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Ernst Freund, Felix Frankfurter, and the American Rechtsstaat: A Transatlantic Shipwreck, 1894–1932

  • Daniel R. Ernst (a1)
Abstract

From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.

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1. Congressional Record, 110th Congress, 2d Sess., 2008, H10364, H10779.

2. Levy, Robert A., “Is the Bailout Constitutional?Legal Times, October 20, 2008; Schwartz, John, “Some Ask If Bailout Is Unconstitutional,New York Times, January 15, 2009; see also Will, George F., “Bailing Out of the Constitution,Washington Post, March 29, 2009.

3. Davis, Kenneth Culp, Administrative Law (St. Paul, MN: West Publishing Co., 1951), 45.

4. Jaffe, Louis L., “The Illusion of the Ideal Administration,Harvard Law Review 86 (1973): 1186, 1185.

5. Hayek, Friedrich A., The Road to Serfdom (Chicago, IL: University of Chicago Press, 1944), 80; Rosenof, Theodore, “Freedom, Planning, and Totalitarianism: The Reception of F. A. Hayek's Road to Serfdom,Canadian Review of American Studies 5 (1974): 149–65.

6. Freund, Ernst, The Police Power: Public Policy and Constitutional Rights (Chicago, IL: Callahan, 1904); see Rodgers, Daniel T., Contested Truths: Keywords in American Politics since Independence (New York: Basic Books, 1987), 151.

7. Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Belknap Press, 1998), 2.

8. Stahl, Friedrich Julius, Die Philosophie des Rechts, 3d ed. (1856), 2:88.

9. Carrington, Paul D., “Ernst Freund,American National Biography 8 (1999): 470–72. Freund received his J.U.D. degree from the University of Heidelberg in 1884. Later that year he enrolled as a nongraduate in the Columbia Law School, according to records in the Office of the Registrar at Columbia University. Jillian Cuellar to Daniel R. Ernst, October 30, 2008; Columbia University Alumni Register, 1754–1931 (New York: Columbia University Press, 1932), 297, 1092.

10. Jane Addams, “The Friend and Guide of Social Workers,” in University of Chicago, A Vesper Service Devoted to the Memory of Ernst Freund, 1864–1932 (n.p., n.d.), 44, box 58, John Henry Wigmore Papers, Northwestern University Library, Evanston, IL; Parrish, Michael E., Felix Frankfurter and His Times: The Reform Years (New York: Free Press, 1982), 7275, 81–128; Wiecek, William M., “The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States,” Supreme Court Review (2001): 390–91.

11. Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution, 8th ed. (1885; London: Macmillan, 1902), 182–83.

12. Frankfurter, Felix and Davison, J. Forrester, Cases and Other Materials on Administrative Law (Chicago, IL: Commerce Clearing House, 1932), v; Freund, Ernst, review of Frankfurter and Davison, Cases and Other Materials on Administrative Law, Harvard Law Review 46 (1932): 167–68.

13. Sharfman, I[saiah] L[eo], The Interstate Commerce Commission: A Study in Administrative Law and Procedure (New York: Commonwealth Fund, 1931–37); Henderson, Gerard C., The Federal Trade Commission: A Study in Administrative Law and Procedure (New Haven, CT: Yale University Press, 1924); Hart, Henry M. and Sacks, Albert M., The Legal Process: Basic Problems in the Making and Application of Law, ed. Eskridge, William N. Jr., and Frickey, Philip P. (Westbury, NY: Foundation Press, 1994), 10981106.

14. [Edwin Brown Firmage,] “Ernst Freund—Pioneer of Administrative Law,” University of Chicago Law Review 29 (1962): 763–69; Chase, William C., The American Law School and the Rise of Administrative Government (Madison: University of Wisconsin Press, 1982), 4659, 71–75, 94–97.

15. Parrish, Felix Frankfurter and His Times, 27–61; Felix Frankfurter to Morris L. Cohen, May 17, 1914, reel 27, Felix Frankfurter Papers, Manuscripts Division, Library of Congress (FF Papers).

16. “Commonwealth Fund,” New York Times, July 17, 1921, 72; Commonwealth Fund, Second Annual Report of the General Director for the Year 1919–20; “Samuel Herbert Fisher,” in Sherrill, Charles Hitchcock, comp., Yale College Class of ’89 Quindecennial (New York, 1904), 90; “Lion Award Made to George Murray,” New York Times, December 5, 1937, 61; Klein, Henry H., Dynastic America and Those Who Own It (New York, 1921), 6263, 139.

