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Joseph E. Davies: The Wisconsin Idea and the Origins of the Federal Trade Commission1

Published online by Cambridge University Press:  08 November 2010

Elizabeth Kimball MacLean
Otterbein College


In response to an enormous growth of trusts in the late nineteenth century, demands for reform among a wide spectrum of interest groups culminated in the Federal Trade Commission Act of 1915. Playing an influential, though little-recognized role in framing this legislation was Wisconsin progressive Democrat Joseph E. Davies. As Commissioner of Corporations, Davies served in a unique, dual capacity as both politician and regulator, giving him access to President Woodrow Wilson and influence on the antitrust legislation. Davies used his position to promote a vision of administrative regulation based on the nationally recognized “Wisconsin Idea.” In so doing, he intensified conflicts among Wilson's policy advisers that, in turn, had a critical impact on the antitrust legislation and on the potential effectiveness of the first commission. In the long run, however, Davies' approach to regulatory policy, based on the Wisconsin Idea, would become standard operating procedure for successful regulatory commissions of the twentieth century.

Copyright © Society for Historians of the Gilded Age and Progressive Era 2007

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2 See, for example, Kolko, Gabriel, Triumph of Conservatism: A Reinterpretation of American History, 1900-1916 (New York, 1963)Google Scholar; and Sldar, Martin, The Corporate Reconstruction of American Capitalism, 1890-1916 (New York, 1988)Google Scholar.

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5 “Strategically positioned” quoted in Sanders, Roots of Reform, 296. Sanders' study did not focus on those policy analysts or include Davies among them.

6 On the international framework within which the Wisconsin Idea arose, see Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA, 1998).Google Scholar

7 “Fanaticism” quoted in Margulies, Herbert F., The Decline of the Progressive Movement in Wisconsin, 1890-1920 (Madison, WI, 1968), 1920.Google Scholar See also Follette, Robert M. La, Autobiography: A Personal Narrative of Political Experiences (Madison, WI, 1913), 207–08Google Scholar.

8 Joseph E. Davies, Biographical Notes, 67, Joseph E. Davies Papers, Manuscript Division, Library of Congress; Curti, Merle and Carstensen, Vernon, The University of Wisconsin: A History; 1848-1925, 2 vols. (Madison, WI, 1949), 1:682.Google Scholar

9 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. See John Aylward to Joseph Tumulty, Feb. 5, 1916, case file 132G, series 4, Woodrow Wilson Papers, Manuscript Division, Library of Congress.

10 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 Thelen, David P., Robert M. La Toilette and the Insurgent Spirit (Madison, WI, 1976), 76Google Scholar ; and Davies to Paul S. Reinsch, Sept. 15, 1920, Paul S. Reinsch Papers, Wisconsin Historical Society, Madison, WI. “Clean progressive score” quoted in Robert M. La Follette to Davies, June 24, 1912, La Follette Family Papers, Part I, Robert M. La Follette, Sr. Papers, Manuscript Division, Library of Congress.

11 Link, Arthur S., Woodrow Wilson: The Road to the White House (Princeton, 1947), 481–82.Google Scholar “White Haired” quoted in Watertown Library Newsclippings, Sept. 24, 1935. See also Ibid., June 24, 1941.

12 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 Link, Arthur S. et al, eds., The Papers of Woodrow Wilson, 69 vols. (Princeton, 1966-1994), 27Google Scholar : 21, 345. 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.” See House to Davies, Feb. 27, 1915, Edward M. House Papers, Manuscripts and Archives, Yale University Library, New Haven, CT.

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14 Wilson to A. Mitchell Palmer, Mar. 28, 1913, case file 3E, series 4, Wilson Papers; Davies to House, undated, House Papers.

15 Crunden, Robert M., Ministers of Reform: The Progressives' Achievement in American Civilisation, 1889-1920 (New York, 1982), 4.Google Scholar See also Steel, Ronald, Walter Tippmann and the American Century (Boston, 1980), 4-6, 6365Google Scholar.

16 “General attitude,” quoted in Buenker, John D., The History of Wisconsin, Vol. 4: The Progressive Era, 1893-1914 (Madison, WI, 1998), 569.Google Scholar See also McCarthy, Charles, The Wisconsin Idea (New York, 1912), 187Google Scholar.

