Creating the Administrative Constitution

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The Lost One Hundred Years of American Administrative Law

Jerry L. Mashaw

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This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Jerry Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution’s first century created an administrative constitution hardly hinted at in its formal text. This book, in the author’s words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."

Jerry L. Mashaw is Sterling Professor of Law at Yale Law School.

"Professor Mashaw has for many years been generally regarded as the premier scholar in the administrative law field. This manuscript is the capstone of a distinguished career." —Professor Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School

"In sum, Professor Mashaw has produced a volume that is a very substantial contribution to our understanding of administrative government in the United States." —Professor Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School

"Mashaw’s powerful and convincing argument about the early origins of administrative law in the first century after the American founding is the most important new historical discovery concerning American governance and statecraft since folks like Theda Skocpol and Stephen Skowronek started working to “bring the state back" into American history and social science in the 1970s and 80s.  This is an astonishingly original, professional, and exciting piece of legal-historical scholarship."—William J. Novak, author of The People's Welfare:  Law and Regulation in Nineteenth-Century America.

"Mashaw shows us that the early American republic, the antebellum polity and post-Civil War governance were shot through with national administrative discretion. A triumph of legal discovery, durable for the academy and the bench alike."—Daniel Carpenter, Harvard University

"Creating the Administrative Constitution is brilliant, eye-opening, and magisterial—essential reading for any political scientist, historian, legal scholar, or journalist who cares about the making and evolution of American government."—Robert A. Kagan, author of Adversarial Legalism: The American Way of Law

Winner of the 2013 American Bar Association's, Administrative Law Section's Annual Scholarship Award.
ISBN: 9780300172300
Publication Date: July 17, 2012
432 pages, 6 1/8 x 9 1/4
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