17. Samuel H. Fisher to Max Farrand, September 2, 1919, box 9, Max Farrand Papers, Huntington Library, San Marino, CA; Barry G. Smith to Farrand, April 6, 1925, box 3, ibid.

18. Cushman, Robert E., The Independent Regulatory Commissions (New York: Oxford University Press, 1941), 105–15, 177–213, 228–40; Keller, Morton, Regulating a New Economy: Public Policy and Economic Change, 1900–1933 (Cambridge, MA: Harvard University Press, 1990), 5051, 55–65; Keller, Morton, Regulating a New Society: Public Policy and Social Change, 1900–1933 (Cambridge, MA: Harvard University Press, 1994), 200202; Ajay K. Mehrotra, “Lawyers, Guns, and Public Monies: The U.S. Treasury, World War One, and the Administration of the Fiscal State,” Law and History Review (forthcoming).

19. “Hughes Sees Need for New Freedom,” New York Times, June 22, 1920, 11.

20. Parrish, Michael E., Anxious Decades: America in Prosperity and Depression, 1920–1941 (New York: W. W. Norton, 1992), 7; Samuel Herbert Fisher to Farrand, January 22, 1919, box 5, Farrand Papers.

21. Stone later spoke to Farrand of “his original proposition” and “our main purpose” in creating the administrative law project. “Administrative Practices: Conferences with Dean Stone,” December 7, 1921, box 2, series 23, Commonwealth Fund Papers, Rockefeller Archives Center, Sleepy Hollow, NY (hereafter CF Papers; all boxes in series 23); Harlan Fiske Stone to Farrand, February 5, 1925, box 6, ibid. On Stone's faculty, see Goebel, Julius Jr., A History of the School of Law, Columbia University (New York: Columbia University Press, 1955), 241–42, 255–58.

22. On Pound's views of administrative law in this period, see Willrich, Michael, City of Courts: Socializing Justice in Progressive Era Chicago (New York: Cambridge University Press, 2003), 111–12; and Witt, John Fabian, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge, MA: Harvard University Press, 2007), 226–28.

23. Farrand omitted Stone's warning that if reform was not the result of “scientific scholarship,” it would be the product of “the politician and the agitator.” Columbia University, Annual Reports of the President and Treasurer to the Trustees with Accompanying Documents for the Year Ending June 30, 1916 (New York, 1916), 5960; “Legal Research: Presented to the Directors at a Meeting on 6-26-20,” box 3, CF Papers.

24. Pound, Roscoe, “The Pioneers and the Common Law,West Virginia Law Quarterly 27 (1920): 119 (address delivered July 1920). Pound's most fulsome paean to antebellum jurists was The Formative Era of American Law (Boston, MA: Little, Brown, 1938).

25. “Legal Research,” CF Papers.

26. Root, Elihu, “Public Service by the Bar,” in Addresses on Citizenship and Government (Cambridge, MA: Harvard University Press, 1916), 535; Hull, N. E. H., “Restatement and Reform: A New Perspective on the Origins of the American Law Institute,Law and History Review 8 (1990): 75; White, G. Edward, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000), 167–97.

27. Horwitz, Morton J., The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 225–28.

28. “Legal Research,” CF Papers.

29. Freund to Frank J. Goodnow, November 11, 1903, box 6, Frank Johnson Goodnow Papers, Special Collections, Milton S. Eisenhower Library, Johns Hopkins University, Baltimore, MD; Freund, Ernst, Cases on Administrative Law (St. Paul, MN: West Publishing Co., 1911). See Chase, American Law School and the Rise of Administrative Government, 72–73.

30. “Preliminary Memorandum Concerting the Plan for an Inquiry into Administrative Practices Affecting Private Rights,” box 2, CF Papers; “Meeting of the Legal Research Committee at the Bar Association, Monday, July 11, 1921, at 10 o'clock,” box 3, ibid.

31. Evidently Pound served with misgivings. “I don't like this business—but don't dare get out of it,” he explained to Felix Frankfurter. “God knows what they'll do if some of us don't keep in.” Handwritten note on Farrand to Frankfurter, August 31, 1921, reel 81, FF Papers.

