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The Novice Administrative State: The Function of Regulatory Commissions in the Progressive Era
Published online by Cambridge University Press: 06 December 2022
Researchers have long argued that an important impetus for the creation of the administrative state was the desire to bring experts into government and especially into the regulation of business. Yet Progressive Era politicians did not focus on attracting experts when crafting one part of the administrative state, independent regulatory commissions. This article examines the contemporary understanding of regulatory commissions and shows that they were most often intended as a substitute for vacillating juries. Commissions’ most important advantage over juries was that they acquired experience in investigations of a single subject over time, not that their appointees were already academics or experts in a particular subject. This article also shows that appointments to these commissions did not demonstrate a desire for apolitical expertise. This is the first examination of all members appointed to the Interstate Commerce Commission, Federal Trade Commission, Federal Power Commission, Federal Communications Commission, and the Securities and Exchange Commission in the period from 1887 to 1935. This article finds that political and sectional balance, rather than previous expertise, were the most important criteria for these commissions’ members, at least until the late 1920s, after the end of the supposed Progressive Era.
- Research Article
- Copyright © The Author(s), 2022. Published by Cambridge University Press
1 See Samuel Hays, Conservation and the Gospel of Efficiency: The Progressive Conservation Movement, 1890–1920 (Pittsburgh, PA: University of Pittsburgh Press, 1999; first published by Harvard University Press, 1959); Daniel Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Harvard University Press, 1998), 107–11; Maureen Flanagan, “Progressives and Progressivism and the Age of Reform,” Oxford Research Encyclopedia of American History (Oxford University Press online), http://americanhistory.oxfordre.com/.
2 See, e.g., Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (Cambridge, UK: Cambridge University Press, 1982), 150, 160–62, 248–49; Daniel Ernst, Tocqueville's Nightmare: The Administrative State Emerges in America, 1900–1940 (Oxford, UK: Oxford University Press, 2014); Leonard, Thomas C., “Progressive Era Origins of the Regulatory State and the Economist as Expert,” History of Political Economy 47, supp. 1 (2015): 49–76CrossRefGoogle Scholar; Joanna Grisinger, “The (Long) Administrative Century: Progressive Models of Governance,” in The Progressives’ Century: Political Reform, Constitutional Government, and the Modern American State, ed. Stephen Skowronek, Stephen Engel, and Bruce Ackerman (New Haven, CT: Yale University Press, 2016), 360–81. Okayama notes that the Interstate Commerce Commission was focused on legal issues and was populated by lawyers, which he defines as a type of expert: Okayama, Hiroshi, “The Interstate Commerce Commission and the Genesis of America's Judicialized Administrative State,” Journal of the Gilded Age and Progressive Era 15 (2016): 129–48CrossRefGoogle Scholar. DeCanio notes that regulatory commissions were used to blunt moves toward more radical reform: Samuel DeCanio, Democracy and the Origins of the American Regulatory State (New Haven, CT: Yale University Press, 2015). Both of these works support some of the arguments advanced in this article. It should also be noted that the earliest regulatory commissions stretched back to the 1870s, before the supposed Progressive Era, but most historians treat them as early manifestations of progressive-style reform.
4 Despite the massive literature on the administrative state, almost all histories do not discuss the particular place of the commission form in early regulation: see, e.g., Ernst, Tocqueville's Nightmare; Jerry Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (New Haven, CT: Yale University Press, 2012). Surprisingly, there is no work that I am aware of that focuses specifically at the history of commissions in the United States. One book examines the rise of equivalent tribunals in Great Britain but does not focus on their jury-like aspects. Chantal Stebbings, Legal Foundations of Tribunals in Nineteenth Century England (Cambridge, UK: Cambridge University Press, 2006).
5 There has been some discussion about the general movement to limit jury input in this era in traditional court proceedings. See Morton Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977), 28–29, 84–85, 141–43; “The Changing Role of the Jury in the Nineteenth Century,” Yale Law Review 74, no. 1 (November 1964): 170–92; Lerner, Renee Lettow, “The Rise of the Directed Verdict: Jury Power in Civil Cases before the Federal Rules of 1938,” George Washington Law Review 81 (2013): 448–525Google Scholar. For similar movement in the United Kingdom, see Hanly, Conor, “The Decline of the Civil Jury Trial in Nineteenth Century England,” Journal of Legal History 26, no. 3 (2005): 253–78CrossRefGoogle Scholar. For summaries of the U.S. Supreme Court cases that limited the role of the jury in the twentieth century, see Suja Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge, MA: Cambridge University Press, 2016). Merrill has explained how courts came to review administrative findings in a manner similar to appellate reviews of lower courts' or juries' findings. But his article does not focus on the jury-like nature of commissions or their pre-1906 history, and thus claims that the origin of the appellate review standard “remains something of a mystery.” Merrill, Thomas, “Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law,” Columbia Law Review 111, no. 5 (June 2011): 939–1003, 963Google Scholar.
