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From Disinterested Expert to Marketplace Competitor: How Anti-Monopoly Law Transformed the Ethics and Economics of American Architecture in the 1970s

2015; Routledge; Volume: 20; Issue: 2 Linguagem: Inglês

10.1080/13264826.2015.1129349

1755-0475

Jay Wickersham,

Architecture, Modernity, and Design

AbstractIn 1970, the ethical code of the American Institute of Architects defined a coherent framework for practice, one that had characterised the architectural profession in America and Great Britain since the mid-nineteenth century. An architect should not act as a builder or developer; his only payment was the client’s fee, fixed by a mandatory schedule. This ethical framework was the cornerstone for architecture’s professional project: establishing the architect’s status within the competitive market economy by assuring his expertise and disinterestedness. During the 1970s, two separate groups of critics—consumer advocates on the political left, and advocates for a deregulated laissez-faire economy on the political right—used anti-monopoly law to dismantle the ethical codes of architecture and other professions. By 1980, the American architect operated within a changed world. Architects could play any role in the building process and they could compete freely by price. The disinterested expert had been transformed into a freewheeling marketplace competitor. Over the subsequent 35 years, this ethical and economic revolution has contributed to the fracturing of the firm, the adoption of new information technologies, the globalisation of practice, and the emergence of new models of public interest architecture.Keywords: Anti-monopolyarchitectural practiceethicsfeespublic interest Notes1 My use of the pronoun “he” is deliberate; as of 1974, the membership of the AIA was still 97% male.2 See generally Magali Sarfatti Larson, The Rise of Professionalism: Monopolies of Competence and Sheltered Markets, New Brunswick, NJ: Transaction Publishers, 2013, reprint with new author’s introduction of 1977 edition by University of California Press.3 For comparable definitions of architectural practice as webs of social relationships, see Dana Cuff, Architecture: The Story of Practice, Cambridge, MA: MIT Press, 1991, 1–5 and 11–15; and Mary N. Woods, From Craft to Profession, Berkeley: University of California Press, 1999, 1–8. It is important to distinguish the analysis of the practice of architecture, which is outward looking and pays special attention to the social and economic status of architects as professionals, from the analysis of architecture as a discipline, which focuses upon inward-looking understandings of “the body of knowledge and skill that cannot be reduced to the constructs of other fields”. See Hyungmin Pai, The Portfolio and the Diagram: Architecture, Discourse, and Modernity in America, Cambridge, MA: MIT Press, 2002, 4.4 See generally Barrington Kaye, The Development of the Architectural Profession in Britain, London: Allen & Unwin, 1960; Frank Jenkins, Architect and Patron, London: Oxford, 1960, 80–159.5 John Soane, Plans, Elevations, and Sections of Buildings, London: I. Taylor, 1788, 7. Although Soane does not use the term “fiduciary”, his description of the architect’s professional role closely matches this emerging legal concept, which was being applied to trustees and directors of private estates and corporations, and to doctors and lawyers.6 Jenkins, Architect and Patron, 146–151; Kaye, The Development of the Architectural Profession in Britain, 59–60. Soane’s views on the maximum fee were not shared by many of his colleagues, who were charging up to 7.5 per cent; Jenkins, Architect and Patron, 150–151.7 Latrobe’s role in the introduction of Soane’s conception of professionalism to the United States is well described in Woods, From Craft to Profession, 15–26. On parallels and differences in the development of professionalism between the two countries, see Elliott Krause, Death of the Guilds: Professions, States, and the Advance of Capitalism, 1930 to the Present, New Haven, CT: Yale University Press, 1996, 30–31 and 80–81. Krause, in his cross-cultural studies of the professions of medicine, law, engineering, and academia, contrasts the Anglo-American conception of the professional as an independent actor in the marketplace to the professional’s closer relationship to the state, more akin to that of a civil servant, which has prevailed in France and Germany. He argues further that, starting