Numbers appearing in square brackets (ex. ) within the transcript indicate the pagination in the original, hardcopy version of the oral history interview.
Opened July, 1991
Oral History Interview with
JOHNSON: Dr. Fowler, I'm going to start by asking you if you'd give me your birthplace, your birthdate and your parents' names?
FOWLER: I was born on September 5, 1908, in Roanoke, Virginia. My father was Mack Johnson Fowler, and my mother was Bertha Browning Fowler.
JOHNSON: Did you have brothers and sisters?
FOWLER: I had no brothers and sisters. I had one little brother who died when he was about three days old. So for all practical purposes, I was the only child.
JOHNSON: How about your education?
FOWLER: I went to the public school system of Roanoke. I graduated from Jefferson High School in 1925, and went to nearby Roanoke College which was in Salem, a town
about seven miles from Roanoke, in September 1925, and finished there in 1929. I went to the Yale Law School that fall and took my LL.B. degree at Yale in 1932 and a graduate degree (J.S.D.) in 1933.
JOHNSON: What was your father's occupation?
FOWLER: He was a locomotive engineer on the Norfolk and Western Railroad.
JOHNSON: Who influenced you most toward a legal career would you say?
FOWLER: Well, I backed into it. I didn't know what I wanted to do when I left college. My mother, of course, wanted me to go into the ministry, and I always had been bent to some extent in that direction, but I didn't feel the call. I liked to write; I liked to speak; I liked people; I liked competitive activity, and I had been in a lot of activities in college, one of which had been the editor of the college weekly. I thought a little bit about newspaper work, but I finally decided the legal profession would answer most of those instincts best, and so I decided go to Yale Law School.
JOHNSON: Were you a history major when you were in college?
FOWLER: Yes. History and English.
JOHNSON: So you got your law degree. What next?
FOWLER: Well, that was just one degree. I graduated in the spring of '32, and the spring of '32 was not the most auspicious time for a young law school graduate who had no affiliations with a family in the law business, or whatnot, to come out. I thought I might like to teach, so I got something called a Sterling Fellowship at Yale. I got a scholarship grant, and this was enough to take care of me for a full year while I received my doctorate. I got something called a Doctor of Juridical Science, which was equivalent to a doctoral degree in the law.
I wrote my thesis during that year and came out of Yale, finally, in the summer of 1933.
JOHNSON: What was the subject of your thesis?
FOWLER: "The Psychological Approach to Procedural Reform." Procedural reform has been something that has plagued the legal profession, the Anglo-American legal profession, for centuries. There were at least three observable efforts to reform the procedures so that justice could be quickly arrived at instead of being miscarried for technical reasons. One was the Field code in New York; in 1850 they passed a law reforming it all quick and sudden like, doing it all in one fell swoop, and in a few years the judges and the lawyers
who couldn't change habits that fast, had it more fouled up than it was before.
The second one was the English code reform, which was in two steps, in 1832 and once again sometime in the 1870s. It was a little bit more of a graduated approach, and that worked fairly well.
Then there was a third step, taken in Virginia. It started in about 1640. They did it one little nip at a time. The first approach was that any public official who absconded with public funds, or was charged with it, all you did was to file a notice of motion and bring him to heel; and all he could do was to answer the notice of motion. He and his lawyers couldn't fiddle around and delay and delay, with this motion and that motion and whatnot, and they found that worked. So they gradually extended it to other types of litigation. That was what I would call the evolutionary approach. Of course, what you were dealing with was the psychology of the bench and the bar, and the fact that you couldn't change, in a hurry, the way they handled their affairs. Hence, this essay was a combination of tracing the legal history of this phase of the law and developing the proposition that an evolutionary approach was more practical.
JOHNSON: A lot of respect for precedent of course. So then in '33 you have your doctorate.
FOWLER: In '33 I had my degrees. I came back to Virginia and took my bar exams. I was on my way to New York to continue interviewing several of the major firms there that led me to believe that I might be acceptable, when I stopped here in Washington for a weekend. This was on Saturday night, and I went out with some friends. There was a gentleman standing in line at the Chevy Chase Club, a man named Stanley Reed, who later was U.S. Supreme Court Justice Reed. He was then General Counsel of the RFC, the Reconstruction Finance Corporation. We got into a conversation, and he said, "Where are you going?" I said, "New York." And he said, "You're making a mistake. You ought to stay here. This is where the action is." Of course, Roosevelt's hundred days had just passed and the New Deal was taking shape. So the fellows who were with me and their dates said, "He's right; that's what you ought to do." One of the fellows with me said, "We'll put you in touch with somebody. You ought to stay over Monday and have some interviews." So I did, and I ended up staying in Washington and going with a well known law firm named Covington, Burling, Rublee, Acheson & Shorb. I didn't want to go with any one Government agency at that time; I wanted to kind of look the whole scene over, and I thought that during a year in private practice I could look over the
landscape and then go into some challenging New Deal activity. That's what I did.
