Imagining the Administrative State: Legal Pragmatism, Securities Regulation, and New Deal Liberalism

Abstract

After more than two decades of "bringing the state back in," law persists as a neglected stepchild in the history of American state-building. Legal historians have identified a profound transformation in jurisprudence that took place during the late nineteenth and early twentieth centuries, but they have said relatively little about how radically new conceptions of law influenced public policy during the 1930s. 1 Conversely, historians of public policy have written extensively about American political development, the nature of bureaucratic autonomy, and the uses of economic knowledge in upholding the administrative state, but the role of law and jurisprudence in recasting state power has remained elusive. 2 Moreover, as William J. Novak has observed, both groups of scholars remain hamstrung by the inherited wisdom of Progressive historiography, and they continue to subscribe to a familiar litany of cases from Lochner to Schechter that undergirds a grand narrative about law's sole function as an impediment to state-building. As a corrective, Novak has urged historians to consider more carefully the "massive amount of everyday lawmaking" and "structural sociolegal changes" rendered invisible by the court battles of the first third of the twentieth century. Although largely unacknowledged in public discussion and debate, such developments ultimately provided critical support for the consolidation and legitimation of the modern American state. 3 This essay examines the place of law in the making of the New Deal state by focusing on three of the early chairmen of the Securities and Exchange Commission (SEC)-James M. Landis, William O. Douglas, and Jerome N. Frank-and the key role jurisprudence played in their efforts to regulate the securities market and uphold the administrative state. General histories of the New Deal devote little attention to the SEC, but

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