Jerry Mashaw's Creative Tension with the Field of Administrative Law
Published in "Administrative Law From the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw," ed. Nicholas R. Parrillo (Cambridge: Cambridge University Press, 2017)
35 Pages Posted: 18 Jan 2018
Date Written: January 11, 2018
This piece provides a concise critical introduction to the 45-year body of work of Jerry Mashaw, a leading skeptic of judicial power over the administrative state and a leading dissenter from the court-centered approach that dominates administrative law scholarship. In Mashaw’s view, we are not wrong in our aspiration to subject government to law, but we are wrong to think that judicial review and tightly-written congressional statutes are the best means to that end. Mashaw argues that agencies themselves, under the right conditions, can generate law from within and do it more effectively than courts or elected lawmakers can (“law” being defined as predictable norms that are followed by officials and are capable of normative evaluation and improvement and of winning public acceptance). The piece introduces a collected volume of essays by twenty-one scholars debating, extending, and critiquing Mashaw’s ideas. The piece places the volume's essays in dialogue with Mashaw’s principal works, tracing the theme of agency-generated law and related themes throughout (including the President’s potential role in fostering agency-generated law, the danger that judicial review and congressional oversight may hinder agencies from carrying out their statutory missions, and the robust historical development of governmental legality in the 19th century prior to, and unaided by, modern judicial review). Mashaw’s scholarship is a guide and a provocation for writing about administrative law and for challenging its premises and pushing its boundaries as a field.
Keywords: administrative law, administrative state, Mashaw, judicial review, presidential power, legal history
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