University of Tulsa College of Law
"How does an alien imposition attain legitimacy?" asks Nicholas Parrillo in Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.' Parrillo and three other historians address this question in a group of outstanding new books on the rise of American administrative law. Each book reflects the various ways in which American administrative law has been an alien imposition: filling a "hole" in the text of the Constitution that did not address administrative powers;2 changing the traditional separation of powers of legislative rule-making and judicial adjudication with individualized due process; imposing centralized bureaucracy over local self-rule; imposing the rule of experts over the populace; and imposing one party's structure over the other party's dissent.
Despite all of these challenges, administrative law evolved from alien to familiar, and from contested to accepted. These remarkable studies, with heroic depths of archival research, offer a twist on the legal positivists' core question, "What is law?" H.L.A. Hart's answer in The Concept of Law is, more or less, that law is the set of official customs and norms that people generally recognize and obey.3 How did Americans arrive at obeying the administrative law revolution? Jerry Mashaw's approach, in Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law, 4 is to uncover a century of administrative law practice and tradition that set the stage for the twentieth century. Parrillo also delves into the nineteenth century (as well as the late eighteenth and early nineteenth) to trace the shift from profit motives to salaried public service in order to build public trust in administrators' motives. Daniel Ernst, in Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940,5 and Joanna Grisinger, in The Unwieldy American State: Administrative Politics Since the New Deal,' focus on how conservative opponents of the New Deal turned from general critique to procedural reform, which ultimately improved and legitimated the New Deal state. These books help answer Philip Hamburger's question in his new book, Is Administrative Law Unlawful?' And the answer is no, thanks to American incrementalism.
Jed H. Shugerman,
The Legitimacy of Administrative Law
Tulsa Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3597