"The congestion of legislation and the lawlessness of administration are the text of pretty nearly every presidential address before bar associations today," Pound wryly observed. 52 However, the problem did not arise because of "materialism or paternalism, or a decay of the ancient faith, or a loss of fiber in the American public, or anything of that sort. It is simply this: . . . Our pioneer versatility does not suffice in the complex, intricate, economic industrial organization of today."53
We can see that Pound's attitude in 1924 toward the growth of administra tive law ("Let us think . . . in terms of 'can,' not of 'can't.' ")54 still very much expressed the optimistic and experimental mindset characteristic of his great prewar writing. Administration reflected the "natural . . . evolution" away from nineteenth-century formalism and conceptualism." Administrative regulation was not bureaucratic or standardized justice but a superior form of justice in the individual case. What a far cry from Pound's later invocation of the judicial model as the only legitimate expression of the rule of laws
Pound's 1924 address was part of a deeper, more long-standing conflict over the meaning of the rule of law ideal. Progressive reformers, including Pound, had for some time been challenging the nineteenth-century view that general and abstract rules could produce the kind of certainty and predictability traditionally identified with the rule of law. Pound was among the earliest thinkers to observe that the broad generalizations that characterized nineteenth-century legal consciousness presupposed a homogeneous society with standardized transactions and human interactions that could be generalized and abstracted into rules. The complexity of industrial society, however, undermined this traditional identification of generality with predictability. Judicial regulation was notoriously slow and unpredictable, Pound insisted.
Especially in the complicated economic organization of today the law cannot say to the business man, well, you guess; you employ a lawyer by the year to give you the best guess that he can, and then as the result of litigation we will tell you five years afterwards whether your guess as to the conduct of your business was the correct one or not.56
The solution was to create new forms of law that would disaggregate; subcategorize, particularize, and individualize rules and disputes.
We are in a busy, crowded world, and when we do anything today we must specialize. . . . We cannot waste our time and substance on the mere incidents of our life. . . We try to tell men in advance what they may do and what they may not, as far as possible; and our administrative commissions are nothing but traffic officers, as it were, with signals to tell us when to cross and when not to cross, and where to cross. n
By 1938, however, Pound had made an abrupt about-face on the uses of administrative justice. As Landis was appealing to "flexibility" and "the temper of the times" in his defense of administrative growth,58 Pound, who had singlehandedly proclaimed "social engineering" and "sociological jurisprudence" as the twin goals of earlier Progressive reform, was devoting himself to denouncing the dangers flowing from "administrative absolutism."S9 "The reader of Pound's earlier writings," Judge Jerome Frank observed, "rubs his eyes" upon encountering Pound's recent denunciations and asks: "Can this be the same man?"60
In a report issued while he was chairman of the American Bar Association's Special Committee on Administrative Law, Pound lent his enormous prestige to an unmitigated denunciation of New Deal administrative practices. The "Pound Committee Report," published in 1938, issued a call to arms to an establishment bar, many of whose once powerful clients, demoralized by the Great Depression, had silently endured five years of New Deal social engineering. Now it was time to act. Unless "the bar takes upon itself to act, there is nothing to check the tendency of administrative bureaus to extend the scope of their operations indefinitely even to the extent of supplanting our traditional judicial regime by an administrative regime," Pound wrote.61
Pound warned of "the idea of administrative absolutism," which took the form of "a highly centralized administration set up under complete control of the executive . . . , relieved of judicial review and making its own rules."62 "Those who would turn the administration of justice over to administrative absolutism," Pound declared, treated rule of law ideals as "illusory." "They expect law in this sense to disappear."63 Referring to Felix Cohen's daring Legal Realist article, "Transcendental Nonsense and the Functional Approach," 64 he announced: "This is a Marxian idea." 6' As if to leave no doubt about this charge, Pound noted that "the jurists of Soviet Russia" favored the end of law.66
Amid this overheated rhetoric, Pound also took on Landis's contrast between "the overheated atmosphere of litigation" and "the calm of scientific inquiry"67 prevailing in administrative agencies. "Who indeed shall say that an inquiry before the National Labor Relations Board is not heated?" Pound asked.68 "The postulate of a scientific body of experts pursuing objective scientific inquiries is as far as possible from what the facts are or are likely to be. . . ."69
How had Pound changed? The emphasis in his early writing on the excitement of social experiment and the need for legal flexibility had been replaced by a fear of social change. In 1905 Pound could ask how jurists might "lead our law to hold a more even balance between individualism and socialism."70 In 1914 he maintained that while some people "went to one extreme and were bureauridden, we went to the opposite extreme and were law-ridden. "71 Throughout the 1930s, however, as the Great Depression contributed to the prostration of constitutional regimes and the rise of totalitarian dictatorships, Pound increasingly put his political faith in a traditional court-centered rule of law ideal. All of "his common law prejudices," his biographer wrote, were directed "against the administrative process."72 An earlier complex understanding of the limits of formalism was replaced by simplistic pieties about the rule of law.