in the mid-1960s, capitalist market forces and federal government policies have significantly undermined professional autonomy within the United States; Krause, Death of the Guilds, 32–36. This broad observation is entirely consistent with the argument of this paper.8 Charles Woodward, “Professional Practice”, in J. A. Gotsch (ed.), The Growth and Work of the Royal Institute of British Architects, London: Simson & Co., 1934, 118; Jenkins, Architect and Patron, 214.9 Woods, From Craft to Profession, 37. In the well-publicised 1861 case of Hunt v. Parmely, Richard Morris Hunt had successfully sued a client for the portion of his 5 per cent fee that was due for a design that the client subsequently discarded. The decision is reprinted in its entirety in Leland Roth (ed.), America Builds, New York: Harper & Row, 1983, 216–231.10 Henry H. Saylor, The A.I.A.’s First Hundred Years, Washington, DC: American Institute of Architects, 1957, 60; Woodward, “Professional Practice”, 119.11 Woods, From Craft to Profession, 46. Even greater anxiety about the architect’s class status erupted in the British debate over government registration during the 1890s. See Andrew Saint, The Image of the Architect, New Haven, CT: Yale University Press, 1983, 64–71, and the collection of essays in R. Norman Shaw and T. G. Jackson (eds), Architecture: A Profession or an Art? London: John Murray, 1892.12 See the text and notes below on Larson’s formulation of the “professional project”. For an overview of this process with respect to the AIA, see Jay Wickersham, “Learning from Burnham: The Origins of Modern Architectural Practice”, Harvard Design Magazine, no. 32, (Spring/Summer 2010), 18–27. The greater willingness of the American profession to accept governmental regulation, compared with their British counterparts, bears out Krause’s distinction between American and British conceptions of professionalism.13 Woodward, “Professional Practice”, 125.14 The American Medical Association, which had adopted its first Code of Medical Ethics in 1847, issued a revised document in 1903; the American Bar Association adopted its first Canons of Professional Ethics in 1908.15 AIA, “The Standards of Professional Practice” (1964; hereafter “1964 AIA Code”), Preface, section 0.1; compare with AIA, “A Circular of Advice Relative to Principles of Professional Practice and Canons of Ethics” (1909; hereafter “1909 AIA Code”), preamble: “The profession of architecture calls for men of the highest integrity, business capacity and artistic ability. The architect is entrusted with financial undertakings in which his honesty of purpose must be above suspicion; he acts as professional adviser to his client and his advice must be absolutely disinterested . . .”.16 1964 AIA Code, Standard 1.3; compare with 1909 AIA Code, Principle 8; Canon 1.17 1964 AIA Code, Standard 2.5; compare with 1909 AIA Code, Principle 9; Canon 3.18 1964 AIA Code, Standard 2.4; compare with 1909 AIA Code, Principle 8.19 1964 AIA Code, Standards 2.2, 3.8; compare with 1909 AIA Code, Principles 1, 7.20 1964 AIA Code, Standard 3.5; compare with 1909 AIA Code, Canon 12.21 For example, under the Texas Society of Architects’ “Schedule of Recommended Minimum Percentage Compensation for Basic Services” (1969), the fee for projects costing between $750,000 and $1,000,000 varied from 6 to 10 per cent, depending on the complexity of the project. Warehouses warranted the lowest fees, and custom residences the highest. My thanks to William Cannady at the Rice School of Architecture for unearthing this document. Compare with 1909 AIA Code, Principle 4; the AIA’s “Schedule of Proper Minimum Charges” (revised 1916), in A Handbook of Architectural Practice (Washington, DC: AIA Press, 1920), Appendix D, 125–126, which stated 6 per cent as the minimum fee for all projects.22 1964 AIA Code, Standards 1.4, 1.5; compare with 1909 AIA Code, Principle 12; Canon 4.23 1964 AIA Code, Standard 3.4; compare with 1909 AIA Code, Principle 11.24 1964 AIA Code, Standard 3.4; compare with 1909 AIA Code, Principle 16; Canons 10, 11.25 Talcott Parsons, “The Professions and Social Structure”, Social Forces, 17, no. 4 (May 1939), 457–467.26 Cecil D. Elliott, The American Architect from the Colonial Era to the Present, Jefferson, NC: MacFarland, 2003, 128 (for 1900); Turpin C. Bannister (ed.), The Architect at Mid-Century, New York: Reinhold, 1954, Vol. I, 453 (for 1950).27 Mardirosian v. American Institute of Architects, 474 F. Supp. 628, 634 (D.C.D.C. 1979). The AIA acted