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Managing Legal Uncertainty

Elite Lawyers in the New Deal

Duke University Press

Introduction

Two general observations are shared by most students of the New Deal: first, that it marked the most significant shift in American history from a relatively "weak" and abstemious federal state to the modern regulatory state—that the New Deal represented a quantum leap in national-government involvement in the economy; and second, that the New Deal did not challenge the basic principles of the free-market economy and ended up reproducing and securing the foundations of corporate capitalism. The declared agenda of the New Deal's administration was to pull the United States out of the depression by facilitating renewed economic confidence and not by transforming the distributive principles of the system as a whole.

Yet the New Deal administration was in no way committed to a single political philosophy. Economic recovery, as far as the administration was concerned, necessitated different, if not conflicting, experiments. The sense of disorientation that this spirit of experimentation created was well captured in a letter that Justice Louis Brandeis wrote to Felix Frankfurter, then a law professor at Harvard: "Franklin D. Roosevelt's readiness to experiment is fine. But I am at times reminded of the Uncle from India's answer to the Private Secretary. When asked by his housekeeper 'Do you believe in spirits?' 'Yes,' said he, 'in moderation.'" Brandeis's wishes notwithstanding, the New Deal often resembled a disarrayed response to "a variety of pressures and forces pushing the government in all ... directions. The result was an amalgam of conflicting policies and programs, one that might make some sense to the politician, but little to a rational economist." Consequently, the New Deal was described by its contemporaries in almost every conceivable way: a communist conspiracy, a capitalist strategy , a socialist plan, fascism in disguise, an enlightened-liberal reform, corporatism in action, and a dictatorship in the making. To some extent, these sharp differences in perception have not subsided. Although sometimes engaged in asking a different type of question, sixty years later a host of political scientists, legal historians, sociologists, public policy analysts, philosophers, jurists, labor historians, and economists still establish respectable academic careers debating the origins and fate of the New Deal.

It seems that the New Deal so fascinates researchers because it was an era of profound crisis. A crisis, to paraphrase Gramsci, consists precisely in the fact that the old is dying and the new is yet to be born. "In this interregnum," he wrote, "a great variety of morbid symptoms appears." It is in such times that what usually remains hidden under the calm waters of what is taken for granted is exposed. Established truths, accepted dogmas, and unavoidable arrangements lose their objective character and are recontextualized, revealing the relations of domination, cooperation, inequality, privilege, suspicion, and trust that underlie them. It is in such times that old alliances break apart and new coalitions are formed and that society's most basic discursive and nondiscursive formations are formulated and experienced with exceptional clarity. Above all, a crisis is a suspended moment in which everything seems possible. New definitions of the situation may be born, new terms with which to negotiate the unstable flux that sociologists term the "social order" are introduced, and new possibilities of action, however contained within existing patterns, condition old institutions and allow one to imagine uncharted seas. A crisis, then, is when old certainties have to be defended and uncertainties knock on the door of established structures. It is the necessity to deal with uncertainty, to manage it, so to speak, that interests me in this book.

My intention in this book is neither to explain the New Deal nor to attempt any comprehensive account of it. I treat the New Deal as a process whose various aspects were shaped and negotiated on many sites. The whole, from the perspective I offer here, is an indeterminate aggregation of activities, projects, local struggles, and processes that take place in various, not necessarily coordinated, arenas. Accordingly, I focus on one particular site in which the New Deal was shaped, manipulated, debated, and conceptualized, and in this particular site, I mainly concentrate on one particular group. Insofar as the New Deal represented a quantum leap in involvement of the national government in the economy, this was largely accomplished by invoking a novel discourse on law and within law. In this respect, the New York Times adequately captured the mood of the times when it described the New Deal as an era in which Americans discussed the Constitution around the breakfast table. Law, to put it somewhat more concretely, was a primary medium through which the federal government constituted new arrangements and operationalized its economic and social programs. In the New Deal, as Guido Calabresi aptly puts it, the United States became a "nation governed by written laws." For Americans, the growing emphasis on the merits of intensive legislation at the national level as a form of social and economic planning collided with old judicial traditions and with what seemed to be fundamental constitutional maxims. It is the debates around and within the juridical arena that I discuss in this book.