Pound's positions on administrative law contained a good deal of "careless and emotional"73 posturing, his biographer noted. "Pound became increasingly vituperative, and the fantastic accusations that he hurled so effortlessly demonstrated his loss of proportion."74 He degenerated into deploying "a rhetoric of mudslinging. of
Pound and Landis: Two Traditions Collide
The dramatic fluctuations in Pound's views symbolized the deep sense of ambivalence that the rise of the administrative state had produced. The tremendous growth in administration posed the dilemma of how to create a regulatory state without allowing it to become arbitrary and oppressive. This dilemma spawned theories of justification or restraint that drew on very different traditions of thought about administrative law. In the debate between Pound and Landis, two traditions, which I will call the "legalist" and "scientific" approaches, collided.
Pound drew upon a long-standing legalist suspicion of the rise of the administrative state that goes back to the enormously influential pronouncements of the English jurist A.V. Dicey on the intimate relationship between collectivism and administration. For Dicey, administrative law, perceived as a hotbed of discretion and coercion, posed a major threat to the rule of law ideal. With that insular arrogance that long characterized the common law tradition, the legalists were quick to dismiss the non-judicial focus that characterized the development of Continental administrative law as nothing less than a betrayal of the rule of law itself.
Landis, by contrast, drew on a well-developed Progressive belief that courts were ideologically and administratively incapable of handling the regulatory problems of a complex, interdependent industrial society. He offered instead a "scientific" alternative to judicial decision making. Though this anti-judicial perspective began to surface with the passage of the Interstate Commerce Act, the Commission established by the act was still justified primarily as a substitute for unwieldy legislative power to set rates, not as an attack on judicial competence. The critical view of courts as unfair and inefficient forums clearly took root after 1910 with the successful campaign to take worker injury cases out of common law courts, an effort closely linked to severe criticism of the insensitivity and incompetenc
e of common law judges. Indeed, Theodore Roosevelt's 191 campaign proposal for recall of judges was offered in reaction to judicial hostility towards workers' compensation statutes.76
The conflict between the legalist and scientific approaches needs first to be put in the context of American attitudes toward regulation, as well as ideals of the rule of law. We are accustomed to recognizing the enormous influence that law and lawyers have exercised in American society. Indeed, we are taught to appreciate the unusual power that courts have exercised in the American system of constitutional government. We are less likely, however, to see the disproportionately greater role that American courts have played historically compared to that of other institutions of government, especially the administrative ones. For more than a century after the American Revolution, ideals about the meaning of the rule of law were developed within an entirely judge- and court-centered system of thought.
The victory over the codification movement (1820-1848, 1870-1890) symbolizes the success of nineteenth-century legal orthodoxy in legitimating the role of common law judges in a democratic society. It created for judges and lawyers an autonomous system of legitimation as powerful as those of its traditional rivals-democracy, religion, science, and the market. It not only treated legislative initiatives with great suspicion ("statutes in derogation of the common law are to be strictly construed") but it reacted to the development of administrative regulation with an hostility reserved for an alien intruder.
Compared to European governmental structures, the American system was anomalous. As Stephen Skowronek has shown, most nineteenth-century European political theorists were struck with "the sense of statelessness" when viewing early-nineteenth-century American government. For Hegel, America could not be considered to be a "Real state" because "it had not developed the national governmental forms and orientations that distinguished the state realm in Europe." Among the most startling omissions was the absence of an "insulated bureaucratic class to give a distinct character to national administration."77 "The combination of extremes-a highly developed democratic politics without a concentrated governing capacity-made early America the great anomaly among Western states." 78
A system of "courts and parties" provided the basic institutional structure of governance. Courts "filled a governmental vacuum" left by the discrediting of active state intervention in the building of canals in the 18zos.79 By the end of the nineteenth century, "the courts had become the American surrogate for a more fully developed administrative apparatus."80 "Providing the national institutional capacities commensurate with the demands of an industrial society"" created pressure by the turn of the century for "a new governmental framework" that included national administrative power.
If the central problem of legal legitimacy in nineteenth-century America focused on the power and authority of judges, in the twentieth century the issue of legitimacy has centered on the authority of administrators and bureaucrats.82 As new administrative agencies were created, they were not treated as coordinate or parallel governmental entities but instead were pressed to conform to courtcentered conceptions of legitimacy. The rise of administrative regulation thus represented a renewed threat to common law conceptions of legality, which had already resisted the earlier challenge of codification. It also revived older fears of redistribution, statism, and centralization that had previously been directed at legislative action.
