alpheus Thomas Mason, Brandeis: A Free Man's Life (New York, 1956), Parts I-IV
89. Allon Gal, Brandeis of Boston, (Cambridge, MA, 1980)
90. and Melvin I. Urofsky, Louis D. Brandeis and the Progressive Tradition (Boston, 1981), chs. 1–4.
91. James, Party System Perspective, 157, 159–60, note 77.
92. On the issue of ‘reasonable” size, see Thomas Lane Moore, “The Establishment of a ‘New Freedom’ Policy: The Federal Trade Commission, 1912–1918” (PhD diss., University of Alabama, 1980), 19–20.
93. For La Follette's response to the court's decision, see Thelen, Insurgent Spirit, 86.
94. La Follette quoted in Belle C. and Fola La Follette, Robert M. La Follette, 2 vols. (New York, 1953), 1: 487–88.
95. See also James, Party System Perspective, 160, note 77.
96. Significantly, one of the contributors to the 1911 bill, Wisconsin University professor John R. Commons, was a commission supporter and longtime friend of La Follette. See Thelen, Insurgent Spirit, 86, 100
97. and Buenker, Wisconsin: Progressive Era, 582–83.
98. The essentials of the 1911 bill were outlined in Brandeis's “Suggestions for Letter of Governor Wilson on Trusts,” enclosed in Brandeis to Wilson, Sept. 30, 1912, in Melvin I. Urofsky and David W. Levy, eds., Letters of Louis D. Brandeis, vol. 2: 1907–1912, People's Attorney (Albany, 1972), 686–94.
99. See also Thelen, Insurgent Spirit, 68, 99, 114.
100. James, Party System Perspective, 154–60, 162
101. Cooper, Warrior and Priest, 174, 213–15.
102. In an 1887 article in Political Science Quarterly, Wilson had urged Americans not only to study, but to develop administrative institutions.
103. See Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2 (June 1887): 197–222.
104. On the significance of Brandeis's role, see James, Party System Perspective, 154–58
105. and Sanders, Roots of Reform, 284.
106. On the Brandeis-La Follette relationship, see Strum, Justice, 139–40, 145–46, 153–57.
107. “Cutting edge” quoted in Cooper, Warrior and Priest, 194.
108. Memorandum of Recommendations As to Trust Legislation, enclosed in Davies to Wilson, Dec. 27, 1913, in Link, Wilson Papers, 29: 78–85.
109. “Outline: General Review of the Trust Problem,” enclosed in Davies to Wilson, Dec. 9, 1913, series 2, Wilson Papers.
110. Davies to Wilson, Dec. 27, 1913, in Link, Wilson Papers, 29: 78–79
111. Kirk H. Porter and Donald Bruce Johnson, comps., National Party Platforms, 1840–1960 (Urbana, 1961), 169.
112. Davies, Trust Laws, 310.
113. Davies' 1913 Memorandum re Trust Legislation. See also James, Party System Perspective, 168.
114. Davies to Wilson, Dec. 27, 1913, in Link, Wilson Papers, 29: 78–79; Davies' 1913 Memorandum re Trust Legislation.
115. Davies' 1913 Memorandum re Trust Legislation. For an outline of the Progressive party bill, see James, Party System Perspective, 189–91.
116. Leinwald, “Bureau of Corporations,” 312–18
117. Sklar, Corporate Reconstruction, 184–203, 305.
118. Davies' 1913 Memorandum re Trust Legislation. On the frustrations of Wisconsin Idea proponents and progressives at large with the conservative biases and legalistic interpretations of the courts, see Buenker, Progressive Era, 601–02.
119. See also Sanders, Roots of Reform, 280, 282.
120. For Cummins' comment, see Congressional Record, 63rd Cong., 2nd sess., 1794
121. quoted in Sanders, Roots of Reform, 480–81, note 72.
122. Davies' 1913 Memorandum re. Trust Legislation. See also Leinwald, “Bureau of Corporations,” 319. Years after leaving the commission, Davies would continue to offer recommendations for ways to carry out that mission.
123. See Davies, “Federal Trade Commission” in Florida Bar Association, 110
124. and “The Federal Trade Commission” in Ernst Freund, Robert V. Fletcher, Joseph E. Davies et al., The Growth of American Administrative Law (St. Louis, 1923), 85–86.
