Managing legal uncertainty: Elite lawyers in the New Deal.

摘要

This work is a reading of the New Deal as a transition from a "formally-rational" legal system to a "substantively-rational" one. I describe this transition in terms of a shift from treating the legal system as an autonomous and self-referential "scientific" system to treating law as an instrument that serves substantive political, economic, and social purposes.;The thesis I advance in this regard is that during the economic crisis of the 1930's American formally-rational law exhausted its legitimation capacity. Favorable conditions were created for the substitution of this system for a system of law that obeyed the commands of pragmatic necessities rather than that of "pure" legal logic. In practical terms, this meant a gradual substitution of judicial authority for statutory law and administrative methods. The ideological, professional, and institutional struggle that resulted from this transformation is the subject matter of the study.;My primary focus is on the struggle between elite practitioners at the service of national corporations and elite legal academics at the service of the state. The major theme of this study, accordingly, is that the New Deal, which relied on a legal philosophy known as legal realism, threatened the professional knowledge upon which elite lawyers traditionally based their claims of expertise. The threat came from an instrumental approach to law that challenged the ideas of law as a science. Further, the substitution of judicial authority and methods for a growing reliance on statutory law and, in particular, on administrative methods created a direct threat: (a) the diminishing authority of federal courts meant that elite lawyers lost their ability to control the scope and pace of legal development and (b) administrative methods lacked formal procedures and judicial modes of reasoning that threatened the ability of elite practitioners to symbolically distance themselves from their clients by presenting their craft as a unique form of scientific expertise.;On the other hand, I discuss legal realism as an academic revolt against the relatively marginal role of legal academics in the legal profession. Based on these observations, I offer an interpretative model of analysis which combines the sociology of law (i.e. the study of ideas about the law) with the sociology of professions (i.e. the study of social carriers of ideas). In general, I argue that legal ideologies, and by extension, the political orientations of various segments of the bar, are determined by the structural position of these segments within the legal profession and within the legal system in general.