6 See Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (Cambridge, UK: Cambridge University Press, 2003), esp. 124 (Willrich quoted a Children's Bureau report on the new court methods: “In the old courts the jury was the vital factor; in the new courts, in practice, the jury is discarded.”); Carolyn Strange, Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression (New York: New York University Press, 2016). For examination of the growing power of the noncommission and nonindependent executive branch agencies, where subject-matter expertise was common, see James Harvey Young, Pure Food: Securing the Federal Food and Drugs Act of 1906 (Princeton, NJ: Princeton University Press, 1989); Daniel Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862–1928 (Princeton, NJ: Princeton University Press, 2001). Many Progressive Era theorists did talk about the value of expertise in administration, but they were generally referring to their hopes for administration, as opposed to existing political practice, or they were referring to administration in general rather than commissions specifically, of which they were often suspicious. See, e.g., Herbert Croly's celebration of experts in The Promise of American Life (New York: Macmillan, 1911; first published by Macmillan, 1909), 157, 269, 328–29. But he simultaneously distrusted commissions: “government by commission … may be tolerated; but if they are tolerated for too long, they may well work more harm than good” (Croly, The Promise, 361).
7 Robert Wiebe, The Search for Order, 1877–1920 (New York: Macmillan, 1966); Skowronek, Building a New American State. For studies that demonstrate that government in the antebellum period moved far beyond “courts and parties,” see Richard John, “Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787–1835,” Studies in American Political Development 11 (Fall 1997): 347–80.
8 Many independent groups tried to build up expertise in this era, but most of those were focused on social services or charities, and not the regulation of business. See Thomas Haskell, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth-Century Crisis of Authority (Baltimore, MD: Johns Hopkins University Press, 2000), which includes no discussion of railroads or antitrust; Dorothy Ross, The Origins of American Social Science (Cambridge, UK: Cambridge University Press, 1992). Carpenter's Forging of Bureaucratic Autonomy did focus on similar process of government building up expertise through experience in the Department of Agriculture, but it also noted the rise of outside professionalism and the high levels of education and qualifications of department officers. Although this article relates to the previous literature about bureaucratization and standardization, the novelty of commissions and their contrast with civil service bureaucracies means that it also speaks to the diverse ways the state expanded outside of typical bureaucracy; see Kimberley Johnson, Governing the American State: Congress and the New Federalism, 1877–1929 (Princeton, NJ: Princeton University Press, 2007); Brian Balogh, The Associational State: American Governance in the Twentieth Century (Philadelphia: University of Pennsylvania Press, 2015). For the epistemological importance of continually revised “experience” as important for progressive policymakers, as opposed to expertise, see James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986).
9 Lockwood, Thomas J., “A History of Royal Commissions,” Osgoode Hall Law Journal 5, no. 2 (October 1967): 179–83Google Scholar.
10 Glock, Judge, “The Forgotten Visitorial Power: The Origins of Administrative Subpoenas and Modern Regulation,” Review of Banking and Financial Law 37 (Fall 2017-Spring 2018): 228–29Google Scholar; Menand, Lev, “Why Supervise Banks? The Foundations of the American Monetary Settlement,” Vanderbilt Law Review 74, no. 4, 951–1022Google Scholar. For the creation of later federal investigative commissions, such as the Mississippi River Commission in 1879 and the Inland Waterways Commission in 1907, see Hays, Conservation and the Gospel of Efficiency, 105–108, 201. Out of concern for the great distances traveled to and from courts in America, early state governments and the federal government created “commissioners,” who were appointed by judges and who could take affidavits and depositions outside of traditional court proceedings, which somewhat limited court and jury access to witnesses and evidence and thus have some similarities with later regulatory commissions. See “An Act to provide for taking evidence in the courts of the United States in certain cases,” 4 Stat. 197–200, January 24, 1827; Lindquist, Charles, “The Origin and Development of the United States Commissioner System,” American Journal of Legal History 14 (January 1970): 1–16CrossRefGoogle Scholar.
11 The federal government created “boards of commissioners” to determine land claims from the earliest years of the republic. See discussion in Malcolm Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837 (New York: Oxford University Press, 1968), 3–42.
12 Some legislative committees also functioned like these independent commissions in their evaluation of public rights. To see how these committees’ “fact-findings,” similar to those of juries, shaped the administrative state, see McKinley, Maggie, “Petitioning and the Making of the Administrative State,” Yale Law Journal 127 (2018): 1538–637Google Scholar.
13 David Hornbeck, “The Patenting of California's Private Land Claims, 1851–1885,” Geographical Review 69, no. 4 (October 1979): 434–48.
14 United States v. Ritchie, 58 U.S. 17 How. 525 (1854). Congress noted that the findings of such land commissions were “conclusive only against the United States” and therefore did not affect any private rights or claims between citizens (Congressional Globe, January 27, 1851, 347). See discussion of the limited nature of these tribunals, in reference to a similar situation in Florida, in United States v. Ferreira, 54 U.S. 40 (1851).
15 For discussion of “public rights,” see Murray's Lessee v. Hoboken Land and Improvement Company, 59 U.S. 272, 284 (1856); Woolhandler, Ann, “Delegation and Due Process: The Historical Connection,” Supreme Court Review 1 (2008): 228–33Google Scholar. Other purely public rights that could be decided by a commission included, for instance, the right to a public job, which decision could be delegated to a multimember agency such as the Civil Service Commission, created in 1883. The focus on public right distinguished many of the early regulatory bodies discussed by Mashaw from later regulators like the railroad commissions. See Mashaw, Creating the Administrative Constitution.
16 U.S. Constitution, Amendment VII. For state and federal debate on limiting judicial review over jury factual decisions at the time of the founding, see Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 111–13, 449–55; Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), 320–22.