125. Charles R. Van Hise, Concentration and Control (NewYork, 1912), 225–78.
126. On the need for administrative flexibility, see Michael Les Benedict, “Law and Regulation in the Gilded Age and Progressive Era,” 1998 SHGAPE Presidential Address, http://www.h-net.msu.edu/~shgape/resources.html.
127. For TR's comments, see Theodore Roosevelt, “The Taft-Wilson Trust Program,” The Outlook 102 (Sept. 21, 1912): 106–07
128. and “The Standard Oil Decision-and After,” The Outlook 98 (June 3, 1911): 240.
129. Wilson's lectures on administration at Hopkins were outlined in a series of three courses. See Link, Woodrow Wilson Papers, 7: 112–58, 381–436, 8: 81–116.
130. Woodrow Wilson Papers.
131. See also, McCarthy, Wisconsin Idea, 234.
132. For the Progressive party platform, see Porter and Johnson, National Party Platforms, 178.
133. For “police agency,” see Davies' 1914 Baccalaureate Address. For “voting for ‘Teddy,’” see “Informal Remarks,” Antitrust Law Symposium (Chicago, 1955), 104.
134. “Tentative By-Laws of the Common Counsel Club of America: Constitution and By-Laws,” enclosed in Davies to Roosevelt, Nov. 26, 1913, “Davies, Joseph E.” folder, FDR (Assistant Secretary of the Navy) Papers, Franklin D. Roosevelt Library, Hyde Park, NY
135. Frank Burt Freidel, Franklin D. Roosevelt: The Apprenticeship (Boston, 1952), 168–69.
136. House to Wilson, Dec. 31, 1913, series 2, Wilson Papers.
137. Wilson to House, Jan. 3, 1914, in Link, Wilson Papers, 29: 99
138. Wilson's “Special Message on Trusts and Monopolies,” Jan. 20, 1914, in The Messages and Papers of Woodrow Wilson, ed. Albert Shaw, 2 vols. (New York, 1924), 1: 47–55.
139. For “no ‘dangerous experiment,’” see Wilson to John Sharp Williams, Jan. 27, 1914, in Arthur S. Link, Wilson: The New Freedom (Princeton, 1956), 426.
140. “Paved the way” quoted in Brandeis to Alfred Brandeis, Jan. 23, 1914, in Melvin I. Urofsky and David W Levy, eds., Letters of Louis D. Brandeis, vol. 3: 1913–1915, Progressive and Zionist (Albany, 1973), 236–37.
141. Wilson's Jan. 1914 Message on Trusts and Monopolies; Davies to House, Feb. 7, 1914, House Papers.
142. Philippa Strum, Brandeis: Beyond Progressivism (Lawrence, KS, 1993), 98.
143. James, Party System Perspective, 171–72
144. Davies to House, Feb. 7, 1914, House Papers.
145. Brandeis's comments quoted in Philippa Strum, ed., Brandeis on Democracy (Lawrence, KS, 1995), 186.
146. See also Strum, Brandeis: Beyond Progressivism, 83–84, 97–99.
147. Brandeis's 1912 Suggestions on Trusts. See also Charles W. Elliot, Louis D. Brandeis, Moorfield Storey, Adolph J. Rodenbeck, and Roscoe Pound, Preliminary Report on Efficiency in the Administration of justice (Boston, 1914), 32
148. and Strum, Brandeis: Beyond Progressivism, 57–71.
149. Davies, Trust Laws, 19–21
150. Benedict, “Law and Regulation.”
151. James, Party System Perspective, 182–83
152. Brandeis's 1912 Suggestions on Trusts. For Davies' views on the Justice Department, see Arthur Walworth, Woodrow Wilson (New York, 1978), 1:331–32, note 14
153. and Davies, “Federal Trade Commission” in Florida Bar Association, 97.
154. Sanders, Roots of Reform, 282.
155. James, Party System Perspective, 175 (notes 110, 111), 188
156. Sklar, Corporate Reconstruction, 305–06, 315–22, though Sklar contends that Newlands changed his position by 1912.
157. Davies to Francis G. Newlands, May 25, 1914, Francis G. Newlands Papers, Sterling Library, Yale University, New Haven, CT.
158. Strum, Brandeis, Beyond Progressivism, 83
159. “whole purpose” quoted in Davies to James T. Gregory, Jan. 6, 1915, series 2, Wilson Papers.