JOHNSON: You were with that firm for what, a year?
FOWLER: I was with Covington and Burling for a year. Then I went to the Reconstruction Finance Corporation's Small Business Division which seemed to be interesting and challenging. But before I was well underway on that, in about a month or two months, I was approached by the General Counsel of the Tennessee Valley Authority. He said, that the constitutionality of the Tennessee Valley Authority, which was one of the centerpieces of the New Deal, President Roosevelt's and George Norris' favorite project, was being challenged. He said, "I want you to come on down. Nobody knows much about trying a constitutional law case on the facts, and why don't you come down and help me take it on." I did. I went with TVA in September of 1934.
JOHNSON: Who was the General Counsel?
FOWLER: James Lawrence Fly, who was a very great and able lawyer. He had been an experienced lawyer in the Department of Justice in antitrust work. He later became the chairman of the Federal Communications Commission here in Washington.
JOHNSON: So you were working up briefs defending TVA's
constitutionality, and you stayed with the TVA?
FOWLER: Well, this was not something you did within a month or two, trying a constitutional law case on the facts. This case was my main assignment, and it ended up in the U.S. Supreme Court a year later as a very famous case in the books now called the Ashwander vs. TVA. It was finally decided by the Supreme Court in the winter of 1936.
We had finished the case; we had had it argued before the Supreme Court, and we were waiting for the decision when I was coopted by the Securities and Exchange Commission to work on another constitutional law case involving the constitutionality of the Public Utility Holding Company Act. A group was being recruited throughout the Government under the aegis of Mr. Benjamin Cohen, who was Tommy Corcoran's partner in Corcoran and Cohen. Four or five of us were recruited to do that. We thought we'd have to go to trial on that case. Well, it turned out we were able to stipulate the record, rather than to try it in court. The facts were the facts and we were able to get an agreed stipulation with the Electric Bond and Share Company which was the defendant.
About thirty or forty utility companies had challenged the constitutionality of the Public Utility Holding Company Act, and SEC decided it would try to
deal with this complexity of suits by bringing its own case against a major utility holding company. That was SEC versus Bond and Share.
Well, when they stipulated the facts in the case, by the summer, a second TVA case had been filed, the so-called 18-company case. I went back to pursue that because the Ashwander case had been only decisive of the constitutionality of the TVA Act insofar as it pertained to the acquisition of facilities for the distribution and sale of power from the Muscle Shoals Dam power properties, which were defense properties, clearly developed in World War I to supply ammonium nitrate for our explosives in World War I.
So the remainder of the TVA project then came up for challenge in this so-called 18-company case. That took about three more years. So, that was finally finished favorably, on the grounds that the company did not have standing to sue. It was on a technical, procedural ground, but in essence it closed out the constitutional litigation for TVA in the navigation, flood control and electric power fields. I was by that time an assistant general counsel at TVA. Before I could get well underway in new work in Chattanooga, Mr. Corcoran up at the White House had again gotten me to do something else.
JOHNSON: I think he and Cohen were part of what was called
the "second brain trust" that Roosevelt had.
JOHNSON: Bond and Share, was that the case?
FOWLER: Electric Bond and Share. SEC vs Electric Bond and Share.
JOHNSON: So you had plenty of experience defending New Deal legislation.
FOWLER: Five years of constitutional litigation.
JOHNSON: Which certainly put you on the side of the New Deal.
FOWLER: Oh, very much, very much. I was a New Dealer.
Well, I went on from that. A call came from the White House to go over and meet with Senator Robert LaFollotte who was chairman of the Senate Civil Liberties Committee, as it was called. It was a committee set up by Congress to investigate violations of the rights of free speech and assembly and the right of labor to organize and bargain collectively. He had been underway on a series of investigations for three or four years and he wanted to conclude them with a series having to do with agricultural labor and migratory labor nationally and particularly on the West Coast. This was a "grapes of wrath" story. I agreed
to do that and did that for a year, working under the direction of Senator LaFollette, as the chief counsel of the committee.