17 On the debate over the sources and origins of the Wisconsin Idea in relation to Wisconsin progressivism, see , Buenker, Progressive Era, 569600.Google Scholar

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20 Davies, Biographical Notes, 102.

21 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.

22 “Political and economic values” quoted in Jordan, John M., Machine-Age Ideology: Social Engineering & American Liberalism, 1911-1939 (Chapel Hill, 1994), 82.Google Scholar See also , Margulies, Decline of the Progressive Movement, 1920Google Scholar.

23 Quotes from , Jordan, Machine-Age Ideology, 39, 65, 82.Google Scholar See also Robert M. Crunden, “Essay” in Buenker, John D., Burnham, John C., and Crunden, Robert M., Progressivism (Rochester, VT, 1986), 7576Google Scholar.

24 On the role of Davies' mother, see Eagles, Keith, Ambassador Joseph E. Davies and American-Soviet Relations, 1937-1941 (New York, 1985), 3.Google Scholar On the evangelical roots of the Wisconsin Idea, see Hoeveler, “University and Social Gospel,” 282-98. “Fundamental” and “moral regeneration” quoted in Crunden, “Essay,” 72.

25 Davies to House, June 6, 1916, House Papers.

26 On the enthusiasm for scientific management and efficiency, see , Jordan, Machine Age Ideology, ch. 2Google Scholar ; and Haber, Samuel, Efficiency and Uplift: Scientific Management in the Progressive Era, 1890-1920 (Chicago, 1964), chs. 5-6.Google Scholar “Facts” quoted in , Haber, Efficiency and Uplift, 79.Google Scholar “Non-politics” quoted in , Jordan, Machine Age Ideology, 66.Google Scholar 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, 4243Google Scholar.

27 , Jordan, Machine-Age Ideology, 43-44, 51, 67, 73, 85.Google Scholar See also David J. Rothman, “The State as Parent” in Gaylin, Willard, Glasser, Ira, Marcus, Steven, and Rothman, David J., Doing Good: The limits of benevolence (New York, 1978), 9293Google Scholar.

28 Frederick Jackson Turner, “Pioneer Ideals and the State University,” Commencement Address delivered at Indiana University, 1910, ch. 10 in The Frontierin American History (New York, 1920), 285.Google Scholar

29 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.

30 Toffler, Alvin, The Third Wave (New York, 1991).Google Scholar

31 , Sanders, Roots of Reform, 22, 207, 279-82, 389–91.Google Scholar

32 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.

33 Leinwald, Gerald, “A History of the United States Federal Bureau of Corporations, 1903-1914” (PhD diss. New York University, 1962), 318–22.Google Scholar

34 Davies, Joseph E., Trust lutws and Unfair Competition (Washington, 1916), 9-11, 18-22, 24.Google Scholar For differing perspectives on the role of the courts and the common law in containing or promoting monopoly, see McCurdy, Charles W., “American Law and the Marketing Structure of the Large Corporation, 1875-1890,” The Journal of Economic History 38 (Sept. 1978): 631–49CrossRefGoogle Scholar , and The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869-1903,” Business History Review 53 (Autumn 1979): 304–42CrossRefGoogle Scholar ; and Thorelli, Hans B., The Federal Antitrust Policy: Origination of an American Tradition (Baltimore, 1955), 5053.Google Scholar Commenting on a statement made by Davies in reference to the common law, Sklar indicated in Corporate Reconstruction, 94, note 6, that Davies took a “pro-corporate” position. Rather than promoting a “pro-corporate” position, sanctioning the common law as a basis for decisions, however, Davies instead highlighted the limitations of the common law.

35 , Davies, Trust Laws, 11-12, 16-21, 8586.Google Scholar On the question of the degree to which the rule of reason restored or brought something new to common law principles, see Hovenkamp, Herbert, Enterprise and American Taw, 1836-37 (Cambridge, MA, 1991), part 6, ch. 21Google Scholar ; and James, Scott C., “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): 288336CrossRefGoogle Scholar.

36 , Davies, Trust Laws, 8789.Google Scholar See also Przybyszewski, Linda, The Republic According to John Marshall Harlan (Chapel Hill, 1999), 78, 151-52, 175–84Google Scholar.