160. For Brandeis's views on bigness, see Osmond K. Fraenkel, ed., The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis (New York, 1935)
161. and Louis D. Brandeis, Other People's Money and How the Bankers Use It, ed. Melvin I. Urofsky (1913; New York, 1995).
162. The question of efficiency in terms of size has been an important issue in the scholarly debate about Brandeis. See for example, Thomas K. McCraw, Prophets of Regulation (Cambridge, MA, 1984), 139–41
163. Strum, Brandeis: Beyond Progressivism, 73–82
164. and Gerald Berk, “Corporate Liberalism Reconsidered: A Review Essay,” journal of Policy History 3 (Winter 1991): 81.
165. “American boy” and “nostalgia” quoted in Urofsky's introduction to Brandeis, Other People's Money, 17.
166. See also Strum, Brandeis: Beyond Progressivism, 96.
167. “The European War and Industrial Democracy,” Address of Joseph E. Davies before the American Manufacturers' Export Association, Dec. 21, 1915, 105–06, Federal Trade Commission Press Notices, vol. 1, Serial No. 8890–2, Record Group 122, (hereafter cited as RG 122), National Archives, Washington, DC.
168. Kendrick A. Clements, The Presidency of Woodrow Wilson (Lawrence, KS, 1992), 42–43.
169. Davies to Newlands, Mar. 27, 1914, Newlands Papers.
170. See also Davies' Speech at Williams College, Dec. 17, 1914, Address of Davies before the U.S. Chamber of Commerce, Feb. 4, 1915
171. enclosed in Davies to Tumulty, Apr. 28, 1915, case file 1105B, series 4, Wilson Papers
172. and “Before the Federal Trade Commission: Conference with Samuel Untermyer, Esq.,” Jan. 22, 1918, 30, 32, file No. 40–1–1–13, General Records of the Docket Section (hereafter cited as GRDS), RG 122. Northeastern, industrial-state Republicans would be “bitterly disappointed” that their trade agreements would not be exempt from the Sherman Act. They had no desire to have a trade commission take over from the courts the responsibility for monitoring their practices.
173. See Sanders, Roots of Reform, 291.
174. McCraw, Prophets, 101–08, 138.
175. See also Brandeis to Franklin K. Lane, Dec. 12, 1913, in Urofsky and Levy, Letters of Brandeis, 3: 218–21.
176. 1918 FTC Conference with Untermyer, 30.
177. Brandeis to William H. Ingersoll, March 1, 1915, in Urofsky and Levy, Letters of Brandeis, 3:447.
178. In what ultimately was a thirty-year batde between retailers and department stores over the issue of price fixing, Brandeis became one of the leading proponents of “retail price maintenance,” which allowed manufacturers to determine the minimum price at which retailers could sell the manufacturer's goods. By eliminating competition among retailers, the policy prevented chain and department stores from underselling smaller competitors. Davies opposed retail price fixing because it suppressed competition that could benefit the consumer. See Brandeis to Rublee, Nov. 18, 1913, in Letters of Brandeis, 3: 216–17
179. and Moore, “Federal Trade Commission,” 68–70.
180. “Corporate capitalism” quoted in Clements, Presidency of Woodrow Wilson, 44.
181. See also Sklar, Corporate “Reconstruction, 422
182. and McCraw, Prophets, 141.
183. Davies, Trust Laws, 304, and Davies' 1913 Memorandum re Bureau of Corporations. The faith in the consumer was shared by other progressives as well. Walter Lippmann believed the “general will” was best represented by the consumer because of the consumer's potentially critical role in reconciling conflicts among classes.
184. See Walter Lippmann, Drift and Mastery: An Attempt to Diagnose the Current Unrest (1914; Madison, WI, 1985), 10–11, ch. 4.
185. Davies' position may have owed much to La Follette, who waged an insurgent campaign on behalf of the consumer. See Thelen, Insurgent Spirit, 56–57, 63, 72–73, 117.
186. McCraw, Prophets, 105–08
187. Strum, Justice for the People, 61, 69, 149, 152, 192–93
188. and Brandeis: Beyond Progressivism, 40–42.
189. Brandeis's comments quoted in Louis D. Brandeis, “Cutthroat Prices: The Competition that Kills,” Harper's Weekly, Nov. 15, 1913, 12. A decade later, Brandeis's attitude had not changed.