JOHNSON: Did you get acquainted with Senator Truman at all in this period?
FOWLER: I did not get acquainted with Senator Truman then and I'll come to that later. I just want to close out the rest of this history. The investigations were completed on the West Coast and [then conducted] here in Washington on migratory labor, the agricultural labor situation, which involved not only civil liberties, but the lack of employee protective legislation generally. They were left out of normal protective legislation and a lot of issues were presented. We had hearings in Washington on that. As a matter of fact, World War II for all practical purposes erupted in Europe the day in September 1939 that I came into Union Station to go over and see Senator LaFollette to take this on. I finished with that and the reports on those investigations; I had nothing to do with the previous ones at all.
The St. Lawrence Seaway project was under consideration and I was asked to become a special counsel to the Federal Power Commission to work on it because of my association with TVA and whatnot. Leland
Olds, who was the chairman of the Federal Power Commission, and Adolph Berle from the State Department, and the General of the Corps of Engineers were a group of three, who were charged with the responsibility of developing a plan for the St. Lawrence Seaway project which had been back in the wings for 30 or 40 years, but had never been undertaken. I was asked to become special counsel to that group of three, working for the Federal Power Commission, which I did. I negotiated an agreement between the Federal Government and the Dominion of Canada, and between the Federal Government and the State of New York. These required approval by both houses of Congress since they were agreements and not treaties. The authorizing legislation passed the House, but before we could get it to the Senate President Roosevelt called it off because by that time (August 1941) it was clear that the possibility or likelihood of war had to take priority over major projects with three or four or five-year dimensions.
JOHNSON: So the St. Lawrence Seaway project actually started during the Roosevelt administration.
FOWLER: Yes, but it was called off because of the likelihood that it would be interrupted and would have to be stopped.
JOHNSON: So we're talking about what year?
FOWLER: It was the summer of '41.
JOHNSON: When you arranged these agreements with Canada and with the State of New York?
FOWLER: Yes, and they were up for Congressional approval. When the project was called of, I was then asked by Mr. John Lord O'Brian, who was the General Counsel for the newly established Office of Production Management, to become one of its several assistant general counsels. The OPM was the predecessor of what was later called the War Production Board. The name was changed after Pearl Harbor on December 7. I served the War Production Board, as one of four or five assistant general counsels, in organizing all of the legal work in connection with what became the organization and mobilization of the U.S. economy for World War II. I took that job in the middle of September of 1941, and began to recruit a staff and to organize operations--in the General Counsel's office.
JOHNSON: Had you gotten acquainted with the Truman Committee?
FOWLER: I'll come to that. I should say I knew Mr. John Lord O'Brian because he had been special counsel of the TVA in its constitutional litigation. He was very famous, one of the great lawyers of our time; he had
served under four or five Presidents and although a Republican, he had been asked by President Roosevelt to come down and take charge of the legal work in connection with our mobilization effort because of his standing as a well-known and highly regarded public lawyer, as well as private lawyer. He had a fine firm in Buffalo. Although he was an older man at the time, he agreed to do it.
In the work of the War Production Board, I was brought into my first contact with then-Senator Truman, who was chairman of the so-called Truman Investigating Committee. In the War Production Board, about half of the so-called industry branches had lawyers assigned to them who would report to me. Typically, a lot of the key people, the directors or key people of the industry branches, or the heads of the key sections, would be the so-called "dollar-a-year men." These were highly trained executives of major corporations who were selected because of their experience and skill in organizing and directing production. Their salaries were paid by their companies except for "one dollar" paid by the Federal Government as a token of the trust being placed in them.
Another fellow, who was assistant general counsel there, and I were the "shepherds" of the dollar-a-year men. They were one of the targets of one of Mr.
Truman's investigations. I think the only time I met him was when I went down after the hearings that had been held. I was not involved too much in the hearings; I got called into it as the hearings were well underway. I went down to have a conference with him about the report that was underway, or in process of preparation, and to explain to him that a lot of these gentlemen had just come down to work in the WPB and they weren't familiar with Government routine and red tape.
