Professor Reuel Schiller’s teaching and scholarship focuses on American legal history, administrative law, and labor and employment law. He has written extensively about the legal history of the American administrative state, and the historical development of labor law and employment discrimination law. His most recent book, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (Cambridge University Press, 2015), won the American Society for Legal History’s John Phillip Reid Award and was an Honorable Mention for the Law and Society Association’s J. Willard Hurst Award. Schiller has also received the American Bar Association, Administrative Law Section’s scholarship award and the Rutter Award for Teaching Excellence.
In addition to his teaching and scholarship, Professor Schiller is a co-editor of Cambridge University Press’s Studies in Legal History book series, and the convener of the American Society for Legal History’s Johnson Fellowship for first book authors. He is also serves on the editorial board of the Law and History Review.
Professor Schiller studied history as an undergraduate at Yale College. His obtained his law degree and history Ph.D. from the University of Virginia. After college he worked for the City of New York on immigration, criminal justice, education, and civil rights policy. After graduating from law school, he clerked for Judge J. Frederick Motz of the United States District Court for the District of Maryland. Following his clerkship, he was a Samuel I. Golieb Fellow in Legal History at New York University School of Law and a Louis Prashker Teaching Fellow at St. John’s University School of Law.
A native New Yorker, Professor Schiller lives in Albany, CA, with his wife, Jane Williams, and their children.
Areas of Expertise (4)
American Legal History
University of Virginia Graduate School of Arts and Sciences: Ph.D., History 1997
University of Virginia Graduate School of Arts and Sciences: M.A., History 1990
University of Virginia School of Law: J.D., Law 1993
Order of the Coif.
Yale University: B.A., History 1988
- California Legal History (Journal) : Editorial Board
- American Historical Association
- Organization of American Historians
- Law and History Review (Journal) : Editorial Board
- American Review for Legal History : Board of Directors
Media Appearances (7)
Could A Legal Ruling Instantly Wipe Out Uber? Not So Fast
t will have a class-action certification hearing in August and is set to go to a jury trial after that, but “federal courts take even longer,” said UC Hastings law professor Reuel Schiller. If the case becomes a class-action suit, the stakes are raised, and it might present a scarier financial risk to Uber... “There’s no law that requires Uber or any other company to say, ‘Oh, well, Schiller won, therefore we need to change our employment practices,” Schiller said. “If Uber wanted to, they could contest every case. They could argue that the facts are that Schiller drives fewer hours than you, or any number of different factual distinctions. Does Uber mind paying out $4,000 a couple of times a month to the drivers who have the resources and time to bring these individual cases?” he added. “I don’t know, but we both know they have that kind of money. … The class-action mechanism is a more potent mechanism to generate a response.”...
Uber Driver Was Employee, Not Contractor, California Commission Says
The Wall Street Journal online
Rulings by state agencies like the California Labor Commission don’t set a formal precedent for court cases or other actions, said Reuel Schiller, a law professor at University of California Hastings College of the Law. But, should various federal or state entities determine that Uber drivers are employees—whether for purposes of collecting unemployment insurance or expense reimbursement, for example—“it builds up momentum for the idea that these folks look a lot more like employees than they look like independent contractors,” he said...
After Loss, Pao Hopes Case Helped Level the Playing Field
Whatever the jury’s decision, the case has exposed the vulnerabilities of Silicon Valley’s lax approach to human resources, said Reuel Schiller, professor of labor and employment law at UC Hastings. Kleiner acknowledged during the case, for example, that it was unable to locate a written copy of its equal opportunity employment policy after it brought in an outside investigator to look into Pao’s complaints of gender bias at the firm. “If you don’t have, frankly, more traditional ways of managing your human resources, you’re going to get into trouble,” Schiller said. “You’re going to particularly get into trouble in the situaion the tech community is in right now, that there are so few women employees.”...
What the Ellen Pao case means for companies in Silicon Valley
“The two cases together are what really will have significance,” said Reuel Schiller, an employment law expert at UC Hastings School of Law. “The Pao case really raised the profile of the problems of women in tech, and the Twitter case will create a mechanism for more meaningful change.”...
Twitter sexism suit could have greater impact than Ellen Pao case
The Pao case “is more culturally significant than legally significant,” said Reuel Schiller, a professor at UC Hastings School of Law and an expert on labor and employment law. But the Twitter suit “could be a much bigger deal ... and a potentially broad claim.”...