37 , Davies, Trust Laws, 16, 1821Google Scholar , and “The Federal Trade Commission” in Proceedings of the Eighteenth Annual Session of the Florida State Bar Association (Jacksonville, FL, 1925), 9798Google Scholar.

38 On the “periphery,” see , Sanders, Roots of Reform, 277-79, 282.Google Scholar

39 , James, Party System Perspective, 124, 147-55, 160, 163-64, 170-71, 181, 188Google Scholar ; , Sanders, Roots of Reform, 282, 284285.Google Scholar Sanders argued that periphery agrarians were not anti-statist, perse; 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.

40 , James, Party System Perspective, 12-13, 29, 160–64Google Scholar ; , Sanders, Roots of Reform, 281, 284Google Scholar ; Cooper, John Milton Jr, The Warrior and the Priest (Cambridge, MA, 1983), 146, 148, 209, 212, 215.Google Scholar For “statist and technocratic,” see , James, Party System Perspective, 162Google Scholar.

41 “Dangerous” quoted in , James, Party System Perspective, 155.Google Scholar Wilson's comments in Davidson, John Wells, ed., A Crossroads of Freedom: The 1912 Campaign Speeches of Woodrow Wilson (New Haven, 1956), 83.Google Scholar 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: 154Google Scholar.

42 , James, Party System Perspective, 158–60.Google Scholar On the backgrounds and social-class distinctions between insurgent progressives in Congress and TR progressives, see Holt, James, Congressional Insurgents and the Party System: 1909-1916 (Cambridge, MA, 1967), 2-3, 5, 64.Google Scholar On La Follette and Brandeis and the origins of the 1911 bill, see Strum, Philippa, Louis D. Brandeis: Justice for the People (Cambridge, MA, 1984), 139-40, 145-47, 153–57CrossRefGoogle Scholar.

43 Brandeis's career before being appointed to the Supreme Court in 1916 has been the subject of a voluminous literature. See, for instance, Mason, Alpheus Thomas, Brandeis: A Free Man's Life (New York, 1956), Parts I-IVGoogle Scholar ; Gal, Alton, Brandeis of Boston, (Cambridge, MA, 1980)CrossRefGoogle Scholar ; and Urofsky, Melvin I., Louis D. Brandeis and the Progressive Tradition (Boston, 1981), chs. 1-4Google Scholar.

44 , James, Party System Perspective, 157, 159–60, note 77.Google Scholar On the issue of 'reasonable” size, see Moore, Thomas Lane, “The Establishment of a ‘New Freedom’ Policy: The Federal Trade Commission, 1912-1918” (PhD diss., University of Alabama, 1980), 1920Google Scholar.

45 For La Follette's response to the court's decision, see , Thelen, Insurgent Spirit, 86.Google Scholar La Follette quoted in , Belle C. and Follette, Fola La, Robert M. La Follette, 2 vols. (New York, 1953), 1: 487–88.Google Scholar See also , James, Party System Perspective, 160, note 77Google Scholar.

46 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, 100Google Scholar ; and , Buenker, Wisconsin: Progressive Era, 582–83Google Scholar.

47 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 Urofsky, Melvin I. and Levy, David W, eds., Letters of Louis D. Brandeis, vol. 2: 1907-1912, People's Attorney (Albany, 1972), 686–94.Google Scholar See also , Thelen, Insurgent Spirit, 68, 99, 114Google Scholar.

48 , James, Party System Perspective, 154-60, 162Google Scholar ; , Cooper, Warrior and Priest, 174, 213–15.Google Scholar In an 1887 article in Political Science Quarterly, Wilson had urged Americans not only to study, but to develop administrative institutions. See Wilson, Woodrow, “The Study of Administration,” Political Science Quarterly 2 (June 1887): 197222CrossRefGoogle Scholar.

49 On the significance of Brandeis's role, see , James, Party System Perspective, 154–58Google Scholar ; and , Sanders, Roots of Reform, 284.Google Scholar On the Brandeis-La Follette relationship, see , Strum, Justice, 139-40, 145-46, 153–57Google Scholar.

50 “Cutting edge” quoted in , Cooper, Warrior and Priest, 194.Google Scholar

51 Memorandum of Recommendations As to Trust Legislation, enclosed in Davies to Wilson, Dec. 27, 1913, in , Link, Wilson Papers, 29: 7885.Google Scholar

52 “Outline: General Review of the Trust Problem,” enclosed in Davies to Wilson, Dec. 9, 1913, series 2, Wilson Papers.