Courts not only brought these fears to their decisions regarding administrative action; they also sought to insist upon judicial ideals of justice in the individual case even for systems of economic regulation devised to provide only rough justice over a vastly expanded number of cases. Much of the struggle over administrative justice during the past century has derived from this challenge posed by the rise of administration to nineteenth-century conceptions of individually oriented justice. 83
The Scientific Tradition
The passage of the Interstate Commerce Act marks the formal beginning of the struggle for primacy between courts and administrators. In response to the chal lenge of rate regulation, judges created strict doctrines about delegation of power in order to place substantial procedural and substantive limits on exercises of administrative discretion. These limits included judicial supervision of the substantive reasonableness of rates in order to prevent confiscation under the guise of regulation. Despite these restrictions, the scope of federal administrative regulation increased geometrically, first between 1887 and the Federal Trade Commission Act of 1914, and once again by the time of the New Deal. Administrative regulation increased massively at the state level as well, from the passage of the Granger laws to the rise of enormous state insurance, banking, and utility regulation and the establishment of workers' compensation systems.84
As a result of this expansion, it became impossible to use general legislative enactments as the basis of detailed control over the exercise of administrative power. Indeed, the last time the U. S. Supreme Court used delegation theory to hold a grant of legislative power unconstitutional was in 1935, when in Schecter Poultry it held the delegation in the National Industrial Recovery Act unconstitutional.85 The delegation doctrine soon came to be regarded as too crude and formalistic to serve the function of limiting administrative discretion. It depended on a theory of language and legal reasoning that supposed that general propositions could actually decide concrete cases.
Progressives sought to discredit the delegation theory by claiming both the failure of general rules to limit administrative powers and the institutional incapacity of legislatures to create detailed and constantly changing regulations. While general rules could not effectively limit administrative discretion, Progressives asserted, the need for a multiplicity of specific rules to cover the full range of regulatory activity far exceeded any legislature's capacity in terms of time, knowledge, and attention.
By the time Landis wrote The Administrative Process, almost a half century of experience had cast doubt on the legalist premise that general rules could substantially limit administrative decisions. Rate making, for example, was widely conceded to be dependent on too many variables to be effectively limited by general criteria. One of the most frequently cited examples of the failure of rules to constrain discretion was the accumulating experience under the law of negligence. Instead of becoming more rule-bound, as Holmes had hoped, the law of negligence had succumbed to the reality that a multiplicity of factors ordinarily combined to produce accidents in a highly complex society. Indeed, the Legal Realists had argued that it had become virtually impossible to use general rules to limit jury discretion in negligence cases. In fact, one of the arguments for shifting worker injury cases to administrative adjudication derived from growing doubts about the efficacy of general rules.
John Dickinson saw in 192.7 that the failure of courts to limit jury discretion in negligence cases lay in the overly general structure of rules. "How far legal rules are capable of development to govern such adjudications is . . . dependent . . . on the possibility of isolating facts pertinent to all the cases which may form the basis for a rule," Dickinson wrote.86
The real reason for the special difficulty of developing legal rules in the field of economic regulation . . . is that the situations which form the subject matter of such regulation are generally so complex and unique that the factors which are determining in one case seldom repeat themselves in others.87
Legalists from Dicey to Pound have been reluctant to confront this difficulty that traditional rule of law ideas were dependent on a conception of legal generality that could flourish only in relatively simple and homogeneous societies.
The collapse of the delegation theory after Schechter Poultry in 1935 occurred because of a conjunction between Legal Realist theoretical attacks on the claims of legal reasoning to move from the general to the particular with an accumulation of experience that demonstrated the difficulty of constraining administrators effectively through general rules. For many, the highly general language of the Federal Trade
Commission Act of 1914 represented the first moment of recognition. For most, the broad legislative delegations to New Deal regulatory agencies settled the issue.
The delegation theory was thus among the most important casualties of the Legal Realist assault on formalism and conceptualism. But its demise raised questions about the rule of law in an administrative state in which legislative rules could no longer serve as a serious check on the exercise of administrative authority. It was in this context that the Progressives developed the scientific or expertise justification of administrative power as an alternative to traditional ideas of legality. 88
As early as 1905, one Progressive thinker, Frank Goodnow, drew on Continental ideas to create a non-court-centered theory of administrative law. At its core was the assertion of a sharp distinction between "Politics and Administration." The first constituted "the expression," the second "the execution" of "the state will."89 If politics consisted of choices among social ends, administrative activity was "scientific" or "technical." "[T]he discharge of its functions . . . should be uninfluenced by political considerations, else the work will be done inefficiently or partially, and it may be corruptly. The more politics gets into [administration], the less effective and less impartial will the work . . . be. . . ."90
Goodnow thus sought to articulate the Progressives' increasing admiration of the professional expert whose skill, neutrality, and impartiality formed an alternative to both the demagoguery and corruption of American democratic politics and the unmitigated self-interest of marketplace ethics. He drew inspiration from the efforts begun in 1883 to reverse the Jacksonian hostility to a professional civil service, as well as from the Progressive campaign to cure the endemic corruption of American municipal politics through the appointment of professional city managers.91
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