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Ernst Freund, Felix Frankfurter, and the American Rechtsstaat: A Transatlantic Shipwreck, 1894–1932

Published online by Cambridge University Press:  25 September 2009

Daniel R. Ernst
Daniel R. Ernst
Affiliation:
Georgetown University Law Center
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Abstract

From the passage of the Interstate Commerce Act of 1887 through the New Deal, American legislators commonly endowed administrative agencies with broad discretionary power. They did so over the objections of an intellectual founder of the American administrative state. The American-born, German-educated lawyer and political scientist Ernst Freund developed an Americanized version of the Rechtsstaat—a government bound by fixed and definite rules—in an impressive body of scholarship between 1894 and 1915. In 1920 he eagerly took up an offer from the Commonwealth Fund to finance a comprehensive study of administration in the United States. Here was his chance to show that a Continental version of the Rule of Law had come to America. Unfortunately for Freund, the Commonwealth Fund yoked him to the Austrian-born, American-educated Felix Frankfurter, a celebrant of the enlightened discretion of administrators. Freund's major publication for the Commonwealth Fund, Administrative Powers over Persons and Property (1928), made little impression on scholars of administrative law, who took their lead from Frankfurter. Today the Rechtsstaat is largely the beau ideal of libertarian critics of the New Deal; few recognize that it is also part of the diverse legacy of Progressive reform.

Type
Research Article
Information
Studies in American Political Development , Volume 23 , Issue 2 , October 2009 , pp. 171 - 188
Copyright
Copyright © Cambridge University Press 2009

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71. Frankfurter to Farrand, January 4, 1922, box 2, CF Papers; Frankfurter to Farrand, February 14, 1924, reel 82, FF Papers.

72. Freund, “Comment on Frankfurter's Letter of Jan. 4,” n.d., box 5, EF Papers.

73. Freund to Frankfurter, May 19, July 5, 1922, reel 81, FF Papers; Pound to Farrand, December 27, 1922, box 3, CF Papers.

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75. I. L. Sharfman to Frankfurter, April 8, 1930, reel 82, FF Papers; Max Lowenthal to Frankfurter, April 13, 1930, box 6, CF Papers; Barry C. Smith, “Interview with Mr. I. L. Sharfman,” April 24, 1930, ibid.

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80. Walter L. Fisher to Ernst Freund, March 13, 1924, Helen M. Deane to Farrand, November 11, 1925, Frankfurter to Farrand, April 29, 1924, Farrand to Deane, March 12, 1925, Freund to Farrand, October 27, 1924, box 6, CF Papers.

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83. Freund, “Administrative Law and Practice Report for 1924–25,” reel 81, FF Papers; Freund to Frankfurter, March 12, 1923, box 5, EF Papers.

84. Freund to Frankfurter, March 7, 1927, box 7, CF Papers; Freund to Farrand, May 1, 1925, box 2, CF Papers.

85. William A. Robson, Law Quarterly Review 49 (1933): 177.

86. Farrand, “Outline of Points to Take Up with Regard to Freund's Statutory Survey,” n.d., box 7, CF Papers.

87. Pound to Farrand, November 24, 1926, box 3, CF Papers.

88. Farrand to Frankfurter, February 24, 1927, Pound to Farrand, March 1, 24, 1927, box 7, CF Papers.

89. Frankfurter to Freund, March 9, 1927, box 7, CF Papers; Farrand to Samuel H. Fisher, April 1927, box 1, CF Papers.

90. Freund, Administrative Powers, 59–60, 580–82.

91. Ibid., 98–99, 101, 29.

92. Keller, Regulating a New Economy, 62–65; Frankfurter, Felix, The Public and Its Government (New Haven, CT: Yale University Press, 1930), 81–122Google Scholar.

93. Freund, Administrative Powers, 102, 582–83.

94. Such was the case, Freund had argued, with rate setting by the ICC since 1910. Freund, “Historical Survey,” 37, reprinted, in relevant part, as Freund, Ernst, “Commission Powers and Public Utilities,” American Bar Association Journal 9 (1923): 288Google Scholar; see also Freund to Robert S. Lovett, n.d., box 2, EF Papers; Lovett, Robert S., The Railroad Problem: Comments on Certain Methods Suggested for Solving It (New York, 1919), 29Google Scholar. More generally, Freund warned that discretion tempted “the consumer, the passenger, the shipper, the wage earner, the ‘small man’ in general” to use regulation as “a weapon to gain economic advantage.” Freund, “Historical Survey,” 31; Freund, “Commission Powers and Public Utilities,” 286.

95. Freund, Administrative Powers, 59, 581.

96. Farrand, “Outline of Points.”

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100. Farrand to Pound, March 26, 1927, box 3, CF Papers.

101. Frankfurter, Public and Its Government, 151, 158, 159; Frankfurter and Davison, Administrative Law, vii-viii.

102. Freund, review of Frankfurter and Davison, 170; “Prof. E. Freund, U. of C. Authority on Law, Is Dead: Stricken by Heart Attack while Asleep,” Chicago Daily Tribune, October 21, 1932, 9.

103. Felix Frankfurter, “Some Observations on Supreme Court Litigation and Legal Education,” University of Chicago Law School, February 11, 1953, reel 134, FF Papers.

104. Frankfurter and Davison, Administrative Law, 869–73, reprinting Freund, Administrative Powers, 555–60. In his administrative law seminar in 1925, Frankfurter had emphasized the emergence of an administrative court in Freund's discussion of customs in “Historical Survey.” “Administrative Law Notes (Landis, 1925),” 300, box 153, Thomas G. Corcoran Papers, Manuscripts Division, Library of Congress.

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