190. Writing to George Soule of the New Republic, he characterized the consumer as “servile, self-indulgent, indolent, [and] ignorant.” See Strum, justice for the People, 192–93.
191. For “machines” and “expert,” see Watertown (Wis.) Gazette, May 24, 1907.
192. For “procured,” see New York Times, May 13, 1958.
193. Urofsky, Brandeis and Progressive Tradition, 8.
194. “Engross[ing]” quoted in Mason, Free Man's Life, 433.
195. See also McCraw, Prophets, 106.
196. News clipping, Nov. 16, 1951, in Carl Bosech to William T. Evjue, n.d., “Joseph E. Davies” file, William T. Evjue Papers, Archives Division, Wisconsin Historical Society.
197. “Humor” and “frivolity” quoted in McCraw, Prophets, 84.
198. See also Urofsky, Brandeis and Progressive Tradition, 8
199. and Strum, Justice for the People, 46, 48–49.
200. James, Party System Perspective, 181, 186, 193
201. McCraw, Prophets, 120–21
202. Urofsky, Brandeis and Progressive Tradition, 84–85
203. George Rublee, “The Reminiscences of George Rublee” (transcripts of interviews conducted in 1950–51), New York Times microfiche publication of the Columbia University Oral History Project, 1972, 103.
204. Rublee, “Reminiscences,” 105–10.
205. Rublee was assisting Brandeis in his battle for retail price fixing. See Brandeis to Rublee, Nov. 18, Dec. 23, 1913
206. Brandeis to William Harrison Ingersoll, Dec. 1, 1913
207. in Urofsky and Levy, Letters of Brandeis, 3: 216–18, 226–27.
208. In Party System Perspective, 189–91, James demonstrated the similarity between the Progressive party and Stevens bills.
209. Rublee, “Reminiscences,” 110.
210. See also James, Party System Perspective, 185–86.
211. James, Party System Perspective, 130, 183–92
212. Rublee, “Reminiscences,” 110–15.
213. Only a few months before, Brandeis had stated his opposition to giving the trade commission such powers. See Testimony of Brandeis, Feb. 16, 1914, House Committee on the judiciary, 63rd Cong., 2nd Sess., Hearings on Trust Legislation (Washington, 1915), 1: 694–95. Yet Brandeis had not been comfortable with the Clayton bill, and he may have come to believe that it was impossible to define all unfair methods.
214. See Rublee, “Reminiscences,” 104
215. Urofsky, Brandeis and Progressive Tradition, 85–86
216. and Sanders, Roots of Reform, 284.
217. Davies to House, Aug. 27, 1914, House Papers.
218. For an assessment of the roles placed by Rublee, Davies, Cummins, and Newlands, among others, as the legislation moved through committees during the summer of 1914, see Marc Winerman, “The Origins of the FTC: Concentration, Cooperation, Control, and Competition,” Antitrust Law Journal 7 (Winter 2003): 67–92.
219. On Rublee's attitude toward broad review, see Rublee, “Reminiscences,” 107–08
220. and Link, New Freedom, 441.
221. In August, Davies and Rublee submitted opposing briefs on the question of court review. See U.S. Senate, 63rd Cong, 2nd sess., “Brief by the Bureau of Corporations Relative to Section 5 of the Bill (H.R. 15613) to Create a Federal Trade Commission” (August 20, 1914)
222. and “Brief by George Rublee Relative to the Court Review in the Bill [H.R. 15613] to Create a Federal Trade Commission” (August 25, 1914).
223. Link, New Freedom, 441
224. Sanders, Roots of Reform, 200–01, 292.
225. Davies to Wilson, Aug. 21, 1914, in Link, Wilson Papers, 30: 427–31.
226. Based on the assumption of broad business support for narrow review, Davies' enthusiasm for the concept led revisionist critics to charge later that he was motivated primarily by a desire to promote the interests of big business. See Kolko, Triumph, 266–67. His true intent, however, had more to do with his effort to institutionalize the principles of commission government. Davies favored narrow review because he hoped to enlarge the power and scope of the new administrative agency relative to the judiciary.
227. In Corporate Reconstruction, 422, Sklar argued that “by subjecting all [of the commission's] actions, orders, and procedures to judicial review, [the FTC Act] maintained judicial supremacy over executive administration, and with it the supremacy of society in its market relations over the state, in accord with time-honored liberal principles.”