32. Benjamin Cardozo in Handbook of the American Association of Law Schools and Proceedings of the Nineteenth Annual Meeting, Held at Chicago, Illinois, December 29–31, 1921, 119, quoted in Hull, “Restatement and Reform,” 73. Fisher was also a former U.S. Secretary of the Interior and a partner in a major Chicago law firm. “Meeting of the Legal Research Committee,” CF Papers; LaForte, Robert S., “Walter Lowrie Fisher,” American National Biography, vol. 8 (New York: Oxford University Press, 1999), 2123; Flanagan, Maureen A., Charter Reform in Chicago (Carbondale: Southern Illinois University Press, 1987), 45; Kraines, Oscar, The World and Ideas of Ernst Freund: The Search for General Principles of Legislation and Administrative Law (University: University of Alabama Press, 1964), 4, 130–32.

33. George Welwood Murray to Farrand, August 26, 1921, box 1, CF Papers; Farrand to Murray, August 23, 1921, ibid. Murray considered intervening when Sharfman criticized a railroad reorganization in which he had a part, but Learned Hand, appointed to the Legal Research Committee in 1930, talked him out of it. Murray to Hand, February 14, 1935, box 125; Hand to Murray, February 18, 1935, box 58, Learned Hand Papers, Harvard Law School Library, Cambridge, MA.

34. Powell, Thomas Reed, “Administrative Exercise of the Police Power,Harvard Law Review 24 (1911): 268–89, 333–46, 441–59; Powell to Freund, n.d., box 2, Ernst Freund Papers, Special Collections Research Center, University of Chicago Library, Chicago, IL (EF Papers); Powell to Frankfurter, March 20, 1922, reel 81, FF Papers.

35. Felix Frankfurter, “Memo of Conference at Chicago, Dec. 31, 1921 and January 1, 1922,” n.d., reel 81, FF Papers; Frankfurter to Farrand, January 4, 1922, box 2, CF Papers.

36. Pound to Freund, October 21, 1913, reel 6, Roscoe Pound Papers, Harvard Law School Library, Cambridge, MA; Freund, Cases on Administrative Law, 1.

37. Mashaw, Jerry L., “Recovering American Administrative Law: Federalist Foundations, 1787–1801,Yale Law Journal 115 (2006): 12562006; Mashaw, Jerry L., “Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1829,Yale Law Journal, 116 (2007): 100205; Mashaw, Jerry L., “Administration and ‘The Democracy’: Administrative Law from Jackson to Lincoln, 1829–1861,Yale Law Journal 117 (2008): 15681693.

38. Rodgers, Daniel T., “In Search of Progressivism,Reviews in American History 10 (1982): 124–25.

39. On Pound and “socialized” courts, see Willrich, City of Courts. For Hohfeld and the reconceptualization of classical legal thought, see Horwitz, Transformation of American Law, 1870–1960, 9–31, 151–56; Mensch, Elizabeth, “The History of Mainstream Legal Thought,” in The Politics of Law: A Progressive Critique, 3d ed. (New York: Pantheon, 1998), 2353; Singer, Joseph William, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,Wisconsin Law Review 1982: 9751059.

40. Freund, Ernst, Administrative Powers over Persons and Property: A Comparative Survey (Chicago, IL: University of Chicago Press, 1928), 27, 28; see also Freund, Police Power, 6.

41. Freund, Cases on Administrative Law, 1.

42. Ledford, Kenneth F., From General Estate to Special Interest: German Lawyers 1878–1933 (New York: Cambridge University Press, 1996), 78. I am indebted to Professor Ledford for his scholarship and advice on the Rechtsstaat in Germany.

43. Hahn, Eric, “Rudolf Gneist and the Prussian Rechtsstaat, 1862–78,Journal of Modern History 49 (1977): D1363–64, D1366.

44. Ledford, Kenneth F., “Formalizing the Rule of Law in Prussia: The Supreme Administrative Law Court, 1876–1914,Central European History 37 (2004): 203–24. See also Künnecke, Martina, Tradition and Change in Administrative Law: An Anglo-American Comparison (Berlin: Springer, 2007), 2425.