Walmart Wants to Make Workers Buy Clothes From Them, But Won't Pay a Living Wage
“Reuel Schiller, a professor at UC Hastings Law School, said it’s significant that Wal-Mart isn’t calling this a uniform,” reports Marketplace.org. “‘There’s a legal difference between a uniform and a dress code,’ says Schiller. If the cost of the uniform will actually pull your wages below minimum wage for the week that you bought it, then under federal law that’s illegal. Schiller said Wal-Mart skirts the issue — and passes on costs — by going with a dress code.”...
Prosecutors raise legal stakes for PG&E in San Bruno criminal trial
San Jose Mercury News online
One way the obstruction charge helps prosecutors is by giving them something to offer jurors other than the technical details of pipeline repair and maintenance, said Reuel Schiller, a professor of law at Hastings. In addition to the obstruction charge, PG&E now faces 27 counts of violating the federal Pipeline Safety Act, up from 12 counts in the earlier indictment that was updated last week...
Event Appearances (5)
’It is Not Wisdom, but Authority That Makes a Law.’ A Historical Perspective on the Problem of Creating a Restatement of Employment Law.
San Francisco, California Hastings College of the Law Conference on the Restatement of Employment Law
“Singing the ‘Right to Work’ Blues: The Politics of Race in the Campaign for ‘Voluntary Unionism’ in Post-War California
Department of History Conference on “The Right and Labor: Politics, Ideology, and Imagination. University of California, Santa Barbara, California
The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law
American Bar Association, Administrative Law Section Annual Meeting Washington, D.C.
Ed Rainbow’s Problem: Race, Labor, and the Emergence of Legal Liberalism in James v. Marinship
University of Virginia School of Law Legal History Workshop Charlottesville, Virginia
“The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law.
UCLA Legal History Workshop Los Angeles, California
Selected Articles (13)
This article examines the judicial response to attempts by the administrations of Ronald Reagan and George H. W. Bush to promote a deregulatory agenda through executive action. It describes how the federal judiciary frequently prevented both administrations from implementing deregulatory policies despite the fact that by the late 1980s politically conservative judges dominated the bench. The essay identifies two reasons for this judicial resistance. First, because executive deregulation required courts to adopt a highly deferential posture towards executive action, courts allowing it would have been forced to endorse administrative law doctrines that transferred a great deal of power from courts to the executive. Conservative judges were unwilling to take this step. Their institutional interest in retaining power over the administrative state trumped their political inclinations. Second, judicial rejection of executive deregulation illustrates a contradiction within late twentieth-century conservative ideology. Conservatism was committed to anti-statist policies such as deregulation. It was also, however, extremely hostile to what it perceived as judicial activism. Consequently, conservatives developed a series of mechanisms that were intended to limit the powers of the courts. These included textual approaches to statutory interpretation, and a belief in originalism in both constitutional and statutory interpretation. A commitment to both textualism and originalism undermined executive deregulation. Thus, conflicting impulses within late-twentieth-century conservatism limited the ability of conservatives to put their reform agenda into effect.
This article tells the story of the failed attempt to pass a right-to-work proposition in California in 1958. In particular, it shows how right-to-work activists attempted to persuade African Americans to vote in favor of the proposition by portraying it as a fair employment practices measure. Because many California labor unions engaged in discriminatory practices, anti-union forces within the state thought they could tap into the hostility that many African Americans felt towards the labor movement. This strategy was unsuccessful. African Americans voted against the right-to-work proposition in overwhelming numbers. Nevertheless, the campaign exacerbated tensions in the tenuous political alliance between labor and the African American community. In the years that followed the proposition’s defeat, these tensions would undermine the political power of the labor movement, the African American community, and the Democratic Party.
When the American Law Institute (ALI) first began creating the Restatements in 1923, its goal was to solve the problem of the increasing incoherence of the common law. Langdellian legal science was supposed to have generated objectively “correct” legal rules, yet the ever increasing number of published opinions revealed quite the opposite. The common law was developing chaotically, without consistency or logic. Yet the creation of Restatements has never been a smooth, uncontroversial process. Indeed, as the various critiques of the proposed Restatement (Third) of Employment Law that are the subject of this conference demonstrate, restating the law can create as many problems as it solves.
More than any other case from the postwar period, Brown v. Board of Education has captured the attention of historians and the public alike. The case itself, and the NAACP's campaign that led to it, have been the subject of books and articles beyond counting.' In many history textbooks it is the only court case mentioned between the end of World War II and the early 1960s. It is one of a handful of cases that is recognized by the public at large and is surely the only Supreme Court case that has its own National Historic Site.