17 For discussions of lawyers’ distrust of juries and the attempts to limit the power of juries in the nineteenth and early twentieth century, see all of n. 5 supra, as well as Douglas Smith, “The Historical and Constitutional Contexts of Jury Reform,” Hofstra Law Review 25, no. 2 (1996): 444–45, noting the trend of the “greater distrust of the jury that accumulated in the nineteenth century”; Martin Kotler, “Reappraising the Jury's Role as Finder of Fact,” Georgia Law Review 20, no. 1 (1985): 127–34. Even those legal writers who defended juries in the era often advocated reforms to streamline them and limit their input. See Alfred Coxe, “The Trials of Jury Trials,” Columbia Law Review 1, no. 5 (May 1901): 286–97. For discussions of earlier attempts to revive juries’ power, see Gross, Ariela, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108 (1998): 117CrossRefGoogle Scholar; Laura Edwards, The People and Their Peace: Legal Culture and Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009). For popular support for juries, see discussion of Interstate Commerce Commission later in this article.
18 See Hurtado v. California, 110 U.S. 516 (1884); Richard M. Calkins, “Abolition of the Grand Jury Indictment in Illinois,” University of Illinois Law Forum 2 (Summer 1966): 423–48, 425–26.
19 Earlier American legal reformers had limited the ability of juries to decide questions of law as well, see Smith, “Historical and Constitutional Contexts of Jury Reform,” 446–50.
20 John Houston Merrill, Charles Frederic Williams, Thomas Johnson Michie, and David Shephard Garland, The American and English Encyclopedia of Law Volume 23, 2nd ed. (1903), 545.
21 For famous early cases creating a “reasonable man” standard for tort claims, in England and America, see Vaughan v. Menlove, 132 Eng. Rep. 490 (1837); Brown v. Kendall, 60 Mass. 292 (1850).
22 Oliver Wendell Holmes Jr., Common Law (London: Macmillan, 1881), 1.
23 Ibid., 123–24. Holmes's teacher at Harvard, James Bradley Thayer, held similar beliefs, see Thayer, “‘Law and Fact’ in Jury Trials,” Harvard Law Review 4, no. 4 (1890): 161–66. Holmes was later able to implement these ideas. In his holding in Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66, 70 (1927), a negligence case, Justice Holmes held that “It is true … that the question of due care is very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear, it should be laid down once for all by the Courts.”
24 Frederick Green, “Mixed Questions of Law and Fact,” Harvard Law Review 15, no. 4 (December 1901): 271–80, 79–80. See Professor Austin Scott's later claim that the “sympathetic and scientific” approach to law “is blocked by the provisions in the state and federal constitutions guaranteeing the right to trial by jury” in Austin Wakeman Scott, “Trial by Jury and the Reform of Civil Procedure,” Harvard Law Review 31, no. 5 (March 1918): 669.
25 For background and analysis of the passage of the railroad provisions of the Illinois constitution, see Mark Kanazawa and Roger Noll, “The Origins of State Railroad Regulation: The Illinois Constitution of 1870,” in The Regulated Economy: A Historical Approach to Political Economy, ed. Claudia Goldin and Gary Libecap (Chicago: University of Chicago Press, 1994), 13–54. The first permanent railroad commission, created by Massachusetts in 1869, was merely investigatory and thus inspired few constitutional or legal questions, but it did manifest a similar desire to acquire information and “facts.” See Thomas McCraw, Prophets of Regulation (Cambridge, MA: Harvard University Press, 1984), 57–79. For discussion of the legal aspects of railroad regulation, which, however, does not discuss issues of commission displacement of juries or “mixed questions,” see James W. Ely Jr., Railroads and American Law (Lawrence: University Press of Kansas, 2001), 78–104.
26 For a discussion of commissions blunting the more radical effects of new laws, see DeCanio, Democracy and the Origins, 222–237.
27 “The State Capital,” Chicago Daily Tribune, March 19, 1873.
28 Illinois Supreme Court Judge Charles Lawrence first suggested the prima facie standard in striking down the earlier Illinois railroad law, which did not contain an independent commission and did not give “artificial persons” the “right of trial by jury” due to the nature of its standards. Chicago and Alton Railroad Co. v. People ex rel. Koerner, 67 Ill. 11 (1873). Illinois, and then other states, and eventually the federal government, took up the phrase of prima facie evidence andused it to describe the weight that should be given to evidence submitted by the commissions. On general prima facie meaning at time, see John Henry Wigmore, A Treatise on the System of Evidence at Trials in Common Law, vol. IV (Boston: Little, Brown, 1905), 3536–37.
29 See Chicago, Burlington, and Quincy Railroad v. People, 77 Ill. 443 (1875).
30 See language of Oregon commission law in Board of Railroad Commissioners v. Oregon Railway and Navigation Company, 17 Ore. 65, 70 (1888) and Interstate Commerce Act, 24 Stat. 379, 384–85, February 3, 1887. Besides juries, commissions were occasionally analogized to a “special master in chancery,” who heard the facts in an equity case and reported them to the judge. See, e.g., Report of the Proceedings and Debates of the Constitutional Convention, State of Virginia, vol. II (Richmond, VA: Hermitage Press, 1906), 2162, 2231.
31 Chicago, Burlington, and Quincy Railroad v. People, 77 Ill. 443, 448 (1875).
32 Louisville & Nashville Railroad Company v. Commonwealth of Kentucky, 99 Ky. 132 (1896).
33 Damages were a common law action, not an equitable action, and thus had to be brought before a jury. If damages were increased by certain “penalties” decided by the government, they were analogized to criminal case. An attempt by the Oregon Board of Railroad Commissioners to enforce damages merely by an order and then a court hearing in equity was struck down by the state's supreme court, since defendants had “the right to a trial by jury before its repayment can be enforced.” Board of Railroad Commissioners v. Oregon Railway and Navigation Company, 75.