45. I found little on Freund's legal education in his papers at the University of Chicago. Published accounts have him studying law at the University of Berlin and Heidelberg University. Association of American Law School, Handbook and Proceedings of the Thirty-First Annual Meeting, 1931: 163. He once explained that by moving from one university to another German law students could “study Roman law with Jhering, Constitutional law with Gneist, and the History of the American Constitution with Von Holst,” but he did not say that he had studied with any of them. Freund, Ernst, “The Study of Law in Germany,The Counsellor 1 (1891): 133–34. Freund's other early articles took up Norman influence on English law, the Roman law of contract, the German Civil Code, New York's recording act, historical jurisprudence, and a leading English case on the law of conspiracy: “The Effect of the Norman Conquest on English Law,” Columbia Law Times 1 (1888): 232–62; “Contract and Consideration in Roman Law,” Columbia Law Times 2 (1889): 167–78; “The Proposed German Civil Code,” American Law Review 24 (1890): 237–54; “Record and Notice under the Revised Statutes,” Columbia Law Times 3 (1890): 223–30; “Historical Jurisprudence in Germany,” Political Science Quarterly 5 (1890): 468–86; “A Recent Case on the Law of Conspiracy,” The Counsellor 1 (1891): 220–29. Only after lecturing on Administrative Law and Municipal Corporations at Columbia in 1892–93 did he publish his first article on administrative law, “Private Claims against the State,” Political Science Quarterly 8 (1893): 625–52. See Merriam, Charles E., “Ernst Freund,” Dictionary of American Biography, supp. 1–2 (New York: Charles Scribner's Sons, 1958), 323; Freund, Ernst, Jurisprudence and Legislation (St. Louis, MO:, 1904), 1.

Freund repeatedly credited Goodnow as the source of his ideas about administrative law. Kraines, World and Ideas of Ernst Freund, 4; Reminiscences of Joseph Warren Madden (1957), 40, Oral History Research Office, Columbia University Library, New York, NY. Goodnow thanked “Doctor Ernst Freund of the New York Bar” for his comments on the manuscript of Comparative Administrative Law: An Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany (New York: G. P. Putnam's Sons, 1893), vi.

46. Macmahon, Arthur W., “Frank J. Goodnow,” Dictionary of American Biography, supp. 1–2 (New York: Charles Scribner's Sons, 1958), 250; Goodnow, Comparative Administrative Law, vi; Freund, Ernst, “The Law of the Administration in America,Political Science Quarterly 9 (1894): 405; see also Freund, Ernst, “Historical Survey,” in The Growth of American Administrative Law (St. Louis, MO: Thomas Law Book Co., 1923), 40.

47. de Tocqueville, Alexis, Democracy in America, ed. Mayer, J. P. (New York: Anchor Books, 1969), 262–63; Bryce, James, The American Commonwealth (1889; New York: Macmillan, 1891), 1:15.

48. Freund, “Law of Administration in America,” 406–9.

49. Ibid., 421.

50. Hahn, “Gneist and the Prussian Rechtsstaat,” D1366; Freund, “Historical Survey,” 9–10; Freund, Ernst, “The Substitution of Rule for Discretion in Public Law,American Political Science Review 9 (1915): 670.

51. Freund, Ernst, “Discussion,Proceedings of the American Political Science Association 6 (1909): 60. At the same meeting Goodnow voiced his exasperation with Dicey's American disciples on this score. “We can do no better than endeavor to beat it into the heads of the legal profession that notwithstanding our boasted protection of private rights in this country, those rights are as a matter of fact much less protected against administrative action than they are under the system of administrative courts in vogue upon the continent of Europe.” Ibid., 64.

52. Freund, “Law of Administration in America,” 419, 425.

53. Act of April 30, 1892, 1892 N.Y. Laws, ch. 401, §18; People v. Grant, 126 N.Y. 473, 27 N.E. 964 (1891); Act of March 23, 1896, 1896 N.Y. Laws, ch. 112, §§17, 23, 24; see Freund, Administrative Powers 492–93, 502.

54. Freund, “Historical Survey,” 23; see also Freund, Police Power, 196, 677; Freund, Cases on Administrative Law, 70; Freund, “Substitution of Rule for Discretion,” 670; Ernst Freund, “An Inquiry into Administrative Law and Practice: Memorandum Preliminary to a Survey of Statutory Administrative Powers to Determine Private Rights” (confidential proof, [1923]), 55; Freund, Ernst, “Licensing,” Encyclopedia of the Social Sciences (New York: Macmillan, 1933): 9: 447.

55. Freund, “Substitution of Rule for Discretion,” 666; Freund, Ernst, “The Substitution of Rule for Discretion in Public Law,International Journal of Ethics 25 (1914): 100101.

56. Freund, “Historical Survey,” 23.

57. Freund, Ernst, “The Problem of Intelligent Legislation,Proceedings of the American Political Science Association 4 (1907): 7071, 79; see Van Hecke, Maurice T., “Ernst Freund as a Teacher of Legislation,University of Chicago Law Review 1 (1933): 9294; Kent, Arthur H., “The Work of Ernst Freund in the Field of Legislation,University of Chicago Law Review 1 (1933): 9496.