as a kind of final court of appeals on a national basis in these matters. Although there are no available statistics, one may assume that a much larger number of similar disciplinary actions were brought before state chapters of the AIA and those state licensing boards that had adopted the AIA code as legal regulations; see, for example, the Massachusetts case described below.28 Interview with Carl M. Sapers, who served at the time as legal counsel to the BSA (December 2010).29 See generally Larson, The Rise of Professionalism.30 On the Burnham firm, see Thomas Hines, Burnham of Chicago, Chicago, IL: University of Chicago Press, 1974; on SOM, see Nicholas Adams, Skidmore, Owings & Merrill: SOM since 1936, Milan: Electra Architecture, 2007.31 Bannister, The Architect at Mid-Century, 63 (for 1926 and 1950); Robert Gutman, Architectural Practice: A Critical View, New York: Princeton Architectural Press, 1988, 115, Table 1 (for 1972).32 Bannister, The Architect at Mid-Century, 34 (for 1950); Gutman, Architectural Practice, 115 and 129, Tables 1 and 9 (for 1972).33 Bannister, The Architect at Mid-Century, Table 55. The legal profession was bifurcated in a similar fashion during this period. See Krause, Death of the Guilds, 50–54; Robert Gordon, “The Legal Profession”, in Austin Sarat, Bryant Garth, and Robert A. Kagan (eds), Looking Back at Law’s Century, Ithaca, NY: Cornell University Press, 2002, 303–318.34 Gutman, Architectural Practice, 37–38.35 In 1970, there were 280,557 doctors in the US, 277,695 lawyers, and 178,334 engineers, compared with 56,284 architects; Gutman, Architectural Practice, 120, Table 5. On architecture’s relative weaknesses as a profession, due to weaker claims to objective expertise and dependence on patronage patterns, see Magali Larson, “Emblem and Exception: The Historical Definition of the Architect’s Professional Role”, in Judith Blau, Mark La Gory, and John S. Pipkin (eds), Professionals and Urban Form, Albany, NY: SUNY Press, 1983, 49–86.36 See Robert N. Mayer, The Consumer Movement, Boston, MA: Twayne, 1989, 25–33.37 For an overview of political activism within architecture schools and the profession during the 1960s, see Mary McLeod, “The End of Innocence: From Political Activism to Postmodernism”, in Joan Ockman (ed.), Architecture School (Cambridge, MA: MIT Press, 2012), 160–170. Along with Jacobs’ well-known book, The Death and Life of Great American Cities (New York: Random House, 1961), see the seminal article by Paul Davidoff, “Advocacy and Pluralism in Planning”, Journal of the American Institute of Planners, 31, no. 4 (1965), 331–338.38 Whitney M. Young, Jr., keynote address to 1968 AIA National Convention, Portland, OR, in Linda Kiisk (ed.), 20 on 20/20 Vision: Perspectives on Diversity and Design, Boston, MA: AIA Diversity Committee and Boston Society of Architects, 2003, 44–51.39 1964 AIA Code, Preface, paragraph 0.1.40 Mark J. Green, with Beverley C. Moore, Jr. and Bruce Wasserstein, The Closed Enterprise System, New York: Grossman, 1972.41 Green et al., The Closed Enterprise System, 265.42 Green et al., The Closed Enterprise System, 268–272.43 Green et al., The Closed Enterprise System, 266, 268–269, 272–273. The AIA had similarly opposed the creation of lower-cost cooperative associations of architects starting in the 1920s. Elliott, The American Architect from the Colonial Era to the Present, 151–153.44 See American Medical Ass’n v. United States, 317 U.S. 519, 528 (1943); United States v. Nat’l Ass’n of Real Estate Boards, 339 U.S. 485, 494–496 (1950); see also Williamson v. Lee Optical Co., 348 U.S. 483, 490–491 (1955).45 Lawrence A. Sullivan and Warren S. Grimes, The Law of Antitrust, St. Paul, MN: Thomson/West, 2006, 15–16; see, for example, Brown Shoe Co. v. United States, 370 U.S. 294, 317–322 (1962).46 Robert H. Bork, The Antitrust Paradox, 2nd edn., New York: Free Press, 1993, 81–89.47 Milton Friedman, Capitalism and Freedom, Chicago, IL: University of Chicago Press, 1962, 137–160.48 See generally Bork, The Antitrust Paradox, 90–115; Richard Posner, Antitrust Law, Chicago, IL: University of Chicago Press, 2nd edn., 2001, ix, 2, 9–43. Both Bork and Posner have continued to assail egalitarian interpretations of the Sherman Act, but without acknowledging that lawsuits driven by the egalitarian viewpoint helped reshape anti-trust law in ways that the laissez-faire advocates endorse.49 Final Judgment, United States v. American Institute of Architects, Civil Action 992–72 (D.C.D.C. 1972); “The Justice Department