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Mark Fenster

Legal History

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The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster Dec 2008

The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This essay is a chapter of a book-in-progress on the legal and cultural theory of the legal realist Thurman Arnold, who was prominent as a Yale law professor from 1932 until he joined the Justice Department as head of its antitrust division in 1938. Arnold's work focused on the symbolic role of law in governance, both as a means by which the state gains legitimacy and as a means by which those who oppose a political majority attempt to frame their opposition. As public law that defines and enforces substantive prohibitions, criminal law and procedure allowed Arnold to develop some …


The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster Dec 2003

The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster

Mark Fenster

Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions—most notably administrative agencies and the judiciary—well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and …