Daniel R. Ernst

The Ideal and the Actual in the State: Willard Hurst at the Board of Economic Warfare

In February 1942, the legal historian Willard Hurst joined the General Counsel's office of the Board of Economic Warfare, for what would be just short of a year's service. When the war came, Hurst had been teaching a new course, "Law in Society," which he had developed at the urging of his dean, Lloyd Garrison, as a New Dealer's idea of a first course in law. As William Eskridge and Philip Frickey have observed, the course explored the theme of "institutional competence" well before Henry Hart and Albert Sacks assembled their better-known materials, "The Legal Process." A reaction against Hurst's case-centered legal education at Harvard, the course taught that legislatures and administrators were coequal "law makers" with courts and that the rise of the "administrative prerogative" was a functional response to the demands of a modern society.

At the BEW Hurst had the chance to put his ideals for the administrative state into action. Headed by the Liberal standard-bearer Henry Wallace, the BEW wrested the formal right to direct the overseas procurement and development of war-related supplies from the Reconstruction Finance Corporation and the State Department in some of the fiercest bureaucratic fighting of the war. Although a young staff member, Hurst gave the BEW its most important and controversial program, a set of "labor clauses" to be inserted in procurement contracts with overseas suppliers that guaranteed certain minimal labor standards. The controversy over the labor clauses--derided by the BEW's critics as an attempt to export the New Deal--contributed to FDR's decision to abolish the agency in the summer of 1943.

After such a discouraging collision between the ideal and the actual, Hurst might have given up on his optimistic vision of the administrative state. He might have concluded with Stephen Skowronek in Building a New Administrative State, that the federal government had become "a hapless administrative giant, a state that could spawn bureaucratic goods and services but that defied authoritative control and direction." As well, he might have seen in the BEW's ignominious demise an object lesson in the perils of an agency's exceeding its congressional and popular mandate.- Yet his postwar writings and lectures suggest that he did neither. He remained as convinced as ever of the need for properly trained lawyers to express and act on what Robert W. Gordon has termed "the immanent rationality of the social order."