Why should conservatives now have wished to reduce judicial review to what Scalia called the APA's "rudimentary procedural mandates," when only a generation earlier they had pressed even more elaborate procedural constraints on administrative policymaking? Scalia was quite explicit about the reasons.
The most fundamental question, Scalia wrote, was "the indissoluble link between procedure and power, which must determine when and how procedures are made."239 While he was "willing to stipulate, for the sake of argument," that Congress could do "a superb job" if it focused on revising the APA itself,240 "[i]n fact, however, that is not the context in which the 'legislative thinking' which has produced the continuing statutory erosion of the APA has occurred."241 Instead, Congress was constantly "tinkering with administrative procedures in every major regulatory statute that is passed," and it was not likely to stop.242 Thus, despite his praise for Vermont Yankee as returning the courts to the "intent" of the legislature that passed the APA, Scalia was not eager to encourage legislative "tinkering with administrative procedures" in regulatory statutes themselves. During deliberations over those regulations, he asserted,
[t]he principal issue-the issue to which all the lobbying and horse trading which are an indispensable part of representative democracy were directed-was not, for example, "What are the most fair and efficient procedures for the Federal Trade Commission's adoption of trade practice rules?" but rather, "Should the Federal Trade Commission have rulemaking authority, and, if so, how actively do we want it exercised?" Not, for example, "What are the most fair and efficient procedures for Consumer Product Safety Commission rulemaking?"; but rather, "Should there be a Consumer Product Safety Commission and, if so, how intensively do we want it to regulate?"243
In lobbying before congressional committees concerned with the substance of regulation, "[p]rocedural efficiency and fairness are a side issue-and at least the first of them is inevitably regarded as negotiable in the interest of obtaining what are, in the context presented, more basic goals."244
An interest group which cannot achieve its goal of eliminating FTC rulemaking authority may, quite rationally, settle for imposition of cumbersome procedures that at least reduce the extent to which rulemaking can occur. 245
Scalia "fear[ed] that repeated Congressional attention to administrative procedure as a mere subsidiary issue in the context of more important substantive controversies" would lead to "the balkanization of administrative law."246 "[T]he fun damental point" he wished to emphasize was "that one of the functions of procedure is to limit power . . . the power to act at all."247 Procedural limitations are "principally a restriction" on the power of courts and agencies "impairing (however crudely) their ability and thus their inclination to make social policy."248 There is a strong tendency "to alter procedures as a means of altering power."249
Scalia was perhaps the first conservative to give expression to the relationship between procedure and power that had once been a New Deal monopoly. Indeed, his message seemed but an echo of James M. Landis's complaint that "the complexity and prolixity of . . . existing procedures redound to the benefit" of those who "have a vested interest in the status quo."250 In a 1961 address before the American Bar Association, Landis denounced "Alice-in-Wonderland procedures, reminiscent of the vested interest that the bar of the eighteenth century had in the procedures then prevalent in England," which enabled lawyers to "drag out proceedings" and "draw out issues beyond all reasonable bounds."251 In the distribution of television frequencies, for example,
[t]he substance of the matter is simple.. . . [T]he problem of government is to see that they are used as effectively as they can be used in the public interest rather than being employed in the interest of some purveyor of toothpaste or a deodorant. But this basic issue was concealed beneath an unreal procedural battle [that invoked] slogans, such as "czarism" . . . and even "sovietizing our government."z"Z
As another example of "[t]he same situation-a desire that the administrative process should not work efficiently,"253 Landis cited the defeat of a reorganization plan for the National Labor Relations Board. The defeat was "due to considerations having no relationship to the improvement of the administrative process but having a relationship to two factors, first political opposition pure and simple, and secondly the desire to thwart the basic principle" of the Labor Act that collective bargaining "should be the foundations of labor-management relations in our economy."254 Landis concluded: "As one witness for the National Association of Manufacturers bluntly put his reasons for opposing the plan: `One man's delay is another man's due process.' "255
Landis's lesson was not very different from that of Scalia almost twenty years later. Proceduralization of the administrative process "derive[s] more from opposition to the substantive laws entrusted to administrative agencies rather than any genuine opposition to the betterment of administrative procedure."256 Delay brought about through increasing proceduralization "is . . . equally an element of the lack of due process" because "the lag in the administrative disposition of its business approaches a national scandal, whose impact affects not merely individuals but the health and well-being of vast industries. 11251
What had changed in the interim to lead Scalia also to protest the increasing proceduralization of the administrative process? For one thing, the advantages of delay had begun to shift to newly organized welfare and environmental groups. Until the r96os, the structure of regulation had remained within the New Deal framework-private industry using legal procedures to resist implementation of governmental restrictions on their power. Procedural restraints had traditionally been defended in the name of protecting private property rights against essentially confiscatory governmental policy. But the emergence during the 196os of environmental organizations seeking to restrict or delay governmental action created a new set of beneficiaries of procedural delay. In addition, the vast expansion of the welfare state during Lyndon Johnson's presidency, together with the establishment of a legal services bar, created a new constituency for procedural reg- ularity.2s8