228. On the negative consequences of broad review, see also Carl McFarland, Judicial Control of the Federal Trade Commission and the Interstate Commerce Commission: 1920–1930 (Cambridge, MA, 1933), ch. 3
229. and Thomas C. Blaisdell, Jr., The Federal Trade Commission: An Experiment in the Control of Business (New York, 1932), chs. 2, 3, 8.
230. Wilson's wife died on August 6, and Davies probably understood that the president would have only begun to resume an active correspondence. Nevertheless, only five days later, Wilson tried to convert Newlands to his position on judicial review. See Wilson to James Harry Covington, Aug. 27, 1914, in Link, Wilson Papers, 30: 454–55.
231. See also Link, New Freedom, 441, note 80.
232. Davies to Charles A. Culberson, Sept. 23, 1914, File No. 1737–1, General Records of the Bureau of Corporations, Federal Trade Commission Records, RG 122.
233. Referring to the phrase “to substantially lessen competition,” Blaisdell commented that the qualifying phrase threw “a burden of proof on the Commission to determine just how much the competition [had to] be lessened in order to be substantially lessened.” See Blaisdell, Federal Trade Commission, 44.
234. Davies to House, June 22, 1914, House Papers
235. Davies' 1915 Chamber of Commerce Speech
236. Wilson's Jan. 1914 Message on Trusts and Monopolies.
237. Moore, “Federal Trade Commission,” 59–60.
238. See also George Rublee, “The Original Plan and Early History of the Federal Trade Commission,” Proceedings of the Academy of Political Science 11 (1924–1926): 119
239. and “Statement of Mr. Arthur Eddy before the Federal Trade Commission,” May 4, 1915, File No. 40–2–25–1, GRDS, RG 122.
240. Statement of Louis Brandeis before the Federal Trade Commission, Apr. 30, 1915, 4, Document 163 of A Microfilm Edition of the Public Papers of Louis Dembitz Brandeis in the Jacob and Bertha Goldfarb Library of Brandeis University, Waltham, MA.
241. Kolko, Triumph, 262, 266, 271–72.
242. Davies to House, June 22, 1914, House Papers
243. Davies' 1914 Williams College Speech. For “cupidity,” see 1918 FTC Conference with Untermyer, 32.
244. For “contrary” and “no protection” see Eddy's 1915 Statement before Trade Commission, 26, 41.
245. I. L. Sharfman, The Interstate Commerce Commission: A Study in Administrative Imw and Procedure (New York, 1931), 2:357–85
246. McCraw, Prophets, 153, 159, 213–16.
247. See also James Landis, Administrative Process (New Haven, 1938).
248. McCraw, Prophets, 129.
249. Benedict, “Law and Regulation”; Wilson's Jan. 1914 Message on Trusts and Monopolies.
250. McCraw, Prophets, 129–30
251. Thomas K. McCraw, “The Pro gressive Legacy” in The Progressive Era, ed. Lewis Gould (New York, 1974), 189, 199.
252. For Davies' later career, see Elizabeth K. MacLean, Joseph E. Davies: Envoy to the Soviets (Westport, CT, 1992).
253. For “combat” and “kill,” see Urofsky, Brandeis and Progressive Tradition, 6, 12–13.
254. For “holy crusade” and a critique of Brandeis' approach, see McCraw, Prophets, 85–89, 94.
255. President Van Hise, for instance, supported advance advice and advised Davies on the subject. See Charles Van Hise to Davies, Aug. 23, 1915, File No. 8006–16, Federal Trade Commission Central Files, RG 122.
256. See also Van Hise, Concentration and Control.
257. Strum, Justice, 139–40, 145.
258. The different approaches to the Wisconsin Idea brought out its implicit central contradiction between democracy and centralized bureaucracies run by experts. See Buenker, History of Wisconsin, 4:603–05.
259. Brandeis to Norman Hapgood, Oct. 2, 1912, in Urofsky and Levy, Letters of Brandeis, 2: 694–96.
260. For “practically framed,” see Brandeis to Wilson, Sept. 30, 1912, in Letters of Brandeis, 686.
261. See also Brandeis's 1912 Suggestions on Trusts; and Margulies, Decline of Progressive Movement, 131–32.
262. Though critical of Van Hise's views, Brandeis also respected him and even had recommended him to Wilson in 1913 to serve as chief of Wilson's Industrial Commission. See Brandeis to Wilson, May 19, 1913, in Urofsky and Levy, Letters of Brandeis, 3: 87.