Matter”, Journal of the AIA (July 1972), 39–43.50 421 U.S. 773.51 Goldfarb, 421 U.S. at 781–783.52 Goldfarb, 421 U.S. at 786–788.53 AIA, “The Standards of Ethical Practice” (1975), Standard 2.54 AIA, “Code of Ethics and Professional Conduct” (1977), Ethical Standards E.S. 1.1 and 1.2.55 AIA, “The Standards of Ethical Practice” (1975), commentary to Standard 7; AIA, “Code of Ethics and Professional Conduct” (1977), Rule R.404. See Gutman, Architectural Practice, 46–49.56 AIA, “The Standards of Ethical Practice” (1975), Standards 3 and 9; AIA, “Code of Ethics and Professional Conduct” (1977), Rules R.205, R.207, R.208, and R.605.57 Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).58 Bates, 433 U.S. at 371–378.59 AIA, “Code of Ethics and Professional Conduct” (1977), Ethical Standard E.S. 2.3. Architects had been heartened when, in 1972, Congress passed the Brooks Act, Public Law 92–582 (1972), codified at 40 U.S.C. § 1102. Under the new statute, designers for Federal government buildings would now be selected through a process that looked solely at their qualifications and not at price proposals. Through the Brooks Act, Congress wrote into law the long-standing measure of the architect’s fee as a flat 6 per cent of the construction cost. This law, however, applied only to government building; it had no effect upon pricing or selection procedures for private construction.60 National Society of Professional Engineers v. United States, 435 U.S. 679 (1978).61 Id., 435 U.S. at 694–695, n. 2162 Id., 435 U.S. at 692 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 n. 59 (1940)).63 Id., 435 U.S. at 695–696.64 474 F. Supp. 628 (D.C.D.C. 1979).65 Id., 474 F. Supp. at 631–636.66 Id., 474 F. Supp. at 645–651.67 “Architect Ethics Case Settled”, Engineering News Record (10 September 1981).68 “Convention Votes to Discard AIA Mandatory Code of Ethics”, AIA Journal 69, no. 7 (July 1980), 11–12; Report of the 1985 AIA Ethics Task Force.69 Before 1972, over 20 state registration boards had adopted the AIA code as part of their governmental regulations, making a violation punishable by fine or the loss of one’s licence. As Carl M. Sapers, legal counsel to NCARB, put it: “[I]f the AIA sneezed, the Registration Boards came down with pneumonia”. Sapers, “Policing the Profession” (speech delivered at NCARB Annual Meeting, July 1974), and “Point Clear Speech” (delivered to Alabama AIA Council, 27 August 1976).70 Sapers interview (December 2010).71 Sapers, “Policing the Profession” and “Point Clear Speech”; see also Walter F. Wagner, “NCARB Takes Some Important New Steps to Build—and Protect—the Profession”, Architectural Record 156, no. 2 (August 1974), 13–14.72 NCARB, “Rules of Conduct” (1977), Rule 1.1. The basic structure and content of the NCARB rules have not changed dramatically since 1977.73 Id., Rules 2.1–2.3.74 Id., Rule 2.4.75 Id., Rules 4.2 and 5.2.76 AIA, “Code of Ethics and Professional Conduct” (1987), Canons I and III; Rules 1.101, 3.102, 3.1.4, 3.201, 3.202, and 3.401. On the procedural background and substantive sources of the new ethics code, see Report of the 1985 AIA Ethics Task Force. The basic content of the AIA ethics code has persisted since 1987, although its structure has been somewhat rearranged; the principal substantive change has been the adoption of Canon VI, on sustainability, in 2006; see note 95 below.77 Id., Ethical Standard 2.2.78 Id., Ethical Standard 2.5 and Rule 2.501.79 Id., Ethical Standard 2.4.80 Final Judgment, United States v. American Institute of Architects, Civil Action 90–1567 (D.C.D.C. 1990), 55 FR 28838. As terms of the settlement, the AIA had to pay the government’s legal fees and the then-president of the Chicago chapter was barred from ever holding national office in the AIA.81 This statement remains prominently displayed on all subsequent editions of the AIA Code of Ethics, up through the present.82 The sociological studies by Judith Blau, Architects and Firms (Cambridge, MA: MIT Press, 1984), Magali Larson, Behind the Postmodern Façade (Berkeley: University of California Press, 1993), and Robert Gutman, Architectural Practice, draw upon statistics, contemporary literature, and in-depth interviews to document consistent patterns of change in firm structure and practice methods during the period 1970–1990. Gutman noted the impacts of the anti-trust lawsuits and the dismantling of the AIA ethical code. Gutman, Architectural Practice, 46–47, 75.83 Gutman, Architectural Practice, 70–77.84 See note 82, supra.85 