Law, however, is not only a system of authoritative commands constituting the language of the state but also a body of knowledge, which is shaped by the various groups of experts who comprise the legal profession. Judges, academic jurists, government lawyers, and a host of practitioners in private practice participate in the discursive game of lawmaking. Laws as texts are raw materials that assume practical and theoretical meaning only in the course of ongoing work by these various carriers of the law. Courts, for example, are reactive instititions. Judges "find" laws, interpret statutes, and contextualize relevant precedents only in reaction to a legal process in which practitioners enjoy considerable gatekeeping powers. Practitioners are thus able not only to retain a considerable measure of control over the agenda of courts but are also capable of acting as solution finders, rationalizers, and innovators. In fact, Weber articulated theoretical and empirical links between the work of lawyers and the direction of legal developments as early as the beginning of the century. In Weber's scheme, the role of autonomous legal experts who enjoyed a measure of immunity from political and economic interests was crucial for the development of law as a heuristically consistent and self-referential system: "The increased need for specialized legal knowledge created the professional lawyer," Weber argued, and lawyers, in turn, had considerable influence on the "formation of law through 'legal invention.'" Accordingly, Weber's treatment of various types of legal thought (i.e., formally rational and substantively rational legal systems) went hand in hand with his analysis of the various subgroups that comprised the legal profession.

The role of lawyers in the New Deal, let alone the role of courts and legislators, has not been overlooked by students of the period. The New Deal is often remembered as an era of open and bitter confrontation between the Supreme Court and Roosevelt's administration. In this context at least, considerable attention has also been given to the role played by government lawyers and legal experts in the direct and indirect service of the state. The role of these lawyers in drafting, shaping, formulating, and defending the avalanche of new statutes and, in general, the reliance of the administration on legal expertise as means to advance its reform-driven agenda has been recorded in detail. Yet it is a curious omission that, despite abundant literature on the rise of an elite stratum of lawyers in private practice in America, few attempts have been made to provide an in-depth analysis of these lawyers in one of America's most crucial periods. One purpose of this book is to partially fill this void by concentrating on the response of the bar's elite practitioners to the New Deal. In speaking about these elite lawyers I have in mind what turned out to be a rather small but well-organized and coordinated group of corporate lawyers who ran some of the nation's biggest and most prosperous law firms and, concurrently, had considerable control over the collective activities of the bar due to their control of the bar's major associations. This elite, in short, both provided legal advice to the nation's leading corporations and business enterprises and presented itself as the voice of the legal profession as a whole.

In the New Deal, as we shall see, elite lawyers often found themselves in an awkward position. On the one hand, many understood that they were witnessing an era of new opportunities and new markets for legal services. It can be seen in retrospect that the New Deal created the modern law firm, with its highly specialized capabilities and a structure that resembled the structure of the corporations it represented. On the other hand, the New Deal frequently positioned lawyers in the role of an oppositional vanguard, not a typical position for a profession that is usually recognized for its prudence and conservatism. The literature that deals with the role of lawyers in the New Deal routinely treats them as a group of reactionaries whose overt hostility to the New Deal simply reflected the interests of their clients in resisting various legislative measures. A notable exception is Auerbach, who discussed the response of elite lawyers to the New Deal as part of his broader study of the history of the American legal profession. Auerbach noted that elite lawyers had their own distinct reasons to abhor some of the New Deal's tendencies. In particular, he emphasized the fact that the administration facilitated the emergence of a new counterelite of Jews, Catholics, and second-generation immigrants—heretofore generally excluded from the circles of Wall Street lawyers—who achieved positions of power and influence that they had never enjoyed before. Auerbach concluded, therefore, that xenophobia and ethnic considerations constituted part of the reason that elite lawyers often displayed outright hostility towards the New Deal. Yet even Auerbach routinely referred to the Wall Street lawyer as, first and foremost, a mouthpiece for capitalists.

Let it be immediately said that I have no argument with the observation that corporate clients had a significant impact on the way lawyers shaped and articulated their response to the New Deal. The conception of corporate lawyers as hired guns who are by and large subservient to clients' expectations and needs is a powerful and well-founded view. Yet it seems to me that an approach that attributes the practices of lawyers solely to the demands of clients risks an exaggerated reduction that fails to distinguish the role of lawyers in their diret capacity as legal counsel from their role qua professionals who are concerned with their own distinct interests. First, in their relations with clients, lawyers are sometimes able to shape the needs of clients and to define their horizon of expectations. Further, subservience to clients can hardly account for the fact that the activities of some lawyers in opposition to New Deal legislation far exceeded their strict obligations to clients. I will show that a network of prominent lawyers not only challenged New Deal legislation in courts and in Congress but also wrote articles in popular and professional publications, addressed numerous audiences, and mobilized the American Bar Association to produce reports and resolutions in which the legal philosophy of the New Deal was condemned. The readiness of some lawyers to engage in such public activities and to openly challenge an administration that enjoyed wide public support cannot be explained solely on grounds of representation functions.