34 Chicago & N.W.R. Co. v. Dey, 35 F. 866 (1888). In another case, Brewer struck down an indictment alleging “unreasonable” benefits given to a shipper from railroads under the federal Interstate Commerce Act because there were no clear standards set in the law nor was there any commission decision to limit the act. He argued, “The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable.” Tozer v. United States, 52 F. 917, 919 (1892). For a similar British case that found that the railroad commission must substitute for varying juries, see Tobin v. London & N.W. Ry. Co., 2 Ir. R. 11, 18 (1893).
35 Louisville & N.R. Co. v. Railroad Commission, 19 F. 679, 691 (1884). See also a report of the case in “The Tennessee State Commission Overthrown,” New York Times, March 1, 1884, p. 2. This case and Dey were cited as recently as 2015 by the U.S. Supreme Court as the first discernable rulings that a law could be “void for vagueness.” Johnson v. United States, 135 S. Ct. 2551, 2569 (2015).
36 Chicago M. & St. Paul Railway Company v. Minnesota, 134 U.S. 418 (1890). In this case, the Court said that a Minnesota law made the commission's rates “not simply advisory, not merely prima facie equal and reasonable, but final and conclusive,” which went too far. “It deprives the company of its right to a judicial investigation, by due process of law,” including a hearing by a jury (ibid., 457). Most historians focus on the “substantive due process” decision of the court, which focused on the unreasonably low rate, and elide the issue of procedural due process, involving displacement of a jury's and court's factual findings. See, e.g., James W. Ely Jr., “The Railroad Question Revisited: Chicago, Milwaukee & St. Paul Railway v. Minnesota, and the Constitutional Limits on State Regulation,” Great Plains Quarterly 12, no. 2 (Spring 1992): 121–34.
37 McChord v. Louisville & Nashville R. Co., 183 U.S. 483, 499 (1902). Eventually, the Court said that there was no due process concern at all in the state placing complete power over rates in commissions. Robert Prentis v. Atlantic Coast Line Company, 211 U.S. 210 (1908) (J. Holmes). Holmes later noted privately that the “leaks between the three watertight compartments (Legislative, Executive, Judicial) don't bother me.” Holmes to Charles Warren, March 25, 1927, Oliver Wendell Holmes Jr. manuscript collections, Harvard Law School Library.
38 Ashley W. Cole, “The Railroad Commission and Juries,” New York Times, April 10, 1899, p. 5.
39 Thomas Cooley, “The Importance of an Umpire Between Common Carriers and the Public,” Bullion (1883), republished in Eight Annual Report of the Railroad Commissioners of the State of Missouri (Jefferson City, MO: State Journal Company, 1883), 30. Congress later quoted Cooley's article during the debate on the federal railroad commission: Debate on Interstate Commerce in the 48th Congress, 2nd Sess. (Washington, DC: Government Printing Office, 1885), 126. The other innovative commissions of this era, the workmen's compensation commissions, were even more clearly created with the goal of removing juries from decisions about vague awards based on common law standards of “reasonable care” and negligence in tort or damage cases, and they also involved business's demands that government blunt jury prejudice and inconstancy. See President William Taft's message supporting a Federal Worker's Compensation Commission, where he complained about “the undue emotional generosity of the jury”: President William Taft, “Message of the President of the United States Transmitting the Report of the Employers’ Liability and Workmen's Compensation Commission” (Washington, DC: Government Printing Office, 1912), 7. See also “Limited Review by Jury of Findings in Workmen's Compensation Commission,” Yale Law Journal 42, no. 1 (November 1932): 135–37. Charles McCarthy, who participated in creating state regulatory commissions in Wisconsin, noted that the new progressive laws in that state had the same impetus: “that is, using the device of reasonableness as a standard enforceable by the commission.” Charles McCarthy, The Wisconsin Idea (New York: Macmillan, 1912), 71.
40 Jerry Mashaw discusses several earlier types of federal regulation and makes a strong claim that the Board of Supervising Inspectors, created in 1852 to police steamboat safety, was the first federal commission to deal with private claims, but its narrow focus on safety, and not price or other types of economic regulation, and its control over the “public right” of navigation on federal waters, meant it had less influence on future commissions than the ICC. Mashaw, Creating the Administrative Constitution, 194–95.
41 Debate on Interstate Commerce, 104.
42 Congressional Record, 48th Congress, 2nd Sess., 1885, 16, 759.
43 Congressional Record, 49th Congress, 2nd Sess., 1887, 18, Appendix 38.
44 Debate on Interstate Commerce, 168. See similar sentiment, Congressional Record, 48th Congress, 2nd Sess., 1884, 16, 64.
45 It was not until 1906, however, that the ICC had the power to set maximum rates . These new ICC rates and orders were still subject to the same prima facie standard. See Hepburn Act, 34 Stat. 591, June 29, 1906.
46 William R. Childs, The Texas Railroad Commission (College Station: Texas A&M Press, 2005), 36–38.
47 Arguments and Statements before the Committee on Commerce (Washington, DC: Government Printing Office, 1882), 75.
48 Congressional Record, 48th Congress, 2nd Sess., 1884, 16, 31.
49 Congressional Record, 48th Congress, 2nd Sess., 1885, 16, 567.
50 See “The State Capital,” where a Farmers’ Club member called the Illinois commission a “fraud and humbug” that prevented “the jury, and the community” from getting to the railroads.