So a lot of the matters under investigation, from my point of view, was the result of ignorant conduct rather than conscious misbehavior. They were hailed before the Truman Committee but there were no prosecutions that I recall or anything of that sort. They were chastised by the chairman and the members of the committee and in the report. In effect, they were told, "Don't do this anymore," that kind of a thing. There may have been a few resignations involved in it, I don't recall.
Anyway, I met with Senator Truman and we had a businesslike and pleasant interview. I didn't persuade him of anything and he didn't persuade me of anything. But anyway, out of that meeting I developed an admiration for President Truman. I won't go through the rest of my activities during World War II unless you want to.
JOHNSON: You mean the War Production Board?
FOWLER: And afterwards. I did other things too.
JOHNSON: That was your only contact with the Truman Committee?
FOWLER: That's right.
JOHNSON: So you were advising the War Production Board throughout the war period.
FOWLER: Until February of 1944. We were pretty well organized and mobilized by that point. All of the orders: the L orders, the M orders, the P orders, the various kinds of regulations that were necessary to shift from a civilian economy to an effective war-making economy, while maintaining the essential civilian parts of the economy, were pretty well in place and behind us.
JOHNSON: You know, the media said that the Truman Committee saved taxpayers from one to twenty billion dollars.
FOWLER: I wouldn't have a view on that; I don't know. My relationship with the committee was just about as cursory as I've indicated in this one big visit with the chairman.
JOHNSON: But that did get him a good press, I suppose.
FOWLER: Oh, he became a national figure as a result of it.
JOHNSON: Do you think the committee did a good job?
FOWLER: I have no way of knowing whether it did or not. I think it was generally esteemed, and people thought that it did an excellent job and I would not say anything to the contrary.
JOHNSON: Of course, there is a lot of records of hearings and so on, and that has been covered.
FOWLER: You've got all kinds of stuff on that, and there's nothing that I could add to what you have.
In February of '44 I went to London with the Mission for Economic Affairs, this time in the role of an economic adviser rather than a lawyer. This mission was the London office of something called Combined Boards: the Combined Production and Resources Board, the Combined Raw Materials Board, the Combined Food Board, the Petroleum Administration for War. We were working in concert with what was called the British Empire, and Canada, and these boards were set up to try to coordinate our efforts, lend-lease and reverse lend-lease, and many other types of cooperation, so that there would be a coordinated production and supply effort for our forces around the world--ours, the
British, the Canadians, and some of the other helpful countries.
Frankly--and this was a matter of some dispute in my family--I went over because I had very bad eyesight and I knew that if I were a volunteer for one of the military services in Washington, which I wanted to do, I would be just sent over to the Pentagon doing a lot lesser work than I had been doing. I wanted to be close to the action. So I decided that I would go to London, work for the mission for a month or two, and apply for a commission as a lieutenant in the Navy so that my wife and children could be fed. I did that. Then, I was badly taken aback because Admiral [Louis E.] Denfield, the head of the Bureau of Naval Personnel, sent a letter to one of my bosses in London saying, "Your friend Fowler's eyesight is such that he is not available for combat duty, and I've got more naval lieutenants in London that are not available for combat duty than I can handle. He will serve his country a lot better staying on and doing what he is doing over at the Mission for Economic Affairs."
So I stayed there doing work of various kinds, which were related to the coordination of our production and supply with that of the U.K. and the Empire, and Canada, until the following September when I came back to the War Production Board. For about a
month, I guess, I was working there doing my final reports on what was going on and what I had been concerned with over there, which was, you know, what to do in the wake of battle to restore the economies of wartorn Western Europe, and that kind of thing.
JOHNSON: So you're planning for reconstruction. Now we're in the late '44, early '45 period?
FOWLER: Late '44. That didn't last but a month when I got drafted again.
President Roosevelt was then still very much in charge. There was a dispute between [Henry] Stimson, the Secretary of War, and [Henry] Morgenthau, the Secretary of the Treasury, as to what would be done with the German economy. Morgenthau was for, well, the catch phrase was, "pastoralizing" it, and Stimson wanted to reconstruct it on a peaceful basis, but to have a mix of industrial and agricultural operations with which to restore the economy along a very peaceful bent.
Roosevelt solved the dispute between these two by asking Leo Crowley, the head of the Foreign Economic Administration, to conduct a series of studies on how to carry on the economic and industrial disarmament of Germany so that it would never be in a position to make war again. That approach didn't take either position
between these two disputees. I organized a group of about 35 task forces that went into trying to, as I put it, deal with the economic and industrial disarmament, but to restore, on a peaceful bent, a consumer-oriented, rather than a heavy industrialized militarily-oriented economy.