53 Davies to Wilson, Dec. 27, 1913, in , Link, Wilson Papers, 29: 7879Google Scholar ; Porter, Kirk H. and Johnson, Donald Bruce, comps., National Party Platforms, 1840-1960 (Urbana, 1961), 169Google Scholar.

54 , Davies, Trust Laus, 310.Google Scholar

55 Davies' 1913 Memorandum re Trust Legislation. See also , James, Party System Perspective, 168.Google Scholar

56 Davies to Wilson, Dec. 27, 1913, in , Link, Wilson Papers, 29: 7879Google Scholar ; Davies' 1913 Memorandum re Trust Legislation.

57 Davies' 1913 Memorandum re Trust Legislation; Brandeis's 1912 Suggestions on Trusts.

58 Davies' 1913 Memorandum re Trust Legislation. For an outline of the Progressive party bill, see , James, Party System Perspective, 189–91.Google Scholar

59 , Leinwald, “Bureau of Corporations,” 312–18Google Scholar ; , Sklar, Corporate Reconstruction, 184-203, 305Google Scholar.

60 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.Google Scholar See also , Sanders, Koots of Keform, 280, 282.Google Scholar For Cummins' comment, see Congressional Record, 63rd Cong., 2nd sess., 1794, quoted in , Sanders, Koots of Reform, 480–81, note 72Google Scholar.

61 Davies' 1913 Memorandum re. Trust Legislation. See also , Leinwald, “Bureau of Corporations,” 319.Google Scholar Years after leaving the commission, Davies would continue to offer recommendations for ways to carry out that mission. See , Davies, “Federal Trade Commission” in Florida Bar Association, 110Google Scholar , and “The Federal Trade Commission” in Freund, Ernst, Fletcher, Robert V., Davies, Joseph E. et al., The Growth of American Administrative Law (St. Louis, 1923), 8586Google Scholar.

62 Hise, Charles R. Van, Concentration and Control (New York, 1912), 225–78.Google Scholar On the need for administrative flexibility, see Michael Les Benedict, “Law and Regulation in the Gilded Age and Progressive Era,” 1998 SHGAPE Presidential Address, For TR's comments, see Roosevelt, Theodore, “The Taft-Wilson Trust Program,” The Outlook 102 (Sept. 21, 1912): 106–07Google Scholar , and The Standard Oil Decision—and After,” The Outlook 98 (June 3, 1911): 240Google Scholar.

63 Wilson's lectures on administration at Hopkins were outlined in a series of three courses. See , Link, Woodrow Wilson Papers, 7: 112-58, 381436, 8: 81-116.Google Scholar

64 Davies' 1913 Memorandum re Trust Legislation.

65 Ibid. See also, , McCarthy, Wisconsin Idea, £234Google Scholar. For the Progressive party platform, see , Porter and , Johnson, National Party Platforms, 178Google Scholar.

66 For “police agency,” see Davies' 1914 Baccalaureate Address. For “voting for 'Teddy,'” see “Informal Remarks,” Antitrust Law Symposium (Chicago, 1955), 104.Google Scholar

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68 Davies' roommate in his fraternity at the University of Wisconsin, for instance, nominated TR at the Bull Moose Convention. See Davies, Biographical Notes, 8. In Davies' post-Wilson career, a partner in his law firm would be Donald Richberg, the author of Roosevelt's Progressive party commission proposal.

69 House to Wilson, Dec. 31, 1913, series 2, Wilson Papers.

70 Wilson to House, Jan. 3, 1914, in Link, Wilson Papers, 29: 99; , Wilson's “Special Message on Trusts and Monopolies,” Jan. 20, 1914, in The Messages and Papers of Woodrow Wilson, ed. Shaw, Albert, 2 vols. (New York, 1924), 1: 4755Google Scholar.

71 For “no ‘dangerous experiment,’” see Wilson to John Sharp Williams, Jan. 27, 1914, in Link, Arthur S., Wilson: The New Freedom (Princeton, 1956), 426.Google Scholar“Paved the way” quoted in Brandeis to Brandeis, Alfred, Jan. 23, 1914, in Urofsky, Melvin I. and Lew, David W., eds., letters of Lotus D. Brandeis, vol. 3: 1913-1915, Progressive and Zionist (Albany, 1973), 236–37Google Scholar.

