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The Administrative State, Front and Center: Studying Law and Administration in Postwar America

  • Reuel E. Schiller

Extract

More than any other case from the postwar period, Brown v. Board of Education has captured the attention of historians and the public alike. The case itself, and the NAACP's campaign that led to it, have been the subject of books and articles beyond counting. In many history textbooks it is the only court case mentioned between the end of World War II and the early 1960s. It is one of a handful of cases that is recognized by the public at large and is surely the only Supreme Court case that has its own National Historic Site.

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1. A search of the system-wide catalog of the libraries of the University of California reveals eighty-one entries for books with “Brown v. Board of Education” in the title. Only eleven contain the words “Roe” and “Wade”; seven contain the words “Plessy” and “Ferguson”; and seven contain “Marbury” and “Madison.” Only the words “Dred Scott” come close to Brown, generating seventy-seven entries. The Library of Congress subject heading “Topeka (Kan) Board of Ed—Trials, Litigation, etc” has forty-three entries, including twelve under the subheading “juvenile literature.”

2. See Boorstin, Daniel J. and Kelley, Brooks Mather, A History of the United States (Needham, Mass.: Prentice Hall, 1996), 705–71(Brown is the only judicial decision mentioned in the section entitled “Postwar Problems, 1945–1960”);Boyer, Paul, Boyer'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);Cayton, Andrew, Perry, Elisabeth Israels, and Winkler, Allan M., America: Pathways to the Present (Needham, Mass.: Prentice Hall, 1995)(Brown is only Supreme Court decision from the 1950s that is mentioned);Nash, Gary, American Odyssey: The United States in the Twentieth Century (New York: Glencoe/McGraw-Hill, 1999)(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. SeeBrinkley, Alan, The Unfinished Nation: A Concise History of the United States, 3rd ed. (New York: McGraw-Hill, 2001), 844913.Another leading college text, America, Past and Present, mentions Yates v. United States, but otherwise focuses solely on Brown.Divine, Robert A., Breen, T. H., Fredrickson, George, Williams, R. Hal, America, Past and Present, 3rd ed. (New York: HarperCollins, 1991), 881.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.Dudziak, Mary L., “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.

3. 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.

4. Michael Klarman and Gerald Rosenberg are the two leading Brown skeptics. SeeRosenberg, Gerald, The Hollow Hope (Chicago: University of Chicago Press, 1991), 4271;Klarman, Michael, “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 80 (1994): 7;Klarman, Michael, “How Brown Changed Race Relations: The Backlash Thesis,” Journal of American History 81 (1994): 81;Klarman, Michael, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2005), 344442.For some impassioned defenses of Brown, seeGarrow, David J., “Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education,” Virginia Law Review 80 (1994): 151;Mark Tushnet, “The Significance of Brown v. Board of Education,” ibid., 173; andFinkelman, Paul, “Civil Rights in Historical Context: In Defense of Brown,” Harvard Law Review 118 (2005): 973.

5. The germinal works discussing the rise of structural reform litigation areChayes, Abram, “The Role of the Judge in Public Law Litigation,” Harvard Law Review 89 (1976): 1281 andFiss, Owen, The Civil Rights Injunction (Bloomington: Indiana University Press, 1978).A contemporary, less sanguine, view of structural reform litigation isSandler, Ross and Schoenbrod, David, Democracy by Decree: What Happens When Courts Run Government (New Haven: Yale University Press, 2003).

6. Two areas that have received scholarly attention are anticommunism and legal thought. On anticommunism seeBelknap, Michal R., Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (Westport, Conn.: Greenwood Press, 1977);Kutler, Stanley I., The American Inquisition: Justice and Injustice in the Cold War (New York: Hill and Wang, 1982); andSabin, Arthur J., In Calmer Times: The Supreme Court and Red Monday (Philadelphia: University of Pennsylvania Press, 1999).On postwar legal thought seeWhite, G. Edward, Patterns of American Legal Thought (Indianapolis: Bobbs-Merrill, 1978), 136–62;Kalman, Laura, Legal Realism at Yale, 1927–1960 (1986), 145231;Duxbury, Neil, Patterns of American Jurisprudence (Oxford: Oxford University Press, 1995), 206–99;Kalman, Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 2242; andEskridge, William N. Jr, and Frickey, Philip P., “The Making of Legal Process,” Harvard Law Review 107 (1994): 2031. Of course, more synthetic surveys of twentieth-century legal history have sections on postwar developments. SeeHorwitz, Morton, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992);Nelson, William E., The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980 (Chapel Hill: University of North Carolina Press, 2001); andFriedman, Lawrence M., American Law in the Twentieth Century (New Haven: Yale University Press, 2002).Friedman has a particularly useful bibliography.

