106 Mich. L. Rev. 399 (2007-2008)
The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law

handle is hein.journals/mlr106 and id is 421 raw text is: THE ERA OF DEFERENCE: COURTS, EXPERTISE, AND THE EMERGENCE OF NEW DEAL ADMINISTRATIVE LAW Reuel E. Schiller* The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implement- ing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional his- tory of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era adminis- trative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agen- cies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt's appointees to the federal bench changed administrative law so as to dramatically diminish the role of the ju- diciary in the administrative process. The New Dealers espoused what I will call a prescriptive vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model ofjudicial deference that would be both emulated and reacted against as administrative law developed dur- ing the rest of the twentieth century. * Professor of Law, University of California, Hastings College of the Law. Versions of this paper were presented at the U.C.L.A. Legal History Workshop and the U.C. Hastings Faculty Collo- quium. I would like to thank the participants in each of these forums for their insightful comments, as well as Gary Rowe and Joel Paul for inviting me to participate in them. In addition, Michael Asimow, Ash Bhagwat, Barry Cushman, Dan Ernst, Evan Lee, Joel Paul, Gary Rowe, and Clyde Spillinger each read a draft of the entire Article and provided me with gentle critiques and invaluable guidance. Thanks also to Jennifer Wyatt, who provided first-rate, speedy research assis- tance. Finally, I'd like to thank Professor Harry Scheiber, Karen Chin, and Toni Mendicino of the Institute for Legal Research at Boalt Hall. They provided me with a very congenial place to finish work on this Article when renovations at U.C. Hastings rendered me without a library during the summer of 2007.

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