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“The Government at the Mercy of Its Contractors”: How the New Deal Lawyers Reshaped the Common Law to Challenge the Defense Industry in World War II, 57 HASTINGS L.J. 93 (2005)


The New Deal marked the consolidation of a novel and, in some ways, enduring set of interrelations among courts, legislatures, and progressive politics. At the intellectual level, it saw the ascendance of two ideas. First, the market was not free, natural, or neutral, but instead entailed coercion and political contingency. Second, judicial decisions were not determined by scientific principles but instead required policy choices, meaning that the judge's function had a legislative aspect, even though the judge lacked the legislator's accountability to the people. In light of these ideas, the common law baselines of the market no longer deserved special reverence. At the institutional level, the New Deal embodied the triumph of an electoral coalition that demanded a systematic alteration of economic outcomes across society -something that only legislatures and administrative agencies could provide. In light of all these changes, courts needed to stand aside and allow legislaturesand agencies to take the lead in governing, at least in economic matters. The New Deal was the nation's most decisive leap into the "Age of Statutes," inseparable from the welfare state.

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