legal ethics; professional responsibility; administrative law; government lawyers
In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration (AAA) but better known for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each required to interpret the same ambiguous language of a statute. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and justifiably so. It is obviously in line with the general intention of Congress as shown by legislative history. The statute is ambiguous. Let us work out an argument, if possible, so to construe the statute as to validate this important program.” Although the memoranda the two produced were interchangeable, Mr. Try-It wrote his in one-fifth the time. Perhaps some professors in attendance nodded approvingly, but Frank’s speech, later printed in the Congressional Record, was startlingly impolitic in its blurring of the distinction between “law”—Mr. Absolute’s starting place—and “policy”—Mr. Try-It’s. In fact, the general counsel was himself insisting upon this in battles with AAA administrators. How Frank actually drew the line owed less to his legal realist jurisprudence than the persuasiveness of his two associate general counsels, the radicals Lee Pressman and Alger Hiss. They joined him at AAA soon after its creation in May 1933 and were with him when Frank, Pressman, and others were fired in a widely noted “purge” in February 1935. The circumstances that produced the AAA purge were quite unusual. The firings occurred at an agency, launched in the midst of a national economic emergency, with unprecedented power to organize almost all of American agriculture. Frank combined the legal acumen and business sophistication of a corporate lawyer with the learnedness of a legal intellectual and an emotional vulnerability that made him susceptible to the certitude of his legal lieutenants. The AAA’s first administrator wanted him fired but was forced out instead; the second administrator also decided that Frank had to go but for many months was stymied by Frank’s support from Secretary of Agriculture Henry A. Wallace and Assistant Secretary Rexford Tugwell, who had been one of three Columbia University professors in the original “Brains Trust” that had advised Franklin D. Roosevelt in his successful quest for the presidency. Most AAA administrators were from rural places or understood agriculture from their prior business dealings. In contrast, most of Frank’s lawyers were city dwellers; many were the children of Jewish immigrants. As an administrator observed, “None of them ever sweated a drop in a tobacco field.” Most remarkably, Frank’s top lawyers were members of a communist underground apparatus later known, after its organizer, as the Harold Ware group. If Frank thought of himself as an “experimentalist” with “a critical attitude towards Marxism and any kind of determinism,” the members of the Ware group considered Frank “politically at best a vacillating liberal.” Even unusual cases can be instructive, however, if they bring to light tensions and tendencies that typically are too subtle to attract attention. Occurring at the dawn of the modern era of the government lawyer in the United States, when a large cohort of elite law graduates first took entry-level jobs in peacetime Washington, the purge at AAA was one such case. It starkly revealed that successful general counsels not only needed to know the law and master policy but also appraise the political forces constraining their and their clients’ decisions.
Daniel R. Ernst,
Mr. Try-It Goes to Washington: Law and Policy at the Agricultural Adjustment Administration,
87 Fordham L. Rev. 1795
Available at: https://ir.lawnet.fordham.edu/flr/vol87/iss5/2