Jerry L. Mashaw · July 2010
78 GEO. WASH. L. REV. 975 (2010)
The conventional story of American administrative law dates its origin to a period 100 years after the founding. In his classic history of American law, Lawrence Friedman tells us, “[i]n hindsight, the development of administrative law seems mostly a contribution of the 20th century . . . . The creation of the Interstate Commerce Commission, in 1887, has been taken to be a kind of genesis.” According to this conventional account, the federal government woke from its laissez faire slumbers in the face of a crisis in the railroad industry. From that beginning, the modern administrative state was built in fits and starts over the next 100-plus years.
Yet, even in 1887, the notion that the federal government was inert and that laissez faire was dominant was under attack. Albert Shaw, commenting on laissez faire ideology in The Contemporary Review, said “[t]he average American has an unequalled capacity for the entertainment of legal fictions and kindred delusions. He lives in one world of theory and in another world of practice . . . .” Writing only ten years later in his book on comparative administrative law, Frank Goodnow tried to explain why the notion that America had no administrative law persisted. In Goodnow’s opinion, “[t]he general failure in England and the United States to recognize an administrative law is really due, not to the non-existence . . . of this branch of the law but rather to the well-known failure of English law writers to classify the law.”
In this Article, I want to explore the question of why early administrative law has been mostly invisible. In the course of that exploration I hope to do several things: First, I want to challenge the notion that federal administrative law was nonexistent during the first 100 years of the Republic. Second, I want to suggest a general model of the reach and functions of administrative law and compare the way that we understand that model to operate today with the way it operated in the period 1787 to 1887—roughly, the nineteenth century.
Finally, I want to argue that recognizing the shape of nineteenth- century American administrative law can help us both to better understand the system or model of administrative law that we currently observe and to motivate inquiry into parts of that system that are currently neglected. In the end, I will argue that much of our administrative law remains mostly invisible and that we would do well to bring it into the light. On this latter point, my historical and comparative account resonates with Elizabeth Magill’s call in these pages last year for administrative lawyers to pay greater attention to what she called “agency self-regulation.”
