Abstract

http://ssrn.com/abstract=2238085
 
 

Footnotes (314)



 


 



The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service


Jed Handelsman Shugerman


Harvard University - Harvard Law School

March 21, 2013

Stanford Law Review, Vol. 66, Fall 2013
Harvard Public Law Working Paper No. 13-17

Abstract:     
This Article offers a new interpretation of the founding of the Department of Justice in 1870 as an effort to shrink and professionalize the federal government. The traditional view is that Congress created the DOJ to increase the federal government’s capacity to litigate a growing docket as a result of the Civil War, and more recent scholarship contends that Congress created the DOJ to enforce Reconstruction and ex-slaves’ civil rights. However, it has been overlooked that the DOJ bill eliminated about one third of federal legal staff. The founding of the DOJ had less to do with Reconstruction, and more to do with “retrenchment” (budget-cutting and fiscal conservatism) and anti-patronage reform. The DOJ’s creation was contemporaneous with major professionalization efforts (especially the founding of modern bar associations) to make the practice of law more exclusive and more independent from partisan politics. A small group of reformers worked on a combination of the DOJ bill, civil service reform, bureaucratic independence, and founding modern bar associations in the late 1860s through 1870.

This Article also explains why the Department of Justice did not include civil service reforms as part of this professionalization project, even though the same reformers were fighting for broad civil service legislation at exactly the same time. The same Congressman who led the DOJ effort in 1870, Thomas Jenckes, was also known as “the father of the Civil Service” and simultaneously fought for civil service reform. Jenckes succeeded in passing a DOJ bill to professionalize government lawyers by reorganizing them under a more professional and independent Office of the Attorney General, rather than through civil service reform. Meanwhile, reformers fell short in their civil service campaign for other kinds of federal employees, reflecting a view that government lawyers were different from other government officials in the post-Civil War era.

In this new light, the DOJ’s creation conflicts with one historical trend, the growth of federal government’s size. Instead, it was at the very leading edge of two other major trends: the professionalization of American lawyers and the rise of bureaucratic autonomy and expertise. This story helps explain a historical paradox: how the uniquely American system of formal presidential control over prosecution evolved alongside the norms and structures of professional independence.

Number of Pages in PDF File: 63

Keywords: Department of Justice, legal profession, legal history, administrative law

JEL Classification: K40

Accepted Paper Series





Download This Paper

Date posted: March 24, 2013 ; Last revised: June 6, 2013

Suggested Citation

Shugerman, Jed Handelsman, The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service (March 21, 2013). Stanford Law Review, Vol. 66, Fall 2013; Harvard Public Law Working Paper No. 13-17. Available at SSRN: http://ssrn.com/abstract=2238085

Contact Information

Jed Handelsman Shugerman (Contact Author)
Harvard University - Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
Feedback to SSRN


Paper statistics
Abstract Views: 650
Downloads: 119
Download Rank: 142,417
Footnotes:  314

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.218 seconds