51 See votes for and against different proposals: Keith Poole and Howard Rosenthal, “Congress and Railroad Regulation: 1874–1887,” in The Regulated Economy: A Historical Approach to Political Economy, ed. Claudia Goldin and Gary Libecap (Chicago: University of Chicago Press, 1994), 81–120. Most historians and political scientists argue that this opposition emerged from rural partisans’ distrust of government by “expert,” without discussing their support of jury trials. See George Miller, Railroads and the Granger Laws (Madison: University of Wisconsin Press, 1971); Elizabeth Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999); Skowronek, Building a New American State; DeCanio, Democracy and the Origins. Rural radicals favored increased use of juries in other types of cases, as did many labor leaders: see William Jennings Bryan in Proceedings of the Constitutional Convention of the Proposed State of Oklahoma (Muskogee, OK: Muskogee Printing, 1907), 389; Samuel Gompers in “Praised By Gompers,” New York Times, October 22, 1924, p. 13.
52 Horace Stringfellow, “The Interstate Commerce Law,” American Law Review 23 (January/February 1889): 84–99.
53 Congressional Record, 49th Congress, 2nd Sess., 1887, 18, 843.
54 Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 440 (1907). For other judges’ agreement with the need for the ICC to stop the inconstancy of juries, see “Sandusky Cement Case,” Wall Street Journal, April 13, 1911, p. 7.
55 In Re Investigation of Advances in Rates, No. 3500 (1911), Decisions of the Interstate Commerce Commission, Volume 20 (Washington, DC: Government Printing Office, 1911), 317.
56 Karl Kirchwey, “The Interstate Commerce Commission and the Judicial Enforcement of the Act to Regulate Commerce,” Columbia Law Review 14, no. 3 (March 1914): 211–28, 227.
57 See, e.g., McFadin v. Catron, 138 Mo. 197 (1899); Gahagan v. Boston & M.R.R., 70 N.H. 441, 444 (1899) (“If there is any substantial evidence, the jury are to decide the balance of probabilities.”); Lionberger v. Pohlman, 16 Mo. App. 392 (1885) (“where there is no substantial testimony to support the verdict of a jury upon a given issue the appellate court will reverse a judgment on the verdict”).
58 Cincinnati, N.O. and Tex. Pac. Ry. Co. v. ICC, 162 U.S. 184, 196 (1896).
59 Illinois Central R. Co. v. ICC, 206 U.S. 441, 466 (1907). The Court noted again and again that reasonableness was a “factual” issue, and therefore one that should not be reviewed by a judge barring some significant error (without noting that the deference here was given to a commission and not a jury finding): “The question submitted to the Commission, as we have said, with tiresome repetition, perhaps, was one which turned on matters of fact.”
60 ICC v. Union Pacific Railroad Company, 222 U.S. 541, 548 (1912).
61 “The Commerce Court and Commerce Commission,” New York Times, January 23, 1913, p. 10. This power was expanded in cases such as the Supreme Court's famous holding in NLRB v. Jones & Laughlin Steel, 301 U.S. 1, 48-49 (1937), which allowed the commission to impose damages without a jury.
62 For other discussions of the derivation of this standard of review from jury trials, see Merrill, “Article III, Agency Adjudication”; Louis L. Jaffe, “Judicial Review: Question of Fact,” Harvard Law Review 69, no. 6 (April 1956): 1021; John Dickinson, Administrative Justice and the Supremacy of Law (Cambridge, MA: Harvard University Press, 1927), 154–55. For later development of these evidence standards for commissions, see Ernst, Tocqueville's Nightmare; Joanna Grissinger, The Unwieldy American State: Administrative Politics Since the New Deal (Cambridge, UK: Cambridge University Press, 2012), 20–31.
63 Ex Parte Young, 209 U.S. 123, 124–26, 164–65 (1908). Earlier, in 1892, Justice Brewer had ruled that a jury was required in such determinations. “If the validity of such a law in its application to a particular company depends upon a question of fact as to its effect upon the earnings, may not the court properly leave that question to the jury?” Brewer agreed that it must. Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339 (1892). Yet later, in Chicago, Milwaukee, St. Paul Railway Co. v. Tompkins, 176 U.S. 167 (1900) (see citation in Ex Parte Young, 209 U.S. 123, 164), Justice Brewer changed his mind and ruled that such cases were too complicated for judges, let alone juries. He said that as a circuit judge in the case Smyth v. Ames, 169 US. 466, he “undertook the work of examining the testimony, making computations, and finding the facts. It was very laborious, and took several weeks. It was a work which really ought to have been done by a master.” Brewer not only reversed the case but remanded it with the instruction to refer to some master “to report fully the facts, and to proceed upon such report as equity shall require” (ibid., 179–80). See brief discussion of jury issues in these cases in John Harrison, “Ex Parte Young,” Stanford Law Review 60, no. 4 (2008): 944.
64 John Dickinson, “Judicial Control of Official Discretion,” American Political Science Review 22, no. 2 (1928): 275–300, 291.
65 For Senator John Sherman's concerns about the difficulty of defining what was an unlawful or unreasonable restraint of trade under the proposed act, see Congressional Record, 51st Congress, 1st Sess., 1890, 21, 2458–60. There is a continuing debate on whether the common law attacked only “unreasonable” or all restraints of trade; see Laura Philips Sawyer, American Fair Trade: Proprietary Capitalism, Corporatism, and the ‘New Competition,’ 1890–1940 (Cambridge, UK: Cambridge University Press, 2018).