58. Freund, Ernst, “The Correlation of Work for Higher Degrees in Graduate Schools and Law Schools,Illinois Law Review 11 (1916): 307; Freund, Ernst, Standards of American Legislation (Chicago, IL: University of Chicago Press, 1917). If Freund reflected on the irony that the prize's namesake had helped quash his plans for a German-style curriculum at the University of Chicago Law School, he gave no indication in his letter of acceptance. Freund to Pound, December 21, 1918, reel 6, Pound Papers; see Ellsworth, Frank L., Law on the Midway: The Founding of the University of Chicago Law School (Chicago, IL: University of Chicago Law School, 1977), 5473.

59. Freund, “Substitution of Rule for Discretion” (1914), 100; Freund, “Substitution of Rule for Discretion” (1915), 666–67, 669, 671, 675. Freund delivered the lecture on April 11, 1914, at the City Club of Chicago as part of a conference on legal and social philosophy.

60. Freund, “Substitution of Rule for Discretion” (1915), 669, 670, 675–76.

61. Freund, “Historical Survey,” 22–23; Freund, “Substitution of Rule for Discretion” (1914), 102.

62. Freund to Farrand, November 1, 1921, box 2, CF Papers.

63. [Ernst Freund,] “Suggestions of a Working Plan for the Proposed Inquiry into Administrative Law and Practice under the Auspices of the Commonwealth Fund,” 5–6, n.d., box 2, CF Papers.

64. Freund to Farrand, December 5, 1921, box 2, CF Papers.

65. Freund, Jurisprudence and Legislation, 1, 2.

66. Cohen, Morris R., “A Critical Sketch of Legal Philosophy in America,” in Law: A Century of Progress, 1835–1935, vol. 2 (New York: New York University Press, 1937), 316–17; Freund, “Suggestions of a Working Plan,” 13.

67. Frankfurter to Freund, December 10, 1921, reel 82, FF Papers.

68. Farrand to Frankfurter, December 14, 22, 1921, reel 81, FF Papers; Farrand to Freund, December 7, 1921, box 2, CF Papers.

69. “Administrative Practices: On Friday, December 30, 1921,” n.d., box 2, CF Papers; Freund to James Parker Hall, January 4, 1922, ibid.; “The Three Days Conference Developed the Following,” n.d., box 5, EF Papers.

70. Felix Frankfurter, “Memo of Conference at Chicago, Dec. 31, 1921 and January 1st, 1922,” n.d., reel 81, FF Papers; Freund to Farrand and Frankfurter, n.d., ibid. (“Memorandum regarding meeting at New Haven, May 11/22, and conferences in Baltimore and Washington May 13, 15 and 16”).

71. Frankfurter to Farrand, January 4, 1922, box 2, CF Papers; Frankfurter to Farrand, February 14, 1924, reel 82, FF Papers.

72. Freund, “Comment on Frankfurter's Letter of Jan. 4,” n.d., box 5, EF Papers.

73. Freund to Frankfurter, May 19, July 5, 1922, reel 81, FF Papers; Pound to Farrand, December 27, 1922, box 3, CF Papers.

74. Patterson, Edwin Wilhite, The Insurance Commissioner in the United States: A Study in Administrative Law and Practice (Cambridge, MA: Harvard University Press, 1927); Van Vleck, William C., The Administrative Control of Aliens: A Study in Administrative Law and Procedure (New York: Commonwealth Fund, 1927). Bontecou's failure to complete her study after the Commonwealth Fund invested over $16,000 in it apparently poisoned the Fund's relations with Frankfurter after 1930. Barry C. Smith, “Report to the Legal Research Committee,” May 2, 1931, Smith to Hand, May 20, 1932, box 125, Hand Papers.

75. I. L. Sharfman to Frankfurter, April 8, 1930, reel 82, FF Papers; Max Lowenthal to Frankfurter, April 13, 1930, box 6, CF Papers; Barry C. Smith, “Interview with Mr. I. L. Sharfman,” April 24, 1930, ibid.