The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact with the judiciary in their day-to-day operations. This Article examines this interaction. In particular, it shows how Roosevelt's appointees to the federal bench changed administrative law so as to dramatically diminish the role of the judiciary in the administrative process. The New Dealers espoused what I will call a "prescriptive" vision of policymaking in which expert administrators implemented the policy desires that emerged from the democratic process. There was little room for courts in this vision of policymaking. This era of judicial passivity was short lived, but it firmly defined the role of expertise in the administrative state and created the model of judicial deference that would be both emulated and reacted against as administrative law developed during the rest of the twentieth century.
This is a historiographical essay advising institutionally-focused political historians to consider the role that courts play in the administrative process. The essay describes the emergence of approaches to political history that are sensitive to the effect that the institutional structures of the state have on policy-making in the United States. It then notes that scholars who write this type of political history often dismiss the importance of courts to policy-making process, particularly after the rise of the modern administrative state in the twentieth century. The essay demonstrates that considering the role of the judiciary in the administrative process provides a more complete portrait of how institutional structures shape policy-making. It does so with two examples. The first describes the relationship between courts and the Department of Agriculture in the first decades of the twentieth century. The second examines how the judiciary shaped the development of the federal welfare bureaucracy in the 1960s and 1970s.
This article is a detailed historical exploration of the 1975 United States Supreme Court case Western Addition Community Organization v. Emporium Capwell. In this case, the Court held that the National Labor Relations Act does not allow African American workers who are represented by a labor union to bypass that union in order to bargain about issues of racial discrimination directly with their employer. Using archival source materials as well as oral histories of some of the participants, the article chronicles the litigation from its inception in San Francisco in 1968, through its adjudication before the National Labor Relations Board, the United States Court of Appeals for the District of Columbia, and the Supreme Court. It argues that the conflict that emerges within the case – between black workers’ right to combat racial discrimination and American labor law’s fundamental commitment to workplace majoritarianism – reflects a broader conflict within the legal and political culture of the late 1960s. American liberalism, the article suggests, was severely weakened by its inability to reconcile its commitments to both racial egalitarianism and progressive wealth redistribution. The Emporium Capwell case and the doctrine that emerged from it is thus the legal analog of the political crisis that weakened liberalism at the end of the 1960s.
This article argues that World War II had a profound effect on the relationship between courts and the administrative state in the United States. Between 1940 and 1950, administrative law changed dramatically. During the 1930s, it allowed administrative agencies to function with a great deal of autonomy. By 1950, the judiciary had asserted considerably more control over the administrative state. There is a direct link between the United States’ involvement in World War II and this change. In particular, three aspects of the wartime experience caused changes in American political culture that, in turn, contributed to this transformation. First, America’s encounter with totalitarianism – both abroad and on the home front – diminished people’s trust in the administrative state, which they began to associate with the unchecked power of fascism. Second, the track record of the wartime agencies – particularly the War Production Board and the Office of Price Administration – did little to assure Americans that administrative power could be used in a manner that was both efficient and consistent with democratic principles. Finally, the prosperity the War created caused one-time advocates of the administrative state to question the value of economic planning and to refocus their attention on curing economic maladjustments through Keynesian fiscal policy rather than through administrative control of economic actors. Thus, by the end of the War there were few advocates of extreme administrative autonomy left. Ideological, political, and economic changes dictated that the judiciary be put firmly in control of the administrative state.
This article chronicles the conflict between two of the central policymaking innovations of the 1960s: the rise of both administrative rulemaking and the inclination of courts to review intensely the actions of administrative agencies. In particular, it examines how the United States Supreme Court and the United States Court of Appeals for the District of Columbia (the D.C. Circuit) reacted to the rise of rulemaking. It also explores how Congress and the agencies themselves responded to both the rise of rulemaking and the judiciary's reaction to it. This narrative demonstrates two things. First, it show that the same desire to reform the administrative state generated both the increase in rulemaking and the more demanding judicial review of agency action. Both the agencies and the judiciary reacted in the way that reformers desired: agencies issued more rules and courts supervised agencies more closely. Yet, the two responses were often contradictory. Vigorous judicial review limited the speed and efficiency of informal rulemaking. Consequently, the reform impulse was frustrated. Second, this article explains the causes of the contentious debate that arose among and within the different branches of the federal government about what the appropriate response to the rise of informal rulemaking should be. A combination of politics, institutional self-interest, and legal culture influenced members of Congress, agency officials, and, particularly, the judges of the D.C. Circuit as they developed strategies for coping with this novel form of administrative action. The article argues that the D.C. Circuit's reaction to the rise of rulemaking illustrates the way in which judges transform the abstract principles that make up legal culture (assumptions, for example, about what a judge's role in a democratic government should be) into actual legal doctrines.