7. On these subjects seeJackson, Kenneth T., The Crabgrass Frontier: The Suburbanization of the United States (New York: Oxford University Press, 1985);May, Elaine Tyler, Homeward Bound: American Families in the Cold War Era (New York: Basic Books, 1988);Cohen, Lizabeth, A Consumer's Republic: The Politics of Mass Consumption in Postwar America (New York: Knopf, 2003); andJacobs, Meg, Pocketbook Politics: Economic Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2004).

8. For the basic bibliographical references to the so-called “state-building” or “American Political Development” literature, seeSchiller, Reuel E., “Enlarging the Administrative Polity: Administration and the Changing Definition of Pluralism, 1945–1970,” Vanderbilt Law Review 53 (2000): 1389,1393–96. For monographs from this literature that focus on the postwar period in particular, seeBalogh, Brian, Chain Reaction: Expert Debate and Public Participation in American Commercial Nuclear Power, 1945–1975 (Cambridge: Cambridge University Press, 1991);Zelizer, Julian, Taxing America: Wilbur D. Mills, Congress, and the State, 1945–1975 (Cambridge: Cambridge University Press, 1998);Klein, Jennifer, For All These Rights: Business, Labor, and the Shaping of America's Public-Private Welfare State (Princeton: Princeton University Press, 2003);Reed, Merl E., Seedtime for the Modern Civil Rights Movement: The President's Committee on Fair Employment Practice, 1941–1946 (Baton Rouge: Louisiana State University Press, 1991);Jacobs, Meg “‘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; as well as several excellent essays in parts one and two ofThe Politics of Social Policy in the United States, ed. Weir, Margaret, Orloff, Ann Shola, and Skocpol, Theda (Princeton: Princeton University Press, 1988).

9. For three legal historians who have truly given the administrative state its due, seeSalyer, Lucy E., Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995);Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); andWelke, Barbara Young, 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.

10. Schiller, Reuel E., “‘Saint George and the Dragon’: Courts and the Administrative State in Twentieth-Century America,” Journal of Policy History 17 (2005): 110.

11. Sewell Manufacturing, 138 NLRB 66 (1962).

12. Tanner Motor Livery, 148 NLRB 1402 (1964).

13. See Schiller, Reuel E., “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.

14. Emporium Capwell, 192 NLRB 173 (1971),reversed and remanded sub nomWestern Addition Community Organization v. NLRB, 485 F.2d 917 (D.C.Cir. 1973).

15. United Packing House, Food, and Allied Workers v. NLRB, 416 F.2d 1126 (D.C. Cir. 1969).

16. Emporium Capwell v. Western Addition Community Organization, 415 U.S. 913 (1975);NLRB v. Tanner Motor Livery, 419 F.2d 216 (9th Cir. 1969).

17. Sewell is still good law. SeeKI (USA) Corp, 309 NLRB 1063 (1992);Zartic, Inc., 315 NLRB 495 (1994).United Packing House, on the other hand, has been narrowed by the Board.Jubilee Manufacturing, 202 NLRB 272 (1973).Consequently, racial discrimination rarely serves as the basis for a section 8(a)(3) claim.J. S. Alberici Construction Co., 231 NLRB 1030 (1977);Dispatch Printing Co., 306 NLRB 9 (1992).

18. A notable exception to this is Welke, Recasting American Liberty, particularly chap. 9.

19. This phrase was William Henry Hastie Jr.'s. SeeMcNeil, Genna Rae, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (Philadelphia: University of Pennsylvania Press, 1983), 211.