One of the most famous efforts to elaborate the effect of these changes on legal theory was Charles Reich's path-breaking 1964 Yale Law Journal article, "The New Property."259 "One of the most important developments in the United States during the past decade has been the emergence of government as a major source of wealth," Reich began.26' Government largesse in the forms of "money, benefits, services, contracts, franchises and licenses" was "steadily taking the place of traditional forms of wealth-forms which are held as private property.,, 161 ,Only by making such benefits into rights," Reich argued, "can the welfare state achieve its goals of providing a secure minimum basis for individual well-being and dignity in a society where each man cannot be wholly master of his own destiny."262
Reich first criticized the ideology of "the public interest state" according to which "the wealth that flows from government is held by its recipients conditionally, subject to confiscation in the interest of the paramount state."263 He called this "The New Feudalism,"264 which resulted in a "dependent position of the individual and [a] weakening of civil liberties."265
Next, he attacked the traditional chasm between property rights and governmentally created privileges. Here he drew on the Realist critique of property as a pre-political natural right in Classical Legal Thought. "The chief obstacle to the creation of private rights" in governmental benefits is "the fact that it is originally public property, comes from the state, and may be withheld completely. But this need not be an obstacle. Traditional property also comes from the state.. . ...266 Thus, neither "old" nor "new" property is a "natural right but [instead] a deliberate construction by society. If such an institution did not exist, it would be necessary to create it, in order to have the kind of society we wish."267 The postRealist creation of rights in "new property" would not depend on traditional natural rights ideas but on the positive creation of procedural limitations on governmental power.
Reich's conception was developed in
reaction to governmental abuse during the McCarthy era. The largest group of cases he refers to are examples of denials or revocations of benefits and licenses to persons accused of Communist associa- tions,268 including the infamous case of Fleming v. Nestor,269 in which the U.S. Supreme Court upheld a law that retroactively deprived a former Communist of social security benefits that had accrued after nineteen years of pension contributions.
Reich's ideas were soon to be applied in a somewhat different context-the development of a general right to welfare that had just begun to emerge. Its most famous expression is the decision of the U.S. Supreme Court in Goldberg v. Kelly (1970), which prominently relied on Reich's new property to establish a constitutional right to an evidentiary hearing before welfare benefits could be terminated. 270
This association of the expansion of welfare rights with widening procedural guarantees shattered the traditional Dicean connection between conservatism and proceduralism in the administrative state. It is one prominent reason why conservatives such as Professor Scalia began to re-emphasize the distinction between old and new property through resistance to expanding procedural guarantees. In the process, conservatives began to see what James Landis had always understoodthat there has always been a trade-off between substance and procedure, and that one man's due process is another man's delay.
Post-World War II legal thought was shaped by three broad sets of influences. First were the varying reactions to the unsettling legacy of Legal Realism that encountered the persistent pressure of professional orthodoxy to restore a sharp distinction between law and politics. Second were the varying interpretations of and reactions to the horrors of fascism, Nazism, and Stalinism. The emergence of totalitarianism abroad not only revived broad interest in the meaning of the rule of law; it also rekindled thought about the relationship between democratic political culture and legal theory. An even more specific result of the rise of totalitarianism was the astonishing spread of McCarthyism, a form of antiCommunist authoritarianism that came to represent not only a major domestic political response to the cold war but also a powerful catalyst to political repression in post-war culture. Finally, post-war legal thought was powerfully shaped by efforts to square the Supreme Court decision in Brown v. Board of Education' (1954) with the half-century-old, post-Lochner, Progressive commitment to judicial restraint.
Llewellyn's Retreat
During the 1950s, after a decade of rancorous and mean-spirited attacks directed against him, Karl Llewellyn began his retreat from some of the ideas of his youth. From the Nazi-Soviet Pact and the invasion of Poland in August and September 1939 through the Japanese attack on Pearl Harbor in December of 1941, discussions of totalitarianism, as Edward A. Purcell, Jr., has shown, had been "transformed . . . into a national debate that reached frenzied proportions."' Argument over the nature of law also "had reached its most intense phase."3 At a special conference of over Soo American intellectuals gathered in New York City in September 1940, Mortimer Adler had snidely observed that since
[w]ith a few notable exceptions, the members of this conference represent the American academic mind, . . . [it was] unnecessary, as well as unwise, for me to make any effort in the way of reasoning." Charging American academics with embracing a skeptical positivism that corroded all ideals, he accused them of being largely responsible for the political crisis that had culminated in World War 11. "For all of these reasons, . . . [Adler had declaimed] I say we have more to fear from our professors than from Hitler.4
Amid the resulting "intensity and extremism of debate," it had become common to "charg[e] realism with everything from atheism to communism to nihilism."5
When Llewellyn republished his 193o book, The Bramble Bush, in 1951, he acknowledged in the foreword that while he was "[c]orrecting an error" in his earlier version, he was also intent on protesting the invective that had been unfairly directed against him.' The "error" could be found in the "thirteen short words" that had become a prominent point of attack after the original publication. He had written: "What these officials do about disputes is, to my mind, the law itself. 117