66 Senate Subcommittee of the Committee of the Judiciary, Hearings on Amendment to Sherman Antitrust Law (Washington, DC: Government Printing Office, 1908), 43–55.
67 Cited in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 97 (1911). See debate on the common law background to the bill and case in Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (Cambridge, UK: Cambridge University Press, 1988), 203–85.
68 See discussion of rule of reason ruling in Nelson Gaskill, Regulation of Competition (New York: Harpers, 1936), 15–16.
69 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 97 (1911).
70 United States v. Patterson, 201 F. 697, 707 (1912).
71 Nash v. United States, 229 U.S. 373 (1913). Yet Holmes, a stalwart believer in the rule of leniency in criminal cases, struck down one indictment under the antitrust laws as excessively vague and tried to distinguish the Nash case. This ruling was handed down just three days after the House of Representatives approved the Federal Trade Commission Act. International Harvester Co. v. Kentucky, 234 U.S. 216 (1914) (J. Holmes); Marc Winerman, “The Origins of the FTC: Concentration, Control, and Competition,” Antitrust Law Journal 71 (2003): 59.
72 Woodrow Wilson, “Address to a Joint Session of Congress on Trusts and Monopolies,” January 20, 1914, American Presidency Project, http://www.presidency.ucsb.edu/ws/index.php?pid=65374.
73 Woodrow Wilson to Senator John Sharp Williams, January 27, 1914, series 4, 1105, Woodrow Wilson Papers.
74 “Wants Trade Board to Guide Business,” New York Times, February 15, 1914, p. XX6. See Winerman, “Origins of the FTC,” 53–54. Some pro-regulation advocates thought the current standard was too vague for even juries themselves to convict anyone. Louis Brandeis said the problem with antitrust lawsuits was that “the jury will not convict” and that the “jury will not convict unless there is in the legal violation some moral taint.” House Committee on Interstate and Foreign Commerce, Hearings on the Interstate Trade Commission (Washington, DC: Government Printing Office, 1914), 91.
75 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51,12031. For complaints about grand jury powers in the debate on the bill, see Gerard Henderson, Federal Trade Commission: A Study of Administrative Law and Procedure (New Haven, CT: Yale University Press, 1924), 23.
76 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51,14370.
77 “Courts and Commissions,” New York Times, August 30, 1920, p. 8. See consistently similar complaints from the New York Times editorial page, “The New Freedom of Trade,” August 3, 1914, p. 10; “The Common Law of Business,” New York Times, November 10, 1925, p. 24. The Supreme Court limited the FTC's ability to accumulate such a body of rulings based on mixed questions of law and fact, since it argued that most decisions about reasonableness and “unfair methods of competition” were questions of law and not of fact, thus upsetting the hopes of the commission's advocates. See FTC v. Gratz, 253 U.S. 421 (1920).
78 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51, 2226.
79 “The Trade Commission,” New York Times, February 24, 1915, p. 8.
80 E. F. Albertsworth, “Judicial Review of Administrative Action by the Federal Supreme Court,” Harvard Law Review 35, no. 2 (1921): 151.
81 Gregory Hankin, “Conclusiveness of Federal Trade Commission's Findings as to Facts,” Michigan Law Review 23, no. 3 (1925): 233. See also Charles Needham, “The Federal Trade Commission,” Columbia Law Review 16, no. 3 (1916): 185, 188.
82 Dickinson, Administrative Justice, 35. On the rules of evidence as outgrowth of jury trials, which administrative agencies therefore didn't need, see Bernard Schwartz, An Introduction to American Administrative Law (London: Isaac Pitman, 1958), 86–88. On later recognition that application of Seventh Amendment would “probably necessitate abandonment of the administrative process,” see “Application of Constitutional Guarantees of Jury Trial to the Administrative Process,” Harvard Law Review 56, no. 2 (1942): 284.
83 Francis H. Bohlen, “Mixed Questions of Law and Fact,” University of Pennsylvania Law Review (1924): 118–19. The suspicion of juries continued in the progressive reform movement for generations. Jerome Frank argued that “‘jury made law’ is, par excellence, capricious and arbitrary,” in Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton, NJ: Princeton University Press, 1949). Erwin Griswold claimed that “The jury trial, at best, is the apotheosis of the amateur. Why should anyone think that twelve persons brought in from the street … should have any special capacity for deciding controversies between persons?” Quoted in John B. Ashby, “Juror Selection and the Sixth Amendment Right to an Impartial Jury,” Creighton Law Review 11 (1977): 1138; See also, Hans Zeisel, “The Debate over the Civil Jury in the Historical Perspective,” University of Chicago Legal Forum (1990): 26.
84 Shelby Cullom, Fifty Years of Public Service (Chicago: A.C. McClurg, 1911), 311.
85 Quoted in speech by Rep. James Laird, Congressional Record, 48th Congress, 2nd Sess., 1884, 16, Appendix 197.
86 Charles Francis Adams, Railroads: Their Origin and Problems (New York: G.P. Putnam's Sons, 1878), 133.
87 Debates and Proceedings of the Constitutional Convention of the State of California (Sacramento, CA: J.D. Young, 1880), 538, 550–51, 612.
88 Frederick C. Clark, “State Railroad Commissions and How They May Be Made Effective,” Publications of the American Economic Association 6, no. 6 (November 1891): 11–110, table I.