76. “Gerard C. Henderson, Lawyer, Dies at 36,” New York Times, September 1, 1927, 23; Henderson, Gerard Carl, The Position of Foreign Corporations in American Constitutional Law: A Contribution to the History and Theory of Juristic Persons in Anglo-American Law (Cambridge, MA: Harvard University Press, 1918); Federal Trade Commission, Minutes, January 6, 1917, online at http://www.ftc.gov/os/minutes/jan-mar1917.pdf, visited November 1, 2008; Gerard C. Henderson to Frankfurter, n.d., reel 40, FF Papers; Parrish, Frankfurter, 108, 120; Pusey, Merlo, Eugene Meyer (New York: Knopf, 1974), 142, 178.

77. Henderson to Frankfurter, September 15, 1923, reel 40, FF Papers; Frankfurter to Farrand, October 4, 1923, box 6, CF Papers.

78. Davis, G. Cullom, “The Transformation of the Federal Trade Commission, 1914–1929,Mississippi Valley Historical Review 49 (1962): 437–55; Herring, Pendleton, Public Administration and the Public Interest (New York: Russell & Russell, 1936), 108–38.

79. Henderson to Frankfurter, September 7, 1922, reel 40, FF Papers; Henderson to Farrand, February 27, 1924, box 6, CF Papers.

80. Walter L. Fisher to Ernst Freund, March 13, 1924, Helen M. Deane to Farrand, November 11, 1925, Frankfurter to Farrand, April 29, 1924, Farrand to Deane, March 12, 1925, Freund to Farrand, October 27, 1924, box 6, CF Papers.

81. Henderson to Farrand, March 6, 1924, May 12, 1925, Pound to Farrand, March 13, 1924, Frankfurter to Farrand, April 19, 1923, box 6, CF Papers; Rublee, George, review of Henderson, The Federal Trade Commission, Harvard Law Review 38 (1924): 269.

82. Frankfurter to Farrand, January 25, 1924, box 6, CF Papers. Frankfurter would similarly aggrandize on behalf of the “physiological study of administrative law in action,” even as he bowed to “the pioneer scholarship of Frank J. Goodnow and Ernst Freund,” in his introduction to Patterson's Insurance Commissioner in the United States, xiii, xvii, and “The Task of Administrative Justice,” University of Pennsylvania Law Review 75 (1927): 614–21.

83. Freund, “Administrative Law and Practice Report for 1924–25,” reel 81, FF Papers; Freund to Frankfurter, March 12, 1923, box 5, EF Papers.

84. Freund to Frankfurter, March 7, 1927, box 7, CF Papers; Freund to Farrand, May 1, 1925, box 2, CF Papers.

85. William A. Robson, Law Quarterly Review 49 (1933): 177.

86. Farrand, “Outline of Points to Take Up with Regard to Freund's Statutory Survey,” n.d., box 7, CF Papers.

87. Pound to Farrand, November 24, 1926, box 3, CF Papers.

88. Farrand to Frankfurter, February 24, 1927, Pound to Farrand, March 1, 24, 1927, box 7, CF Papers.

89. Frankfurter to Freund, March 9, 1927, box 7, CF Papers; Farrand to Samuel H. Fisher, April 1927, box 1, CF Papers.

90. Freund, Administrative Powers, 59–60, 580–82.

91. Ibid., 98–99, 101, 29.

92. Keller, Regulating a New Economy, 62–65; Frankfurter, Felix, The Public and Its Government (New Haven, CT: Yale University Press, 1930), 81122.

93. Freund, Administrative Powers, 102, 582–83.

94. Such was the case, Freund had argued, with rate setting by the ICC since 1910. Freund, “Historical Survey,” 37, reprinted, in relevant part, as Freund, Ernst, “Commission Powers and Public Utilities,American Bar Association Journal 9 (1923): 288; see also Freund to Robert S. Lovett, n.d., box 2, EF Papers; Lovett, Robert S., The Railroad Problem: Comments on Certain Methods Suggested for Solving It (New York, 1919), 29. More generally, Freund warned that discretion tempted “the consumer, the passenger, the shipper, the wage earner, the ‘small man’ in general” to use regulation as “a weapon to gain economic advantage.” Freund, “Historical Survey,” 31; Freund, “Commission Powers and Public Utilities,” 286.

95. Freund, Administrative Powers, 59, 581.

96. Farrand, “Outline of Points.”

97. Wigmore, John H., “The Dangers of Administrative Discretion,Illinois Law Review 19 (1925): 441.

98. Patterson, Edwin W., review of Freund, Administrative Powers over Persons and Property, Columbia Law Review 29 (1929): 104, 105, quoting Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting).

99. Dickinson, John, review of Freund, Administrative Powers over Persons and Property, American Political Science Review 22 (1928): 985.

