These three, kind of working together, all are doing the same thing. If you watch what they're doing to trials, they are professionalizing the trial structure — Sedgwick in Massachusetts; Kent in New York; and Marshall as Chief Justice of the United States, but even more important, riding circuit in the Richmond, Virginia circuit. Then, this guy named Gould, who founds the law school at Litchfield, was also a Federalist. He's a judge of the Connecticut Supreme Court. These folks write between each other. They talk to each other. But it's very much a committee of people that Hamilton got started. When he's assassinated, they keep going on and doing it anyway.
It's not clear what role FDR actually plays in the New Deal other than to give fireside chats and keep getting himself re-elected, and then appointing a bunch of folks to pass this statute, that statute, administer this agency, administer that agency. They would get together — I think it's every Thursday night — at the White House for a poker game. But it's a very different process in the United States from what I understand and hear our Russian experts telling us is the process of reform in Russia.
PROF. PISTOR: If I can just make a final footnote. In this book that we're writing, where we compare six different legal systems, we are basically comparing them along two dimensions. How centralized or decentralized is the legal system? And is the function of the law primarily to protect legal rights, or is it to coordinate government activities? Of course they overlap to some extent. Russia and the U.S. are at two ends of the spectrum. There is no other decentralized system like the U.S.; in Russia it is extremely centralized.
MR. ZULACK: I think if we take into consideration the context, Professor, that Roosevelt was acting at a time when there was a tremendous tendency towards totalitarianism in the world, and there was a tremendous depression, and people were saying, we need to have an answer to this problem — so, is the answer of administrative systems and law and jobs a fairly decent answer compared to what was the possible alternative in all societies? Look what happened in Germany. Look what happened in Japan. Look what happened in Italy, in France.
PROF. NELSON: Well, part of it may be — I'm always arguing with people about George Washington. I always argue that Washington was not a saint after all. And when he refuses to be king, I argue, it's not because it might not have been a nice job; it was because he was realistic. The country was so big, so spread out, and the structure of existing institutions was so weak, that it was impossible to do it. When you think about Roosevelt and the New Deal, it may be, again, that when Roosevelt and the New Dealers look at the structure of the American administrative state — which was a pretty thin institution compared to what it is now — anything other than spending some money here to try to create some jobs, creating the SEC to try to deal with stock market problems, creating the Social Security system to deal with old people who had no income, etc., a patch here, something here, something there, it may be that — and this goes back to what I said — we start out in the United States with a society in which power is intensely localized.
It's only now that we in a sense have the mechanisms of a real national state in existence. People like me worry about that. But maybe so much of American history and American law has to be explained by the fact that there have never really been the central institutions capable of exercising broad coercive powers. We have to work with a committee of one guy in Massachusetts, one from New York, one from Virginia — Sedgwick, Kent, and Marshall — writing letters back and forth, talking about what they can do in their localities, and working together rather than imposing from the top.
JAMES P. DUFFY, III, ESQ. (Berg and Duffy, LLP): I'd just like to make an observation about the architecture in the capital, having been counsel to a Senate committee a number of years ago. You've got the Capitol building, of course, several Senate office buildings, a number of House office buildings. Not too far from there, you have the Supreme Court, which is one single, relatively small building. The rest of the city is all administrative agencies. I think that tells you an awful lot.
PROF. NELSON: Yes, but it wasn't that way in the 1880s when the Capitol building kind of dominated as the biggest structure there. It doesn't anymore.
MR. DUFFY: The administrative agencies are of course now all the Executive.
PROF. NELSON: Right. goto-line
MR. ROTHSTEIN: Bill, you said, when we were preparing for this on the phone, something which I'm not sure I've heard today. It was that, if I understand you correctly, our notion of judicial independence in the United States today — judicial independence is not what we think it is. Or it's under attack, or it certainly wouldn't be that way if we were starting out today in the modern world with everything that a government has at its disposal.
PROF. NELSON: Yes, I think that that's right, that creating the judiciary as a check on local entities means that it has to be, obviously, independent of those local entities. And there isn't a great deal of pressure to make the judiciary dependent on any powerful central, federal, or state institution. When we think of state governments in the early nineteenth century, there's the governor, there might be an attorney general, there might be a treasurer. The legislature met for two weeks maybe every other year. Courts are a bigger part of government when we create our ideas of what a judge is, and what judicial independence is, than they are now.