Gutman, Architectural Practice, 6–7, 115–116, Tables 1 and 2.86 Larson, The Rise of Professionalism, 18.87 Design Intelligence, Almanac of Architecture & Design 2015, Atlanta, GA: Greenway Communications.88 The literature on this topic is admittedly thin; although much has been written about the innovative use of computers by architects such Frank Gehry and Greg Lynn, virtually nothing has been written that describes how CADD was adopted within the mainstream of the design professions and construction industry, or how this affected everyday practice. There is a contemporary overview of the adoption of computer technologies by architects during the early 1980s that supports my argument: Progressive Architecture, issue on “Computers in Architecture” (May 1984); see also Elliott, The American Architect from the Colonial Era to the Present, 167–168.89 Admittedly, even laissez-faire advocates such as Posner acknowledge that it is hard to prove that anti-trust enforcement directly leads to more innovation and lower costs. Posner, Antitrust Law, 18–22. Charles Thomsen, who served as CEO of two of the largest architectural firms in the nation between the 1970s and the 1990s, CRS and 3D/International, argues that large firms generally do not enjoy lower overhead costs, although they may be able to invest sooner in new technologies. He contends that the principal competitive advantage of large firms is their ability to respond to client needs by designing multiple large projects quickly and reliably. Thomsen interview (January 2011).90 For an overview of patterns of foreign practice by US firms in the period 1970s–1990s, see Jeffrey W. Cody, Exporting American Architecture 1870–2000, London: Routledge, 2003, 150–175.91 Building Design, “2015 World Architecture 100” (19 December 2014). It may be worth considering whether this pattern derives from commonalities in the Anglo-American conception of the professional’s role within the market economy, as identified by Krause; see note 7 supra.92 Architectural Record, “Top 300 Architecture Firms”, 202, no. 8 (August 2014).93 See note 81, supra; AIA, “Code of Ethics and Professional Conduct” (revised 2007), Ethical Standard 2.2. That same year, the AIA further expanded the architect’s duties with a set of obligations to the environment, requiring architects to use sustainable practices within their firms, and to advocate for sustainable design and development in performing their services. Id., Canon VI, and Ethical Standards 6.1, 6.2, and 6.3.94 On the retreat from political activism in architecture schools and the profession during the 1970s and 1980s, see McLeod, “The End of Innocence”, 170–201.95 Richard L. Abel, American Lawyers, New York: Oxford, 1989, 128–141; Gordon, “The Legal Profession”, 303–314.96 Deborah L. Rhode, Access to Justice, New York: Oxford, 2004, 22. Rhode’s study contains a historical background, a detailed description and analysis of contemporary forms of legal aid and pro bono services, and an agenda for reform. Nothing comparable exists for American architecture.97 See generally Rhode, Access to Justice; see also Gordon, “The Legal Profession”, 301–303, 322–325.98 Anthony Schuman, “Community Engagement”, in Joan Ockman (ed.), Architecture School (Cambridge, MA: MIT Press, 2012), 254–259; Richard W. Hayes, “Design / Build”, in Joan Ockman (ed.), Architecture School (Cambridge, MA: MIT Press, 2012), 286–290.99 Communication with Lian Chang, Director of Reearch + Information, Association of Collegiate Schools of Architecture (ACSA), 24 February 2015; data from ACSA, Community Design Directory (October 2014).100 Rhode, Access to Justice, 152–156; American Bar Association, “A Report on the Pro Bono Work of America’s Lawyers” (March 2013).101 See John Cary (ed.), The Power of Pro Bono, New York: Metropolis, 2010. Statistics are from the Public Architecture website, www.publicarchitecture.org (accessed 19 February 2015).102 Rhode, Access to Justice, 66–69; Gordon, “The Legal Profession”, 318–327.103 See, for example, Kate Stohr and Cameron Sinclair (eds), Design Like You Give a Damn, New York: Architecture for Humanity, 2006; Cynthia Smith (ed.), Design for the Other 90%, New York: Cooper-Hewitt, National Design Museum, Smithsonian Organization, 2007; Andres Lepik, Small Scale, Big Change: New Architectures of Social Engagement, New York: Museum of Modern Art, 2010, 12–22.104 Robin Pogrebin, “A Leader in Socially Conscious Architecture is Closing Amidst Financial Woes”, The New York Times, 18 January 2015, A21.