How American Law Adapted to the Administrative State

AuthorAlasdair Roberts
Published date01 January 2015
Date01 January 2015
Book Reviews 169
Alasdair Roberts is Jerome L.
Rappaport Professor of Law and Public
Policy at Suffolk University Law School
in Boston. His most recent book is The
End of Protest: How Free Market
Capitalism Learned to Control Dissent
(Cornell University Press, 2013).
( e Federal Trade Commission, for example, had a
mandate to limit “unfair methods of competition,”
while the Interstate Commerce Commission was
supposed to limit railroads to a “fair return” on their
assets.) And bureaucratic practices were often slipshod.
Sometimes businesses did not get notice of intended
actions or an opportunity for a hearing. Sometimes
agencies kept no records of their investigations and gave
no reasons for their decisions. Sometimes decisions
were made by the same bureaucrats who had charged
citizens with wrongdoing, or decisions were made after
private conversations of which the af‌f ected citizens
were completely unaware.  ese practices of‌f ended
commonplace notions about fairness and often made it
impossible for courts to determine whether bureaucrats
had exercised their powers appropriately.
How could the law respond to these problems? Ernst
describes three options that were debated between
1900 and 1940.  e f‌i rst was an adaptation of
German Rechtsstaat principles, according to which
bureaucratic discretion would be limited by expertly
crafted laws. Vague mandates would be replaced by
“def‌i nite rules” (13), and so the potential for abuses
would be curtailed. But it was dif‌f‌i cult to produce
precise and well-crafted rules given the anarchic and
amateur features of American legislatures, as well as
uncertainties about policy that could only be resolved
as regulators learned from experience.
Daniel R. Ernst, Tocqueville’s Nightmare:  e
Administrative State Emerges in America, 1900–
1940 (New York: Oxford University Press, 2014).
240 pp. $39.95 (cloth), ISBN: 9780199920860.
First, a caution: Tocqueville’s Nightmare is not
exactly the book you might expect. Despite
the title, it is not really an account of how the
American administrative state came to be established
in the early twentieth century. Nor does it explain
how the new administrative state changed American
life, or even how American society as a whole adapted
to this strange new phenomenon. Daniel R. Ernst’s
aim is narrower. He explains how lawyers, judges, and
legal scholars responded to the problems posed by
the growth of bureaucracy by laying the foundations
of American administrative law in the critical years
between 1900 and 1940. ( e 1946 Administrative
Procedure Act, Ernst says, merely codif‌i ed already
established best practices.) Within this more restricted
but still important terrain, Ernst tells a lively and
compelling story.
e anxieties that were provoked by the expansion of
regulatory power in the early twentieth century were
substantial and justif‌i ed. Governments were creat-
ing new commissions and asserting their right to
regulate more vigorously, but the statutory language
that granted powers to regulators was often vague.
How American Law Adapted to the Administrative State
Sonia M. Ospina and Rogan Kersh, Editors
Alasdair Roberts
Suffolk University Law School
Public Administration Review,
Vol. 75, Iss. 1, pp. 169–170. © 2014 by
The American Society for Public Administration.
DOI: 10.1111/puar.12321.

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