These were "unhappy words when not more fully developed," he acknowledged. "[T]he words fail to take proper account" of the nature of a legal institution "as an instrument for conscious shaping or . . . as a machinery of sometimes almost unconscious questing for the ideal.. . ."8 He should not have forgotten "that one inherent drive which is a living part of even the most wrongheaded and arbitrary legal system . . . [is] to make the system . . . more closely realize an ideal of justice." Nevertheless, "the history of these thirteen short words," Llewellyn concluded, "sheds troubling light on the methods, manner and ethic of a style of controversy in jurisprudence which is now happily waning but against which it still pays to warn."9
Still, it was becoming increasingly difficult to insist on a view of law as a social creation, which was the main point of those words. Together with Llewellyn's later advocacy of a "temporary divorce" between the empirical and the norma- tive,10 Legal Realism had been drawn into arguments about whether natural law or positivism best encouraged or resisted totalitarianism. As early as 1940, Llewellyn had conceded that "the heart and core of jurisprudence" was the problem of ethical purpose in the law. "I for one am ready to do open penance for any part I may have played in giving occasion for the feeling that modern jurisprudes or any of them had ever lost sight of this," Llewellyn declared. I I
Even as sober an intellectual as the journalist Walter Lippmann had lost patience with the debate about the social origins of law. He wrote in The Public Philosophy (1955):
The crucial point, . . . is not where the naturalists and the supernaturalists disagreed. It is that they did agree that there was a valid law which, whether it was the commandment of god or the reason of things, was transcendent. They did agree that it was not something decided upon by certain men and then proclaimed by them. It was not someone's fancy, someone's prejudice, someone's wish or rationalization, a psychological experience and no more. It is there objectively, not subjectively. It can be discovered. It has to be obeyed.''-
As if to underline the authoritarian implications of his words, Lippmann chillingly warned:
There are limits beyond which we cannot carry the time-honored method of accommodating the diversity of beliefs. As we know from the variety and sharpness of the schisms and sects of our time, we have gone beyond the limits of accommodation. We know, too, that as the divisions grow wider and more irreconcilable, there arise issues of loyalty with which the general principle of toleration is unable to cope.13
Indeed, just before Llewellyn's confident assertion that "our methods, manners and ethic of controversy in jurisprudence have tremendously improved," 14 Senator Joseph McCarthy had delivered his notorious 1950 Wheeling, West Virginia, speech inaugurating what came to be known as the McCarthy era.15 And Llewellyn simultaneously had begun to move away from the critical tradition of Realism.
"[I]f these lectures were being done over," Llewellyn wrote in his afterword to The Bramble Bush, "I am clear that their focus would shift materially off of `the law' as lawyers understand that term.. . ."1° Instead, the emphasis would shift to legal institutions "and what the part is-the noble and needed part-which the various major crafts of law play.. . ." 17 Here Llewellyn introduced what would become the central theme of his last book, The Common Law Tradition (1960).18
Realism, Llewellyn observed, had been "made the scape-goat for all the sins (real and supposed) of administrators and autocrats and the ungodly in general." The "irresponsibility" of the accusations "reads like rather grotesque farce." 19 Yet, perhaps the cumulative nastiness of the attacks on Realism had finally taken their toll.
The Common Law Tradition opens with Llewellyn's agreement with a generation of critics of Realism that "we face a crisis of confidence" in appellate courts that has produced "a new corrosiveness" of belief. "[O]ne great group at the bar are close to losing their faith" in the "reckonability" of the work of appellate courts. "[
T]he man at the bar must have confidence on pain of feeling his own sustaining faith in his craft, in his craftsmanship, in his very office and utility as a lawyer, . . . ooze and seep away from him until he stands naked and hollow, helpless and worthless, a nothing, or a medicine man who has discovered his medicine to be a cheat."20
The Common Law Tradition was written to combat "the cynicism about the appellate courts that is stock conversation of the semi- or moderately successful lawyer in his middle years" and to show the "skilled craftsman" that it was really possible "to make usable and valuable judgments about likelihoods, and quite sufficiently to render the handling of an appeal a fitting subject for effective and satisfying craftsmanship."" Thus, in his last work, Llewellyn ardently sought to emphasize the virtues of "stability," "predictability," "tradition," and professional "craft," all values that Realism had once called into question because of their inherently conservative tendencies.
In much the same way that scholarly fields as disparate as literary criticism and philosophy turned inward to technical questions of professional craft and technique, Llewellyn appears to have continued to do "open penance" for the destabilizing consequences of Realism. In a period in which it was common to deplore the loss of a sustaining faith in legal objectivity, Llewellyn offered a new basis for belief in professional craft as the source of stability and predictability in law.
The Pattern of Post-War Thought: An Overview
American legal thought after World War II shared a strikingly similar agenda with many other areas of social thought. There was more similarity of approach between the different branches of thought during this period than at any time since the decade before the First World War. Then the issues generated by industrial capitalism had formed the central agenda for all categories of social thought. After World War II, much of the American intellectual outlook was shaped in reaction either to the trauma of Nazism or to continuing encounters with the savagery of Stalinism.
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