JOHNSON: Is this part of the Foreign Economic Administration that was doing this?
FOWLER: That's right.
JOHNSON: Making plans for postwar reconstruction of Europe.
FOWLER: That's right. I had to take various units in that organization and put them together into something called the Enemy Branch. When we got our reports pretty well in hand and done, why, I was taking them over to General [Lucius] Clay. General Eisenhower was the top man, but General Clay was the manager of our zone in Germany.
JOHNSON: So now we're into the occupation period.
FOWLER: In the meantime Roosevelt has passed away, Truman had taken over, and the German armies have surrendered. The Japanese war was still going on. While I was flying over with a small staff, with these reports, on my way to Frankfurt and then to Berlin, the Potsdam
meeting occurred. You know from your other records what happened at the Potsdam meeting, but it became abundantly clear that as General John Hilldring, who met me in Paris, told me when I arrived there, "You had better take those reports on back home; there isn't going to be a single Germany. The Russians are going to run their zone the way they want to run it, and they're going to take everything that's moveable back [to the Soviet Union]. We can do our zone the way we want to, and maybe we can get the French and the British to cooperate with us and we'll have that." That is the way it worked out.
I went on to Frankfurt and to Berlin and spent about a month there . . .
JOHNSON: In Berlin.
FOWLER: . . . acquainting General William Draper, who was the economic adviser to General Clay, and his staff with these reports.
JOHNSON: But you were not at Potsdam at any time?
FOWLER: Oh, no. The Potsdam meeting had occurred while I was flying over there.
JOHNSON: Well, your reports though, the information that you had been working up, was that used for some of our preparations for the Potsdam conference?
FOWLER: I don't know whether it was or not.
JOHNSON: They dealt with reparations as well as democratization, and decartelization, breaking up the cartels. Was that part of your planning too?
FOWLER: We didn't get into some of these other aspects. But the reparations were very much a part of our plan. For example, there was a big dispute about reparations and our attitude toward reparations was that we wanted to use their facilities to restore the functioning of their economy rather than take away what was needed for that. I think the only thing we asked for in reparations, as I remember, was Hitler's yacht, or something of that sort.
Well, I had one meeting with our allies while I was in Berlin. It took place in Moscow. I went in one day in early September to tell General Clay goodbye, and he said, "I've got bad news for you." He said, "Ed Pauley, who is our reparations commissioner, is back in the United States and the Russians are demanding a meeting in Moscow. The French and the British are ready to go, and Pauley says that only you and Bill Draper can represent him. You're the only people he will authorize to represent him. So, you've got to go." I said, "Well, General, you know, the war's over and I'm a civilian. I want to get back home and see my
family and whatnot, but I'll go. But if we don't get anywhere in the first meetings I'm going to come back, come back awful quick."
Well, to make a long story short, we went there, and we had five days. We played our record and they played their record. We did it again, and we were getting nowhere, and all of us: the British delegate, the French delegate, Draper and I, came back. That's been my only five days in Moscow.
JOHNSON: Do you remember what the big hangup was there in Moscow on reparations?
FOWLER: My recollection doesn't take me back that far.
JOHNSON: Of course, the Soviet Union had a case in that much of the country had been destroyed by the Germans, so they felt they had a reason, of course, to take some of their industry back with them.
FOWLER: The essence of their (the Soviet) decision was, I think, just as you put it, to strip it. There also was a bit of punishment involved in it. Our position was that we didn't want these fellows to build up a new military force in a hurry again, and that we wanted to--well, these reports were detailed. I had, for each industry, people from the War Department, people from the Navy Department. The Air Force, of course, was included in the Army at the time. Then I had people
from industry, and others too. It was a technical, professional type of job.
JOHNSON: So it was a problem of maintaining industrial strength, you might say, of the West Germans?
FOWLER: And restoring economic viability, I'd say.
JOHNSON: Without the military potential.
FOWLER: Without the military potential, yes.
JOHNSON: Of course, this involved breaking up the Krupp empire, and some of those large semi-monopolies, or cartels.
FOWLER: That's right. I don't recall how much. I haven't been over these documents in thirty or forty years, so I don't know what we didn't cover or what we did cover, except that I took it industry by industry, mainly, although