72 Wilson's Jan. 1914 Message on Trusts and Monopolies; Davies to House, Feb. 7, 1914, House Papers.

73 Strum, Philippa, Brandeis: Beyond Progressivism (Lawrence, KS, 1993), 98.Google Scholar

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75 Brandeis's comments quoted in Strum, Philippa, ed., Brandeis on Democracy (Lawrence, KS, 1995), 186.Google Scholar See also , Strum, Brandeis: Beyond Progressivism, 8384, 97-99Google Scholar.

76 Brandeis's 1912 Suggestions on Trusts. See also Elliot, Charles W., Brandeis, Louis D., Storey, Moorfield, Rodenbeck, Adolph J., and Pound, Roscoe, Preliminary Report on Efficiency in the Administration of justice (Boston, 1914), 32Google Scholar ; and , Strum, Brandeis: Beyond Progressivism, 5161Google Scholar.

77 , Davies, Trust Laws, 1921Google Scholar ; , Benedict, “Law and Regulation.”Google Scholar

78 , James, Party System Perspective, 182–83Google Scholar ; Brandeis's 1912 Suggestions on Trusts. For Davies’ views on the Justice Department, see Walworth, Arthur, Woodrow Wilson (New York, 1978), 1:331–32, note 14Google Scholar ; and , Davies, “Federal Trade Commission” in Florida Bar Association, 97Google Scholar.

79 , Sanders, Roots of Reform, 282.Google Scholar

80 , James, Party System Perspective, 175 (notes 110, 111), 188Google Scholar ; , Sklar, Corporate Reconstruction, 305–06, 315-22Google Scholar , though Sklar contends that Newlands changed his position by 1912.

81 Davies to Francis G. Newlands, May 25, 1914, Francis G. Newlands Papers, Sterling Library, Yale University, New Haven, CT.

82 , Strum, Brandeis, Beyond Progressivism, 83Google Scholar ; Davies to Newlands, May 25, 1914; “whole purpose” quoted in Davies to James T. Gregory, Jan. 6, 1915, series 2, Wilson Papers.

83 For Brandeis's views on bigness, see Fraenkel, Osmond K., ed., The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis (New York, 1935)Google Scholar ; and Brandeis, Louis D., Other People's Money and How the Bankers Use It, ed. Urofsky, Melvin I. (1913; New York, 1995)Google Scholar.

84 The question of efficiency in terms of size has been an important issue in the scholarly debate about Brandeis. See for example, McCraw, Thomas K., Prophets of Regulation (Cambridge, MA, 1984), 139–41Google Scholar ; , Strum, Brandeis: Beyond Progressivism, 7382Google Scholar ; and Berk, Gerald, “Corporate Liberalism Reconsidered: A Review Essay,” Journal of Policy History 3 (Winter 1991): 81CrossRefGoogle Scholar.

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86 “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, D.C.

87 Clements, Kendrick A., The Presidency of Woodrow Wilson (Lawrence, KS, 1992), 4243.Google Scholar

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89 , McCraw, Prophets, 101-08, 138.Google Scholar See also Brandeis to Franklin K. Lane, Dec. 12, 1913, in , Urofsky and , Levy, Letters of Brandeis, 3: 218–21Google Scholar.

90 1918 FTC Conference with Untermyer, 30.

91 Brandeis to William H. Ingersoll, March 1, 1915, in , Urofsky and , Levy, Letters of Brandeis, 3:447.Google Scholar In what ultimately was a thirty-year battle 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 Ibid., 3: 216-17; and , Moore, “Federal Trade Commission,” 6870Google Scholar.

92 “Corporate capitalism” quoted in , Clements, Presidency of Woodrow Wilson, 44.Google Scholar See also , Sklar, Corporate Reconstruction, 422Google Scholar ; and , McCraw, Prophets, 141Google Scholar.

93 , Davies, Trust Laws, 304Google Scholar , and Davies' 1913 Memorandum re Bureau of Corporations. The faith in the consumer was shared by other progressives as well. Walter Iippmann believed the “general will” was best represented by the consumer because of the consumer's potentially critical role in reconciling conflicts among classes. See Lippmann, Walter, Drift and Mastery: An Attempt to Diagnose the Current Unrest (1914; Madison, WI, 1985), 1011, ch. 4.Google Scholar 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, 117Google Scholar.

