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Abstract:
The federal regulation of financial markets was one of the success stories of the New Deal. It was also the realm of New Deal statebuilding most dominated by lawyers who had either worked in large corporate law firms or had all the credentials to do so but were excluded on grounds of ethnicity, gender or race. Government lawyers looked to the law factories of Wall Street for inspiration as they built bureaucratic autonomy at the Securities and Exchange Commission and gave private practitioners their own stake in securities regulation. The SEC lawyers also learned to address the partisan needs of their allies in Congress, who were as hostile to Eastern capital as they were solicitous of investors, while maintaining the independence that made their agency useful to politicians in the first place. Their experiences are instructive for the architects of financial regulation today.

Legal history, Securities regulation, Legal profession

Abstract:
Unlike other proteges of Felix Frankfurter in the 1930s, James Willard Hurst left his clerkship with Supreme Court Justice Louis Brandeis in 1937 not for law job in Washington but to teach at the University of Wisconsin Law School. Together with his dean Lloyd K. Garrison, Hurst developed "Law in Society," a New Dealer's first course in law, centered not on courts but administrative agencies. When the war came, Hurst had the chance to test out his notions of law and administration as a lawyer at the Board of Economic Warfare. Headed by Vice President Henry A. Wallace, the BEW was a bastion of New Dealism in an increasingly business-oriented war effort. Among other things, it was charged with developing and procuring new overseas supplies of war materiel to replace sources that had fallen into enemy hands. Hurst contributed one of the BEW's most controversial measures, a provision in procurement contracts obliging employers to observe minimum labor standards. This attempt to fight "a New Deal war" by improving the lives of African and Latin American workers failed not long after Hurst's departure for the U.S. Navy. Still, the affair elucidates much of Hurst's pioneering scholarship on legal history and the legal profession in the postwar period.

Board of Economic Warfare, New Deal, Legal History

Abstract:
In the 1890s, New Zealand legislators established the Arbitration Court as an ad hoc system for settling industrial disputes; by the mid-twentieth century the Court had become a pillar of New Zealand's welfare state. This transformation did not proceed smoothly, however, because of a mismatch between the mission and its managers. The judges who presided over the court were more interested in legal principles and forensic debate than the bargains of workers and their employers. They considered their tenure as a purgatory to be endured until they were promoted to full-time service on the New Zealand Supreme Court. This mismatch resulted because the Court evolved into an institution that differed from the founders' intent and because a dearth of other professionals left only the judiciary as a vehicle for putting the resolution of industrial disputes beyond the reach of partisan politics.

This article is reproduced by kind permission of the Friends of the Turnbull Library, Wellington, New Zealand (www.turnbullfriends.org.nz).

Labor, Courts, New Zealand

Abstract:
Pierson v. Post, 3 Caines 175 (N.Y. 1805) is one of the most commonly assigned cases in first-year Property courses. For many years our only information about the case, other than the report itself, has been a vivid but antiquarian account published in 1895. Recent years have seen a flurry of articles that provide a great deal more insight into the case and its context. This paper summarizes the “new learning” for students and teachers of Property.

Property, Legal History

Abstract:
This essay is a synoptic account of the legal history of the administrative state in twentieth-century America. The century saw three cycles in which the creation of administrative structures was followed by their consolidation into durable political "regimes." Each cycle saw innovations in five broad categories of administration: command-and-control regulation, social insurance and provision, fiscal management, state capitalism, and social police. In the state-building phase of each cycle, the emergence of new bureaucracies disrupted an existing political regime by empowering marginal or excluded groups. After the state-building impulse dissipated, the recently empowered and previously dominant actors reached an accommodation. The bureaucracies became part of a new regime, which, for a time, allocated resources, identified feasible goals, and framed ideologies for politically active Americans.

In the first, "Progressive" cycle, administration was consolidated into a political regime in which courts and localistic, bottom-up, patronage-dispensing political parties remained dominant. The Great Depression and World War II provided the impetus for state-building in a second, "New Deal" cycle. It made autonomous bureaucracies a regular feature of the federal government and a vehicle for president-oriented politicians. Social ferment - civil rights, antipoverty campaigns, the consumer and environmental movements - set off the third, "Public Interest" cycle, in which bureaucracies were opened up to previously unorganized populations and new bureaucracies were created to address recently perceived needs. During the 1980s and 1990s, consolidators of the Public Interest regime argued that administration itself was inconsistent with the United States' exceptional place in world history, even as they profited from its expansion in the form of tax policy and government contracts. Administration remained a vast terrain of American governance at the century's end. It could not have been abolished without abolishing politics itself.

The essay is largely unfootnoted. A bibliographic essay lists the works consulted.