In this study, therefore, I wish to complement the view of lawyers as servants with an approach that tries to avoid the pitfall of reductionism to which the former is prone. This approach is premised on the idea that law as knowledge is also a mechanism of social closure. The Weberian notion of social closure, says Parkin, refers to "the process by which social collectivities seek to maximize rewards by restricting access to resources and opportunities to a limited circle of eligibles." In this respect, the claim of specialized knowledge and expertise is the principle by which professionals secure their own market advantages. In the case of lawyers, the discourse on law and within law constitutes the knowledge base of the profession. Law as knowledge allows its possessors to restrict entry into the profession, to insist on self-regulation, to consolidate relations with consumers, to develop a market monopoly, and to control the pace and direction of legal developments. It is precisely the intersection of law as the language of the state and a currency of professional expertise that has to be taken into account in evaluating the fragile project of the formation of the distinct boundaries that are assumed by law's self-appointed guardians. And it is precisely the treatment of law as a professional currency that is often lacking in the analysis of the role of lawyers in the New Deal. The treatment of law as a medium and lawyers as the rather passive carriers of this medium resulted in a situation in which both the government lawyers who pushed the reform agenda of the state and the corporate lawyers who often tried to block it were at least implicitly assumed to be mere executioners, in spite of the recognition that lawyers' own views and methods shaped the fate of law. The challenge and the purpose, in other words, is to offer an analysis that takes into account the fact that the legal services that corporate lawyers offer are mediated through a legal field in which lawyers are positioned and to which they are linked through a complex web of institutional networks and normative assumptions. From the point of view of the "field," as this book strives to show, the practices of corporate lawyers in the New Deal are rendered more problematic, yet nonetheless more comprehensible, than the way in which they have so far been portrayed.

The conception of professional work as the typical actions and ideas that are produced and assumed in a given structured field—a legal or juridical field in the present case—has been systematically developed by the French sociologist Pierre Bourdieu. The concept of the field captures the conditions of competition and conflict, yet at the same time cooperation and mutual dependence, to which the various players in the field are subjected. Metaphorically, as Bourdieu's English translator has noted, the field is like a magnet, which exerts forces of attraction and repulsion upon all those who come within its range. The idea of a field, in itself a metaphor, presupposes a pervasive set of ideas, norms, procedures, and practices that, however unstable they might be, structure the range of possibilities for the relevant actors within it and mark the boundaries of their legitimate action. The field, in this sense, both constrains and enables action; it is shaped by the practices of actors and at the same time gives shape and meaning to various discursive and nondiscursive practices that are realized within it. The theoretical value of the concept lies in the fact that it anchors symbolic systems of meaning in the concrete practices of their carriers and, consequently, articulates a blueprint for analyzing the way a given discourse is produced within a social universe that has its own internal division of labor, structured hierarchies, and differential positions. The interaction of ideas with differential positions gives the concept the analytic ability to transcend the often arbitrary separation between tracing the history of intellectual production and tracing the trajectory of those who produce knowledge. This analytic framework, in other words, refuses the reduction of professional work to external interests that supposedly dictate the courses of action taken by the producers of knowledge and, at the same time, escapes the radical abstraction of idealist approaches.

Bourdieu's description of the legal field posits that it is "the site of a competition for monopoly of the right to determine the law." The imagery of the legal field as a site of competition is based on the idea of an internal division of juridical labor that potentially pits "sole practitioners against members of large firms, or, on another level, the partisans of more scholarly approaches against those favoring more 'practical' approaches to resolving legal issues." Further, the competition that the concept of the field presupposes is often directly related to the process by which new ideas about law are generated, the boundaries of the field are constituted, and the content and scope of that symbolic system of meaning and that symbolic capital we call law are determined. From this point of view, Bourdieu argues, the sociological analysis is also able to set itself free from jurisprudential debates about law that are cast in terms of formalism (which asserts the absolute autonomy of law) versus instrumentalism (which thinks of law as a tool in the service of dominant groups). Neither view, Bourdieu argues, adequately captures the significance of rooting these competing views in the context of the field. Both, in other words, commit the error of rendering the legal profession absent from the analysis of law. This point, as I will try to show, is particularly important in analyzing an era which is typically described as a "revolt against formalism" on the one hand and as a struggle between legal experts in the service of different masters on the other. From the point of view of the field, however, the analysis should emphasize the interaction between ideas about law and the differential histories, positions, and tasks of various segments of the legal profession. The intellectual interest in a given worldview, in other words, is "always simultaneously an interest in the social struggles within the field."

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Excerpted from Managing Legal Uncertainty by Ronen Shamir. Copyright © 1995 Duke University Press. Excerpted by permission of Duke University Press.
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