94 , McCraw, Prophets, 105–08Google Scholar ; , Strum, Justice for the People, 61, 69, 149, 152, 192–93Google Scholar , and Brandeis: Beyond Progressivism, 4042.Google Scholar Brandeis's comments quoted in Brandeis, Louis D., “Cutthroat Prices: The Competition that Kills,” Harper's Weekly, Nov. 15, 1913, 12.Google Scholar A decade later, Brandeis's attitude had not changed. 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, 192–93Google Scholar.

95 For “machines” and “expert,” see Watertoum (Wis.) Gazette, May 24, 1907. For “procured,” see New York Times, May 13, 1958.

96 , Urofsky, Brandeis and Progressive Tradition, 8.Google Scholar “Engross[ing]” quoted in , Mason, Free Man's Life, 433.Google Scholar See also , McCraw, Prophets, 106Google Scholar.

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98 “Humor” and “frivolity” quoted in , McCraw, Prophets, 84.Google Scholar See also , Urofsky, Brandeis and Progressive Tradition, 8Google Scholar ; and , Strum, justice for the People, 46, 4849Google Scholar.

99 , James, Party System Perspective, 181, 186, 193Google Scholar ; , McCraw, Prophets, 120–21Google Scholar ; , Urofsky, Brandeis and Progressive Tradition, 8485Google Scholar ; 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.

100 , Rublee, “Reminiscences,” 105–10.Google Scholar Rublee was assisting Brandeis in his battle for retail price fixing. See Brandeis to Rublee, Nov. 18, Dec. 23, 1913, Brandeis to William Harrison Ingersoll, Dec. 1, 1913, in , Urofsky and , Levy, Letters of Brandeis, 3: 216-48, 226–27Google Scholar.

101 In Party System Perspective, 189-91, James demonstrated the similarity between the Progressive party and Stevens bills.

102 , Rublee, “Reminiscences,” 110.Google Scholar See also , James, Party System Perspective, 185–86Google Scholar.

103 , James, Party System Perspective, 130, 183–92Google Scholar ; , Rublee, “Reminiscences,” 110–15Google Scholar.

104 Only a few months before, Brandeis had stated his opposition to giving the trade com-mission 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.Google Scholar 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. See , Rublee, “Reminiscences,” 104Google Scholar ; , Urofsky, Brandeis and Progressive Tradition, 8586Google Scholar ; and , Sanders, Roots of Reform, 284Google Scholar.

105 Davies to House, Aug. 27, 1914, House Papers.

106 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 Winerman, Marc, “The Origins of the FTC: Concentration, Cooperation, Control, and Competition,” Antitrust Taw Journal 71 (Winter 2003): 6792.Google Scholar

107 On Rublee's attitude toward broad review, see , Rublee, “Reminiscences,” 107–08Google Scholar ; and , Link, New Freedom, 441.Google Scholar 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), 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).

108 , Link, New Freedom, 441Google Scholar ; , Sanders, Roots of Reform, 200-01, 292Google Scholar.

109 Davies to Wilson, Aug. 21, 1914, in , Link, Wilson Papers, 30: 427–31.Google Scholar 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.Google Scholar 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. In Corporate Reconstruction, 422Google Scholar , 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.” On the negative consequences of broad review, see also McFarland, Carl, Judicial Control of the Federal Trade Commission and the Interstate Commerce Commission: 1920-1930 (Cambridge, MA, 1933), ch. 3Google Scholar ; and Blaisdell, Thomas C. Jr, The Federal Trade Commission: An Experiment in the Control of Business (New York, 1932), chs. 2, 3, 8Google Scholar.

110 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.Google Scholar See also , Link, New Freedom, 441, note 80Google Scholar.

111 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. 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.Google Scholar

112 Davies to House, June 22, 1914, House Papers; Davies' 1915 Chamber of Commerce Speech; Wilson's Jan. 1914 Message on Trusts and Monopolies.

