Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America, is a significant addition to the growing literature on the history of the administrative state. However, it also compels a rethinking of the received historiography of twentieth century American legal thought. It is to the latter contribution that I will devote this brief review.Here's a bit more:
We often tell the history of American legal thought in the first half of the twentieth century as a history of the retreat of “law” before the advance of democratic “politics.” The New Deal, accompanied by the U.S. Supreme Court’s decision to rethink its position in Lochner, represents the triumph of democratic “politics,” the displacement of law generated by a common lawyerly judiciary by law generated by legislatures and the administrative agencies they created.
Ernst’s book complicates this story considerably. If one follows the implications of his account, the story of the contest between “law” and democratic “politics” in the first half of the twentieth century is not any simple story of the retreat of “law” before the forces of democratic “politics.” It is instead a story of how “law,” by giving up its ability to check democratic “politics” on substantive grounds, instead suffused democratic “politics”—one important locus of which was the new administrative state—by becoming procedure. Through his study of politics of the early twentieth century administrative state, Ernst thus gives us rich substantive account of one important site of the changing career of “law” in relationship to democratic “politics,” of its emerging ontology as procedure.Read on here.