100. Farrand to Pound, March 26, 1927, box 3, CF Papers.

101. Frankfurter, Public and Its Government, 151, 158, 159; Frankfurter and Davison, Administrative Law, vii-viii.

102. Freund, review of Frankfurter and Davison, 170; “Prof. E. Freund, U. of C. Authority on Law, Is Dead: Stricken by Heart Attack while Asleep,” Chicago Daily Tribune, October 21, 1932, 9.

103. Felix Frankfurter, “Some Observations on Supreme Court Litigation and Legal Education,” University of Chicago Law School, February 11, 1953, reel 134, FF Papers.

104. Frankfurter and Davison, Administrative Law, 869–73, reprinting Freund, Administrative Powers, 555–60. In his administrative law seminar in 1925, Frankfurter had emphasized the emergence of an administrative court in Freund's discussion of customs in “Historical Survey.” “Administrative Law Notes (Landis, 1925),” 300, box 153, Thomas G. Corcoran Papers, Manuscripts Division, Library of Congress.

105. Hyneman, Charles S., “Administrative Adjudication: An Analysis II,Political Science Quarterly 51 (1936): 519; Fuchs, Ralph F., “Concepts and Policies in Anglo-American Administrative Law Theory,Yale Law Journal 47 (1938): 546–47, n. 32.

106. See Shepherd, George B., “Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,Northwestern University Law Review 90 (1996): 1590–93.

107. Landis, James M., The Administrative Process (New Haven, CT: Yale University Press, 1938); Gellhorn, Walter, Federal Administrative Proceedings (Baltimore, MD: Johns Hopkins Press, 1941); Frank, Jerome, If Men Were Angels: Some Aspects of Government in a Democracy (New York: Harper & Bros., 1942); Gellhorn, Walter, Administrative Law: Cases and Comments (Chicago, IL: Foundation Press, 1940), 133, 808 n.*. Neither E. Bythe Stason, who sympathized with Freund's “conservatism,” nor Frankfurter's protégé Milton Katz, who presumably did not, referred to Freund in their casebooks. Stason, E. Blythe, The Law of Administrative Tribunals (Chicago, IL: Callahan, 1937); Katz, Milton, Cases and Materials on Administrative Law (St. Paul, MN: West Publishing Co., 1947); see Stason, E. Blythe, review of Freund, Administrative Powers, Michigan Law Review 27 (1929): 845–46.

108. Davis, Administrative Law, 38.

109. Stewart, Richard B., “The Reformation of American Administrative Law,Harvard Law Review 88 (1975): 1694 n. 118. See Schiller, Reuel E., “Rulemaking's Promise: Administrative Law and Legal Culture in the 1960s and 1970s,Administrative Law Review 53 (2001): 1139–88.

110. Lowi, Theodore J., The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (New York: W.W. Norton, 1969), 298 n. 7.

111. Diner, Steven J., A City and Its Universities: Public Policy in Chicago, 1892–1919 (Chapel Hill: University of North Carolina Press, 1980), 191–94.

112. Diner, City and Its Universities, 43–44; Pegram, Thomas R., Partisans and Progressives: Private Interest and Public Policy in Illinois, 1870–1922 (Urbana: University of Illinois Press, 1992), 20.

113. Diner, City and Its Universities, 130–31, 138–39, 142, 147, 156, 158, 165; Pegram, Partisans and Progressives, 75, 82, 97, 117; Kent, “Work of Ernst Freund,” 95–96.

114. Addams, “Friend and Guide of Social Workers,” 43; Freund to Grace Abbott, May 22, 1917, Abbott to Freund, May 26, 1917, box 1, EF Papers.

115. Van Hecke, “Teacher of Legislation,” 92.

116. Haber, Samuel, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890–1920 (Chicago, IL: University of Chicago Press, 1964), 101–3; Pegram, Partisans and Progressives, 13–14.

117. Freund, “Substitution of Rule for Discretion” (1915), 671; Freund, Administrative Powers, 584.

118. Wilson, Woodrow, “Law or Personal Power,” The Public Papers of Woodrow Wilson, vol. 2, ed. Baker, Ray Stannard and Dodd, William E. (New York: Harper Bros., 1925–27), 25, 28, quoted in Benedict, Michael Les, “Law and Regulation in the Gilded Age and Progressive Era,” in Law as Culture and Culture as Law: Essays in Honor of John Phillip Reid, ed. Hartog, Hendrik and Nelson, William E. (Madison, WI: Madison House, 2000), 258–59, 260.