113 , Moore, “Federal Trade Commission,” 5960.Google Scholar See also Rublee, George, “The Original Plan and Early History of the Federal Trade Commission,” Proceedings of the Academy of Political Science 11 (1924-1926): 119Google Scholar ; and “Statement of Mr. Arthur Eddy before the Federal Trade Commission,” May 4, 1915, File No. 40–2-25-1, GRDS, RG 122.

114 Statement of Louis Brandeis before the Federal Trade Commission, Apr. 30, 1915, 4, Document 163 of A Microfilm Edition of the Public Papers of Ljmis Dembitz Brandeis in the Jacob and Bertha Goldfarb Library of Brandeis University, Waltham, MA.

115 , Kolko, Triumph, 262, 266, 271–72.Google Scholar

116 Davies to House, June 22, 1914, House Papers; Davies' 1914 Williams College Speech. For “cupidity,” see 1918 FTC Conference with Untermyer, 32. For “contrary” and “no protection” see Eddy's 1915 Statement before Trade Commission, 26, 41.

117 Sharfman, I. L., The Interstate Commerce Commission: A Study in Administrative IMW and Procedure (New York, 1931), 2:357–85Google Scholar ; , McCraw, Prophets, 153, 159, 213–16.Google Scholar See also Landis, James, Administrative Process (New Haven, 1938)Google Scholar.

118 , McCraw, Prophets, 129.Google Scholar

119 Benedict, “Law and Regulation”; Wilson's Jan. 1914 Message on Trusts and Monopolies.

120 , McCraw, Prophets, 129–30Google Scholar ; McCraw, Thomas K., “The Progressive Legacy” in The Progressive Era, ed. Gould, Lewis (New York, 1974), 189, 199.Google Scholar For Davies' later career, see MacLean, Elizabeth K., Joseph E. Davies: Envoy to the Soviets (Westport, CT, 1992)Google Scholar.

121 For “combat” and “kill,” see , Urofsky, Brandeis and Progressive Tradition, 6, 1213.Google Scholar For “holy crusade” and a critique of Brandeis' approach, see , McCraw, Prophets, 85-89, 94Google Scholar.

122 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. See also Van Hise, Concentration and Control.

123 , Strum, Justice, 139-40, 145.Google Scholar 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, 4:603–05Google Scholar.

124 Brandeis to Norman Hapgood, Oct. 2, 1912, in , Urofsky and , Levy, Letters of Brandeis, 2:694–96.Google Scholar For “practically framed,” see Brandeis to Wilson, Sept. 30, 1912, in Ibid., 686. See also Brandeis's 1912 Suggestions on Trusts; and , Margulies, Decline of Progressive Movement, 131–32.Google Scholar 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: 87Google Scholar.

125 , Margulies, Decline of Progressive Movement, 124-25, 135-37, 142–51.Google Scholar “Complete repudiation” quoted in , Thelen, Insurgent Spirit, 118Google Scholar.

126 , Thelen, Insurgent Spirit, 102-04, 113–16.Google Scholar 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.

127 Ray Stannard Baker, interview with Louis D. Brandeis, Mar. 23, 1929, Ray Stannard Baker Papers, Manuscript Division, Library of Congress.

128 For the texts of the Clayton and FTC Acts, see Kintner, Earl W., ed., The Legislative History of the Federal Antitrust Laws and Related Statutes, Part I: The Antitrust Laws (New York, 1982), 2:1061–70, 5:3721-27.Google Scholar

129 For contemporary analyses of the new powers of the trade commission, see Young, Allyn A., “The Sherman Act and the New Antitrust Legislation II,” Journal of Political Economy 23 (May 1915): 429–36Google Scholar ; and Durand, E. Dana, “The Trust Legislation of 1914,” Quarterly Journal of Economics 29 (Nov. 1914): 9097CrossRefGoogle Scholar.

130 Neither the Clayton nor FTC Act entirely satisfied Davies' objectives. The Clayton Act, for instance, contained the phrase “to substantially lessen competition” after the proscribed prohibitions, seriously weakening them, while, as stated above, the court would exercise broad review of the commission's decisions.