263. Margulies, Decline of Progressive Movement, 124–25, 135–37, 142–51.
264. “Complete repudiation” quoted in Thelen, Insurgent Spirit, 118.
265. Thelen, Insurgent Spirit, 102–04, 113–16. So disappointed was La Follette in ICC policies and Wilson's ICC appointments, moreover, that by late 1914 he was touting the benefits of government ownership of railroads in place of regulation.
266. Ray Stannard Baker, interview with Louis D. Brandeis, Mar. 23, 1929, Ray Stannard Baker Papers, Manuscript Division, Library of Congress.
267. For the texts of the Clayton and FTC Acts, see Earl W. Kintner, ed., The Legislative History of the Federal Antitrust Laws and Related Statutes, Part I: The Antitrust Laws (New York, 1982), 2:1061–1070, 5:3721–27.
268. For contemporary analyses of the new powers of the trade commission, see Allyn A. Young, “The Sherman Act and the New Antitrust Legislation II,” journal of Political Economy 23 (May 1915): 429–36
269. and E. Dana Durand, “The Trust Legislation of 1914,” Quarterly journal of Economics 29 (Nov. 1914): 90–97.
270. Brandeis to Rublee, Oct. 9, 1914, in Urofsky and Levy, Letters of Brandeis, 3:320.
271. On the hampering effects of the FTC legislation, the failure to resolve crucial issues, and the need for advance advice, see, for instance, Moore, “Federal Trade Commission,” 41, 47, 49–51
272. Gerald C. Henderson, The Federal Trade Commission: A Study in Administrative Law and Procedure (New Haven, 1924), 49–104, 327–42
273. McCraw, Prophets, 124–33
274. Alan Stone, Economic Regulation and the Public Interest: The Federal Trade Commission in Theory and Practice (Ithaca, NY, 1977), 59
275. and E. Pendleton Herring, “Politics, Personalities and the Federal Trade Commission,” American Political Science Review 28 (Dec. 1934): 1017–1018. Because the power to define unfair methods gave the commissioners the equally crucial power to select which cases were in “the interest of the public” and thus subject to cease and desist orders, some agreement on the definition of unfair practices was crucial to the successful functioning of the new agency.
276. According to the Federal Trade Commission Act, Wilson's original appointments would have staggered terms of three to seven years. All subsequent appointees would serve for seven years. The chairman would be chosen by the commissioners themselves. See Kintner, ed., legislative History, 5:3721.
277. Davies to Tumulty, Feb. 18, Wilson to Davies, Feb. 20, 1915, series 2, Wilson Papers.
278. The two Democrats were Edward N. Hurley, a businessman from Illinois, and William J. Harris, a politician from Georgia. The Western Progressive recommended by Davies was Will H. Parry, a Seattle businessman. See Davies to James T. Gregory, Jan. 6, Gregory to Davies, Jan. 12, Davies to Wilson, Jan. 13, 1915, series 2, Wilson Papers. Republicans, “angry that no regular Republican was named,” interpreted the Rublee and Parry nominations as an effort to gain support among Progressives for 1916. See New York Times, Feb. 23, 1915.
279. On the connection that Wilson saw between Rublee's confirmation and, in light of the 1916 election, the critical need to “gain the confidence of the independent voters,” see Wilson to Adee Pomerene, May 12, 1916, in Link, Wilson Papers, 37:25.
280. On the origins of Rublee's “religiously inspired interest in public service,” see Marc Eric McClure, Earnest Endeavors: The Life and Public Work of George Rublee (Westport, CT, 2003), 5,13, 15.
281. For quotations concerning Rublee's temperament, see George Cullom Davis, “The Federal Trade Commission: Promise and Practice in Regulating Business, 1900–1929” (Ph.D. diss., University of Illinois, 1969), 123.
282. For “teamwork,” see Davies to House, Mar. 23, 1915, House Papers.
283. For differing perspectives on the conflict between Davies and Rublee, see Moore, “Federal Trade Commission,” ch. 3
284. and McClure, Earnest Endeavors, 112–15, 126.
