Conflict, Institutions, and Public Law: Reflections on the United States as a Developing Country

Abstract

Between roughly the end of the 19th century and the the end of Word War II, the United States experiences a remarkable change. Over the course of several decades, it evolves from being a country with a weak national government and considerable domestic instability to being a geopolitical power where judicial and administrative institutions were routinely used to resolve internal conflicts. We explore in this paper how this transition occurrs and how it illuminates both public law and the study of law and development. We start from the premise that the existence of relatively stable institutions able to channel a great deal of political conflict –– even in the United States –– is an outcome that needs to be explained, rather than a condition that can be assumed to follow from culture, geography, or wealth. Indeed, the extent of corruption and labor conflict in the United States belies the idea the country was always able to resolve most or all conflict effectively through public institutions. The story we tell to resolve this question has its grounding in another puzzle: Why did the changes in the American political economy of the early 20th century coincide with a period where public corruption declined, labor-related violent conflict subsided, governmental capacity to regulate and collect taxes grew, and major public law disputes about the structure and control of agencies received serious attention in court and were –– by the end of World War II –– resolved at least in preliminary form? We argue that these developments occurred together for a reason, and understanding them together sheds light not only on the American political economy but on law and development writ large. Our most general claim is that the law and development story is contingent and needs to be better explained in terms that address how institutions can be used to channel conflict and mitigate violence. The story of American institutions as often narrated also devotes insufficient attention to the early 20th century, and in particular, to the mix of corruption mitigation, capacity growth in the federal state, and compromise and accommodation that assuaged major conflict — especially in labor, as occurred during certain episodes of the West Virginia Coal Wars — after technological and geopolitical changes put pressure on the American political economy. Such compromise distinguished the United States from countries like Argentina, where contentious politics and factional strife interfered with the resolution of major disputes through formal mechanisms. Our most specific claim concerns the pivotal years between passage of the National Labor Relations Act (NLRA) and the Administrative Procedure Act (APA). During these years, new forms of public law, including fierce statutory labor compromise and adaptive nationwide agencies like the National Labor Relations Board, constitutional compromises on delegation and executive power cutting against corporatism, and administrative procedure helped institutionalize compromise and facilitated channeling of conflict into formal institutions. This transformation is the crucial backdrop not only to the emergence of the United States as the preemiment geopolitical power of the latter half of the 20th century, but to the conflicts about public power and social change that continue to bedevil the United States today.