131 Brandeis to Rublee, Oct. 9, 1914, in , Urofsky and , Levy, Letters of Brandeis, 3:320.Google Scholar

132 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, 4951Google Scholar ; Henderson, Gerald C., The Federal Trade Commission: A Study in Administrative Law and Procedure (New Haven, 1924), 49-104, 327–42Google Scholar ; , McCraw, Prophets, 124–33Google Scholar ; Stone, Alan, Economic 'Regulation and the Public Interest: The Federal Trade Commission in Theory and Practice (Ithaca, NY, 1977), 59Google Scholar ; and Herring, E. Pendleton, “Politics, Personalities and the Federal Trade Commission,” American Political Science Review 28 (Dec. 1934): 1017–18.CrossRefGoogle Scholar 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.

133 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.Google Scholar

134 Davies to Tumulty, Feb. 18, Wilson to Davies, Feb. 20, 1915, series 2, Wilson Papers.

135 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.

136 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.Google Scholar

137 On the origins of Rublee's “religiously inspired interest in public service,” see McClure, Marc Eric, Earnest Endeavors: The Life and Public Work of George Kublee (Westport, CT, 2003), 5, 13, 15.Google Scholar For quotations concerning Rublee's temperament, see Davis, George Cullom, “The Federal Trade Commission: Promise and Practice in Regulating Business, 1900-1929” (Ph.D. diss., University of Illinois, 1969), 123.Google Scholar For “teamwork,” see Davies to House, Mar. 23, 1915, House Papers. For differing perspectives on the conflict between Davies and Rublee, see , Moore, “Federal Trade Commission,” ch. 3Google Scholar ; and , McClure, Earnest Endeavors, 112-15, 126Google Scholar.

138 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 manu-script, “Joseph E. Davies: Wilson's White Haired Boy.”

139 , Moore, “Federal Trade Commission,” chs. 911.Google Scholar In September, 1917, Davies recom-mended 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. See Minutes of Meetings of the Federal Trade Commission, Sept. 26, 27, 28, 1917, FTC Minutes, The Early Years: Sept.-Oct. 1917,

140 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.Google Scholar For the Supreme Court decision, see F.T.C. v. Warren, Jones and Gratz 258 Fed. 314 (1919)Google Scholar , 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.

141 “Davies: Resignation as Federal Trade Commissioner–Addresses,” March 4, 1918, 4-5, File No. 40–2-28-1, GRDS, RG 122.

142 On the significance of the election and Davies' candidacy, see Breckinridge Long, Diary, March 13,1918, Breckinridge Long Papers, Manuscript Division, Library of Congress; and Wilson to Davies, March 18, 1918, in , Link, Wilson Papers, 47: 5253.Google Scholar

143 Livermore, Seward W., “The Sectional Issue in the 1918 Congressional Elections,” Mississippi Valley Historical Review 35 (June 1948): 2932.CrossRefGoogle Scholar 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, 144Google Scholar.

144 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.Google Scholar

145 Baker, interview with Brandeis, March 23, 1929, Baker Papers. 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. See also , Rublee, “Reminiscences,” 124-26, 130, 132-33, 135-37, 144, 146–47.Google Scholar For references to Brandeis' comments in his 1929 interview with Baker, see, for instance, Link, Arthur S., Woodrow Wilson and the Progressive Era: 1910-1917 (New York, 1954), 74Google Scholar ; and , McCraw, Prophets, 126.Google Scholar Other historians blamed the ineffectiveness of the commission and its alleged pro-big-business bias on Davies. See, , Kolko, Triumph, 257–78Google Scholar ; and Urofsky, Melvin I., Big Steel and the Wilson Administration: A Study in Business-Government Relations (Columbus, OH, 1969), 60, 175.Google Scholar Most scholars simply ignored Davies or relegated him to a few comments in the footnotes. See, for instance, , McCraw, Prophets, 337Google Scholar , note 100; and , Sklar, Corporate Reconstruction, 94, note 6.Google Scholar For a different perspective on Davies' role on the FTC, see Herring, E. Pendleton, “The Federal Trade Commissioners,” George Washington Taw Review 8 (Jan.-Feb. 1940): 345Google Scholar ; and Moore, “Federal Trade Commission.”

146 Davies, “The Federal Trade Commission” in Freund et al., Growth of Administrative Taw, and “Federal Trade Commission” in Florida State Bar Association. For an analysis of the evolution of the administrative-judicial relationship in the twentieth century, see Breyer, Stephen G. and Stewart, Richard B., Administrative Law and Regulatory Policy: Problems, Text, and Cases, 2nd ed. (Boston, 1985).Google Scholar

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