From Handler’s Trade Regulation to Ricks, Sitaraman, Welton, and Menand’s Networks, Platforms, and Utilities, by William J. Novak
*This is the first post in a symposium on Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand’s “Networks, Platforms, and Utilities: Law and Policy.” For other posts in the series, click here.
One of my prized possessions is an unsolicited letter I received after publishing my very first academic article in August 1993. The article, published in the American Bar Foundation journal Law and Social Inquiry, was an initial foray into the early legal history of American economic regulation. Contrary to most of what I had previously learned about a mythical world of classical liberalism and laissez-faire political economy, my early historical research in 19th American century statute books and court reports – concerning things like public nuisances, urban marketplaces, product and inspection laws, licensing regulations, and price controls – revealed a far different socio-historical and public-law reality. I boldly entitled the article “Public Economy and the Well-Ordered Market,” but the truth is that, back then, I was still more than a little unsure about how far I would ultimately take my historical findings. The 1993 letter reassured me that I was on the right track and gave me the confidence to grow that article into a subsequent book The People’s Welfare: Law and Regulation in 19th Century America.
The author of the letter was someone I had never met but had certainly heard of, Milton Handler, Professor Emeritus at Columbia Law School and partner at Kaye, Scholer, Fierman, Hays & Handler. Handler was then some 90 years old, but still keeping up with journals in seemingly every obscure corner of the law and society universe (notably, this was before Google Alerts . . . indeed before Google, before digitization, where “keeping up” meant hard copy, library stacks, periodical indexes, card catalogs, bulging file cabinets, and a ridiculously intensive use of the copy machine). Handler, of course, was one of the giants of mid-century American antitrust law as scholar, teacher, and litigator. But perhaps less well-known today, he was also one of the chief architects and exponents of the modern American law of regulated industries – something of the “lost tradition” so ably resuscitated, revivified, and redeployed to such great new effect in Ricks, Sitaraman, Welton, and Menand’s magisterial Networks, Platforms, and Utilities. In addition to advising FDR on antitrust and serving as first general counsel to the NLRB, Handler, Zelig-like, played key roles in many of the super-statutes and administrative innovations that ultimately generated the modern American legislative-regulatory (Leg-Reg) state: the Food, Drug and Cosmetics Act of 1938, the Temporary National Economic Committee (TNEC), Lend-Lease, the War Refugee Board, the GI Bill, and the Social Security Act amendments that eventually led to Medicare. But for students of the American law, statecraft, governance, and regulated industries, one of Handler’s equally great achievements was his pioneering and substantively-packed 1937 casebook Cases and Materials on Trade Regulation. As his student and friend Ruth Bader Ginsburg put it, “In the realm of trade regulation he was a colossus and in all respects he lived grandly in the law.”
“I was pleased to find that one of my favorite topics was the subject of your interesting paper,” Handler’s 1993 letter began, “Ever since the New Deal the common wisdom of right wing idealogues has been that historically there had been a progression from free unregulated enterprise to the pervasive regulations of the New Deal, persisting through later administrations.” All of Handler’s meticulous research and writing and litigating knew such common wisdom to be nothing short of a historical fiction, a fantasy and fable. His 1937 Trade Regulation provided a powerful, indeed irrefutable, legal-historical rebuttal and antidote. As Handler put it in his letter, “When I put out my first casebook on Trade Regulation, I traced the economic history of the Guilds down to our present . . . . In that connection, I reviewed all of the regulatory enactments on the statute books of the State of New York, building a widespread network of controls still in effect in the middle of this century. The history of price regulation was noted briefly by the Supreme Court in Munn v. Illinois, in a passage which has been widely quoted but generally forgotten.” Handler closed his letter by urging continued efforts to “educate our profession” on this historic “degree of regulation.”
Handler’s Trade Regulation itself built on many important forerunners in the emergent field of regulated industries, antimonopoly, and public utilities law, from Bruce Wyman’s early treatises on Administration and Public Service Corporations to Felix Frankfurter’s formative casebooks on the Interstate Commerce Act and Administrative Law. In so very many constructive ways, Networks, Platforms, and Utilities is now a fitting and equally colossal successor to Handler’s magnum opus. And this is especially true with regard to the amount of substantive American legal-economic-policy history synthesized in this unique volume. Though Chapter 2’s “Historical Overview” awaits a subsequent edition (and I would highly recommend using Handler as a model for such purposes), each subsequent chapter contains a heroic amount of legal-economic history concerning communications, transportation, energy, finance, and technology – from the all-important early history of the US Postal Service to the consequential development of railroad rate regulation and administration to the emergence of a coherent law of public utilities in the energy field to America’s long and complicated history of central banking. In U.S. history, it would take an impossibly long time for any single scholar to reckon with the vast literatures on the topics that appear here conveniently in this single, accessible, and authoritative volume, courtesy of four supremely industrious co-authors. Indeed, the histories and thoroughly interdisciplinary bibliographies compiled in this single work are simply invaluable in themselves and unrivaled even in the best existing casebooks in complementary fields like Administrative Law or Legislation and Regulation.
Now, of course, the idea of a genealogy in the field of regulated industries extending from Frankfurter and Handler straight through to Ricks, Sitaraman, Welton, and Menand misleadingly suggests a continuity that distorts the actual history of law and American political economy. For one of the great achievements of this volume is the substantive recovery of a law and political economy tradition substantially (if not almost irretrievably) “lost” or “forgotten” somewhere between the momentous years 1980 and 2008. The historical reasons for what Joey Fishkin and Willy Forbath have usefully discussed as a “Great Forgetting” are now the subject themselves of a burgeoning historiography on neoliberalism, deregulation, privatization, the Mont Pelerin Society, anti-administrative constitutionalism, Russian oligarchs, “crack-up” and “disaster” capitalism, and the Chicago School of law and economics. The few words remaining in this short post cannot do justice to the full range of issues implicated in this great shift in political economic thinking and policymaking in our very recent past (much of which originated in radical critiques of deeply-rooted American traditions of regulated industries, public utilities, administrative regulation, public provision, public works, and a distinctly mixed economy). But few need reminding of the vast social, economic, legal, as well as political consequences that have attended this recent shift in political-economic perspective. In France, Thomas Piketty’s famous reflections on expanding inequality in the wake of the so-called “Trente Glorieuses” was an early reminder of a historical world of aspiration and possibility we have mostly lost. In the U.S., Milton Handler perhaps provides another useful guidepost. Indeed, in the context of his own times, Handler was very much a centrist rather than a radical or outlier on law and political economy. He could be critical of excesses in the governmental control of business and industry just as much as he could rail against the retreat of antitrust during the Reagan and Bush administrations. But Handler’s centrism was keenly in touch with an earlier critical-realist concern for social facts over ideological fancy and a pragmatic penchant for actually solving public problems rather than indulging political theatrics. He was simultaneously in tune with American legal-political traditions of public-interest regulation, antimonopoly, developmental statecraft, public-private partnership, socio-economic provision, and public welfare that for much of our history were seen as the essence (rather than the enemy) of our constitutional inheritance. The history so deeply and thoroughly rescued in Networks, Platforms, and Utilities reopens the possibility of returning capacious, social fact- and reality-based institutional and empirical scholarship to the center of American law and economics inquiry so as to more effectively address present socio-economic crises and challenges which every day seem to rival those of Milton Handler’s postwar generation.
William J. Novak is the Charles F. and Edith J. Clyne Professor of Law at the University of Michigan Law School.