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