119. Haber, Efficiency and Uplift, 104; Pegram, Partisans and Progressives, 181, 186.

120. Revised Record of the Constitutional Convention of the State of New York, April Sixth to September Tenth, 1915 (Albany, NY, 1916), 3: 3101–2; “Find Service Boards Haven't Easy Tasks,” New York Times, December 17, 1911, 14; see Wesser, Robert F., Charles Evans Hughes: Politics and Reform in New York, 1905–1910 (Ithaca, NY: Cornell University Press, 1967), 159; Dearstyne, Bruce W., “Regulation in the Progressive Era: The New York Public Service Commission,New York History 58 (1977): 331–47.

121. Schiesl, Martin J., The Politics of Efficiency: Municipal Administration and Reform in America, 1800–1920 (Berkeley: University of California Press, 1977), 190–91. On the federal bureaucracy, see Carpenter, Daniel P., The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, NJ: Princeton University Press, 2001).

122. Harold Laski to Oliver Wendell Holmes, Jr., September 5, 1917, quoted in Parrish, Frankfurter and His Times, 82.

123. Frankfurter, Felix, review of The Growth of American Administrative Law, Harvard Law Review 37 (1924): 640–41; Frankfurter, “Gentlemen, we shall consider in this course,” September 28, 1914, 4, part 3, reel 21, Felix Frankfurter Papers, Harvard Law School Library, Cambridge, MA; Student notes of Frankfurter's seminar on administrative law, 49, box 153, Corcoran Papers.

124. Frankfurter, Public and Its Government, 49, 153; Report of President's Committee on Civil Service Improvement (Washington, DC: Government Printing Office, 1941), 31. For Frankfurter's authorship of this portion of the PCCSI's report, see Frankfurter to Frank Murphy, December 10, 1940, part 3, reel 2, FF Papers, HLS. As Scott James pointed out to me, Freund's view embodied elements of Richard Stewart's “transmission belt” model of administrative law, and Frankfurter's even more closely resembled the “expertise” model that Stewart saw as the dominant approach during the New Deal. Stewart, “Reformation,” 1675–78.

125. Jaffe, Louis L., Judicial Control of Administrative Action (Boston, MA: Little, Brown, 1965), 3340; Hurst, James Willard, The Growth of American Law: The Law Makers (Boston, MA: Little, Brown, 1950), 399400; Balogh, Brian, “Reorganizing the Organizational Synthesis: Federal-Professional Relations in Modern America,Studies in American Political Development 5 (1991): 147–70.

126. Edmund Burke, “Letter to the Sheriffs of Bristol,” in Freund, Standards, iii; see ibid., 312; Van Hecke, “Teacher of Legislation,” 93. On American lawyers’ hostility to statutes, see Benedict, “Law and Regulation,” 246–49.

127. Report of the PCCSI, 31; Frankfurter, “The Law and the Law Schools,” American Bar Association Journal 1 (1915): 540.

128. Landis, Administrative Process, 33. For Landis's quarrel with Goodnow's intellectual heirs, see Brand, Donald R., “The President as Chief Administrator: James Landis and the Brownlow Report,Political Science Quarterly 123 (2008): 6993.

129. Hurst, Willard, “Legal History: A Research Program,Wisconsin Law Review 1942: 323; Hurst, Growth of American Law, 249–375; see Ernst, Daniel R., “The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare,” in Total War and the Law: The American Home Front in World War II, ed. Ernst, Daniel R. and Jew, Victor (Westport, CT: Praeger, 2002), 149–83.

130. Horsky, Charles A., The Washington Lawyer (Boston, MA: Little, Brown, 1952).

131. Lazarus, Richard J., The Making of Environmental Law (Chicago, IL: University of Chicago Press, 2004), 6973; Stewart, “Reformation,” 1711–60.

132. Hurst, Growth of American Law, 411.

I wish to thank Jillian Cueller, Kathleen Feeney, Erwin Levold, and David Warrington for assistance with documents in their collections; Carolyn Garner-Reagan, Mischere Kawas, Alexis K. Paddock, and Owen A. McGillivray for their research assistance; and Michael Ermarth, Kenneth Ledford, William Novak, and two anonymous reviewers for Studies in American Political Development for their comments on drafts or other advice. The Georgetown University Law Center supported this article with a Reynolds Family Research Grant and a Summer Writers Grant.

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Studies in American Political Development
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