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Tocqueville's Nightmare: The Administrative State Emerges in America, 1900-1940

01 Jan 2014-OUP Catalogue (Oxford University Press)-
TL;DR: In the early 20th century, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom Tocqueville's nightmare has come true as discussed by the authors.
Abstract: In the 1830s, the French aristocrat Alexis de Tocqueville wrote that 'insufferable despotism' would prevail if America ever acquired a national administrative state Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmare has come true In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom Tocqueville's Nightmare, shows, to the contrary, that the nation's best corporate lawyers were among the creators of 'commission government,' that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were designed into the administrative state Far from following 'un-American' models, American statebuilders rejected the leading European scheme for constraining government, the Rechtsstaat, a state of rules Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions aggressively Soon, however, even judges realized that strict judicial review shifted to generalist courts decisions best left to experts The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a 'day in court' was unnecessary if individuals had already had a 'day in commission' where the fundamentals of due process and fair play prevailed Not only did this procedural notion of the rule of law solve the judges' puzzle of reconciling bureaucracy and freedom; it also assured lawyers that their expertise in the ways of the courts would remain valuable and professional politicians that presidents would not use administratively distributed largess as an independent source of political power
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Book
11 Jan 2018
TL;DR: Sawyer as mentioned in this paper argues that the history of American capitalism is not viewed as the unassailable ascent of large-scale corporations and free competition, but as a series of efforts to reconcile the American tradition of a well-regulated society with the legacy of Gilded Age of laissez-faire capitalism produced the modern American regulatory state.
Abstract: Rather than viewing the history of American capitalism as the unassailable ascent of large-scale corporations and free competition, American Fair Trade argues that trade associations of independent proprietors lobbied and litigated to reshape competition policy to their benefit. At the turn of the twentieth century, this widespread fair trade movement borrowed from progressive law and economics, demonstrating a persistent concern with market fairness - not only fair prices for consumers but also fair competition among businesses. Proponents of fair trade collaborated with regulators to create codes of fair competition and influenced the administrative state's public-private approach to market regulation. New Deal partnerships in planning borrowed from those efforts to manage competitive markets, yet ultimately discredited the fair trade model by mandating economy-wide trade rules that sharply reduced competition. Laura Phillips Sawyer analyzes how these efforts to reconcile the American tradition of a well-regulated society with the legacy of Gilded Age of laissez-faire capitalism produced the modern American regulatory state.

47 citations

Book
Ken I. Kersch1
28 Mar 2019
TL;DR: Kersch as discussed by the authors explores the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition.
Abstract: Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

47 citations

Book
13 Dec 2018
TL;DR: Erman's Almost Citizens as discussed by the authors describes the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898, and shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter-century.
Abstract: Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood, and toward doctrines that accommodated racist imperial governance. Erman's gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.

44 citations

Book
22 Feb 2018
TL;DR: In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice as discussed by the authors, which is referred to as a jurisprudence of style.
Abstract: In the contemporary domain of American legal thought there is a dominant way in which lawyers and judges craft their argumentative practice. More colloquially, this is a dominant conception of what it means to 'think like a lawyer'. Despite the widespread popularity of this conception, it is rarely described in detail or given a name. Justin Desautels-Stein tells the story of how and why this happened, and why it matters. Drawing upon and updating the work of Harvard Law School's first generation of critical legal studies, Desautels-Stein develops what he calls a jurisprudence of style. In doing so, he uncovers the intellectual alliance, first emerging at the end of the nineteenth century and maturing in the last third of the twentieth century, between American pragmatism and liberal legal thought. Applying the tools of legal structuralism and phenomenology to real-world cases in areas of contemporary legal debate, this book develops a practice-oriented understanding of legal thought.

35 citations