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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), 72–75, 81–128Google Scholar; Wiecek, William M., “The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States,” Supreme Court Review (2001): 390–91Google Scholar.

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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), 21–23Google Scholar; Flanagan, Maureen A., Charter Reform in Chicago (Carbondale: Southern Illinois University Press, 1987), 45Google Scholar; 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, 130–32Google Scholar.

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

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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): 133–34Google Scholar. 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), 323Google Scholar; Freund, Ernst, Jurisprudence and Legislation (St. Louis, MO:, 1904), 1Google Scholar.

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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, viGoogle Scholar; Freund, Ernst, “The Law of the Administration in America,” Political Science Quarterly 9 (1894): 405CrossRefGoogle Scholar; see also Freund, Ernst, “Historical Survey,” in The Growth of American Administrative Law (St. Louis, MO: Thomas Law Book Co., 1923), 40Google Scholar.

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

49. Ibid., 421.

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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: 447Google Scholar.

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): 100–101Google Scholar.

56. Freund, “Historical Survey,” 23.

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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), 316–17Google Scholar; 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)Google Scholar; Van Vleck, William C., The Administrative Control of Aliens: A Study in Administrative Law and Procedure (New York: Commonwealth Fund, 1927)Google Scholar. 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)Google Scholar; 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, 178Google Scholar.

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): 437–55CrossRefGoogle Scholar; Herring, Pendleton, Public Administration and the Public Interest (New York: Russell & Russell, 1936), 108–38Google Scholar.

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): 269CrossRefGoogle Scholar.

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), 81–122Google Scholar.

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): 288Google Scholar; 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), 29Google Scholar. 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.”

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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.

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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.

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