20. Lofgren, Charles A., The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), 142.

21. Welke, , Recasting American Liberty, 344–48;Lofgren, , Plessy Case, 142–44;Barnes, Catherine A., Journey from Jim Crow: The Desegregation of Southern Transit (New York: Columbia University Press, 1983), 67.

22. Note that this was all that Councill and the other early litigants were asking for.Lofgren, , Plessy Case, 142–43;Welke, , Recasting American Liberty, 344–45.

23. Henderson v. United States, 339 U.S. 816 (1950).Barnes, , Journey from Jim Crow, 7476.

24. Barnes, , Journey from Jim Crow, 168–75.

25. Ibid., 172;Fitzgerald v. Pan American World Airways, 132 F. Supp. 798 (S.D.N.Y. 1955).

26. For a tantalizing, but brief, description of these events seeWard, Brian, Radio and the Struggle for Civil Rights in the South (Gainsville: University Press of Florida, 2004), 274–77. Also seeMills, Kay, Changing Channels: The Case That Transformed Television (Jackson: University Press of Mississippi, 2004).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);Office of Communications of the United Church of Christ v. FCC, 425 F.2d 543 (D.C.Cir. 1969).

27. Ward, , Radio and the Struggle for Civil Rights, 277.

28. See note 6, above.Schrecker's, EllenMany are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998),the definitive narrative history of McCarthyism, discusses many legal issues.

29. In addition to Tani's piece in this Forum, seeKornbluh, Felicia, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007),particularly chap. 3, andDavis, Martha F., Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973 (New Haven: Yale University Press, 1993).

30. Schiller, Reuel E., “Rulemaking's Promise: Administrative Law and Legal Culture in the 1960s and 1970s,” Administrative Law Review 53 (2001): 1139, 1147–49.

31. Schiller, Reuel E., “Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment,” Virginia Law Review 86 (2000): 1, 21–51.

32. Millis, Harry A. and Brown, Emily Clark, From the Wagner Act to Taft-Hartley: A Study of National Labor Policy and Labor Relations (Chicago: University of Chicago Press, 1950), 174–78; Schiller, Reuel E., “The Era of Deference: Courts, Expertise and the Emergence of New Deal Administrative Law,” Michigan Law Review 106 (2007): 399, 436–38.

33. Schiller, , “Free Speech and Expertise,” 43–41, 96101.

34. Ibid., 45–46.

35. Ibid., 49.

36. Ibid., 50.

37. Ibid.

38. Ibid., 98.

39. Indeed, in the late 1960s, at the height of the Supreme Court's commitment to libertarian free speech, the Court reaffirmed the FCC's power to restrict and direct the expression of its licensees.Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969).For the FCC's abandonment of the fairness doctrine seeSyracuse Peace Council, 2 F.C.C.R. 5043 (1987).

40. Mashaw, Jerry L., Due Process in the Administrative State (New Haven: Yale University Press, 1985), 3334.

41. These examples stem from two Supreme Court casesHeckler v. Campbell, 461 U.S. 458 (1983) andDirector, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994).

42. 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. 2.41. These examples stem from two Supreme Court cases Heckler v. Campbell, 461 U.S. 458 (1983) and Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994).

43. Schiller, Reuel E., “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. Ernst, Daniel and Jew, Victor (Westport, Conn.: Praeger, 2002), 185206;Horwitz, , The Transformation of American Law, 213–46;Purcell, Edward, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973), 115–78.

44. 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? SeeHumes, Edward, Over Here: How the G.I. Bill Transformed the American Dream (Orlando: Harcourt, 2006), 154–86.Indeed, there is great potential in studying the legal facets of the connection between art and the administrative state. SeeBinkiewicz, Donna M., Federalizing the Muse: United States Arts Policy and the National Endowment for the Arts, 1965–1980 (Chapel Hill: University of North Carolina Press, 2006);McKinzie, Richard, The New Deal for Artists (Princeton: Princeton University Press, 1973); andPenkower, Monte, The Federal Writers' Project: A Study in Government Patronage of the Arts (Urbana: University of IIIinois Press, 1977).

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  • Reuel E. Schiller

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