89 T. Harry Williams, Huey Long (New York: Vintage, 1981).
90 See Childs, The Texas Railroad Commission.
91 Congressional Record, 48th Congress, 2nd Sess., 1885, 16, 44. See also 18 Congressional Record, 49th Congress., 2nd Sess., 1887, 18, 784.
92 Quoted in Clarence Miller, “The Interstate Commerce Commission: The First Fifty Years, 1887–1937,” George Washington Law Review 5 (March 1937): 586.
93 Frank Haigh Dixon, “Recent Railroad Commission Legislation,” Political Science Quarterly (December 1905): 612–32.
94 Revised Record of the Constitutional Convention of the State of New York, vol. I (Albany, NY: J.B. Lyon, 1916), 2245–46.
95 Clark, “State Railroad Commissions,” table I. See also S. E. Moffett, “The Railroad Commission of California: A Study in Irresponsible Government,” The Annals of the American Academy of Political and Social Science 6 (November 1895): 109–17, which describes the party platforms on which different commissioners ran.
96 Debate on Interstate Commerce, 34. See Radio Act, 44 Stat. 169, 1163, February 23, 1927.
97 Record of the Constitutional Convention of the State of New York, 1338.
98 Joseph Henry Beale and Bruce Wyman, The Law of Railroad Rate Regulation (Boston: Nagel, 1906), 421, 455, 459, 511, 788. John Dickinson remained suspicious of later attempts in the New Deal to base administrative authority on “experts.” George L. Haskins, “John Dickinson, 1894–1952,” University of Pennsylvania Law Review 101 (October 1952): 7.
99 State of Virginia Constitutional Convention, 2149. See also Record of the Constitutional Convention of the State of New York, vol. II (Albany, NY: J. B. Lyon, 1915), 2150.
100 Gerard Henderson, The Federal Trade Commission: A Study in Administrative Law and Procedure (New Haven, CT: Yale University Press, 1924), 328. Also quoted in Gaskill, Regulation of Competition, 75. See earlier argument by Frank Goodnow that commissions needed “expertness” but that “expertness comes largely from long-practice,” which was why “reasonable permanence of tenure is absolutely necessary”—which is the only use of the word “expert” in his book on administrative policy: Frank Goodnow, Politics and Administration: A Study in Government (New York: Macmillan, 1900), 87.
101 Miller, “The Interstate Commerce Commission,” 580–700.
102 “Federal Regulatory Commission Appointments, 1887–1935,” a spreadsheet prepared for this article. I discussed each commissioner's background in four areas. For the ICC and for the other commissions discussed below, I have counted as a lawyer anyone who practiced law. I have counted as a politician anyone who held elective office or held a position in the Republican or Democratic Party organizations, such as state or national party committees. (I have excluded, however, from the count of politicians any lawyers who were elected to a purely legal post, such as district attorney or attorney general, since such were ubiquitous for prominent lawyers in this period.) For academics, I counted anyone who had taught in an institution of higher education or had received a graduate degree besides a legal degree. The question of expertise, in this case around railroads and regulation, I admit, is the hardest to divine. I have included anyone who had worked directly in the industry to be regulated or who wrote articles or books on the topic that I could discover. I admit this would encompass a much broader spectrum of people than those today we would consider “experts,” since it would include many with only workaday knowledge of any industry they labored in. By this definition, Judge Thomas Cooley, discussed below, had expertise in railroads due to his briefly managing a railroad receivership and some previous written work on the subject. While this database will doubtless underestimate commissioner experience in each of these four areas due to existing sources not including commissioners' full background, it is plausible that if such information was not obvious in sources, the commissioner's experience in those areas was minimal.
103 If one keeps the analysis to before 1920, there are the same tendencies, except with more lawyers and politicians. Of twenty-seven commissioners appointed to 1920, twenty-one were lawyers, five were academics, eleven were politicians, and thirteen had railroad experience. See “Federal Regulatory Commission Appointments, 1887–1935.”
104 “The Interstate Commerce Commission,” New York Times, March 23, 1887, p. 4.
105 Cullom, Fifty Years of Public Service, 228–29.
106 Daniel McMillan to President Grover Cleveland, March 3, 1887, reel 110, Grover Cleveland Papers, Library of Congress.
107 W. S. Bissell to President Cleveland, March 21, 1887, reel 110, Grover Cleveland Papers, Library of Congress. For complaints about number of people who turned down the position, see William Endicott to Jacob Rogers, April 2, 1887, reel 111, Grover Cleveland Papers, Library of Congress.
108 Schoonmaker to President Cleveland, March 23, 1887, reel 110, Grover Cleveland Papers, Library of Congress.
109 “The Railway Commission,” New York Times, March 24, 1887, p. 1.
111 Congressional Record, 48th Congress, 2nd Sess., 1885, 16, 858.
112 “The Railway Commission,” 1. See “Federal Regulatory Commission Appointments, 1887–1935.”
113 House Committee on Interstate and Foreign Commerce, Hearing on the Federal Power Commission (Washington, DC: Government Printing Office, 1930), 31.
114 Woodrow Wilson, The New Freedom: A Call for the Emancipation of the Generous Energies of a People (New York: Doubleday, Page, 1913), 60.
115 Winerman, “Origins of the FTC,” 46. See further discussion of Wilson's distrust of experts, expressed in both public and private, in ibid., 34, 39–40, 46, 90–91.
116 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51, 14919, 14925.
117 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51, 8845.
118 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51, 8841.
119 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51, 12031.
120 “The Trade Commission,” 8.
