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59 Wash. L. Rev. 723 (1983-1984)
The Great Depression, The New Deal, and the American Legal Order

handle is hein.journals/washlr59 and id is 739 raw text is: THE GREAT DEPRESSION, THE NEW DEAL, AND THE AMERICAN LEGAL ORDER Michael E. Parrish* Shortly before the 1932 election, which brought Franklin D. Roosevelt to the presidency and the New Deal to America, Supreme Court Justice Harlan F. Stone returned home after a dinner party at the White House, where he and other members of Herbert Hoover's medicine ball cabi- net had dined with the beleaguered incumbent. Stone's law clerk, Herbert Wechsler, found the Justice in a very reflective mood that evening and inquired what he was thinking about. Well, said the former dean of the Columbia Law School, what I'm thinking about mainly is that I guess we won't be dining very much at the White House any more. Wechsler asked if the Justice viewed that prospect with regret. Yes, I do. But not with surprise. If I told the President once I told him many times, he was in danger of forgetting that it was the common people of this country who elected him. I Hoover's aristocratic opponent, who helped to extend the benefits of the American legal order to the common men and women of the country, seldom made the same mistake. Nearly thirty years ago, the dean of legal historians, J. Willard Hurst, wrote that the main thrust of American law in the nineteenth century had been to protect and promote the release of individual creative energy to the greatest extent compatible with the broad sharing of opportunity for such expression.' '2 If that is so, then the main thrust of American legal development in the twentieth century has been to adapt those basic con- cepts to an interdependent, urban, industrial society. The era of the Great Depression and the New Deal marked an important milestone in the quest for a new relation between law and human happiness which would, in Hurst's apt phrase, give men more liberty by increasing the practical range of choices open to them and minimizing the limiting force of cir- cumstances. 3 Prior to FDR and the New Deal, the American legal order afforded abundant liberty for the wheat farmers of Kansas to sell their crops below the cost of production. There was ample freedom for entrepreneurs who wished to form larger and larger units of production, but very little for the * Professor of History, University of California, San Diego; B.A., 1965, University of Califor- nia, Riverside; Ph.D., 1968, Yale University; Liberal Arts Fellow, Harvard Law School (1973-74). I. K. LOUCHHEIM, THE MAKING OFTHE NEW DEAL: THE INSIDERS SPEAK 55 (1983). 2. J.W. HuRST, LAW AND THE CONDrIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNrrED STATES 6 (1956). 3. Id. 723

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