285. For an analysis of Davies' role on the FTC from 1915 to 1918 and the evolution of his approach to commission policy in the years following, see the author's forthcoming manuscript, “Joseph E. Davies: Wilson's White Haired Boy”
286. Moore, “Federal Trade Commission,” chs. 9–11. In September, 1917, Davies recommended that Victor Murdock, well-known progressive and newest member of the commission, take over supervision of the investigation as a means of dividing more equally the FTC work load. It is unclear if Davies had other, unstated motives for his proposal. Nevertheless, the commissioners ultimately agreed that Davies should continue supervising the investigation.
287. See Minutes of Meetings of the Federal Trade Commission, Sept. 26, 27, 28, 1917, FTC Minutes, The Early Years: Sept.-Oct. 1917, http://ftc.gov/os/minutes/sep-octl917.pdf.
288. Although the 1921 Packers and Stockyards Act provided “stricter government control over meatpackers,” it nevertheless “exempted the meatpackers from future FTC investigation or regulation.” See Davis, “The Federal Trade Commission,” 225.
289. For the Supreme Court decision, see F.T.C. v. Warren, Jones and Gratz 258 Fed. 314 (1919), 253 U.S. 421 (1920). Despite those setbacks, the FTC managed to continue an activist policy until the mid-twenties, when Republican appointees came to dominate the commission.
290. “Davies: Resignation as Federal Trade Commissioner-Addresses,” March 4, 1918, 4–5, File No. 40–2–28–1, GRDS, RG 122.
291. On the significance of the election and Davies' candidacy, see Breckinridge Long, Diary, March 13,1918, Breckinridge Long Papers, Manuscript Division, Library of Congress
292. and Wilson to Davies, March 18, 1918, in Link, Wilson Papers, 47: 52–53.
293. Seward W. Livermore, “The Sectional Issue in the 1918 Congressional Elections,” Mississippi Valley Historical Review 35 (June 1948): 29–32.
294. La Follette's old colleagues at the university cut him even more deeply as they severed their last ties in a devastating critique of his anti-war position. See Thelen, Insurgent Spirit, 144.
295. Combining political acumen with a new career in diplomacy, Davies would reestablish his position as a policy analyst for Franklin Roosevelt. As ambassador to the Soviet Union and unofficial liaison to Soviet officials, he would apply the principles of mediation, advocated years earlier by Wisconsin Idea enthusiasts, to promote Roosevelt's policy of cooperation with the Soviet Union. See MacLean, Envoy to the Soviets, chs. 1–9.
296. Baker, interview with Brandeis, March 23, 1929, Baker Papers.
297. Rublee, who played a critical role in Davies' demotion from the chairmanship in 1916, directed many of his complaints about Davies to Brandeis. See Rublee to Brandeis, Mar. 6, 22, Oct. 1, 1915, Louis D. Brandeis Papers, University of Louisville, Louisville, KY.
298. See also Rublee, “Reminiscences,” 124–26, 130, 132–33, 135–37, 144, 146–47.
299. For references to Brandeis' comments in his 1929 interview with Baker, see, for instance, Arthur S. Link, Woodrow Wilson and the Progressive Era: 1910–1917 (New York, 1954), 74
300. and McCraw, Prophets, 126.
301. Other historians blamed the ineffectiveness of the commission and its alleged pro-big-business bias on Davies. See, Kolko, Triumph, 257–78
302. and Melvin I. Urofsky, Big Steel and the Wilson Administration: A Study in Business-Government Relations (Columbus, OH, 1969), 60, 175.
303. Most scholars simply ignored Davies or relegated him to a few comments in the footnotes. See, for instance, McCraw, Prophets, 337, note 100
304. and Sklar, Corporate Reconstruction, 94, note 6.
305. For a different perspective on Davies' role on the FTC, see E. Pendleton Herring, “The Federal Trade Commissioners,” George Washington Law Review 8 (Jan.-Feb. 1940): 345
306. and Moore, “Federal Trade Commission.”
307. Davies, “The Federal Trade Commission” in Freund et al., Growth of Administrative Law, and “Federal Trade Commission” in Florida State Bar Association.
308. For an analysis of the evolution of the administrative-judicial relationship in the twentieth century, see Stephen G. Breyer and Richard B. Stewart, Administrative Law and Regulatory Policy: Problems, Text, and Cases, 2nd ed. (Boston, 1985).