This article argues that the development of administrative law in the 1950s and 1960s was shaped by changes in American political culture. This period saw a dramatic change in the way Americans believed their political system functioned. During the 1950s, American political culture was dominated by a belief in interest group pluralism. The state, it was argued, responded to battling interest groups that were capable of representing the interests of all Americans. Consequently, the United States had succeeded in creating a political system that many political theorists had once thought impossible: a functioning, representative democracy in a country that was large and heterogeneous. By the early 1960s, interest group pluralism had fallen into disrepute. Interest groups, it was argued, were unrepresentative institutions that corrupted the political process. Reformers demanded that the political process be made participatory, genuinely inclusive of and responsive to the people. This article suggests that this change altered administrative law. It demonstrates how contours of administrative law shifted to accommodate this new understanding of how government worked. Changes in standing doctrine, administrative due process, and judicial review of administrative action, as well as the passage of the Freedom of Information Act and Congress’ increasing use of citizen suit provisions are examples of how the shift to participatory conceptions of government affected administrative law.
Traditionally, historical inquiries into the origins of judicial protection of freedom of expression have explored the Supreme Court’s reaction to oppressive sedition statutes in the years during and after World War I. This article argues that these famous sedition cases only tell part of the story. To truly understand the emergence of the modern First Amendment it is necessary to examine the judicial reaction to a much more banal and widespread form of speech suppression: administrative censorship. From the Civil War until the 1950s, administrative speech regulation was pervasive. Agencies determined what movies Americans could see, what books they could read, what items they could send through the mails, what programming could be broadcast on the radio, and who could speak on the proverbial village green. It was not until the decade after World War II that these sorts of censorship were subjected to significant judicial control. The process by which this new judicial role emerged required two changes in American political culture. First, Americans had to lose their faith in the ability of both legislators and administrators to regulate speech. Second, Americans needed to decide that courts were the appropriate institutions to protect people from overreaching administrative agencies. This article demonstrates that a shift in American political culture during World War II caused both these changes to occur. America’s encounters with totalitarianism during the 1930s and 1940s shook people’s faith in administrative expertise. At the same time, the specter of totalitarianism caused people to turn towards the judiciary as the paramount guardian of liberties in a democratic society. The emergence of judicially-protected free speech rights was, thus, historically contingent. This fact suggests that courts have fallen into this role more by happenstance than by some inherent ability or rational allocation of institutional responsibilities.
In the years following World War II, courts began to develop legal rules that regulated the relationship between unions and the workers they represented. These doctrines - the duty of fair representation and the right of exclusive representation, as well as the regulation of union member freedom of expression and union security arrangements - required courts to balance individual rights with the rights of unions. In the immediate post-war period, the courts sacrificed the rights of union members in order to promote the strength of the unions. By the 1960s, however, the courts had reversed themselves, protecting the rights of individual workers, even if it meant weakening organized labor in the process. This change in the judiciary's attitude was the result of broader changes in post-war intellectual thought. During the 1940s and 1950s, American intellectuals argued that democracy functioned best when government responded to the clash of competing interest groups. By the 1960s, however, thinkers argued that interest groups were unrepresentative and that government could never be truly representative if individuals could not participate directly. This intellectual framework provided the courts with the tools necessary to craft specific labor law rules. By the close of the 1960s, those rules, imbued with hostility towards interest groups and faith in participatory democracy, were profoundly disadvantageous to unions and brought about a weakening of the American labor movement.
This brief essay is a response to the claim, made forcefully by Daniel Farber in “Adjudication of Things Past: Reflections on History as Evidence,” 49 Hast. L.J. 1009 (1998), that the increasing use of postmodern theories of truth by historians has undermined their ability to acts as expert witnesses. The essay suggests that Farber’s claim is incorrect because he overestimates the extent to which the historical profession has been influenced by postmodernism, and because he underestimates the ability of the adversarial process to uncover and disarm whatever small fragments of relativistic history make their way into the courtroom. The essay also explains why the historical profession has been accused of abandoning its commitment to truth-seeking. It suggests that the answer to this question has more to do with contemporary cultural politics than with any actual commitment by historians to postmodern epistemologies. Finally, the essay suggests that Farber ignores a more serious threat to the integrity of historical profession: falsehoods, myths, and ideologically-biased narratives masquerading as truths under the banner of objectivity.