121 Marc Winerman notes that “Nor were Wilson's initial selections the best complements of Commissioners” (Winerman, “Origins of the FTC,” 94).
122 Senator Lewis to Tumulty, November 20, 1914, series 4, 1105B, Woodrow Wilson Papers, Library of Congress. Emphasis added.
123 Memorandum on Edward Hurley, c. 1914, Memorandum on William Parry, c. 1914, series 4, 1105B, Woodrow Wilson Papers, Library of Congress.
124 Woodrow Wilson to Vance McCormick, May 4, 1917, series 4, 1105B, Woodrow Wilson Papers, Library of Congress.
125 Herbert Quick to Woodrow Wilson, February 8, 1917, series 4, 1105B, Woodrow Wilson Papers, Library of Congress.
126 Congressional Record, 63rd Congress, 2nd Sess., 1914, 51, 11097.
127 I understand that experience in “antitrust” is more difficult to discover than other issues, so I looked for those who had either filled a particular position in a state or federal agency focusing on the issue or had written on antitrust issues. See “Federal Regulatory Commission Appointments, 1887–1935” for details.
128 See discussion about political support for FTC commissioner William Humphrey in Humphrey to Franklin Roosevelt, July 19, 1933, box 1, William E. Humphrey Papers, Library of Congress. See also commissioners' continued involvement in political work in, e.g., Jouett Shouse to Victor Murdock, December 20, 1917, Victor Murdock Papers, Library of Congress.
129 Carpenter, Forging Bureaucratic Autonomy.
130 Leonard White, The Republican Era: A Study in Administrative History, 1869–1901 (New York: Macmillan, 1958), 244–45.
131 Arthur W. MacMahon and John D. Millett, Federal Administrators: A Biographical Approach to the Problem of Departmental Management (New York: Columbia University Press, 1939), 348–49. For the general high level of such bureau appointments, see ibid., 318–76. For other high-level and long-tenured scientific appointments in the Interior Department in this period, including individuals such as Frederick Haynes Newell and W. J. McGee, see Hays, Conservation and the Gospel of Efficiency, 7, 102–103.
132 The one potential exception to the lack of subject-matter expertise of such commissions in the Progressive Era is the Federal Reserve Board. As a board that largely administered the new Federal Reserve Banks, it perhaps should not be placed in the tradition of “regulatory” bodies, whose goal was to supervise preexisting industries. It did, however, from its inception, tend to be filled with members who had banking experience, although it exhibited the same lack of academic expertise as other commissions. Of the twenty-one board members from 1913 to 1935, only five were lawyers, four were academics and three were politicians, yet fifteen had previously worked in the banking industry, and three had done extensive research or written on banking. Of course, this tradition of banking regulators being particularly attached to their industry continues up to the present. The biographies of every Reserve Board member have been accumulated in a Federal Reserve online database. See Board of Governors of the Federal Reserve System, “Board of Governors Members, 1914–Present,” https://www.federalreserve.gov/aboutthefed/bios/board/boardmembership.htm. See “Federal Regulatory Commission Appointments, 1887–1935” for analysis.
133 “900 Seek Places on Radio Board: Task Is Harder Because Five Zones and the Political Parties Must Be Represented,” New York Times, February 26, 1927.
134 See “Federal Regulatory Commission Appointments, 1887–1935.” For radio commissioners’ expertise as well as their attention to gathering information from the public, see David A. Moss and Jonathan B. L. Decker, “Capturing History: The Case of the Federal Radio Commission in 1927,” in Preventing Regulatory Capture: Special Interest Influence and How to Limit It, ed. Daniel Carpenter and David A. Moss (Cambridge, UK: Cambridge University Press, 2014), 176–207.
135 Congressional Record, 73rd Congress, 2nd Sess., 1934, 78, 7946–47.
136 See “Federal Regulatory Commission Appointments, 1887–1935.”
137 Landis also noted that “fifty years ago we hardly sought to breed experts in these newer fields” and they weren't available. James Landis, “Fact, Fancy, and Reform in Administrative Law,” University of Wyoming Speech, February 7, 1941, box 149, James Landis Papers, Library of Congress.
138 Illinois Central R. Co. v. ICC, 454–45 (1907). See verbatim language about “appointed by law and informed by experience,” in the Pennsylvania Supreme Court's decision in Ben Avon Borough v. Ohio Valley Water Company, 103 A. 744, 750 (Pa. 1918).
139 FRC v. Nelson Brothers Bond and Mortgage Company, 289 U.S. 266, 276 (1933).
140 Thomas, Missing American Jury, 101.
141 Humphrey's Executor v. United States, 295 U.S. 602 (1935). Some analyses of the New Deal's belief in expertise in fact quote extensively about the still common need for agencies to acquire “experience.” See Reuel Schiller, “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,” Michigan Law Review 106 (December 2007): 402, 433, 435–36.
142 William Humphrey to Franklin D. Roosevelt, July 19, 1933, box 1, William E. Humphrey Papers, Library of Congress. Humphrey was also making political recommendations and having discussions with congress members right up to the point of his removal. Humphrey to Senator Elison Smith, August 16, 1933, box 1, William E. Humphrey Papers, Library of Congress.
143 Gray v. Powell, 314 U.S. 413 (1943) (J. Reed) (“it is the Court's duty to leave the [Interstate Commerce] Commission judgment undisturbed,” since the question at hand “calls for the expert experienced judgment of those familiar with the industry,” although not both “expert” and “experienced”). See also Chevron v. NRDC, 467 U.S. 837, 865 (1984).